Disparity rules

Columbia Law Review

Volumn 107, Issue 2, 2007, Pages 374-425

  Johnson, Olatunde C A ^a  

^a Columbia Law School ^*  (United States)

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EID: 33947711729     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (283)

1. See, e.g., Scholar Practitioner Program of the Devolution Initiative, W.K. Kellogg Found., Racial and Ethnic Disparities in the Era of Devolution: A Persistent Challenge to Welfare Reform 3 (2001) [hereinafter Racial and Ethnic Disparities in the Era of Devolution] (documenting that in wake of federal changes in welfare policy African Americans constitute increasing share of welfare population and spend longer periods on welfare than their white counterparts);
2. Susan T. Gooden, All Things Not Being Equal: Differences in Caseworker Support Towards Black and White Clients, Harv. J. Afr. Am. Pub. Pol'y, 1998, at 23, 23-33 (showing racially disparate treatment by caseworkers in provision of support services in study of welfare programs); see also id. at 10 (showing that most of those who left welfare did not earn living wage and that African Americans fared worse than their Hispanic and white counterparts).
3. See, e.g., Bradford C. Mank, Environmental Justice and Title VI: Making Recipient Agencies Justify Their Siting Decisions, 73 Tul. L. Rev. 787, 790 n.9 (1999) (collecting studies). But see id. at 791-92 & n.10 (citing studies finding no racial disparities and stating that all are based on census data, not on different zip codes).
4. See infra notes 131-132 and accompanying text.
5. 426 U.S. 229 (1976).
6. See, e.g., Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 Mich. L. Rev. 953, 989 (1993) ("The position implied by the discriminatory intent rule, that conscious discrimination is blameworthy but unconscious discrimination is not, is counterproductive of the ultimate goal of racial justice.");
7. Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049, 1049-50 (1978) (highlighting difficulties of achieving racial justice under rules set out by Court decisions);
8. Kenneth L. Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 50-52 (1977) (arguing that under intent requirement, facially neutral government actions that reinforce "the stigma of caste" will evade heightened review);
9. Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 321-22 (1987) (arguing that intent standard ignores fact that "a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation");
10. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1136-37 (1997) (arguing that Supreme Court's form of discriminatory purpose "is one that the sociological and psychological studies of racial bias suggest plaintiffs will rarely be able to prove");
11. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 1015 (1989) (arguing that discriminatory intent standards are sometimes useful but that Court has "mistakenly adopted the discriminatory intent standard as a comprehensive account of discrimination" while ignoring "[n]otions like subordination, stigma, and second-class citizenship"). Other commentators, while critical of the intent standard, have noted that the Supreme Court has not applied it consistently so as to pose an insurmountable barrier to relief.
12. See, e.g., Sheila Foster, Intent and Incoherence, 72 Tul. L. Rev. 1065, 1084-85 (1998) (finding that Supreme Court has allowed different levels of consciousness to satisfy intent standard);
13. Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 Stan. L. Rev. 1105, 1107 (1989) (arguing that Supreme Court allocates burden of proof to "make judicial intervention more likely" in matters involving voting, jury selection, and, sometimes, education).
14. 42 U.S.C. § 2000e-2(k) (2000).
15. See, e.g., Flagg, supra note 5, at 993-94 (suggesting "reformist" disparate impact rule); Siegel, supra note 5, at 1144-45. Disparate impact is not, of course, the only proposed solution to the problem of intent. Charles Lawrence, for instance, suggests that courts apply a "cultural meaning" test to help ferret out unconscious bias. See Lawrence, supra note 5, at 354-55.
16. 401 U.S. 424 (1971).
17. See, e.g., Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 Cal. L. Rev. 1, 13-14 (2006) (noting that disparate impact doctrine focuses on discrete employment decisions and difficulty of breaking down most employment decisions into discrete elements);
18. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1162 n.3 (1995) (noting that relatively few employment cases are amenable to disparate impact theory);
19. Elaine W. Shoben, Disparate Impact Theory in Employment Discrimination: What's Griggs Still Good For? What Not?, 42 Brandeis L.J. 597, 598-600 (2004) (offering that disparate impact may be "underutilized" in employment cases because employers have replaced invalid selection devices in response to Griggs and because practicing bar has not fully appreciated potential of disparate impact theory, among other reasons). The empirical picture on the utility of Title VII disparate impact claims is not altogether clear. John Donohue and Peter Siegelman have shown that far fewer disparate impact claims are litigated under Title VII than disparate treatment claims.
20. See John J. Donohue III & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 998 (1991) (estimating disparate impact doctrine's "extremely modest" effect on litigation to have generated 101 additional cases in 1989). Christine Jolls rightly notes that the reliance on the number of disparate impact claims understates their importance, since most Title VII disparate impact cases involve a challenge to practices that affect a large group.
21. See Christine Jolls, Commentary, Antidiscrimination and Accommodation, 115 Harv. L. Rev. 642, 671-72 (2001) (explaining that "[t]he number of disparate impact claims is not a reliable predictor of their actual importance" because plaintiffs must show employment practices that disproportionately harm specific group). Michael Selmi's recent review of Title VII appellate and district court decisions raising disparate impact claims finds that "[djisparate impact claims are more difficult to prove than standard intentional discrimination."
22. Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. Rev. 701, 734-42 (2006) [hereinafter Selmi, Mistake] (reviewing reported appellate and trial decisions over number of years).
23. See infra notes 86-96 and accompanying text.
24. Subsequently, Title VI's disparate impact standard lost much of its practical utility when the Supreme Court, in Alexander v. Sandoval, 532 U.S. 275 (2001), declined to imply a private right of action to enforce Title VI's disparate impact regulations. Congress currently has before it legislation to make clear that Title VI permits disparate impact claims. See Fairness and Individual Rights Necessary to Ensure a Stronger Society: The Civil Rights Act of 2004, S. 2088, 108th Cong. (2004).
25. Glenn C. Loury, The Anatomy of Racial Inequality 79-84 (2002) [hereinafter Loury, Racial Inequality];
26. see also Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 7 (1976) (describing "racially selective sympathy and indifference" as process defect worthy of equal protection review);
27. R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. Rev. 803, 890 (2004) (proposing structured analysis for determining policies that have racially stigmatizing effects).
28. See discussion infra Part I. That public institutions act in ways that exacerbate inequality is not uncontested. Some might put full blame on genetic inferiority, individual failures, or culture differences as an explanation for racial inequality. My aim is not to rebut all these arguments, but later in the Article I provide support for the role of contemporary bias and contemporary public practices. See infra text accompanying notes 28-38.
29. See Act of Nov. 4, 1992, Pub. L. No. 102-586, § 2(f) (3) (A) (ii), 106 Stat. 4982, 4993-94 (codified as amended at 42 U.S.C. § 5633 (Supp. III 2005)).
30. The Civil Rights Act of 1990 was introduced to codify the disparate impact standard under Title VII and sought to correct some of the weakening of the standard resulting from the Supreme Court's decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), which held, inter alia, that disparate impact plaintiffs bore the burden of persuasion on the question of business justification even after establishing a prima facie claim. President George H.W. Bush vetoed the Act, stating it would require employers to adopt quotas in order to insulate themselves from liability, and Congress sustained the veto. See Helen Dewar, Senate Upholds Civil Rights Bill Veto, Dooming Measure for 1990, Wash. Post, Oct. 25, 1990, at A15. In 1991, under political pressure after the Clarence Thomas confirmation hearings, President Bush signed the Civil Rights Act of 1991, which was similar to the 1990 bill.
31. See Civil Rights Act of 1991, Pub. L. No. 102-166, §§ 101-106, 105 Stat. 1071, 1074-75 (codified at 42 U.S.C. §§ 2000e(m), 2000e-2(k) (2000)) (laying out elements of disparate impact claims and stating that defendants bear burden of persuasion if plaintiffs make out prima facie case);
32. see also Peter H. Shuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev. 1, 52 (2002) (discussing enactment of Civil Rights Act of 1991);
33. Andrew M. Dansicker, Note, A Sheep in Wolf's Clothing: Affirmative Action, Disparate Impact, Quotas and the Civil Rights Act, 25 Colum. J.L. & Soc. Probs. 1, 38-39 (1991) (discussing veto of Civil Rights Act of 1990).
34. See infra notes 157-160 and accompanying text.
35. See Michael K. Brown et al., Whitewashing Race: The Myth of a Color-Blind Society 19-20 (2003) (discussing ways in which institutions intentionally and unintentionally generate racial inequality).
36. See, e.g., Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 897-99 (1999) (noting concern of Supreme Court that effects test could invalidate wide range of statutes leading to "wholesale restructuring of the basic institutions of society").
37. See, e.g., Bagenstos, supra note 9, at 47 (noting promise in structural approach to employment discrimination, but concluding that without "a new politics, it is doubtful that the doctrinal proposals that have emerged from the structural turn will ever have a meaningful effect on employment discrimination"); Selmi, Mistake, supra note 9, at 780 (arguing that "[w]hat is necessary is a broader social movement that seeks to explain how pervasive discrimination remains").
38. This Article primarily focuses on African American inequality as compared to white Americans.
39. See, e.g., Brown et al., supra note 17, at 13-15 (documenting socioeconomic disparities in income, homeownership, and healthcare access).
40. See id. at 19-20.
41. See Ian Ayres, Is Discrimination Elusive?, 55 Stan. L. Rev. 2419, 2420 (2003) ("There is mounting evidence that race-contingent decisionmaking is still a pervasive factor in many (but not all) facets of everyday life.").
42. See Lawrence, supra note 5, at 322. Lawrence relies on Freudian theory for the notion that the unconscious self holds onto racist beliefs even as the conscious self knows that these beliefs are wrong, and on cognitive psychology which tells us that pervasive cultural stereotypes can be "transmitted by tacit understandings" which, "because they have never been articulated, are less likely to be experienced at a conscious level." Id. at 322-23.
43. Krieger, supra note 9, at 1187.
44. See, e.g., Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1505-17 (2005) (discussing various developments in measuring implicit biases);
45. see also Cass R. Sunstein & Christine Jolls, The Law of Implicit Bias, 94 Cal. L. Rev. 969, 971-73 (2006) (discussing evidence of implicit racial bias from Implicit Association Test (IAT)).
46. This is primarily because the cognitive bias approach is most developed in the area of employment. See, e.g., Krieger, supra note 9, at 1165 (arguing that disparate treatment framework used in employment discrimination cases erroneously assumes that discrimination is motivational rather than cognitive).
