Question about Alexander v. Sandoval

[Volokh, Eugene]

        I'm a little puzzled here:  Certainly nonwhites have benefited
tremendously from the rule that the government -- and private entities
covered by Title VI -- may not intentionally discriminate based on race.
They continue to benefit from such a rule.  Lawsuits under Title VI alleging
intentional discrimination may be rarer today than in the past, but that's
in part precisely because the law exists, and leads people to comply with it
even without the need to file a lawsuit.  (Of course, also some entities
might not comply with the law, and might try to hide their noncompliance,
but in such situations litigants can and do file suit under Title VI.)

        So the rule that remains after Alexander v. Sandoval -- intentional
discrimination violates Title VI -- is still tremendously valuable to
nonwhites; in fact, if one thinks that in the absence of such a rule,
discrimination against nonwhites would probably still exceed discrimination
against whites, this rule is therefore more valuable to nonwhites than to
whites.

        Note also that as to the Fourteenth Amendment, it wasn't just the
conservatives but rather an essentially unanimous Supreme Court that
interpreted it in Washington v. Davis to cover only intentional
discrimination.

        However, I agree that it is no coincidence that the conservative
majority on the Supreme Court interprets Title VI and the 14th Am as
authorizing lawsuits based on intentional discrimination against whites
(lawsuits that further a "conservative policy preference") and not as
authorizing disparate impact lawsuits (which might be said, especially as to
Title VI, to further a "liberal policy preference").  But that's just
because this is tantamount to saying that Justices with a set of legal
beliefs that are seen as "conservative" (intentional discrimination is
presumptively impermissible, whether it's against whites or nonwhites, while
disparate impact claims are not presumptively impermissible) will endorse
legal theories that fit those legal beliefs but will reject legal theories
that run counter to those beliefs.  That seems to me to be more a tautology
than legal realism as such.

        Eugene

> -----Original Message-----
> From: Howard Gillman [SMTP:gillman at RCF-FS.USC.EDU]
> Sent: Wednesday, April 25, 2001 2:46 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Question about Alexander v. Sandoval
>
> Thanks, Eugene.  I think I understand the legal analysis, but that's a
> helpful summary anyway.
>
> I was asking because my sense is that these days racial minorities mostly
> raise challenges based on disparate impact because it is rare that
> modern-day decision-makers leave evidence of intentional discrimination
> against racial minorities.  The most obvious example of "intentional
> discrimination" is (I think) affirmative action (accepting at face value
> the conservatives' belief that all race-conscious policy-making should be
> considered "discrimination").
>
> While I understand that the Court majority said that "both whites and
> non-whites Title VI to challenge intentional discrimination" I was
> wondering about the "disparate impact" of this facially neutral rule.
>
> Obviously, there is an echo of the "legal realism" thread in this
> question.  I know that law professors are inclined to react to these
> decisions by arguing endlessly about the coherence of the legal arguments
> (and I don't disagree with that practice).  But it is also not a
> coincidence that this conservative majority (along with Eugene) just
> happens to interpret both the 14th amendment and Title VI in ways that
> leave the doors of federal courts open to whites who challenge affirmative
> action (pursuing more conservative policy preferences) but close those
> doors to the most typical sorts of lawsuits brought by minority litigants
> (pursuing more liberal policy preferences).
>
> Howard Gillman
> USC Political Science
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