Disparate Impact Disputation – Garrett Moritz once again valiantly assumes the Sisyphian burden of pushing a coherent and morally compelling argument for disparate impact up the hill for our inspection. Once again it rolls back down, leaving shards of both interesting observations and wishful thinking in its wake. In the process he attributes a number of opinions to me, some of which I actually hold. (See here, here, and here for earlier salvos.)
I argued in my most recent post that, contra Moritz, disparate impact wasn’t yet dead but that a fair housing case the Supremes recently agreed to hear might put one of the final nails in its coffin. Moritz agrees that he had been “overly broad” (don’t you love how lawyers talk?) in pronouncing its death, but now he argues that “the kind of disparate impact we were talking about earlier,” i.e., “whether a statute or government policy ran afoul of the equal protection clause,” is substantially different from “the context of government regulation of what individual economic actors can do — e.g., regulation of landlords.” The former, he says, really is about dead; the latter might live (hope springs eternal) if only an activist Supreme Court would rein itself in and defer to Congress’s interpretation of the Fair Housing Act, as Moritz (presumably a believer in judicial restraint, at least when conservative courts must judge liberal legislation) believes it should.
I suspect Rosenberg may feel this distinction is a cop-out — he likes to think of “discrimination law” as one single concept — but there actually is a pretty big difference between what the Constitution forbids legislatures from doing and the way Congress chooses to regulate private actors in the economy.
Well, yes … and no. First the no, or rather the no’s: it’s not so much that this distinction is a cop-out — there is a distinction between Constitutional and statutory interpretation — as that it’s overblown here. “[T]he kind of disparate impact we were talking about earlier,” after all, was precisely the sort that involved government regulation of private economic activity. Griggs v. Duke Power Co., in which the Supremes gave their blessing to disparate impact, involved the question of whether the Civil Rights Act of 1964 barred a private actor (Duke Power) from adopting, without any discriminatory intent, a racially neutral policy (requiring a high school diploma of all hires) that had a disparate impact on minorities.
Another no: what Moritz wants here is not judicial deference to Congressional action, but to Congressional inaction. Moritz writes that in an earlier case, Town of Huntington v. NAACP (1988), the Supremes held that “the question of whether disparate impact may qualify as ‘discrimination’ for purposes of the FHA should be left to Congress.” In fact, the court expressly “reserved” the issue. That is, writes Roger Clegg, general counsel of the Center for Equal Opportunity,
it raised and recognized the question but then decided not to resolve it. In that case, the Reagan administration had filed a brief urging the Court to rule against the “disparate impact” approach. The first Bush administration continued this policy, but the Clinton administration reversed it
It is thus entirely proper for the Court to revisit this issue. Moreover, even if Moritz’s and not Clegg’s view of Town of Huntington were correct, what Moritz is arguing here is that the current Court should regard the failure of subsequent Congresses to reverse it by legislation (which it can do when it believes the Court has misinterpreted a statute) is a reliable indicator of Congressional intent in the original fair housing legislation and should be regarded as binding.
It is hard enough to interpret what Congress actually does, much less what it doesn’t do, but pursuing this controversial theory of “legislative acquiescence” here would take us too far afield. One of the many problems with the theory that Congress can in effect rewrite a statute by failing to override a judicial misinterpretation is that statutes must be signed by the president to become law. How can a president veto Congressional inaction of which he disapproves? I don’t have access to Lexis or Westlaw (anyone want to give me a free subscription? I’d settle for cheap), but as I recall a search on this topic would turn up many references to the theory of legislative acquiescence as “a weak reed upon which to lean” and “a poor beacon to follow.”
But Moritz is right about one thing, or at least almost right. I don’t “think of ‘discrimination law’ as one single concept.” Constitutional and statutory standards can differ, as can state and federal. But I do believe that in order to be coherent discrimination law, of whatever variety, must be based on a coherent sense of what discrimination actually is. Now it is possible that I may prefer — no, insist on — coherence here because I am not a lawyer. Lawyers (and I’m sure Moritz is or will be a very good one) recognize that for better or worse Congress is not always coherent, that it may write one standard into one law and another elsewhere, and that courts must honor each and all unless they run afoul of the Constitution. Thus my argument is not that discrimination law is coherent, but that it should be. It is worse than awkward for “discrimination” to mean one thing under the 14th Amendment and something else under the Civil Rights Act or Fair Housing Act.
Calvin Trillin once wrote that barbecue not made in Kansas City could be very good … but it wasn’t barbecue. Similarly, policies or practices that have a disparate impact may be very bad, and may even deserve to be prohibited, but they’re not discrimination. Justice Scalia notwithstanding, it may be necessary to impute an intent to Congress when it acts, but it will almost always be futile to attempt to do so when it doesn’t.