47. See, e.g., Peter Verniero & Paul H. Zoubek, Office of the Att'y Gen. of the State of N.J., Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling 25-29 (1999), available at http://www.state.nj. us/lps/intm_419.pdf (on file with the Columbia Law Review) (collecting "Stop, Arrest, and Search" data across races);
48. Eliot Spitzer, Office of the Att'y Gen. of the State of N.Y., The New York City Police Department's "Stop & Frisk" Practices (1999), available at http://www.oag.state.ny.us/press/reports/stop_frisk/stop_frisk.html (on file with the Columbia Law Review) (comparing stop rates of whites and minorities);
49. see also Brandon Garrett, Remedying Racial Profiling, 33 Colum. Hum. Rts. L. Rev. 41, 51-53 (2001) (describing problem of racial profiling in New Jersey).
50. See, e.g., Comm'n for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States 15-17 (1987) (finding that socioeconomic status played important role in location of commercial hazardous waste facilities, but that race was more significant factor);
51. Benjamin A. Goldman & Laura J. Fitton, Toxic Wastes and Race Revisited: An Update of the 1987 Report on the Racial and Socioeconomic Characteristics of Communities with Hazardous Waste Sites 2 (1994), available at http://www.stateaction.org/publications/pdf/toxicwastes.pdf (on file with the Columbia Law Review) (finding that during period "people of color became even more disproportionately represented in communities with toxic waste facilities");
52. see also U.S. Gen. Accounting Office, GAO/RCED-83-168, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities app. I (1983) (collecting relevant data from "four hazardous waste sites"); Mank, supra note 2, at 790 n.9 (collecting studies).
53. See, e.g., Gooden, supra note 1, at 27-33 (providing evidence of racially disparate treatment by caseworkers in provision of information about self-sufficiency services (education, employment, and transportation assistance) to women receiving assistance under federal Temporary Assistance for Needy Families (TANF) program). For a discussion of TANF, see infra notes 198-202 and accompanying text.
54. See infra notes 131-132 and accompanying text.
55. Jerry Kang acknowledges this point, when he notes that: "Durable inequality may also be maintained by structural arrangements that are no longer tightly connected to bias, implicit or explicit. Implicit bias should not circumscribe the content of our concerns." See Kang, supra note 26, at 1593.
56. Rachel F. Moran, The Elusive Nature of Discrimination, 55 Stan. L. Rev. 2365, 2413 (2003) ("[T]he key challenge [of race scholars] is to move from the phrase 'institutional racism' to comprehensive accounts of the patterns and practices that generate racial disadvantage in public institutions, market settings, and private life.").
57. See Michael Selmi, Remedying Societal Discrimination Through the Spending Power, 80 N.C. L. Rev. 1575, 1582-601 (2002) (cataloguing affirmative action cases holding that "societal discrimination" is not a compelling interest).
58. But cf. Clark D. Cunningham, Glenn C. Loury & John David Skrentny, Passing Strict Scrutiny: Using Social Science to Design Affirmative Action Programs, 90 Geo. L.J. 835, 857 (2002) (arguing that affirmative action cases should not be read to hold that remedying "societal discrimination" is uncompelling but rather that affirmative action plans at issue were inadequately tailored to that goal).
59. But cf. Milliken v. Bradley, 418 U.S. 717, 756 n.2 (1974) (Stewart, J., concurring) (noting that causes of segregation are "unknown and perhaps unknowable").
60. See, e.g., Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 3, 7-9 (1993) (contending that residential segregation is primary factor in creation and perpetuation of so-called "urban underclass"); see also id. at 222 tbl.8.1 (presenting data showing general stasis or only small declines in black-white segregation in thirty metropolitan areas from 1970 to 1990).
61. See, e.g., Brown et al., supra note 17, at 74-80 (describing discrimination in distribution of veterans' benefits and housing benefits during post-World War II era and into 1960s); Ira Katznelson, When Affirmative Action Was White 25-52 (2005) (describing black exclusion from social and economic programs of New Deal and post-World War II era);
62. Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality 50-52 (1995) (describing how exclusion of blacks from key methods of asset accumulation, e.g., home ownership and access to self-employment, has resulted in persistent gap in wealth between blacks and whites).
63. See, e.g., Deirdre A. Royster, Race and the Invisible Hand: How White Networks Exclude Black Men from Blue-Collar Jobs 144-78 (2003);
64. Glenn C. Loury, Discrimination in the Post-Civil Rights Era: Beyond Market Interactions, J. Econ. Persp., Spring 1998, at 117, 118 (urging consideration of social capital and not just labor market discrimination in explaining income-based inequality).
65. See Bagenstos, supra note 9, at 2. For a prominent example, see Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 470-71 (2001) (describing how "ongoing patterns of interaction shaped by organizational culture . . . influence workplace conditions, access, and opportunities for advancement over time" (footnote omitted)).
66. See Brown et al., supra note 17, at 19 ("Any analysis of racial inequality that routinely neglects organizations and practices that, intentionally or unintentionally, generate or maintain racial inequalities over long periods of time is incomplete and misleading.").
67. See infra notes 134-144 and accompanying text.
68. Glenn Loury has suggested that discrimination be "demoted, dislodged from its current prominent place in the conceptual discourse on racial inequality in American life," arguing that the concept of "development bias" - the unequal chance to realize one's productive potential - is a better way to explain the persistence of racial inequality. See Loury, Racial Inequality, supra note 12, at 92-93. Similarly, Loury explains that his concept of "stigma" is a better way to understand persistent inequality than discrimination or bias: "The stigma idea is more flexible, providing insight both into race-constrained social interactions and race-influenced processes of social cognition. Thinking in terms of stigma helps us to better understand the operations of causal feedback loops that can perpetuate racial inequality from one generation to the next." Id. at 160.
69. Cf. Ian Ayres, Pervasive Prejudice?: Unconventional Evidence of Race and Gender Discrimination 425-26 (2001) [hereinafter Ayres, Pervasive Prejudice] (arguing for greater efforts to quantify role of contemporary discrimination in marketplace).
70. See William Julius Wilson, The Bridge Over the Racial Divide: Rising Inequality and Coalition Politics 98 (1999) (discussing "social structure of inequality"); see also Brown et al., supra note 17, at 19-22 (describing how small policy decisions interact to create cumulative racial inequalities).
71. Loury describes racial inequality as maintained by "a disregard for the effects of a policy choice on the welfare of persons in different racial groups." Loury, Racial Inequality, supra note 12, at 166. Loury explains: "A racial group is stigmatized when it can experience an alarming disparity in some social indicators, and yet that disparity occasion no societal reflection upon the extent to which that circumstance signals something having gone awry in OUR structures . . . ." Id. at 83. Loury illustrates this point in discussing racial disparities in incarceration rates: Dramatic racial disparity in imprisonment rates does not occasion more public angst, I claim, because this circumstance does not strike the typical American observer at the cognitive level as being counterintuitive. It does not to a sufficient degree disappoint some deeply held, taken-for-granted expectations and assumptions about the nature of our society. Id. at 81. For the argument that constitutional law should account for racial stigma, rather than intentional discrimination, as the main source of racial harm, see generally Lenhardt, supra note 12, at 809. Legal commentary also relies on the concept of indifference. For Paul Brest, "racially selective . . . indifference[,] the unconscious failure to extend to a minority the same recognition of humanity, and hence the same sympathy and care, given as a matter of course to one's own group," amounts to a process defect that, in his argument, should be constitutionally remediable. Brest, supra note 12, at 7-8. And in Charles Lawrence's account, indifference to the racial harm generated by state decisions or laws - which for Lawrence stems from unconscious biases - is the condition that preexists racial harm. See Lawrence, supra note 5, at 354-55; see also id. at 322-23 (describing his theory of race discrimination as resulting not simply from conscious animus, but from subconscious beliefs and attitudes about racial groups).
72. Loury, Racial Inequality, supra note 12, at 167.
73. 426 U.S. 229 (1976).
74. See id. at 242 ("Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution."). The Court, while noting that disparate impact may be relevant to invidious discriminatory purpose, stated that "we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another." Id.
75. 429 U.S. 252, 265-66 (1977).
76. Arlington Heights allows that "[t]he impact of the official action - whether it 'bears more heavily on one race than another' - may provide an important starting point [for determining invidious discriminatory purpose]." Id. at 266 (citation omitted) (quoting Davis, 426 U.S. at 242). The Arlington Heights Court explains that invidious purpose could be implied not only from the fact of impact, but from looking at the processes surrounding the adoption of a decision, the historical background leading to the decision, whether there were procedural or substantive departures from normal procedures, and the legislative or administrative history surrounding adoption of the decision. Id. at 266-68.
77. 442 U.S. 256 (1979). By making insufficient the inferences to be drawn from indirect evidence of discrimination, Feeney takes away much of what Arlington Heights allowed. See id. at 280 (considering "totality of [relevant] legislative actions" and concluding no discriminatory purpose existed).
78. The preference was defined in gender inclusive language ("'any person, male or female, including a nurse'"), and women who served in official United States military units during wartime were eligible for the preference. Id. at 268. Yet because of the small number of women involved in military units during wartime, the overwhelming majority (ninety-eight percent) of veterans in the state were men and the statute benefited "an overwhelmingly male class." Id. at 269; see also id. at 269 n.21 (discussing limited role of women in military units). The Court acknowledged that a veterans' hiring preference was "inherently . . . gender-biased," but concluded that the State's decision to "intentionally incorporate[ ] into its public employment policies the panoply of sex-based and assertedly discriminatory federal laws that have prevented all but a handful of women from becoming veterans" was not sufficient to show discriminatory purpose. Id. at 276-77.
79. Id. at 276.
80. Id. at 279.
81. Siegel, supra note 5, at 1135.
82. See Foster, supra note 5, at 1083-84 (suggesting Feeney requires subjective evidence of legislature's discriminatory purpose); Siegel, supra note 5, at 1134-35 (suggesting Feeney requires an "express purpose" and "state of mind"). Siegel observes that after Feeney a plaintiff could not prevail simply by showing that "legislators had acted with unconscious bias of the sort Paul Brest had termed 'selective sympathy and indifference.'" Id. at 1134 (quoting Brest, supra note 12, at 7-8). Similarly, Cass Sunstein has noted that Feeney's intent test "disregards the phenomenon of selective racial care and indifference." Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 897 n.119 (1987) ("[T]he equality question should be whether the actor would have made the decision regardless of which group was helped and which hurt. Such an inquiry would also turn on intent, but it would call into question a larger number of government decisions."). Note that after Davis, legal process scholars like Paul Brest suggest that an intent standard is not inconsistent with the invalidation of legislative actions motivated by selective racial indifference, see Brest, supra note 12, at 14-15, but Feeney's definition of intent is inconsistent with this view.
