The lingering constitutional problem with disparate impact

June 25, 2015 | By WENCONG FA

Today the Court held that disparate impact claims are cognizable under the Fair Housing Act (our earlier blog post on the case is here). The Court came to this conclusion as a matter of statutory interpretation, but didn’t say much about the constitutional problems that might arise in a disparate impact lawsuit. Like the antagonist in the early part of a horror movie, those problems continue to lurk in the background.

Compare these two sentences from today’s opinion:

1. “If additional [remedial] measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means.”

2. “Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions.”

If you showed me those two sentences yesterday, I would have guessed (without the benefit of reading the decision) that they were plucked from separate opinions. The Court says racial targets raise “difficult constitutional questions.” It also mentions “targets” and “quotas” differently, which makes sense given that quotas are mandates to reach a fixed number (you must hire 30 people of a certain race) whereas the word “target” connotes a desire to reach a targeted range (you should hire more people of a certain race).

But that difference makes the Court’s desire to “eliminate racial disparities through race-neutral means” quite puzzling. After all, doing so is getting at a racial target: a racially balanced community or workforce. And, according to some courts (and now the Supreme Court), these targets raise the same constitutional problems as racial quotas. Thus, while the Court endorses using disparate impact to eliminate racial disparities, it is still concerned with the constitutional problems that may arise from doing so. This is a lingering problem with disparate impact, and one that PLF hopes to tackle in a future case.