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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why even the colorblind should embrace disparate impact law
On the surface, Inclusive Communities Project, which was argued today at the Supreme Court, is a statutory interpretation case. The question presented is straightforward: does the Fair Housing Act (FHA) authorize disparate impact claims? The statutory text is clearly ambiguous; the Justices spent a reasonable portion of the morning’s argument asking imponderable questions about phrases like “make unavailable” and “adversely affect.” (None of the major statutes courts understand to authorize disparate impact claims originally used the phrase “disparate impact,” which came later.) Justice Scalia in particular also vigorously pursued a (pretty strong) argument that when Congress went back and amended the statute to carve out certain exemptions from disparate impact claims under the FHA, it must have thought you can make disparate impact claims under the FHA; otherwise the exemptions make no sense. So far, so statutory.
But you don’t have to dig very deep beneath the surface of this litigation to hit constitutional bedrock. It’s right there. As Texas Solicitor General Scott Keller put it this morning: “There is a serious equal protection question lurking here.” And that’s where the real action is in this case. Texas’s statutory arguments are pretty modest and pedestrian. But its “constitutional avoidance” argument is audacious. And furthermore, it’s tailor-made to fit the peculiar combination of conservative activism and false modesty that has become a hallmark of the Roberts Court. Disparate impact, Texas urges, is constitutionally suspect under the Equal Protection Clause—not just in fair housing, but everywhere—because it requires race-conscious thinking. This is a claim articulated most fully (so far) by Justice Scalia in his brief concurrence in Ricci v. DeStefano (and before that, prefigured perfectly by Richard Primus in this article). Because of the constitutional cloud hanging over disparate impact law, Texas argues, the Court should read the FHA to disallow all disparate impact claims—and call this reading “constitutional avoidance.”
That would kill two birds with one stone. One: It ends disparate impact claims under the FHA, on statutory grounds (an outcome devoutly to be wished if you are, for instance, a mortgage lender facing potential liability for redlining or some similar practice, as the lineup of amici in this case suggests). Two: It furthers the longer-term constitutional project that I’ll discuss a bit more below, of interpreting the Equal Protection Clause to bar disparate impact claims under any statute, on the ground that what we might call “disparate impact thinking”—taking into account the racial effects of one’s actions, even when those actions are facially neutral—is constitutionally suspect. This larger project would reread the Equal Protection Clause to unravel much of the race-conscious, sex-conscious, or otherwise group-conscious statutory framework that was built in the 1960s-70s on the foundation (or so Congress thought) of the Equal Protection Clause itself. The goal here is a colorblind constitutionalism that casts constitutional suspicion even on actions that are entirely race-neutral, when they are taken for race-conscious reasons, such as to achieve racial integration in housing. It’s a breathtakingly audacious project.
It won’t work.
To be clear: I’m not saying ICP will win this case. I’m not saying disparate impact claims under the Fair Housing Act will survive. They might; it’ll be close. What I am saying is that the ultimate project of turning the Equal Protection Clause into a charter of colorblindness, prohibiting even facially neutral actions that are taken for race-conscious reasons, will fail.
If you like the colorblind treatment of individual human beings—that is, if you like making sure A is not treated differently from B because of their race—then there are plenty of things you obviously won’t like. You won’t much like affirmative action, for instance, as we usually use that term today. But you should love disparate impact law. That’s because disparate impact law requires what you advocate: it promotes race-neutral alternatives to affirmative action and other similar policies that treat A differently from B. There was a great deal of confusion on this point today at oral argument (and that is nothing new), but Solicitor General Don Verrilli correctly hit the point pretty hard. Disparate impact does not press toward quotas. Remember, disparate impact law does not mean that there is liability any time a practice has a disparate racial impact. It just means that when something does have a disparate impact, this triggers a further inquiry: is there some good business reason for the practice, or is it more likely the product of something else—biases that are hidden or unconscious, assumptions built unfairly around one group rather than another, structural forms of discrimination, etc.? Disparate impact law does not involve jiggering to get a particular numerical result—at least not in Title VII, where the law of disparate impact is the most well-developed and clear. Instead, disparate impact law requires exactly what conservative Justices say institutions must do before engaging in affirmative action: consider race-neutral alternatives—that is, policies that promote equal opportunity without ever treating A differently from B because of either person’s race.