83. Similarly, the Court acknowledged that the "enlistment policies of the Armed Services may well have discriminated on the basis of sex," but that discrimination was not caused by the veterans' preference itself, and the "history of discrimination against women in the military is not on trial in this case." Feeney, 442 U.S. at 278. To the Court, plaintiffs could not prevail by showing that the policy was indifferent to its absorption of a discriminatory status quo or that the law had been adopted in the face of its foreseeably exclusionary effects. Rather, the plaintiffs would have to show that the preference was adopted in order "to exclude women from significant public jobs." Id. at 277.
84. Id. at 279.
85. 481 U.S. 279 (1987).
86. See id. at 279-80 (identifying McClesky's challenges under Eighth and Fourteenth Amendments).
87. Id. at 298-99 (concluding that sentencing's "alleged[ ] discriminatory application" would not itself sustain equal protection challenge). McClesky's evidence included the Baldus study, which examined 2,000 murder cases in Georgia and found that defendants charged with killing white persons were substantially more likely to receive the death penalty. See id. at 286-87. Controlling for a range of variables, the Baldus study found that defendants charged with killing whites were 4.3 times more likely to receive the death penalty than those charged with killing blacks. Id. at 287.
88. Id. at 298.
89. The McCleskey dissent notes that the majority's holding will do little to prompt states to address disparities in the administration of criminal justice. Justice Stevens notes that a finding that the system was racially discriminatory might prompt the State to limit the death penalty to certain categories where race-based imposition was less likely. See id. at 367 (Stevens, J., dissenting). Justice Blackmun, who would find the evidence sufficient to lead to an inference of discriminatory purpose by prosecutors in seeking the death penalty, suggests that as a remedy prosecutors could develop a consistent set of guidelines in exercising their discretion to seek the death penalty. See id. at 365 (Blackmun, J., dissenting). Indeed, the majority's holding seems designed to avoid subjecting public practices to an analysis of racial impact. The majority openly worries that allowing McCleskey's claim would destabilize other criminal justice penalties. Id. at 315 (majority opinion). By contrast, to the dissent, prompting public examination of racial effects is a positive: The possibility of additional constitutional challenges might "lead to a closer examination of the effects of racial considerations throughout the criminal justice system," potentially benefiting "the system, and hence society." Id. at 365 (Blackmun, J., dissenting).
90. The Feeney Court notes that "[t]he calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility." Pers. Admin'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979). This concern about judicial competence begins with the Davis Court's direction that disparate impact rules "should await legislative prescription." Washington v. Davis, 426 U.S. 229, 248 (1976). As Robert Post and Reva Siegel put the point, these statements reflect that the Court's "embrace of discriminatory purpose doctrine is rooted in concerns relating to the institutional legitimacy and competence of Article III courts." Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L.J. 441, 471 (2000). Post and Siegel contend that the Davis line of cases suggests a role for legislatures in making judgments about what violates the Equal Protection Clause that may differ from that of the Supreme Court. See id. at 469 ("[T]he doctrine of discriminatory purpose is not justified by the requirements of the Equal Protection Clause, but by reference to the particular institutional limitations of the Court as a nonrepresentative body within a democracy.").
91. See Levinson, supra note 18, at 897-99 (arguing that equal protection impact rule reflects institutional concerns about potential breadth of any remedy for racial inequality); see also id. at 899 ("Once existing racial inequality becomes a matter of equal protection concern, it is hard to imagine any nonarbitrary stopping point. . . short of . . . wholesale restructuring of . . . basic institutions of society to redistribute resources and power more fairly . . . . [T]his is not [a] project courts would be inclined (or allowed) to undertake."). 66. See Davis, 426 U.S. at 248.
92. 481 U.S. at 339 (Brennan, J., dissenting).
93. Id. at 315 (majority opinion).
94. For proposals of alternative constitutional approaches, see, e.g., Lawrence, supra note 5, at 365-68 (recommending that courts apply "cultural meaning test"); Lenhardt, supra note 12, at 878-82 (stating that courts should evaluate racially stigmatic meaning of particular law or policy).
95. 401 U.S. 424 (1971).
96. See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-58 (stiffening burden of proof for employees attempting to prove discrimination with disparate impact test).
97. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074 (codified at 42 U.S.C. § 2000e-2(k) (2000)).
98. See, e.g., Alfred W. Blumrosen, The Legacy of Criggs: Social Progress and Subjective Judgments, 63 Chi.-Kent L. Rev. 1, 1-2 (1987) (arguing that "[f]ew decisions of our time . . . have had such momentous social consequences"). Even more recent commentary assumes that the theory has been successful in shaping employer behavior. See, e.g., Jolls, supra note 9, at 652 (finding that "important aspects of disparate impact law are in fact accommodation requirements" because they require employers "to incur special costs in response to the distinctive needs or circumstances ... of particular groups").
99. See, e.g., Bagenstos, supra note 9, at 21-26 (discussing "courts' unwillingness to engage in rigorous scrutiny of employers' subjective employment practices"); see also id. at 45 (arguing that courts are hostile to disparate impact law because they are wedded to "paradigm of a fault-based understanding of 'discrimination'"); Selmi, Mistake, supra note 9, at 705-07 ("Outside of the original context in which [disparate impact] theory arose, . . . [it] has produced no substantial social change and there is no reason to think that extending the theory to other contexts would have produced meaningful reform."); George Rutherglen, Abolition in a Different Voice, 78 Va. L. Rev. 1463, 1476 (1992) (book review) (noting that Title VII disparate impact standard worked great changes until it was made more challenging by series of Supreme Court decisions in late 1970s);
100. see also Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 530-32 (2003) ("Rather than aiming to integrate the workplace, perhaps disparate impact doctrine should be understood as aiming only to foster as much integration as would occur if employers stopped using unjustified business practices that reinforced the effects of historical discrimination.").
101. Title VI and Title VII are not, of course, the only examples of civil rights laws with effects tests. Arguably the most successful effects test is the one contained in the Voting Rights Act, see Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (codified as amended at 42 U.S.C. § 1973), which does not follow the Griggs framework. The Fair Housing Act does not contain an explicit effects test in its regulation or statute, but it has been construed by most circuits to allow disparate impact causes of action.
102. See generally Dana L. Kaersvang, The Fair Housing Act and Disparate Impact in Homeowners Insurance, 104 Mich. L. Rev. 1993, 2007 n.117 (2006) (citing cases applying disparate impact theory to Fair Housing Act claims).
103. Section 601 of Title VI prohibits discrimination based on race, color, or national origin in any "program or activity" receiving "Federal financial assistance." 42 U.S.C. § 2000d. Federal financial assistance includes not only federal grants, but loans and indirect assistance such as federal financial aid to students or Medicaid reimbursements. See, e.g., Grove City Coll. v. Bell, 465 U.S. 555, 575 (1984) (holding that Title IX - modeled on Title VI - applies where institution's students receive federal financial assistance); Dep't of Health & Human Servs., 45 C.F.R. § 80.6 (2005) (setting forth disparate impact regulations).
104. At the time of Title VI's enactment, Congress was primarily concerned with segregated education, see Charles F. Abernathy, Title VI and the Constitution: A Regulatory Model for Defining "Discrimination," 70 Geo. L.J. 1, 1 (1981), and, to a lesser extent, discrimination in hospitals,
105. see Kenneth Wing, Title VI and Health Facilities: Forms Without Substance, 30 Hastings L.J. 137, 152 n.56, 153 n.58 (1978) (documenting legislative concern with prohibiting discrimination in health care, particularly in hospital services). But the statute was written broadly to prohibit discrimination in all federally funded programs. Subsequent amendments to Title VI make clear that the statute is not limited to the particular program or unit receiving federal funds, but applies to all of an entity's operations and programs. The Supreme Court in Grove City had interpreted the "program or activity" requirement in Title IX - which is modeled on Title VI - narrowly, as limited to the particular office or program receiving federal funds, but in 1988, Congress passed the Civil Rights Restoration Act of 1987 to correct Grove City's interpretation. See Pub. L. No. 100-259, § 6, 102 Stat. 28, 31 (1988) (codified at 42 U.S.C. § 2000d-4a) (defining "program or activity" under Title VI, Title IX, and Section 504 of the Rehabilitation Act to include "all . . . operations" of an entity, "any part of which is extended Federal financial assistance").
106. In calling for the enactment of Title VI, President Kennedy argued that "[s]imple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination." H.R. Doc. No. 88-124, at 12 (1963).
107. See Selmi, Mistake, supra note 9, at 712 (discussing origins of disparate impact theory and its goal of providing opportunities to African Americans); Siegel, supra note 5, at 1145 (arguing that if Supreme Court had adopted disparate impact theory as matter of constitutional law, equal protection litigation might have led to elimination of historic patterns of race and gender stratification).
108. 532 U.S. 275 (2001).
109. See Charles F. Abernathy, Legal Realism and the Failure of the "Effects" Test for Discrimination, 94 Geo. L.J. 267, 286-97 (2006) [hereinafter Abernathy, Legal Realism] (arguing that lack of explicit guidelines requires judges to engage in "an ad hoc balancing" of practice's harm to minorities against its social benefit).
110. Dep't of Justice, 28 C.F.R. § 42.104(b)(2) (2005) (Justice Department regulations); see Dep't of Health and Human Servs., 45 C.F.R. § 80.3(b)(3) (2005) (regulations promulgated by the Department of Health and Human Services). Title VI does not define the prohibited discrimination but, in section 602 of the Act, directs agencies that distribute federal funds to "effectuate" the regulations by issuing "rules, regulations, or orders of general applicability." 42 U.S.C. § 2000d-l. Congress required presidential approval of the regulations, and also directed that the regulations be "consistent with achievement of the objectives of the statute authorizing the financial assistance." Id.
111. See Lau v. Nichols, 414 U.S. 563, 566-67 (1974) (applying Griggs standard, without discussion, to Title VI impact case); Powell v. Ridge, 189 F.3d 387, 393 (3d Cir. 1999) ("[T]he courts of appeals have generally agreed that the parties' respective burdens in a Title VI disparate impact case should follow those developed in Title VII cases."); see also Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1418 (11th Cir. 1985) (applying Griggs to Title VI litigation); Larry P. v. Riles, 793 F.2d 969, 982 & n.9 (9th Cir. 1984) (same).
