Friday, September 17, 2021

Courts may consider disparate impact analysis


In the Supreme Court of the United States, justices ruled 5-4 that disparate impact claims are cognizable under the Fair Housing Act. Disparate impact analysis is often used by plaintiffs to support claims of racial discrimination.

Voxitatis photo: US Supreme Court, Washington DC

In the case known as Texas Department of Housing and Community Affairs v Inclusive Communities Project Inc, which the court heard on appeal from the Fifth Circuit, Justice Anthony Kennedy delivered the majority opinion. “Much progress remains to be made in our nation’s continuing struggle against racial isolation,” the court wrote. “The court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society.”

The gist of the ruling is that it’s constitutionally sound for courts to apply disparate impact analysis when considering claims of racial discrimination. Disparate impact theory is often invoked when analyzing a government law or regulation that is neutral with regard to race on its face but in practice affects members of certain races worse than others. The Supreme Court said on June 25 that kind of analysis doesn’t violate the 14th Amendment’s Equal Protection clause.

If the court had ruled that the use of disparate impact should be eliminated, the Office of Civil Rights at the US Department of Education, among other offices within the government, would have been forced to focus on actual, provable or intentional discrimination. Many claims of discrimination before the OCR are based on statistics, and while the court in no way prejudiced any case now pending in the OCR, the ruling does allow the OCR to continue using those statistics in a way it finds appropriate in each individual case.

For example, New York’s use of a standardized test known as the Academic Literacy Skills Test has come under fire since it was first administered a few years ago. White teachers—the test is used for teacher certification—pass at much higher rates than black teachers, it turns out. There’s nothing racially biased about the test itself, which can be viewed here as an extension of a race-neutral government policy or regulation. But, because of the statistical differences in passage rates between races, the test may have a disparate impact, or a racially disproportionate outcome, by denying more blacks a teaching certificate than whites.

After this decision, which says disparate impact analysis may be used as appropriate in investigating claims of racial discrimination, New York may have to abandon the ALST. But the court’s decision here gives hope to groups and individuals who oppose school closings in that their Title VI-based argument against closing schools is that doing so would have a disparate impact on low-income children of color. Keep up the good fight.

For a more complete discussion of this decision, please visit the SCOTUS blog, here.

Dissenting opinions

It has been known for some time that Chief Justice John G Roberts Jr was looking for a case to poke holes in disparate impact analysis, which all nine US Courts of Appeal have supported. This case seemed to fit the bill, writes Linda Greenhouse in the New York Times. She says, however, that despite the court’s yearning to “cut the heart out of still another civil rights statute,” justices might want to think twice before actually doing it, given the rise in racial tensions these past few months.

I stand with the majority in this case and fully believe in using disparate impact analysis to discuss or adjudicate racial discrimination cases. What often happens, though, when our schools plot alternatives to policies or procedures that produce a disparate impact on racial or socioeconomic minorities, is that their solutions end up making things worse.

But that’s not the fault of disparate impact analysis, which I think is sound. Rather, it’s the fault of other laws that were crafted in a world where disparate impact was a foregone conclusion.

Minority students in our cities, those who aren’t perhaps as literate as their white counterparts in more affluent suburbs, need help. So our government created a law that requires proof they need help, and the proof comes in the form of a standardized test. Then, that test has a disparate impact on black students. Next, thanks to vicious chains of laws and funding regulations that only start with the OCR throwing out a test because it’s racially biased, schools that serve black students get less money, which provides only teachers and programs of substandard quality, which makes things worse for those students, not better.

If governments need a test to prove a need every teacher plainly knows exists—and these days, it seems they do—then requiring a test that doesn’t have a disparate impact on racial or low-income minorities could, and often does, eventually lead to schools that serve predominantly black students getting less money.

Or, as Justice Samuel A Alito Jr wrote in dissent, “today’s decision will have unfortunate consequences for local government, private enterprise and those living in poverty. Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.”


Ditto for schools: Something has gone badly awry when a state or school system can’t provide a high-quality education for low-income children of color without fear of causing a disparate impact. But even then, other laws move them in the wrong direction.

The majority addressed this dissent, noting that a claim of disparate impact is only the beginning of any challenge to a law or policy. People still have to show the policy actually causes the disparate impact, or that there’s a “causal connection” between the policy and the effect. Statistics alone aren’t going to make the case—they never sufficed in claims under the law—and the majority opinion was very adamant about that. That has always been how civil rights laws have been interpreted, and we’re happy the court kept alive the concept that discrimination doesn’t have to be intentional to be illegal.

Although it would still be a valid defense against a disparate impact claim to show that a policy is being implemented for a legitimate business reason or that there’s no feasible alternative that’s less discriminatory, we think allowing appropriate investigations of the “effects” certain policies have on our racial trajectory is the right thing to do. If the decision had gone the other way, plaintiffs would need to prove “intentional” discrimination, which can be hard to do. Some policies are bad for other reasons, just not because they were written with the intent to discriminate; any tool we can use to get rid of them is a step in the right direction.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.


  1. Correction to publication date:

    A stub for this article was entered into our system on June 22, and I forgot to change the date to “immediately” when I hit the “Publish” button. As a result, the article says it was posted on June 22, which is three days before the Supreme Court handed down the decision. Sorry about that. I can change the publication date, but that would also change the URL, and several people had already read the article (and may have posted links to it) before I noticed the date problem.

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