an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The two biggest decisions involving race this Term -- indeed, of many Terms -- are Ricci and last week's decision concerning the Voting Rights Act (VRA). Although not framed in precisely this language, disparate-impact analysis plays a key role throughout all aspects of the VRA, and thus Ricci has direct implications for the VRA -- some obvious, some more speculative. For purposes of both VRA litigation and for any action Congress might take before the Supreme Court decides another case on the constitutionality of the Act, I wanted to identify those implications.
1. Disparate Impact's Role in the VRA. Section 2 of the VRA's key provision prohibits election practices that "result" in denial or abridgement of the vote on account of race. This results test is a form of disparate-impact law. Similarly, Section 5 of the VRA, at issue last week, bars covered states/cities/towns from a change in election laws that will cause a "retrogression" in fact in minority voting power. That, too, is a disparate-impact standard. Moreover, while none of the Justices before Ricci had suggested that the disparate-impact standard of Title VII was in tension with the Equal Protection Clause, Justice Kennedy (author of Ricci) has been saying that for many years in his VRA opinions. If Ricci reflects the Court's heightened concern with this issue in the employment context, it is hard to believe that concern will not be reflected in the VRA cases.
2. The minimal effect of Ricci. One of the most important elements of Ricci is how narrowly it defines what will constitute a legitimate disparate-impact case. Even when a law/policy/action has a "significant" adverse racial impact, says the Court, the mere showing of a "significant statistical disparity" is not enough to provide a "strong basis in evidence" for a disparate-impact claim -- let alone to win one. The Court indicates that much more has to be examined beyond the statistical disparity; the statutory reasons amount to an inquiry, as the Court construes them, into whether the City might nonetheless have legitimate reasons for the policy despite its impact. This is part of Ricci's direct holding. This suggests that the Court is going to be similarly more demanding in the VRA context in requiring that before a state or local law be held to violate the VRA, there must be more than just a racially adverse impact -- the Court might well start requiring disparate impact "plus," meaning some additional evidence beyond impact alone.
3. The Collision of Disparate Impact and Equal Protection. Ricci identifies a potential collision course between the Constitution and disparate-impact standards, but notes that it need not address that issue. Justice Scalia's concurrence that this question is "not an easy one" and that the Court will have to confront it eventually. The same structure of potential collision exists for the VRA. Indeed, Justice Kennedy had already said as much in several of his VRA opinions. Ricci will undoubtedly increase that tension in the VRA context. Justice Scalia's concurrence intimates the resolution (for the 5-member Ricci majority) might come through doctrine that distinguishes among the kinds of disparate impacts federal laws make illegal. Those impacts that can be said to evidence an underlying discriminatory purpose would remain illegal. The flip side, as I understand him, is that it would be unconstitutional for Congress to make disparate impacts illegal if they cannot be shown to reflect an underlying discriminatory purpose. That is, impact can be looked to, along with other contextual factors, as evidence of purpose. It can be one means to finding purpose. But impact alone cannot be a constitutional basis for making a state law/practice illegal. If this is where the Ricci decision is heading -- and that awaits the future -- I would assume the Court would be heading the same place on the VRA.
4. Congress. I have suggested here that Congress would be wise, given the Court's VRA decision, to revisit Section 5 and update it, and that in doing so, Congress should consider whether national right-to-vote laws would be more effective in coming years to protect the vote than a "tweaked" Section 5. One reason I offered is that Section 5 is inherently limited in effect in various ways -- and that those limitations are likely to grow even stronger in coming years if the Court becomes more aggressive in insisting that laws that ban disparate-impacts are constitutional only if those impacts can be shown to reflect a racially-discriminatory purpose. Ricci suggests, at the least, that the Court is going to construe statutory disparate-impact provisions more narrowly, to avoid Equal Protection issues. Thus, even a revised Section 5 would face this problem. National right-to-vote laws, however, would jump past this problem.
5. Finally, I do not mean to say that Ricci compels particular results under the VRA. And Title VII and the VRA are different statutes, in ways I can't explore here. But it would be foolish to think that the kinds of views and responses of the Court in Ricci concerning Title VII's disparate-impact standard will not find their way into the same Court's treatment of disparate-impact issues under the VRA. Posted
by Rick Pildes [link]