112. One commentator suggests that Title VI was relatively underutilized by private litigants because the statute contains no explicit private right of action, and there was uncertainty about its enforceability prior to the Court's decision in Cannon v. University of Chicago, 441 U.S. 677, 717 (1979), implying a private right of action under Title IX (which is modeled on Title VI). See Alan Jenkins, Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs, in Civil Rights Litigation and Attorney's Fees Annual Handbook 173, 180 (Steven Saltzman & Barbara M. Wolvovitz eds., 1995). Compare Clark v. Louisa County Sch. Bd., 472 F. Supp. 321, 323 (E.D. Va. 1979) (finding pre-Cannon that Title VI did not provide private right of action), with Concerned Tenants Ass'n of Indian Trails Apartments v. Indian Trails Apartments, 496 F. Supp. 522, 526-27 (N.D. Tll. 1980) (implying cause of action for declaratory and injunctive relief, but not money damages). Not until the decisions in Guardians Ass'n v. Civil Service Commision of New York, 463 U.S. 582 (1983) (plurality opinion), and Alexander v. Choate, 469 U.S. 287 (1985), did the Court clarify that the Title VI statute itself prohibited only intentional discrimination, while the agency regulations allowed actions based on "unjustifiable disparate impact." See Alexander, 469 U.S. at 293.
113. Maurice R. Dyson, Leave No Child Behind: Normative Proposals to Link Educational Adequacy Claims and High Stakes Assessment Due Process Challenges, 7 Tex. J. C.L. & C.R. 1, 25 (2002);
114. The Forum Debriefs Deval Patrick, Civ. Rts. F., Winter 1997, at http://www.usdoj.gov/crt/cor/Pubs/forum/97win.htm (on file with the Columbia Law Review).
115. See, e.g., James H. Colopy, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 Stan. Envd. L.J. 125, 152-56 (1994) (urging use of Title VI effects test as alternative to Equal Protection Clause).
116. See Coal. of Concerned Citizens Against 1-670 v. Damian, 608 F. Supp. 110, 127-29 (S.D. Ohio 1984) (accepting defendant's proffered justification for selecting predominantly minority community for location of highway).
117. See Bryan v. Koch, 627 F.2d 612, 619 (2d Cir. 1980) (finding that city demonstrated appropriateness of its choice to close hospital serving high-minority community).
118. See Larry P. v. Riles, 793 F.2d 969, 981-83 (9th Cir. 1984) (upholding district court's finding of Title VI violation).
119. 532 U.S. 275, 293 (2001). For a critique of the Court's decision in Sandoval, see Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. Ill. L. Rev. 183, 198 (critiquing Court's emphasis "on whether § 602 creates individual rights, rather than whether it contemplates allowing private parties to enforce the obligations that regulations impose on the recipients of federal funds"). In dissent in Sandoval, Justice Stevens suggests that Title VI's regulations could be enforced using § 1983. See Sandoval, 532 U.S. at 299-300 (Stevens, J., dissenting). The Court's 2002 decision in Gonzaga University v. Doe, 536 U.S. 273, 285 (2002), threatens this route to enforcement through its holding that the § 1983 analysis of whether Congress intended to create an enforceable right is no different than in the implied right of action cases. See also S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., 274 F.3d 771, 774 (3d Cir. 2001) (finding that § 1983 could not be used to enforce disparate impact regulations).
120. Jenkins, supra note 84, at 173. 92. See, e.g., Larry P., 793 F.2d at 981-83.
121. The case began when the Board of the MTA voted to raise bus fares by twenty-three percent (from $1.10 to $1.35) and to eliminate monthly passes that enabled frequent riders to save money. See Labor/Cmty. Strategy Ctr. v. L.A. County Metro. Transp. Auth., No. 94-05936-TJH, slip op. at 1 (CD. Cal. Sept. 21, 1994) (Findings of Fact and Conclusions of Law re: Preliminary Injunction).
122. Eric Mann, head of the Labor/Community Strategy Center, noted in describing the case: [R]acism is mainly the politics of impact, rather than overt behavior - which is why it's so hard to prove legally. The MTA didn't sit around and say "Let's hurt people of color." They said, "Let's drain the budget and put it all [rail funds] into our own districts." We were the ones who had to stand up and say, "Wait a minute. Do you understand the effect of your actions?" Karen Klabin, Back of the Bus: Eric Mann Gives the MTA a Run for Its Money, L.A. View, Jan. 12-18, 1996, at 7. According to one account, the public hearing preceding the decision to raise fares points to official indifference: While poor, minority, and disabled bus riders were often emotional in their pleas against fare increases, MTA board members were "distracted, laughing with each other and eating - often taking litde notice of the testimony being delivered before them."
123. Penda Hair, Louder dian Words: Lawyers, Communities and the Struggle for Justice 89 (2001) (on file with the Columbia Law Review).
124. See Labor/Cmty. Strategy Ctr., No. 94-05936-TJH, at 4-5. The disparate impact claim relied on evidence showing that the MTA's actions had a statistically significant adverse impact on bus riders, who were more likely to be minority (and poor) while benefiting white, middle-class commuters. The plaintiffs also argued diat the evidence of disparate funding subsidies for services to predominandy minority commuters violated Title VI adverse impact. In finding that a preliminary injunction was warranted, the court also found that the plaintiffs had raised "serious questions" on the merits of their intentional discrimination claim. Id. at 5.
125. See Hair, supra note 94, at 93-97 (describing campaign to force settlement involving media coverage, political advocacy, and public protests).
126. See Abernathy, Legal Realism, supra note 81, at 294 ("[L]ower appellate courts shied away from the effects test in a remarkably stark pattern."); see also id. at 312 (reviewing appellate court decisions and finding consistent pattern of courts sustaining government's interest over plaintiffs' claim of disparate impact).
127. For instance, there are challenges in generating the statistics necessary to make an appropriate comparison between populations necessary to satisfy the first step of the Griggs standard. See, e.g., N.Y. Urban League, Inc. v. New York, 71 F.3d 1031, 1038 (2d Cir. 1995) (finding no disparity between subsidies for commuter rail and subsidies for subway commuters where plaintiffs had failed to determine "the extent to which one system might have higher costs associated with its operations"). One commentator who advocates a disparate impact rule has noted the difficulties that the Supreme Court's approach to the relevant labor market raises in proving adverse effects and would allow proof of disparate effects based on comparison to the general population pool. See Flagg, supra note 5, at 995-96.
128. See, e.g., Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1420 (11th Cir. 1985) (finding that state's achievement grouping system was educationally justified). One commentator notes in the Title VI context, "[i]n practice, many courts have been disturbingly deferential to defendants in reviewing their asserted justifications for discriminatory policies, often inferring institutional necessity from scant evidence and unsubstantiated rationales." Jenkins, supra note 84, at 189; see also id. at 190-91 (comparing deference in Georgia State Conference, 775 F.2d at 1420, with scrutiny in Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984)). What seems like deference might, of course, simply reflect a failure of proof by plaintiffs in these cases, or contested understandings of the legal standard of institutional necessity.
129. 87 F. Supp. 2d 667 (W.D. Tex. 2000). Even in the MTA case, the plaintiffs' disparate impact claim was buttressed by evidence of intentional discrimination. See Labor/Cmty. Strategy Ctr., No. 94-05936-TJH, at 5 (granting preliminary injunction after finding that "plaintiffs raise serious questions going to the merits of their disparate impact claim under Title VI, as well as their intentional discrimination claim [s]"); see also Labor/Cmty. Strategy Ctr. v. L.A. County Metro. Transp. Auth., 263 F.3d 1041, 1043 (9th Cir. 2001) (characterizing case as involving claim of "intentional[ ] neglect[ ]" of inner-city minority bus riders). Finally, though impossible to quantify, the advocacy efforts surrounding the case - a model of combining litigation with extensive community organizing, media advocacy, and political advocacy - may have been the central factor in persuading the Audiority to setde fhis case. See Hair, supra note 94, at 94 (describing "key elements" of winning strategy as research expertise, public pressure, and media coverage); Eric Mann, Radical Social Movements and the Responsibility of Progressive Intellectuals, 32 Loy. L.A. L. Rev. 761, 780-84 (1999) (providing account of organizing and other advocacy efforts by lead organizer of MTA suit).
130. In 1984, the Texas legislature passed an education reform law that, among other reforms, established a statewide curriculum, required teachers to pass proficiency tests, and implemented an "exit" test (known as the Texas Educational Assessment of Minimum Skills (TEAMS)), passage of which was required for receipt of a high school diploma. See GI Forum, 87 F. Supp. 2d at 671;
131. Keith L. Cruse & Jon S. Twing, The History of Statewide Achievement Testing in Texas, 13 Applied Measurement in Educ. 327, 329-30 (2000);
132. Walt Haney, The Myth of the Texas Miracle in Education, Educ. Pol'y Analysis, Aug. 19, 2000, at Part 2, at http://epaa.asu.edu/epaa/v8n41/part2.htm (on file with the Columbia Law Review). In 1990, Texas designed a new test to replace the TEAMS test known as TAAS. TAAS, developed by a national testing company with substantial involvement by Texas educators, was intended to measure higher-order drinking and problem solving skills rather than simply measuring basic skills.
133. See GI Forum, 87 F. Supp. 2d at 671-72; Haney, supra.
134. GI Forum, 87 F. Supp. 2d at 673. Students are first administered the exit level TAAS exam in the tenth grade, and are given seven additional attempts to pass the exam before their scheduled graduation date. Id.; Cruse & Twing, supra note 101, at 330 (noting that exit level tests were moved to tenth grade in 1994).
135. See Haney, supra note 101. Schools rated as low performing in two consecutive years are subject to sanctions. Id. State law requires that schools disaggregate student performance data by race, ethnicity, and socioeconomic status, and schools are rated on whether they achieve success for all subgroups. Id.
136. The plaintiffs included an organization of Mexican American veterans, an educational advocacy organization for Mexican Americans, and nine Texas minority students who did not pass the TAAS test before their scheduled graduation date, and were represented by the Mexican American Legal Defense Fund. See GI Forum, 87 F. Supp. 2d at 668 & n.l.
