civil rights/con law question

Samuel Bagenstos srbagenstos at
Tue Feb 20 16:47:00 PST 2007

So you think the five would say, in a case where the employer had dropped the challenged practice by the time of suit, that there's no standing a la Lyons?  I don't believe there are 5 votes to say that there's no retrospective remedy in disparate impact cases, particularly if the substantive standard for disparate impact liability is read narrowly so that it comes close to intentional discrimination.

-----Original Message-----

From:  "Rosenthal, Lawrence" <rosentha at>
Subj:  RE: civil rights/con law question
Date:  Tue Feb 20, 2007 6:32 pm
Size:  2K
To:  "Charles Sullivan" <sullivch at>
cc:  "conlawprof at" <conlawprof at>, "conlawprof-bounces at" <conlawprof-bounces at>, "Samuel Bagenstos" <srbagenstos at>

My guess is that the anti-affirmative action five would say that all races are harmed equally by employment practices that deviate from merit (e.g. are not employment related and justified by business necessity).  Those practices can be enjoined, but there is no compelling government interest in giving only some of the victims of such non-merit policies backpay or instatement, and a race-neutral remedy of enjoining future use of the policy is a narrowly tailored race-neutral remedy that eliminates the practice without granting "victim" status based on a racial classification.. 
Larry Rosenthal 
Chapman University School of Law 
From: Charles Sullivan [mailto:sullivch at] 
Sent: Tue 2/20/2007 3:48 PM 
To: Rosenthal, Lawrence 
Cc: conlawprof at; conlawprof-bounces at; Samuel Bagenstos 
Subject: RE: civil rights/con law question 
I guess I don't see how the remedy could be more narrowly tailored to the violation -- and still remedy the violation.  
Obviously, an injunction against the practice will prevent future violations -- although even here there's a question whether the court should enjoin the practice generally or only enjoin it insofar as it affects the plaintiffs before it.  
But as for past harm suffered, I don't know of any principle that would say that an employer should not be liable for backpay to a victim of the illegal conduct because not all those harmed by that conduct are compensated.  
Professor Rosenthal's response, I guess, is that the plaintiff's are black, which makes it a "racial" classification to give them relief. But they are the  plaintiffs, which makes it just giving relief to plaintiffs who proved a violation of the law, not a racial classification at all. And each of them was harmed by the policy that has been declared to be illegal.  
<<<Awarding jobs or backpay to some candidates on the basis of their race without providing similar compensation to similarly situated nonminority candidates will not be regarded as a narrowly tailored remedy because there is a race-neutral alternative -- an injunction ordering a halt to the challenged practice.  Conversely, because disparate treatment involves proof of intentional discrimination against minorities, a race-based remedy for such a violation should pass strict scrutiny.>>>> 

More information about the Conlawprof mailing list