Disparate Treatment and Equal Protection

Scalia’s concurrence in Ricci elaborated an alleged conflict between equal protection and the disparate treatment of the Civil Rights Act. I won’t call this a false conflict, exactly — as with many legal and constitutional values, there is potential tension in marginal cases. But I think Ginsburg’s response gets it right:

Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate-treatment and disparate-impact provisions. Cf. ante, at 20. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity.

Yet the Court today sets at odds the statute’s core directives.

I’ll leave a discussion about how the Court’s conservatives have used different standards of evidence to prove discriminatory intent for another post. But, in general, not only is paying attention to disparate impact consistent with enforcing civil rights and the equal protection of the law, it’s necessary. To use the old analogy, it’s silly to pretend (as the ahistorical formalism practiced by the Court’s conservatives* demands) that a woman kept in chains and fed bread and water and a woman given a professional training regimen are in an equal position because they both start at the same line. The effects of history don’t vanish when the law changes. Legacy admissions in formerly racist colleges, for example, perpetuate white supremacy whether they are intentionally discriminatory or not, because they provide a benefit to some whites that are not available to black people. This isn’t to suggest that dealing with a history of discrimination is easy, of course, but there’s a reason why virtually nobody who supported civil rights contemporaneously thinks that John Roberts’ empty homilies are an adequate response.

*Of course, this applies only to assessing discrimination against African-Americans. When you’re asserting discrimination against an Italian-American firefighter, any lurid, implausible, race-bating conspiracy theory is plenty good enough.