137. Id. at 667. The plaintiffs also argued that the test was intentionally discriminatory and that it violated due process. Id. The court dismissed the equal protection and Title VI intentional discrimination claims on summary judgment, but held a trial on the Title VI disparate impact and due process claims. Id. at 681 n.11, 683 n.12.
138. Adverse impact was measured using the eighty percent rule, the rule generally applicable in employment cases which considers whether the selection for any race, gender, or ethnic group is less than four-fifths (or eighty percent) of the rate for the group with the higher selection rate. In 1998, for instance, the tenth grade white passage rate for all three tests was eighty-five percent. The black passage rate was fifty-five percent and the Hispanic passage rate fifty-nine percent, which are below eighty percent of white pass rates (sixty-eight percent passage). Haney, supra note 101, at Part 3, at http://epaa.asu.edu/epaa/v8n41/part3.htm.
139. The plaintiffs' experts also presented evidence that these differences were statistically significant, see id., and that these differences had "practical significance" because "there were at least 45,000 students since 1994 who would have completed their high school diplomas but for the TAAS Exit Test." Plaintiffs' Post-Trial Brief at 9-10, GI Forum, 87 F. Supp. 2d 667 (No. SA-97-CA-1278EP). In addition, plaintiffs presented evidence that minority dropout rates increased after the implementation of the TAAS Exit Test. See id. at 13-14 (explaining that gap between white and minority rates of high school completion went from fifteen percent in early 1980s to twenty-two percent after implementation of TAAS Exit Test, with "most precipitous increases" occurring "immediately after the implementation of the TAAS Exit Test").
140. Plaintiffs' Post-Trial Brief, supra note 106, at 9-10.
141. See GI Forum, 87 F. Supp. 2d at 676 (stating that "'no rigid mathematical threshold of disproportionality . . . must be met to demonstrate a sufficiendy adverse impact'" (omission in original) (quoting Cureton v. Nat'l Collegiate Athletic Ass'n, 37 F. Supp. 2d 687, 697 (E.D. Pa. 1999), rev'd on other grounds, 198 F.3d 107 (3d Cir. 1999))); see also id. at 679 ("The variances are not only large and disconcerting, they also apparendy cut across such factors as socioeconomics.").
142. Id. at 679.
143. First, plaintiffs argued that using TAAS as a diploma requirement, rather than as an indicator of whether students had learned certain materials, was not necessary to further accountability or monitoring of schools. Second, plaintiffs contended that the exit test did not assure the legitimacy of a high school diploma, pointing to evidence indicating that grade point averages and teacher evaluations were better indicators of student success and ability to do college work. Third, the plaintiffs sought to demonstrate that the TAAS Exit Test had negative educational effects, including the increase that had led to a rise in the attrition rates of minority students. Finally, plaintiffs presented expert evidence that the test lacked construct validity. Specifically, they argued that the test was not content valid because it failed to test what students learned in schools; that the test lacked criterion validity because the test score did not relate to other criteria such as student grades or performance on other tests; and that the defendants had provided no proof of predictive validity - that is, that the test helped predict later performance in college or work. As part of the argument that the test lacked content validity, the plaintiffs presented evidence that African Americans and Hispanics had less opportunity to learn the test materials: They were more likely to attend low-performing schools with lower percentages of certified teachers and fewer resources. Plaintiffs also argued that the use of the test as a graduation requirement and the cutoff score (seventy percent) were not educationally valid. See Plaintiffs' Post-Trial Brief, supra note 106, at 13-15, 33, 35-38, 43.
144. GI Forum, 87 F. Supp. 2d at 679-81.
145. Id. at 681.
146. Id. at 681-82.
147. The court held that the plaintiffs had failed to demonstrate that the TAAS increased minority drop-out and retention rates. See id. at 681.
148. Id. at 680 ("[T]he assessment of legislatively established minimum skills as a requisite for graduation . . . [is] well within the State's power and authority.").
149. See, e.g., id. (deferring to state's determination of appropriate cutoff score for passage of test); id. at 670 ("[T]he court cannot pass on the State's determination of what, or how much, knowledge must be acquired prior to high school graduation."); id. at 671 (finding that resolution of case "turns not on the relative validity of the parties' views on education but on the State's right to pursue educational policies that it legitimately believes are in the best interests of Texas students").
150. Id. at 670.
151. See supra note 55 and accompanying text.
152. This is despite the court's acknowledgement that the state bears responsibility for some of these inequities. GI Forum, 87 F. Supp. 2d at 670.
153. Id.
154. Stronger administrative enforcement of Title VI disparate impact rules might provide greater incentives for recipients of federal funds to consider the racial impact of their programmatic practices. See infra note 175.
155. See Abernathy, Legal Realism, supra note 81, at 294-312 (reviewing Title VI disparate impact cases and finding few successful lower court cases).
156. Some federal agencies have attempted to develop more specific guidance. See infra note 175.
157. Act of Nov. 4, 1992, Pub. L. No. 102-586, 106 Stat. 4982 (codified as amended in scattered sections of 42 U.S.C).
158. More controversy surrounded the attempt in 1999 to reauthorize and extend the DMC provision. Several prominent Republicans opposed reauthorization, claiming that disparities were not linked to "discrimination" in the juvenile justice system but to higher rates of crime commission by minorities, and that the bill would establish an unconstitutional racial classification. See, e.g., 145 Cong. Rec. S5563 (1999) (statement of Senator Hatch).
159. See 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758 (codified as amended at 42 U.S.C. § 5633(a)(22) (2000)). The Act requires that states develop a plan to "reduce, widiout establishing or requiring numerical standards or quotas, the disproportionate number of juvenile members of minority groups, who come into contact with the juvenile justice system." Id.
160. Some studies have also found that Latinos are overrepresented at various points in the juvenile justice system, though there is substantially less research seeking to understand this problem. For a recent study on Latino overrepresentation, see Francisco A. Villarruel et al., ¿Dónde está La Justicia? A Call to Action on Behalf of Latino and Latina Youth in the U.S. Justice System (2002), at http://www.buildingblocksforyouth.org/ latino_rpt/fulLeng.html (on file with the Columbia Law Review) (finding that Latino youth are "significandy overrepresented in U.S. justice system and receive harsher treatment than white youth even when charged with same offenses").
161. See Office of Juvenile Justice and Delinquency Prevention, U.S. Dep't of Justice, Disproportionate Minority Confinement 2002 Update 3 (2004) [hereinafter DMC 2002 Update].
162. In 2003, the arrest rate for African American youth was more than 1.5 times the arrest rate of white youth. See Office of Juvenile Justice and Delinquency Prevention, U.S. Dep't of Justice, Juvenile Arrest Rates by Offense, Sex, and Race (1980-2004), available at http://ojjdp.ncjrs.org/ojstatbb/crime (last visited Oct. 18, 2006) (on file with the Columbia Law Review). The arrest rate of African American youth has decreased by almost sixty percent since 1995. See id. The overrepresentation of minority youth in secure juvenile detention and secure correctional facilities decreased slighdy between 1995 and 1997.
163. See DMC 2002 Update, supra note 128, at 1 (citing most recent data).
164. See, e.g., Barry C. Feld, The Social Context of Juvenile Justice Administration: Racial Disparities in an Urban Juvenile Court, in Minorities in Juvenile Justice 66, 93 (Kimberly Kempf Leonard et al. eds., 1995) (finding disparities at different points throughout a Minnesota county's juvenile justice system when controlling for present offense and prior records);
165. Kimberly Kempf Leonard & Henry Sontheimer, The Role of Race in Juvenile Justice in Pennsylvania, in Minorities in Juvenile Justice, supra, at 98, 119 (finding disparities in confinement when controlling for offense characteristics and prior record);
166. Michael J. Leiber, Toward Clarification of the Concept of "Minority" Status and Decision-Making in Juvenile Court Proceedings, 18 J. Crime & Just. 79, 97 (1995) (finding racial disparities in intake, petition, and severity of disposition in four counties in Iowa). One commentator notes that two-thirds of studies on racial disparity in juvenile justice identify race as a factor, while one-third find that race has no effect.
167. See Darlene J. Conley, Adding Color to a Black and White Picture: Using Qualitative Data to Explain Racial Disproportionaliry in the Juvenile Justice System, 31 J. Res. Crime & Delinq. 135, 135-36 (1994) (stating that majority of research has shown "race makes a difference").
168. See, e.g., Donna M. Bishop & Charles E. Frazier, The Influence of Race in Juvenile Justice Processing, 25 J. Res. Crime & Delinq. 242, 258 (1988) (finding, in study of large southern state, that blacks were more likely to be "referred to court, adjudicated delinquent, and given harsher dispositions than comparable white offenders");
169. Donna M. Bishop & Charles E. Frazier, Race Effects in Juvenile Justice Decision-Making: Findings of a Statewide Analysis, 86 J. Crim. L. & Criminology 392, 412-13 (1996) [hereinafter Bishop & Frazier, Race Effects] (finding "clear indications of race differentials in justice processing");
170. James B. Johnson & Philip E. Secret, Race and Juvenile Court Decision Making Revisited, 4 Crim. Just. Pol'y Rev. 159, 167-71 (1990) (finding that African American youth receive harsher dispositions at detention, petition, and penalty stages). There are also some studies either of particular decisionmaking points in the juvenile system, or of multiple decision points, that found limited or no racial disparities in the jurisdictions studied after controlling for relevant factors.
171. See, e.g., Jeffrey Fagan & Elizabeth Piper Deschenes, Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders, 81 J. Crim. L. & Criminology 314, 336-37, 342, 346-47 (1990) (finding bias did not explain racial disparities in decisions to waive violent juvenile offenders to adult criminal court in Boston, Detroit, Newark, and Phoenix, and that waiver decisions were made "inconsistently]"); Feld, supra note 130, at 75-94 (finding only limited race effects);
172. Bohsiu Wu et al., Assessing the Effects of Race and Class on Juvenile Justice Processing in Ohio, 25 J. Crim. Just. 265, 271-74 (1997) (studying thirteen Ohio counties and finding that African American youth were more likely to be detained but white youth were more likely to be adjudicated, and that there were no racial disparities in ultimate disposition);
173. Joan Petersilia, Racial Disparities in the Criminal Justice System: A Summary, 31 Crime & Delinq. 15, 19-21 (1985) (finding disparities caused by higher involvement by youth of color in serious and violent crime and that African American youth were treated more leniendy at some stages of processing).
174. Bishop & Frazier, Race Effects, supra note 131, at 405-06. Bishop and Frazier's study found that, on the other hand, whites received harsher dispositions than nonwhites in status offense cases. Id. at 406.
