civil rights/con law question

Rosenthal, Lawrence rosentha at
Tue Feb 20 17:56:55 PST 2007

A plausible reading of the plurality opinion in Croson is that absent a constitutional violation by a unit of government (e.g. intentional discrimination), the narrowly tailored remedy for a discriminatory practice is to end the practice, rather than creating preferential access to a government benefit on the basis of race.  Now that Adarand applies this concept to racial classifications created by federal statute, I suspect that Title VII will be read to forbid race-conscious remedies on the theory that there is no compelling government interest in remedying "mere" disparate impact violations, and that for such violations, a race-neutral alternative in the form of prospective relief is available and is the narrowly tailored remedy for such violations.  I suspect that this reading will be gain the support of a majority.  In addition to the three justices that Professor Hewnderson mentions, let us not forget the Chief Justice, who only last Term wrote:  "It is a sordid business, this divvying us up by race."  True, he was talking about the Voting Rights Act and not Title VII, but it bespeaks a certain mindset.  So, as usual, it all comes down to Justice Kennedy, but so far, he has never voted to sustain race-conscious relief.
Larry Rosenthal
Chapman University School of Law


From: Lynne Henderson [mailto:hendersl at]
Sent: Tue 2/20/2007 5:12 PM
To: Samuel Bagenstos
Cc: Rosenthal, Lawrence; Charles Sullivan; Con Law Prof list
Subject: Re: civil rights/con law question

*Crosson* and *Adarand* *do not* preclude retroactive remedies. 
Justice Scalia (and probably Thomas and Alito)would confine it to
identified victims of discrimination), but no one else has yet in the
  I think also Prof. rosenthal is overlooking that "subjective" merit
standards have long been recognized by the USSCt under Title VII.  cf.
*Price Waterhouse v. Hopkins,*, *Meritor*,  and I forget the actual
case adopting subjective standards as actionable.
Lynne Henderson
On Feb 20, 2007, at 4:47 PM, Samuel Bagenstos wrote:

> 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