This last point is the core of an important lecture by Reva Siegel, now published here. It is a point that I expect Justice Kennedy will be thinking about as he decides how to implement his constitutional vision in this domain. Justice Kennedy has been especially clear about the fact that race-conscious thinking, per se, is not what is verboten under the Equal Protection Clause. Indeed at times race-conscious goals are a compelling interest under that clause. (Kennedy is not the only conservative Justice to see this. Indeed I think the only Justice likely to consistently embrace the position across the board that all race-conscious action is suspect, is Justice Thomas.) But, if we have a race-conscious goal that is permissible or even compelling, such as integration or equal opportunity, it still matters what means we use to achieve it. Justice Kennedy argued in Parents Involved for the superiority of employing facially race-neutral means, rather than means that treat A differently from B on the basis of their race. This argument is the best conservative argument for disparate impact law. The remainder of this post will unpack some of these claims—and spell out what’s at stake here for the Fair Housing Act.
But first, we should take one step backward to get our bearings—and to see why this case is no ordinary statutory interpretation case.
The Fair Housing Act is a classic framework statute, a pillar of the Second Reconstruction. It extends a constitutional vision of equal opportunity into the sphere of housing by imposing requirements on many types of public and private actors (landlords, lenders, developers, etc.) whose actions shape opportunities in this sphere. But what is this statute—and this constitutional vision—really about? Is it about combatting residential segregation to achieve a more integrated set of living patterns across the United States? Or is it about banning a narrower and more specific evil, intentional disparate treatment in housing? The contours of this fight are familiar because they recur in every domain of what I call the law of equal opportunity—think of housing, education, voting, employment. In all these legal contexts, the underlying question is not how to read any specific piece of statutory text. It is about how we ought to understand an entire, more or less cohesive body of law: the modern law of equal opportunity that Congress, the Executive, and the Court built together beginning in the 1960-70s, on constitutional foundations laid in the 1860-70s.
Interestingly, all sides agree that this body of law, including the Fair Housing Act, is about “equal opportunity.” But what does that mean? For ICP, equal opportunity means that people living in impoverished, racially concentrated areas like South Dallas should actually have more of an opportunity to live in, say, Frisco or Denton or other “higher-opportunity areas throughout the Dallas Metroplex.” That’s how ICP reads the Act—and it is how liberals understand the thrust of the underlying constitutional commitment. From this perspective, it doesn’t really matter whether the forces holding people back from equal opportunity are, for instance, current intentional racial discrimination by landlords, the ossified effects of past discrimination by redlining lenders, or the hard-to-pin-down effects of well-meaning realtors who engage in racial steering, zoning codes that keep out apartments, or a state agency that tends to say “yes” when developers want to build subsidized low-income housing in already-poor areas, and “no” when those same developers have the land and are ready and willing to build some subsidized low-income units in more middle-class areas. (This particular case is about that last fact pattern.) (I say that with apologies to Justice Sotomayor, who brushed off any attempt to discuss the facts of the actual case before the Court today with a swift “We’re not talking about this case.” [oral arg, p.25])
For many conservative legal activists, equal opportunity means something else. It means freedom from intentional racial disparate treatment. From this perspective, disparate impact law, although a comparatively small part of the practice of equal opportunity law, looms large and must be cabined. Way back in 1988, the Meese Justice Department devoted a section of its bold constitutional manifesto (“The Constitution in 2000: Choices Ahead in Constitutional Interpretation,” see p.44–56) to the argument for cabining disparate impact to the statutes where it already exists, blocking it from becoming the rule in constitutional litigation—and argued that we “might even reassess” whether we should have disparate impact claims under Title VII or the Fair Housing Act. Today, with a solid if thin five-Justice majority, the conservative activists lining up as amici in this case have gotten more ambitious. They intend to score a kill here in the relatively sleepy domain of the FHA, and then move on to stalk disparate impact in other statutory domains, before ultimately moving in on Griggs itself, if their Supreme Court majority holds out long enough.
It’s true, of course, that disparate impact law is race-conscious, in the sense that it involves taking race into account. But that doesn’t tell us much. After all, disparate treatment law is race-conscious too. The conservative objection to disparate impact law is that by focusing on overall racial effects, it requires state and non-state actors to do more than simply treat similarly situated individuals the same: it requires setting up one’s facially neutral rules in a way that doesn’t have too much of an unjustified negative effect on any racial group. (The weasel words “too much” and “unjustified” reflect that we do not actually know what standard the Court would establish for resolving disparate impact claims under the FHA; the circuits disagree.) Disparate impact law, in other words, requires considering the way race interacts with features of the economic and social world, such as physical geography, wealth, credit score, and so forth.
This makes disparate impact law an especially useful tool in the context of fair housing law, where correlations between race and geography are both the target of the statute (which aims at greater racial integration and less racially segregated neighborhoods) and an easy means of escaping disparate treatment liability under the statute. Think about it for a second. Issuing subprime loans to otherwise-similar borrowers the basis of their race? That’s illegal disparate treatment; that’s easy. But issuing subprime loans, or say, no loans at all, to those buying in a black neighborhood (i.e. redlining), without regard to any individual’s race? That’s disparate impact. Without disparate impact liability, lenders (just to take one example of a key set of actors regulated by the FHA) would be free to use any methods or criteria they liked in their decisionmaking, no matter how strong the correlation with race, as long as they did not use borrowers’ race per se.