175. See George S. Bridges & Sara Steen, Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms, 63 Am. Soc. Rev. 554, 562-64 (1998).
176. See, e.g., William H. Feyerherm, The DMC Initiative: The Convergence of Policy and Research Themes, in Minorities in Juvenile Justice, supra note 130, at 1, 11 [hereinafter Feyerherm, DMC Initiative].
177. See Bishop & Frazier, Race Effects, supra note 131, at 407-08 (describing procedure in Florida).
178. See id. at 407. The study recounts the view of an intake supervisor: Our manual told us to interview the child and the parent prior to making a recommendation to the state's attorney. We are less able to reach poor and minority clients. They are less responsive to attempts to reach them. They don't show. They don't have transportation. Then they are more likely to be recommended for formal processing. Without access to a client's family, the less severe options are closed. Once it gets to court, the case is likely to be adjudicated because it got there. It's a self fulfilling prophecy. Id. at 407-08.
179. See id. at 409. Such findings lead Bishop and Frazier to discount prejudicial attitude or individual bias as a contributing factor, and instead see "institutional racism" as the cause of racial disparities in delinquency processing. See id. at 412.
180. See Justice Cut Short: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings in Ohio 25-29 (Kim Brooks et al. eds., 1995) (finding racial disparities in access to counsel in Ohio);
181. Bishop & Frazier, Race Effects, supra note 131, at 408;
182. Jolanta Juszkiewicz, Youth Crime/Adult Time: Is Justice Served?, available at http://buildingblocksforyouth.org./ycat/ycat.html (last visited Nov. 15, 2006) (on file with the Columbia Law Review) (finding white youth twice as likely as African American youth to retain private counsel).
183. See Bishop & Frazier, Race Effects, supra note 131, at 408.
184. See Feyerherm, DMC Initiative, supra note 134, at 11.
185. See Office of Juvenile Justice and Delinquency Prevention, U.S. Dep't of Justice, Minorities and the Juvenile Justice System 14-15 (1995), available at http://www.ncjrs.gov/pdffiles/minor.pdf (on file with the Columbia Law Review)
186. (citing L.L. Lockhart et al., Georgia's Juvenile Justice System: A Retrospective Investigation of Racial Disparity (1990)).
187. Id. at 15 (citing L.L. Lockhart et al., Georgia's Juvenile Justice System: A Retrospective Investigation of Racial Disparity 10 (1990)).
188. Darlene Conley's quantitative and qualitative study of racial disparity in a western state examines the effect of police interaction in producing racial disparity. See Conley, supra note 130, at 137. Her research shows that African American and Hispanic youths came into frequent contact with police patrolling their neighborhoods for drug activity, were subject to surveillance in predominantiy white communities (such as shopping malls), and were frequendy stopped when driving in cars. Id. at 141-42. Her study also suggests that because of police and community attention to the problem of gang violence, African American and Hispanic youth were more likely to be labeled as gang members at the point of arrest. See id. at 144; see also Jeffrey Fagan et al., Blind Justice? The Impact of Race on the Juvenile Justice Process, 33 Crime & Delinq. 224, 235-38 (1987) (reporting research results that police decisions on how to respond to youthful offenders are affected by race of youth).
189. See Feyerherm, DMC Initiative, supra note 134, at 11 (citing research that war on drugs increased confinement of minority youths "despite evidence that drug use and trafficking is not primarily a minority behavior");
190. Howard N. Snyder, Growth in Minority Detention Attributed to Drug Law Violators, OJJDP Update on Stat. (Dep't of Justice, Wash., D.C.), Mar. 1990, at 1, 6 (stating that war on drugs was "major factorf ] in the substantial increase in the number of nonwhite youth detained by the juvenile courts").
191. Nat'l Coal, of State Juvenile Justice Advisory Groups, A Delicate Balance (1989).
192. See id. at 5-6 (explaining that higher minority arrest rates do not alone account for minority overrepresentation in correctional facilities); id. at 8 (citing data showing racial disparity in decisionmaking in juvenile justice
193. See Feyerherm, DMC Initiative, supra note 134, at 8-9. Feyerherm recounts testimony in 1986 and 1987 from advocates at the National Council on Crime and Delinquency and from the Center for the Study of Youth Policy on the increasing rates of minority incarceration in Minnesota.
194. Heidi Hsia, Office of Juvenile Justice and Delinquency Prevention, Dep't of Justice, A Disproportionate Minority Contact (DMC) Chronology: 1988 to Date, available at http://ojjdp.ncjrs.gov/dmc/about/chronology.html (last visited Nov. 16, 2006) [hereinafter Disproportionate Minority Contact] (on file with the Columbia Law Review); see Pub. L. No. 100-690, 102 Stat. 4181 (1988).
195. See Disproportionate Minority Contact, supra note 148.
196. See Heidi M. Hsia & Donna Hamparian, U.S. Dep't of Justice, Disproportionate Minority Confinement 1997 Update 2 (1998).
197. See Act of Nov. 4, 1992, Pub. L. No. 102-586, 106 Stat. 4982 (codified in scattered sections of 42 U.S.C).
198. See 42 U.S.C. § 5633(a)(22) (2000).
199. See 28 C.F.R. § 31.303(j)(1) (2006). OJJDP provides guidelines for calculating disproportionate minority confinement See id. Initially, OJJDP required that states calculate disproportionate confinement by comparing minority youth as a percentage of confined youth to the minority youth as a percentage of the total population. Under the new system, known as the relative rate index, a state determines disparity by comparing the rate of confinement of white youth to the rate of confinement of the particular minority group. The rate ratio method is considered better because it develops a measurement that is unaffected by the relative proportion of minorities in the total youth population, and permits comparison of more than one ethnic group. See William H. Feyerherm & Jeffrey Butts, Proposed Methods for Measuring Disproportionate Minority Contact, available at http://ojjdp.ncjrs.org/dmc/pdf/dmc2003.pps (last visited Jan. 25, 2007) (on file with the Columbia Law Review);
200. see also OJJDP, Dep't of Justice, Implementing the Relative Rate Index Calculation: A Step-by-Step Approach to Identifying Disproportionate Minority Confinement Within the Juvenile Justice System, available at http://ojjdp.ncjrs.org/dmc/pdf/StepsinCalculatingtheRelativeRateIndex.pdf (last visited Jan. 25, 2007) (on file with the Columbia Law Review) (providing "step by step instructions for completing the initial identification stage for examining Disproportionate Minority Contact").
201. See 28 C.F.R. § 31.303(j)(2).
202. See id. § 31.303(j)(3)(i)-(v).
203. See DMC 2002 Update, supra note 128, at 5-7.
204. See, e.g., Feyerherm, DMC Initiative, supra note 134, at 12-13, 15 (noting "explosion of data surrounding the DMC issue" since 1986). But see DMC 2002 Update, supra note 128, at 16 (noting that in 2002 at least eighteen states had yet to identify factors contributing to racial disparities in juvenile justice due to uncompleted "quality assessments]").
205. See Eleanor H. Hoytt et al., Reducing Racial Disparities in Juvenile Detention 46-52, 54-64 (2004), available at http://www.aecf.org/publications/ data/8_reducing.pdf (on file with the Columbia Law Review) (describing successes in Santa Cruz, California and Multnomah County, Oregon);
206. DMC 2002 Update, supra note 128, at 13-15 (describing state efforts to address racial disparity by funding community-based intervention programs, exploring alternatives to detention, providing diversity training to staff, and developing standardized screening instruments to encourage objective decisionmaking).
207. For example, the W. Haywood Burns Center, based in California, has been working with state administrators to reduce racial disparity in ten sites across the country. Telephone Interview with Michael Harris, Deputy Dir., The W. Haywood Burns Inst. for Juvenile Justice Fairness & Equity, in New York, N.Y. (Oct. 26, 2005).
208. For instance, in 1998, the Youth Law Center formed the Building Blocks for Youth Initiative (with support from OJJDP) in collaboration with other nongovernmental organizations including the American Bar Association. The Building Blocks Initiative conducts research on minority overrepresentation in juvenile justice, promotes understanding of model interventions, and directs advocacy for minority youth in the justice system (OJJDP funds do not support this latter activity). See DMC 2002 Update, supra note 128, at 7-8 (describing Building Blocks initiative).
209. Advocates have also sought to hold states accountable for failure to adequately address identified disparities. For instance, in May 2003, the ACLU published a report faulting Massachusetts for failing to implement plans to reduce juvenile disparity, properly spend allocated money on programs to reduce racial disparity, or conduct adequate research to identify the causes of racial disparity. See ACLU, Disproportionate Minority Confinement in Massachusetts: Failures in Assessing and Addressing Overrepresentation of Minorities in the Massachusetts Juvenile Justice System (2003), available at http://www.aclu.org/ FilesPDFs/dmc_report.pdf (on file with the Columbia Law Review).
210. See, e.g., Hoytt et al., supra note 158, at 8-9 (analyzing success of DMC in five states).
211. See Feyerherm, DMC Initiative, supra note 134, at 7-8.
212. Id. at 9-10.
213. Cf. Ayres, Pervasive Prejudice, supra note 43, at 396 (arguing that government should play greater role in providing empirical information about extent and causes of disparate treatment in consumer and other markets).
214. As a judge involved with Oregon's efforts to reduce racial disparity put it, "once we had real data, we were able to move from anecdotal information to data-based strategies, because now we knew how real the problem was." Hoytt et al., supra note 158, at 56 (citation omitted).
215. OJJDP's initial instructions provided states discretion "because of the belief that the resources and data needed to ascertain the extent of DMC, determine the cause (s), and address the problem could vary by jurisdiction." Michael J. Lieber, Disproportionate Minority Confinement (DMC) of Youth: An Analysis of State and Federal Efforts to Address the Issue, 48 Crime & Delinq. 3, 16 (2002) (citation omitted). Lieber also argues that the DMC standard was kept vague in order to diffuse state resistance to the mandate. See id. Lieber finds that initial enforcement of DMC was hampered by the fact that many states did not know how to conduct disparity assessment studies, though he also notes that OJJDP has subsequendy worked to provide more specific technical assistance to states on how to collect and analyze data. See id. at 17-19.
216. The dependence on research can also be a challenge. A 2002 OJJDP study found that a number of states (eighteen) had not identified the factors contributing to disparities in juvenile involvement because they lacked the resources or technical ability to collect data and perform analysis. See DMC 2002 Update, supra note 128, at 16-17.
