While support for racial preferences is declining across all demographics, disparate-impact theory continues to grow. Attorney General Eric Holder recently reaffirmed the Obama Administration’s commitment to the doctrine when speaking at Morgan State University. If Americans are staunchly opposed to racial preferences, why does belief in disparate-impact theory continue unabated? A recent article in Slate may shed some light on the misconceptions that led to the growth of the doctrine.
According to the article, disparate-impact theory is necessary to eliminate covert racial discrimination, e.g., apparently race-neutral actions that are cleverly designed to discriminate. For example, the article noted that Southern states during the Jim Crow era passed literacy requirements, poll taxes, and felon disenfranchisement laws in an effort to restrict African-Americans’ ability to vote. Those historical examples of covert discrimination are accurate, but the article is wrong that disparate-impact theory is needed for ending these and similar practices.
Covert racial discrimination – such as literacy tests – is also prohibited by the Constitution’s Equal Protection Clause. This Clause prohibits the government from intentionally discriminating on the basis of race, whether covertly or overtly. After all, courts struck down literacy requirements under equal protection long before disparate-impact theory existed. In cases striking down laws that restricted voting, the Supreme Court made clear that these laws violated equal protection because there was enough evidence that the legislature intended for these laws to burden African-Americans’ ability to vote.
The difference between equal protection and disparate-impact theory is not that one prohibits overt discrimination and the other prohibits covert discrimination. The difference is that equal protection prohibits governmental acts that intentionally discriminate on the basis of race, and disparate-impact theory prohibits acts that unintentionally result in racial disparities. For example, a police department hires several new officers, most of whom belong to a certain race. Despite this racial disparity, the department did not violate equal protection if it hired those officers because of their qualifications, rather than because of their race. However, the department could still be liable for disparate impact even if there is absolutely no evidence that its hiring practices were covertly designed to discriminate based on race. To avoid liability, the department would have to prove to a court’s satisfaction that its hiring practices were “necessary” and that no alternative hiring practice could produce a more racially “balanced” workforce.
No reasonable person would say that this police department is guilty of racial discrimination – a very serious accusation. But disparate-impact theory would say just that.