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Title VII, The SCOTUS, Judicial Activism and "Disparate Impact"

Ian Millhiser writes:

One of the centerpieces of federal civil rights law is the ban on disparate impact discrimination. In 1964, Congress passed a law forbidding race discrimination in hiring, but it soon became very clear that racist employers rarely leave a paper trial proving that a job applicant was turned down because of their race. The ban on disparate impact discrimination was a response to this reality, intended to “smoke[] out hidden bigotry” by forcing employers to justify practices that have an adverse impact on minorities. . . . In 1989, the Supreme Court in Wards Cove Packing v. Antonio significantly weakened the ban on disparate impact discrimination. Congress responded almost immediately by overturning Wards Cove with the Civil Rights Act of 1991. Right-wing justices tried their best to roll back civil rights law, but they were rebuffed by elected representatives.

Since Wards Cove, Congress has gotten much more progressive, but the Supreme Court has lurched to the right. In other words, the time is ripe for another conflict between Congress and the Court regarding whether civil rights law can continue to smoke out clandestine bigotry in hiring. . . .

(Emphasis supplied) And the brazen, judicially activist, extreme conservative wing of the Roberts Court are just the white men to do it - to overturn the wishes of the People as expressed through the elected branches of government - the Legislative and Executive Branch. The White Man's Burden must be lifted . . .

Speaking for me only

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  • Display: Sort:
    Hang on a sec (5.00 / 0) (#4)
    by Steve M on Mon Jun 08, 2009 at 04:46:54 PM EST
    Does it even matter whether "disparate impact" discrimination is given a broad or narrow reading?  Is it even material in the context of this case?

    The issue, after all, is not whether the black firefighters would have had a viable disparate impact claim if the test had not been thrown out.  Maybe they would, maybe they won't, I don't know that the record permits anyone to make that determination.

    The issue, correct me if I'm wrong, is whether the city's MOTIVATION in throwing out the test results was to avoid the prospect of a disparate impact lawsuit.  If that was their genuine motivation, it makes no difference whether the lawsuit ultimately would have prevailed or not - they can't be charged with purposeful discrimination because they had a legitimate motivation.

    Maybe I need to study up some more on this case but it seems to me that the hypothetical disparate impact claim is simply not before the Court.

    I think you are correct (none / 0) (#11)
    by Big Tent Democrat on Mon Jun 08, 2009 at 06:50:14 PM EST
    We'll see what happens.

    Parent
    I am sympathetic (none / 0) (#13)
    by Steve M on Mon Jun 08, 2009 at 06:58:15 PM EST
    to the suggestion that the question of motivation is not really appropriate for a 12(b)(6) motion.  That seems so evident that you almost assume, for a majority of the Second Circuit to uphold the district court, there has to be something more complicated to it.

    But for the Supreme Court to reverse and remand on the theory that the plaintiff was entitled to discovery regarding the issue of motive wouldn't be a particularly controversial result in my view, nor an activist one.  Courts disagree all the time about whether a given claim gets to proceed to the next stage.  It's only if they issue a ruling along the lines you're suggesting - redefining the meaning of the civil rights laws as enacted by Congress - that we truly have an outrage.

    Parent

    You should read Robert's questioning (none / 0) (#12)
    by Dan the Man on Mon Jun 08, 2009 at 06:57:55 PM EST
    at oral arguments on this.  He claims strict scrutiny is required because the decision to throw out the tests was "race conscious" - even though prohibiting "disparate impact" discrimination makes no classfications based on race -  because it was trying to help blacks and hispanics.

    This is ridiculous of course.  Under this conception of "race conscious", even the 15th amendment's ban on racial discrimation in voting is "race conscious" because it was obviously done to help black people, not white people.

    Parent

    disparate impact and Asians (3.00 / 2) (#15)
    by diogenes on Mon Jun 08, 2009 at 09:45:02 PM EST
    Are you saying that if whites have disparate impact in getting into Ivy League schools (which they do due to the success of Asians) that there should be some of affirmative action for whites?  Funny how no one talks of disparate impact of being poor--since most beneficiaries of affirmative action at the university level are upper class American blacks or West Indian immigrants and most people who are REALLY underrepresented are poor whites.  
    I guess the NBA is unconstitutional too, since there is a disparate impact on whites who want to play.

    In your opinion, will the Supreme Court (none / 0) (#1)
    by oculus on Mon Jun 08, 2009 at 04:31:54 PM EST
    be thumbing its nose at Congress and the President if it sends Ricci back for trial?

    Let's read the opinion and see (none / 0) (#2)
    by Big Tent Democrat on Mon Jun 08, 2009 at 04:33:20 PM EST
    If they ignore the Civil Rights Act of 1991, then yes.

    Parent
    I wonder (none / 0) (#3)
    by Capt Howdy on Mon Jun 08, 2009 at 04:45:21 PM EST
    if all this pregame attention will effect the decision.

    Parent
    Of course not. We are dealing with (5.00 / 1) (#5)
    by oculus on Mon Jun 08, 2009 at 04:47:40 PM EST
    "original intent" and "strict construction" here.  How could you even voice such a concern?

    Parent
    Here's a softball... (none / 0) (#7)
    by bocajeff on Mon Jun 08, 2009 at 06:14:55 PM EST
    How can Justice Thomas be one of the 'white' men to rule on this? Are you saying that he's an "uncle Tom"?

    I predict 4 justices will say prohibiting (none / 0) (#9)
    by Dan the Man on Mon Jun 08, 2009 at 06:42:59 PM EST
    "disparate impact" discrimination is unconstitutional.  In other words, they will say the Civil Rights Act of 1991 and the Griggs ruling is unconstitutional.  Kennedy will probably weasel on this question.

    It's about personal expense accounts, (none / 0) (#14)
    by andgarden on Mon Jun 08, 2009 at 08:56:31 PM EST
    not marriage equality.

    Temporary setback, anyway.