217. Feyerherm notes: "No quick universal fix nor any permanent fix appears possible. This means that policy progress will require ongoing access and use of quality information and analysis." Feyerherm, DMC Initiative, supra note 134, at 14.
218. Hoytt et al., supra note 158, at 57.
219. Id.
220. Jurisdictions might also, of course, credit all the disparity to socioeconomic factors that are beyond their capacity to remedy. See Judith A. Cox & James Bell, Addressing Disproportionate Representation of Youth of Color in the Juvenile Justice System, 2001 J. Ctr. for Fams., Child. & Courts 31, 33-34 (describing how Santa Cruz County originally characterized disparities as justifiable in terms of offense history and presenting offenses, but then began examining their own policies, procedures, and programs to consider how they contributed to racial disparities).
221. See Hoytt et al., supra note 158, at 45 (documenting difficulties in including law enforcement agencies in Sacramento).
222. DMC 2002 Update, supra note 128, at 21-24.
223. For instance the Santa Cruz Probation Department sought to address racial disparities by increasing diversity in hiring and training to address bias, as well as by changing institutional practices such as beginning weekend intake procedures, addressing barriers to minority involvement in detention alternative programs, and developing services in rural minority communities. See Hoytt et al., supra note 158, at 47-48. The result was a twenty-five percent decrease in the average daily population of minority youth who were detained. See id. at 50. Still, there is a danger that juvenile justice agencies might pay insufficient attention to the impact of their own practices. An assessment by OJJDP suggests that states are more likely to invest in delinquency and intervention programs in minority communities than in system changes (e.g., increase in cultural diversity and sensitivity among staff or changes in their screening instruments to allow objective decisionmaking). See DMC 2002 Update, supra note 128, at 17.
224. See, e.g., Labor/Cmty. Strategy Ctr. v. L.A. County Metro. Transp. Auth., 263 F.3d 1041, 1043 (9th Cir. 2001).
225. Some federal agencies have initiated some rulemaking to require funding recipients to more affirmatively consider racial impact in the operation of their programs. See 65 Fed. Reg. 39,650 (June 27, 2003) (providing guidance regarding environmental permitting programs);
226. Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-7 (2000);
227. Policy Guidance on the Prohibition Against National Origin Discrimination as It Affects Persons with Limited English Proficiency, 65 Fed. Reg. 52,762 (Aug. 30, 2000). Greater agency enforcement of Title VI rules and clarification of the requirements of disparate impact could provide incentives to consider impact much like those of the DMC regime.
228. See Note, After Sandoval: Judicial Challenges and Administrative Possibilities in Title VI Enforcement, 116 Harv. L. Rev. 1774, 1789-93 (2003) (arguing that focus on facilitating compliance will aid regulatory agencies in meeting heightened enforcement obligations);
229. see also Sara Rosenbaum & Joel Teitelbaum, Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval, 3 Yale J. Health Pol'y L. & Ethics 215, 233 (2003) (explaining how increased Title VI enforcement in healthcare could help reduce racial disparities in healthcare).
230. Outside the area of education, agency enforcement of Title VI, and of the disparate impact regulations in particular, has been limited. See U.S. Comm'n on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs 223-25 (1996), available at http://eric.ed.gov/ ERICWebPortal/Home.portal (on file with the Columbia Law Review) (finding that Department of Health and Human Services (HHS) "has hardly developed its Title VI enforcement program since [HHS became a separate department] in 1980" and that HHS Office of Civil Rights "lacked individual civil rights policies, precedents, standards, and procedures necessary to operate an effective civil rights enforcement program");
231. Luke W. Cole, Civil Rights, Environmental Justice and the EPA: The Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. Envtl. L. & Litig. 309, 392 (1994) (recounting that until August 1994, EPA had one staff person dealing with all civil rights complaints and lacked procedural or substantive guidelines for responding to Title VI complaints); Rosenbaum & Teitelbaum, supra note 175, at 230-33 (detailing lack of enforcement of Title VI by Department of Health and Human Services).
232. A poignant example is Luke Cole's description of the reaction of Mississippi state officials to a Title VI disparate impact challenge to the permitting of a waste facility in a predominandy black community: "We evaluate the project and make sure it's up to our standards, and we don't look at the racial or economic makeup . . . . I don't know what's on their minds when they decide where to locate a site . . . . The problem is, right now there are no requirements that say we ought to consider the economic status of a community or the racial status of a community in determining whether or not to approve a permit for a facility . . . ." Cole, supra note 176, at 346 (first omission in original) (quoting Charles Chisolm, Dir. of Pollution Control, Miss. Dep't of Envtl. Quality); see also Rosenbaum & Teitelbaum, supra note 175, at 234 ("[A]lthough Title VI compliance is a condition of federal funding, this simple fact is not stated anywhere in federal regulations governing Medicare's conditions of participation."); id. at 234-35 (finding that because of lack of clear requirements, funding recipients repeatedly issue policies that are facially neutral "but are capable of producing devastating racial effects").
233. See 536 U.S. 273, 283 (2002) (holding that § 1983 analysis of whether Congress intended to create an enforceable right is no different than in implied right of action cases).
234. See, e.g., DMC 2002 Update, supra note 128, at 10-11.
235. Telephone Interview with Heidi Hsia, DMC Coordinator, Office of Juvenile Justice & Delinquency Prevention, Dep't of Justice, in New York, N.Y. (Oct. 27, 2005).
236. Telephone Interview with Michael Harris, supra note 158.
237. See, e.g., W. Haywood Burns Inst. for Juvenile Justice Fairness & Equity, State Disproportionate Minority Confinement Data, at http://www.burnsinstitute.org/dmc (last visited Oct. 18, 2006) (on file with the Columbia Law Review). Scholars have written about the role of public information in institutional reform in other public law contexts.
238. See, e.g., Bradley Karkkainen, Information as Environmental Regulation: TRI and Performance Benchmarking, Precursor to a New Paradigm?, 89 Geo. L.J. 257, 295-300 (2001) (describing successes of EPA program requiring firms to publicly report toxic emissions). The effect is likely to be smaller in the DMC context, as racial disparities in juvenile justice are less likely to generate the level of public outcry generated by toxic waste, for instance.
239. This consortium is known as the Building Blocks for Youth Initiative. See supra note 159.
240. See, e.g., ACLU, supra note 159 (documenting and publicizing Massachusetts's failure to comply with DMC mandate).
241. The literature on experimentalist regimes has detailed how to use benchmarks and "rolling rules" as a way of incorporating learning from better performing entities. See, e.g., Brandon L. Garrett & James S. Liebman, Experimentalist Equal Protection, 22 Yale L. & Pol'y Rev. 261, 291-92 (2004) (describing use of performance benchmarking and experimentation in education reform);
242. Charles F. Sabel & William Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1015, 1069-70 (2004) (describing judicial remedies in public law litigation that take form of provisional, rolling rules which are revised to respond to new information and contingencies).
243. Brown et al., supra note 17, at 19.
244. Commentators disagree on whether NCLB unduly emphasizes rote testing and intrudes on state authority. Compare Garrett & Liebman, supra note 185, at 311 (arguing diat these criticisms "misunderstand [ ] the experimentalist nature of the remedy - the NCLB rejects inflexible testing goals imposed from above and instead asks that states set their own achievement and progress goals and standards"), with Gail L. Sunderman & Jimmy Kim, Expansion of Federal Power in American Education: Federal-State Relationships Under the No Child Left Behind Act, Year One, at 17 (2004), at http://www.civilrightsproject. harvard.edu/research/esea/Federal_report.pdf (on file with the Columbia Law Review) [hereinafter Sunderman & Kim, Expansion of Federal Power] (finding, among other things, that NCLB expands testing requirements, mandates which subjects are to be tested, and establishes timelines for those assessments).
245. Pub. L. No. 107-110, 115 Stat. 1425 (codified as amended at 20 U.S.C. § 6301 note (Supp. II 2002)). NCLB is the name of the 2001 Act reauthorizing Title 1 of the Elementary and Secondary Education Act (ESEA), which, among other things, provides funds to states for educating low-income students. NCLB builds on state accountability systems, such as those in Kentucky, North Carolina, and Texas, that measure educational outcomes, set goals, and attempt to improve educational practices. See Garrett & Liebman, supra note 185, at 309-10. As discussed earlier, see supra text accompanying notes 100-121, the plaintiffs GI Forum challenged portions of that system, though, it should be noted, they challenged not the use of tests to hold schools and districts accountable, but the use of tests in making promotion and graduation decisions for individual students. The federal NCLB, while allowing states to set achievement goals using standardized tests, does not mandate the use of tests in making high-stakes educational decisions for children.
246. See 20 U.S.C. § 6301 (2000) (describing Act, in Statement of Purpose, as aimed at "[c] losing the achievement gap between high and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers"); Garrett & Liebman, supra note 185, at 314.
247. See Daniel J. Losen, Challenging Racial Disparities: The Promise and Pitfalls of the No Child Left Behind Act's Race-Conscious Accountability, 47 How. L.J. 243, 295-96 (suggesting how civil rights advocates might leverage NCLB's race-conscious accountability mechanisms).
248. See, e.g., Sunderman & Kim, Expansion of Federal Power, supra note 187, at 6. Some commentators also claim that the subgroup accountability requirement harms predominandy minority and integrated schools because they will have to make substantial gains in order to meet the adequate yearly progress requirement and avoid sanctions, and because they have to meet more achievement targets than predominandy white schools.
249. See Gail L. Sunderman & Jimmy Kim, Large Mandates and Limited Resources: State Response to the No Child Left Behind Act and Implications for Accountability 12-13 (2004), available at http://www.civilrightsproject.harvard. edu/research/esea/state_report.pdf (on file with the Columbia Law Review);
250. see also Thomas J. Kane & Douglas O. Staiger, Racial Subgroup Rules in School Accountability Systems 21 (Sept. 27, 2002) (unpublished manuscript, on file with the Columbia Law Review), available at http://www.sppsr.ucla. edu/faculty/kane/kanestaigerracialsubgroupsrevision.pdf (concluding that subgroup accountability systems "arbitrarily single out schools with large minority subgroups for sanctions and exclude them from awards . . . or statistically disadvantage diverse schools that are more likely to be attended by minority students"). Civil rights groups have also been divided about the law.
