What a "disparate impact" Equal Protection Clause test would mean

[Greg Magarian]

     I'll take the bait on disparate impact: Prof. Volokh's "Lochnerism" concern seems overblown in this context.  Substantive due process, as construed in Lochner, had essentially unlimited reach.  It allowed courts to strike down virtually any regulation.  Current equal protection doctrine ameliorates that potential problem by limiting heightened scrutiny to suspect classifications and fundamental interests.  (The latter category might raise the stakes, but, if the fundamental interests doctrine retains any vitality at all, it's only a pale shadow of the fundamental rights doctrine of substantive due process.  In any event, I doubt the Court would accompany a move to a disparate impact equal protection approach with a revitalization of the fundamental interests doctrine.)  It's also worth remembering that the Due Process Clause forbids certain types of regulation altogether, while the Equal Protection Clause merely forbids unequal application of otherwise permissible regulations.

     On a broader plane, I don't think the structural concern about Lochnerism should torpedo every bold constitutional initiative.  What we take provisions as amorphous as the the Due Process and Equal Protection Clauses to mean necessarily reflects value judgments.  The Lochner-era Court made a bid to constitutionalize private economic interests to an extreme degree.  For a variety of reasons, many of them related to interbranch and Court-societal dialogue about national priorities, the Court retreated.  The lesson of that experience isn't that *no* interest is worth the costs of according intensive constitutional protection; it's that private economic interests weren't.  If ratcheting up protection for disadvantaged groups along disparate impact lines turned out to enlarge drastically the policymaking role of courts, that would be a reason to consider retreating from, or at least scaling back, the heightened protection.  But sitting here at square one, I think the value judgment behind such a constitutional initiative is sound, and I think there's an excellent chance that the benefits would be substantially higher and the costs substantially lower than under Lochner.

Greg Magarian
Assistant Professor of Law
Villanova University School of Law
(610) 519-7652
magarian at law.villanova.edu

>>> "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU> 06/27/00 06:43PM >>>
        Well, these are all interesting and sensible factors, but I still
get the feeling that if this approach is in fact applied to all government
action, courts will have to do a tremendous amount of very difficult
second-guessing of the "necessity" of a huge range of criminal laws, civil
tort causes of actions, executive branch policies, and the like.

        The Lochner era cases put the government to the burden of justifying
the perceived necessity of various restraints on economic liberty, and put
the judges in the position of striking down any infringements that they,
given their value systems, found "unnecessary."  But this would stretch far
further than that:  Any government decision, whether or not it involves what
constitutional law calls a property interest or a liberty interest, would be
potentially subject to judicial invalidation on the grounds that its
disparate impact on this or that group -- and as I said some disparate
impact on some group will very often be present -- is in the judge's eyes
"unnecessary."

        A judge who thinks that certain gun controls are unnecessary could
easily hold many of them unconstitutional on those grounds; a judge who
thinks economic regulations are unnecessary could do the same; a judge who
thinks that certain taxes are unnecessary could do likewise; a judge who
believes that the current social security system (which generally pays less
to blacks than to whites, since blacks on average die earlier) is
unnecessary could do the same; and the list would go on.  Can such a system
really work?

        Now I'm not sure exactly what the focus on "treating the
traditionally dis/less enfranchised with special attention" would exactly
mean; it might mean that laws that disproportionately burden whites or males
are just fine, while laws that disproportionately burden members of other
racial groups or females have to be justified under a "necessity" standard.
Given Croson and Adarand, I doubt the Court would buy that, and for that
matter note that even Brennan et al. in Bakke wouldn't say that
discrimination against whites should face *no* scrutiny.  But even if courts
adopt this overtly race- and sex-based principle, there is still a vast
range of laws that does disproportionately burden blacks, Hispanics, Asians,
women, Jews, Catholics, and other traditionally dis/less enfranchised groups
-- and if one includes the foreign born, disabled, and aged, as Prof. Binion
suggests, then the list would get even vaster.  So I'm not sure that even
completely excluding whites and males from this principle would prevent the
"disparate impacts must be justified as necessary" problem I outline above.


Gayle Binion writes:

> Okay, a little more "flesh" for the application of the negligence theory.
> I wasn't referring to "disparate impact" as the determinate standard per
> se.  Professor Volokh is right then you'd have to look at impact to the
> exclusion of all else...  I used the term "unnecessarily" because
> certainly determinations need be made as to when such disparate impacts
> are acceptable because integration is not the sole goal and imperative of
> public institutions.  And not all disparate impacts are necessarily of
> equal concern.
>
> Three considerations might be deemed to be relevant.  First, is the gov't
> the responsible party?  In the case, e.g. of capital punishment with its
> grossly disparate racial data...  I'd ask if African Americans actually
> commit such a disproportionate share of the kind of heinous murders that
> are subjectable to capital punishment as to relieve the gov't. of
> responsibility for these data.  It is a very BIG project but worth asking
> and answering and has many components temporally well before the question
> of jury bias.  (As we all know civil rights lawyers have marshaled volumes
> of data on this and have been rebuffed by most judges---including the
> Supremes who want proof of nefarious "intent.")  Similarly, one could ask
> the question about arrest/conviction/incarceration data more broadly in
> the realm of criminal law...  Several studies have demonstrated that when
> people are questioned anonymously about their criminal actions (especially
> as adolescents) the rates of enforcement (actually getting caught and/or
> getting punished) are much greater for minorities, especially Americans.
> So is this something for which public institutions need to answer?
>
> The second aspect of the approach is that the focus is on
> inclusion/integration which is somewhat different from purely a question
> of "disparate impact."  If integration/inclusion is valued then some
> "disparate impacts" serve this goal, some don't.
>
> Third, if the second point is adopted I would further suggest that there
> is a legitimate basis for treating the traditionally dis/less enfranchised
> with special attention.  This can entail sensitivity to
> "unnecessary/undue" racial/gender exclusion but I could see legitimate
> arguments for other bases (foreign born, disabled, aged) within this
> standard.  And although I disagree with the concept of "threshold" in the
> ADA, as applied by the Court, the law has the very useful notion of
> "reasonable accommodation."
>
> This isn't a fully articulated theory; it is one I alluded to in an
> article many years ago and have intended to develop further.  Then again
> if it gets the kibosh in a test run, perhaps I will rethink this.
>