Thursday, July 2, 2009

Ricci, Scalia, Equal Protection and the Future of Disparate Impact

Earlier this week, the Supreme Court issued its opinion in Ricci v. DeStefano, the case in which white New Haven firefighters alleged "reverse discrimination." I covered the Ricci majority opinion on Tuesday. Today I will address Scalia's concurring opinion.

Scalia agreed with the majority opinion "in full" but wrote separately to opine on an issue left unresolved by the majority, the Constitution's equal protection mandate. After the majority decided that the City lost under the Court's Title VII analysis, there was no reason to address the equal protection issue. The Court avoids Constitutional issues whenever possible as they did here.

The Conflict
Justice Scalia framed the unresolved Constitutional question as:
"Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?"
The underlying inherent conflict is similar to that presented by competing provisions of Title VII: If equal treatment yields different outcomes, requiring an equal outcome necessitates unequal treatment.

The Opinion
Scalia all but tells us the disparate impact provisions of Title VII violate the equal protection clause calling them "a racial thumb on the scales." He writes that policies designed to produce equal results are no different from an absolute quota, "Intentional discrimination is still occurring, just one step up the chain."And he reminds us, "The Government must treat citizens as individuals, not as simply components of a racial, religious, sexual, or national class." (quoting Miller v. Johnson, 515 U.S. 900 (1995)).

Scalia ends, however, by offering an olive branch. Perhaps disparate impact can be used as an evidentiary tool to "smoke out" discriminatory treatment. He then closes with the line:
"But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them."
Thus concludes Scalia's brief (3-page) but extremely important opinion.

What it Means
I once took a seminar course from Justice Scalia and I can assure you he is a crafty guy who uses his opinions to plant seeds for future cases. This opinion was written for a reason and it's not just that Scalia loves to tell us his thoughts on the Constitution (though I can assure you he does!). I cannot read his mind but I have a few thoughts on why he may have issued this opinion.

First, I think he's telling one of the other Justices (if I had to guess, Kennedy), "you can't run forever!" I suspect there were a few votes to knock down disparate impact as unconstitutional but the Title VII-based decision allowed the more tentative Justice(s) to duck the issue... for now.

Second, I think Scalia's planting the seed in the public's mind. When that "evil day" comes, get ready for disparate impact to drop. Start preparing from the day they grant certiorari.

Finally, I think it's a warning to Congress. As my previous Ricci post explained, the majority took a middle of the road approach. Employers can still engage in disparate treatment in order to obtain equal results... but only where there is a "strong basis in evidence" that the employer faces disparate impact liability.

In the field of employment law, Congress has repeatedly denounced Supreme Court decisions by enacting legislation to essentially "reverse" the Court. Recent examples include the Ledbetter Act and the ADA Amendments Act of 2008. I think Scalia is trying to say (I emphasize that this is my take and not his words):
"Look, we compromised and let disparate impact prevail in very limited circumstances. If you try to cram this down our throats by enacting legislation to expand those circumstances... we still have the nuclear option: the equal protection clause. Once the disparate impact provision is ruled unconstitutional, the game's over. You can't legislate around that."
Maybe I'm reading too much into it. Maybe he just meant to say, "boy, I guess we're gonna have to do that equal protection analysis someday." I think, however, there's more to his opinion than that.