251. Twenty-five states currendy have legislation mandating data collection, and at least twenty states voluntarily collect data. See R. Richard Banks, Beyond Profiling: Race, Policing, and the Drug War, 56 Stan. L. Rev. 571, 575 n.15 (2003) (noting extensive data collection efforts by jurisdictions across country on law enforcement officers' stop-search practices); Garrett, supra note 28, at 81-82 n.127 (same);
252. Data Collection Res. Ctr., Northeastern Univ., Background and Current Data Collection Efforts: Jurisdictions Currendy Collecting Data, at http://www.racialprofilinganalysis.neu.edu/background/jurisdictions.php (last visited Oct. 18, 2006) (on file with the Columbia Law Review) (showing states with mandatory and voluntary data collection). Many police departments also voluntarily collect data, largely in response to political pressures, see Garrett, supra note 28, at 82 n.128, and federal law enforcement collects data under an executive order issued in 1999 by President Clinton.
253. See Memorandum on Fairness in Law Enforcement, 35 Weekly Comp. Pres. Doc. 1067 (June 9, 1999); Banks, supra, at 575 n.16.
254. See Garrett, supra note 28, at 83 (criticizing most state legislation as "incomplete and vague").
255. See id. at 51-52 ("[A]ny definition of racial profiling is confounded by the motivation of individual actors."); see also Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1415, 1416 n.6 (2002) (describing racial profiling as stops, arrests, searches, or investigations where "the officer believes that members of that person's racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating" and noting existence of narrower definitions of racial profiling).
256. See Banks, supra note 192, at 581-86 (describing ambiguous meaning of evidence of racial disparities in stop and search rates); Garrett, supra note 28, at 84-92 (indicating problems with scope and evaluation of data collection).
257. See, e.g., Gross & Livingston, supra note 194, at 1413-14 (describing how events of September 11, 2001 changed public opinion on appropriateness of racial profiling); id. at 1423-24 (describing shift in public opinion from eighty-one percent against racial profiling to seventy-nine percent in favor of program targeting Arabs). Not all commentators agree that the racial profiling campaign, with its focus on irrational police practices and innocent victims, is the best emphasis. See Banks, supra note 192, at 602-03 (urging instead that policy analyses focus on race-specific consequences of drug war).
258. See Garrett, supra note 28, at 84-89, 115-40.
259. In 1996, Congress passed the Personal Responsibility and Work Reconciliation Act (PRWORA), which replaced the Aid to Families with Dependent Children (AFDC) federal entidement program for poor families with a block granted program known as TANF (Temporary Assistance for Needy Families). See Personal Responsibility and Work Reconciliation Act of 1996 (Welfare Reform Act), Pub. L. No. 104-193, 110 Stat. 2105 (codified in scattered sections of 7, 8, 20, 21, 25, and 42 U.S.C). Eligible families can only receive TANF aid for five years; nonexempt TANF recipients are required to participate in work activities. PRWORA gives states flexibility, including allowing them to set their own eligibility criteria, cap grants based on family size, determine exemptions from work activities, and determine how and under what circumstances to sanction recipients who fail to comply with work requirements or other rules.
260. See, e.g., Elizabeth Lower-Basch, U.S. Dep't of Health & Human Servs., TANF "Leavers," Applicants, and Caseload Studies: Preliminary Analysis of Racial Differences in Caseload Trends and Leaver Outcomes fig.1 (Dec. 2000), available at http://aspe.hhs.gov/hsp/leavers99/race.htm#fig1 (on file with the Columbia Law Review) (documenting decrease in white families receiving TANF).
261. See, e.g., U.S. Comm'n on Civil Rights, A New Paradigm for Welfare Reform: The Need for Civil Rights Enforcement (2002), at http://www.usccr.gov/ pubs/prwora/welfare.htm (on file with the Columbia Law Review) [hereinafter A New Paradigm for Welfare Reform];
262. Letter from the ACLU to the U.S. House of Representatives Regarding HR 4700, The Personal Responsibility, Work and Family Promotion Act of 2002 (May 14, 2002), available at http://www.aclu.org/rightsofthepoor/welfare/ 134391eg20020514.html (on file with the Columbia Law Review). Researchers and advocates are also asking state agencies to improve their data collection and monitoring.
263. See, e.g., Racial and Ethnic Disparities in the Era of Devolution, supra note 1, at 21-22 (calling for policy analysts and researchers to work with state policymakers to improve data collection).
264. See, e.g., Dep't of Workforce Dev., State of Wis., Wisconsin Works (W-2) Sanctions Study 10-11 (2004), available at http://www.dwd.state.wi.us/DWS/w2/ pdf/SanctionsFinalReport.pdf (on file with the Columbia Law Review). The Wisconsin study was prompted by a Title VI OCR complaint filed by the ACLU of Wisconsin and the Milwaukee Branch of the NAACP against the State of Wisconsin for, among other things, discrimination in the application of sanctions.
265. See Letter from Karyn Rotker, ACLU of Wis., to Patricia Lucas, Office for Civil Rights, U.S. Dep't of Health & Human Servs. (Feb. 19, 2002), available at http://www.aclu-wi.org/wisconsin/rights_of_poor/ocrada.shtml (on file with the Columbia Law Review) [hereinafter Letter from Karyn Rotker].
266. For additional data on racial disparities in sanctions, see Kenneth Finegold & Sarah Staveteig, Race, Ethnicity, and Welfare Reform, in Welfare Reform: The Next Act 203, 214-15 (Alan Weil & Kenneth Finegold eds., 2002) (discussing survey indicating states with higher black populations are also more likely to have adopted strong sanctions);
267. A New Paradigm for Welfare Reform, supra note 200 (discussing racial disparities uncovered in results from survey on welfare recipients from thirteen states (citing Rebecca Gordon, Applied Research Ctr., Cruel and Unusual: How Welfare "Reform" Punishes Poor People 5, 33-34 (2001), available at http://www.arc.org/pdf/285cpdf.pdf (on file with the Columbia Law Review)));
268. Racial and Ethnic Disparities in the Era of Devolution, supra note 1, at 13 (describing survey data from Wisconsin that shows higher percentages of blacks have had food stamp benefits reduced or cut); see also id. at 20 (discussing disparities in use of preemployment tests as condition of employment). Studies are often limited by the paucity of available data, particularly on those who leave welfare. See id. at 16-21 (noting gaps in data on racial and ethnic disparities).
269. See Gooden, supra note 1, at 27-30 (finding, based on survey of thirty-nine white and black welfare recipients, disparate treatment by case worker with regard to job notification, educational support, transportation assistance, and overall fairness); A New Paradigm for Welfare Reform, supra note 200, at 3-4 (citing studies finding that minorities on TANF have less access to social support services and that they are more likely to be subject to sanctions and other punitive policies);
270. Racial and Ethnic Disparities in the Era of Devolution, supra note 1, at 15 (citing studies in Mississippi showing that whites were more likely than blacks to receive help with job placement, childcare, transportation, mental health counseling, and drug treatment). Under TANF, caseworkers have discretion in connecting recipients to support services such as childcare and transportation, and educational services such as GED services.
271. Racial and Ethnic Disparities in the Era of Devolution, supra note 1, at 6-9 (reporting data on "sub-optimal living conditions" in states of Washington and New York).
272. See Finegold & Staveteig, supra note 201, at 212-13 (discussing obstacles, such as employer discrimination, that minority welfare recipients face in trying to secure employment).
273. For instance, the ACLU office in Wisconsin filed a Title VI complaint challenging racial disparities in how the state agency granted time limits for welfare receipt. See Letter from Karyn Rotker, supra note 201.
274. See Banks, supra note 192, at 577-80 (discussing several empirical arguments aimed at demonstrating irrationality of racial profiling); see also Garrett, supra note 28, at 45, 86-87 (noting that data on racial profiling is often used solely to disprove racial profiling or postpone reform).
275. See, e.g., DMC 2002 Update, supra note 128, at 21-24 (describing legislative efforts in Washington State).
276. See, e.g., Heckler v. Chaney, 470 U.S. 821, 832, 833 & n.4 (1985) (stating that while agency action not to take enforcement action is presumptively unreviewable, presumption is rebuttable where statute provides guidelines and agency consciously abdicates responsibility to enforce statute).
277. See Pryor v. NCAA, 288 F.3d 548, 564-65 (3d Cir. 2002) (holding that Feeney did not bar deliberate indifference claim at motion to dismiss stage); cf. S. Camden Citizens in Action v. N.J. Dep't of Envd. Prot., 254 F. Supp. 2d 486, 497-99 (D.N.J. 2003) (same).
278. See, e.g., supra note 125.
279. DMC and similar models rely heavily on data collection on the basis of race and edinicity, which raises constitutional and policy concerns. Such data collection is controversial in many quarters, most famously exemplified by the recent unsuccessful effort to abolish the collection of racial data in California. See generally Richa Amar, Note, Unequal Protection and the Racial Privacy Initiative, 52 UCLA L. Rev. 1279, 1281-93 (2005) (describing California's "Racial Privacy Initiative" (RPI), including its defeat by popular vote in 2003, and arguing even modified RPI would have violated Equal Protection Clause). There may also be constitutional objections to racial data collection or to the creation of racial incentives based on race. But unless the Supreme Court adopts a view diat prohibits all race consciousness, most of the actions taken under these disparity regimes are unlikely to sufficiendy harm another racial group to justify standing or heightened review. One could imagine extreme examples - for instance redirecting all government resources to minorities or arresting only white juveniles to "cure" racial disparities - but as a practical matter states are unlikely to take such steps.
280. See Ayres, Pervasive Prejudice, supra note 43, at 426 ("[U]njustified disparate impacts are an appropriate concern for law and policy, [but] I do not believe that they provide as firm a moral basis for political organizing.").
281. See Selmi, Mistake, supra note 9, at 782 ("[A] broader judicial definition of intent would not have led to less inequality, but it may have opened our eyes to the persistence of discrimination in a way that the disparate impact theory could not.").
282. This is not entirely inconsistent with Ayres's argument that providing empirical evidence of "race-contingent" behavior counters arguments that race no longer matters and thus can help spur reforms. See Ayres, Pervasive Prejudice, supra note 43, at 426 ("[V]isual images of disparate treatment . . . are the key to convincing whites that unjustified race-contingent behavior persists in the modern marketplace.").
283. As Loury has suggested, if race itself is a social construct then racial disparities are also constructed by society. See Loury, Racial Inequality, supra note 12, at 5 (describing "race" as "a socially constructed mode of human categorization" and racial disparity as "a social artifact-a product of the peculiar history, culture, and political economy of American society").