One of the least understood concepts in law is disparate impact, and Dahlia Lithwick understands it no better than your average sophomore.
It is high time now for “too much justice.” Overturning Washington v. Davis would move the country significantly closer to racial equality. Such a reevaluation need not topple the entire legal system overnight.
High time, indeed. Washington v. Davis was a very curious decision, seeking to invalidate “Test 21” to become a District of Columbia police officer because black test takers disproportionately failed the test because it was “culturally slanted to favor whites.” At the time of the case, one of the core attacks was the validity of tests as a gauge of performance, and there was significant reason to believe that Test 21, although not created for any invidious purpose, had no particular validity in determining who would make a good cop.
But the issue in the case was whether the disparate impact analysis from Title VII, approved in Griggs v. Duke Power, should apply to an Equal Protection clause claim. The 7-2 Court held it should not, meaning that the burden was to prove invidious discrimination to prevail rather than to prove disparate impact and shift the burden to the employer to prove a sufficient non-discriminatory justification.
Disparate impact, as a legal concept, is an evidentiary rebuttable presumption. Since proof of discriminatory intent is hard, if not impossible, to prove, the Griggs Court held that if a facially neutral act resulted in a disparate racial impact, one that affected black people disproportionately to white people, it was then presumed discriminatory, and the evidentiary burden of coming forward with evidence to show its job-relatedness as justification shifted to the defendant. It was not only limited to cases brought under Title VII, but further limited to race. This removed a huge hurdle to addressing racial discrimination in employment, evidence of invidious discriminatory intent almost always impossible to prove.
But in Washington v. Davis, the Supreme Court refused to extend disparate impact beyond Title VII to all claims of racial discrimination under the Equal Protection Clause. That’s what Lithwick contends perpetuates “systemic racism.”
But discriminatory intent is virtually impossible to prove. Who openly admits they are racist? This nearly insurmountable bar means that laws that treat Black people worse than white people (for example, laws requiring exponentially harsher sentences for crack possession than for cocaine use) remain tolerated throughout society.
As Osagie K. Obasogie noted in the New York Times, the result of this decision was the perpetuation of systemic racial discrimination and the ascendance of “what is now known as the ‘intent doctrine,’ which emerged in later cases as a simplistic search for a smoking gun—individual bad actors intentionally doing bad things with nothing but racial animus on their minds.”
There’s a subtle, but significant shift buried in there. It went from employment discrimination to all government acts, including those like the sentence for crack as opposed to powdered cocaine, and the ubiquitous weed argument.
The result is a kind of cyclical trap. Requiring evidence of racist intent means that many laws that harm minorities, either by design or as a result of vestigial racial bias, nevertheless survive constitutional scrutiny. Those laws in turn perpetuate racial disparities and weaken minorities’ political power, while the people who make laws have no incentive to upend the order they have created. For example, an April statistical analysis in Iowa revealed that 7.3 times more Black people in that state and 3.64 times more Black people nationally were arrested for marijuana possession than white people, even though both groups use the substance to approximately the same extent.
The argument, from a disparate impact perspective, seems pretty darn strong. If white and black people smoke weed at “approximately the same extent,” why are black people arrested at such higher frequency. What the argument tacitly fails to mention is that the people arrested (for the most part) possessed marijuana, so it’s not as if they were innocent of the crime. Whether it should be a crime is a different question.
It also neglected to ask (or to “interrogate,” the fashionable word for “ask” since it’s longer and sounds more serious) why this happens. The answers are fairly clear and well known, that police deployment in black communities is far greater than white communities, that the cultural methods of buying grass on street corner in the open and smoking it on the street differ from whites, who tend to buy in secret and use it in private. This may be the product of racial culture, or poverty, but it’s how it happens, making it far easier for cops to observe and arrest a black person.
As for crack, the genesis of the disparate sentences was dumb and wrong, but similarly clear at the time. Crack exploded on the scene and generated an immediate myth of super-powers, somewhat akin to fentanyl v. heroin today. It was nonsense, but everybody believed it at the time, and so the sentence guidelines were written to make crack 100 times worse than powdered cocaine.
Later, the argument shifted to crack being favored by black people, whereas coke was the white person’s Studio 54 drug. Of course, in the beginning, the black community hated crack far worse than the white community because of the destruction it posed to their neighborhoods. Nobody wanted their kids waking up to dead bodies in the streets from the night before, and there were plenty.
Yet, Lithwick calls for the extension of disparate impact beyond employment to all government action.
Such a reevaluation need not topple the entire legal system overnight. The court could, for example, find that a disparate impact creates a presumption of illegality that the government has to ultimately rebut by satisfying strict scrutiny. The government, after all, has in its possession the evidence explaining its actions. And if the government cannot respond, or gives a pretextual response, minority plaintiffs should prevail.
If you’re against the War on Drugs, you’re probably thinking to yourself, “I’m not seeing a problem here.” But consider crimes of violence, murder for example, which have the same disparate impact. Or the banal offense of speeding, same deal. Would we want black people to get their first murder free, or maybe allow black people to drive 20 miles over the speed limit before they could be stopped, whereas white people are constrained to drive in accordance with it?
The underlying assumption that Lithwick omits from her special pleading is that crimes, like employment, should produce the same racial ratios, and if they don’t, racial discrimination must be presumed (although she adds, surreptitiously, that it can only be rebutted by evidence that survives strict scrutiny. That’s not the test under Griggs). So there can only be two remedies if she’s right: eliminate the crime or give black people special dispensation for committing it to compensate for the disparate impact. It might be fine with drugs, but murders or muggings?