More Separation of Race & State: Disparate Impact – In a recent post on the Separation of Race and State I argued that the principle underlying the dissents in the voucher case, arguing for strict separation of church and state, would also require a separation of race and state. In a New York Times OpEd several days ago Jeffrey Rosen suggests another area where the logic of the Court’s church-state analysis has interesting, and so far un-sung, implications for the disparate impact component of current civil rights law.
Rosen describes and endorses the five-member majority of the current Court’s vision of neutrality, “which holds that a government program enacted for a valid secular purpose is not unconstitutional if that program incidentally benefits religious organizations.” Writing for the majority, Rosen notes with approval, “Chief Justice William Rehnquist declared that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens, the program does not violate the First Amendment’s prohibition against the establishment of religion,” even where, as in Cleveland, the preponderance of the vouchers were used in religious schools.
By contrast, programs or policies can be, and often are, held to violate civil rights law if they have a “disparate impact” on minorities even where there is no evidence of discriminatory intent or purpose. Complaints against the SAT, for example, are based on the disparate impact theory, and I suspect it won’t be long before a similar challenge to IQ tests (which will become more significant as a result of the Supremes’ recent decision banning the death penalty for the retarded) is launched from a different direction. If I may immodestly quote from my Death and Dumb post of about 10 days ago, it is now likely that “dumb white murderers who are deemed un-retarded enough to die will, relying on the extensive liberal anti-testing and anti-Bell Curve literature, argue that they are victims of discriminatory tests that . . . are more likely to find low IQ among blacks.”
If the unintended effect of aiding religious schools is not deemed to violate the principle of religious neutrality, how can policies that, without intent, disadvantage blacks more than whites (or Hispanics more than Asians, etc.) violate a standard of racial neutrality? (For my argument that the principle underlying the demand for religious neutrality should also require racial neutrality, see my recent post on the the Separation of Race and State linked above.)
For some reason consistency seems hard to come by here, whether regarding religion or race (or both). Jeffrey Rosen, for example, was persuasive when he agreed that the unintended effect of aiding religion was not sufficient to establish an Establishment violation, but several paragraphs later, in discussing the Ninth Circuit Pledge decision, he returned to a purely effects test, agreeing with a line of cases holding “that the reference to God in the Pledge of Allegiance probably does not offend the Constitution since it has such a minimal religious effect.” True, Rosen does add that “The pledge, taken as a whole, was not intended to be a coercive prayer, but was designed to promote patriotism, and as such is consistent with the neutrality principle.” But whether or not the “prayer” was intended to be “coercive,” the fact that the motive was patriotic does not negate the fact that an integral component of its intent was to endorse religion.
Perhaps we should come up with a new standard that would require both an impermissible intent AND sufficiently extensive effects in order to find either racial discrimination or an Establishment violation.
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