But what about on the remedy side? Doesn’t disparate impact law require, or at least give employers an incentive to use, the devices like quotas and plus-factor-style affirmative action and so on that Justices like Kennedy so disfavor? No. In fact the opposite is true. (I make this argument in much greater detail in the employment context here.) The remedies in disparate impact cases, under Title VII or under the Fair Housing Act, are facially neutral. The low-income housing that ICP’s lawsuit aims to help get built will be open to all, not limited to any race; we are a long, long way from Starrett City (a case that involved actual affirmative action-style preferences in a housing project). As to the incentives argument: As I’ve discussed elsewhere, the law of Title VII, where disparate impact is the most developed, makes it clear that quota-like approaches are not even a defense to disparate impact claims: an employer who engages in an unjustified practice with a disparate impact cannot save it through the kind of back-door affirmative action some of the Justices seem to fear. It is true, of course, that in order to avoid even the appearance of discrimination or the potential for a lawsuit, an employer under Title VII or a landlord under the FHA could choose to engage in clumsy quotas to draw in minorities. But this argument proves too much. Any employer or landlord or whoever would have even greater reason to do the same to avoid disparate treatment liability (which is much more common than disparate impact liability, and equally susceptible to the charge that avoiding it will create incentives to engage in unsavory quotas and such). If this behavior is happening—and there’s no good evidence that it is—it can’t easily be pinned on disparate impact law.
At the end of the day, it takes a bold Justice to oppose all race-conscious action by the state. I think Justice Thomas could embrace this position. On this view, a state actor trying to integrate the races is literally the same, in legal terms, as a state actor trying to segregate the races. But this is just not where one can find the conservative heart of the current court. For Justice Kennedy in particular, and I strongly suspect, for most of the others as well, segregation and integration are not quite the same. The Fair Housing Act, with its explicit integrative goals, is not the equivalent of the law upheld in Plessy. The difference in purpose matters. Certain forms of race-conscious motivation are permissible—indeed, some may be necessary. And if that is the case, then the only real question is how we want state actors to go about achieving their permissible or necessary race-conscious goals. If affirmative action and other racially-classifying approaches are not supposed to be our first-line approach, then the first thing we’ll have to do is engage in some “disparate impact thinking.”
And that is why the oral argument in today’s housing case ended up spending a surprising amount of time discussing the system for undergraduate admissions at my university, the so-called Texas Ten Percent Plan, which is becoming the paradigm case for race-conscious, facially neutral state action. This is a plan that was chosen, in important part, for the race-conscious goal of building a racially diverse freshman class. It was unambiguously race-conscious. When a court struck down UT's affirmative action program, a search began for some alternative that would achieve the same end. Texas found one, and it is facially race-neutral: admit the top students from every high school in the state. As Justice Scalia said this morning,“There's no racial thing in that. If you're in the top 10 percent of your high school class, you go to the State university . . . . . No race about it.” Justice Scalia intended this as a point of contrast with disparate impact law, but it is just the opposite. The TTPP is an elegant example, perhaps the paradigm case, of what happens when race-conscious thinking, triggered by concern about racial disparities, yields a race-neutral policy solution. Just like disparate impact law.
You can tell that a policy solution or remedy is race-neutral because its beneficiaries will not all be members of the same racial group. That's clearly true for the TTPP, which benefited poor whites across the state, some of whom have now graduated from UT even though, prior to the TTPP, not a single person from their county had ever even been admitted to the university. The same is true in disparate impact law. Indeed, in Griggs itself, as I discuss here, both black and white applicants benefited from the removal of a high school diploma requirement that turned out to be an arbitrary, unnecessary barrier. The Court held that the requirement deserved close scrutiny because of its disproportionate impact on black applicants, but once it failed that scrutiny, it appears likely that the majority of the future applicants who benefited from the change were actually white.
So it goes throughout the disparate impact canon. Far from being a zero-sum device for redistributing opportunity from one racial group to another, disparate impact law has the effect of identifying bottlenecks in the opportunity structure that have a disproportionate effect on one group, scrutinizing those bottlenecks more closely, and where they are unjustified, loosening them, not just for the plaintiffs but for everybody. Here in Texas, this is particularly important for the rural white poor, who surprisingly often find themselves the beneficiaries of disparate impact-type protections for racial minorities, in every domain of the law of equal opportunity. The liability side of disparate impact law is race-conscious, but the remedy side is as colorblind, in a way that even the most stalwart opponent of affirmative action ought to be able to embrace. Posted
by Joseph Fishkin [link]