Disparate impact

Georgetown Law Journal

Volumn 98, Issue 4, 2010, Pages 1132-1162

  Spann, Girardeau A ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 77954047319     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (225)

1. See, e.g., Peter Baker, Court Choice Pushes Issue of "Identity Politics" Back to Forefront, N.Y TIMES, May 31, 2009, at A20 (discussing claim that the Obama election "was supposed to usher in a new post-racial age");
2. Krissah Thompson, 100 Years Old, NAACP Debates Its Current Role, WASH. POST, July 12, 2009, at A3 (quoting historian David Garrow's suggestion that the election of President Obama has marked the end of the traditional civil rights era by signifying "the complete inclusion of black people at all levels of politics");
3. id.
4. (reporting Professor Darren Hutchinson's suggestion that we are now in a period of "racial exhaustion" when "[a] lot of people are tired of talking about race" and "[t]hey have to find a new language for dealing with these issues"); Jeffrey Toobin, Comment: Answers to Questions, NEW YORKER, July 27, 2009, at 19-20 (noting that the Obama election has been invoked to argue that we have now achieved a level playing field that precludes need for remedial racial measures).
5. See, e.g., Baker, supra note 1 (suggesting that nomination of then-Judge Sotomayor for the Supreme Court shows that we have not yet reached post-racial age);
6. Sheryl Gay Stolberg, Obama Gives Fiery Address at N.A.A.C.P. 100th Anniversary Celebration, N.Y TIMES, July 17, 2009, at A16 (discussing President Obama's address at the NAACP 100-year anniversary convention, where he stated that racial discrimination continues to exist despite civil rights gains);
7. Krissah Thompson, On Race and Law Enforcement, WASH. POST, July 23, 2009, at A4 (discussing President Obama's statement that racially charged arrest of Henry Louis Gates illustrates that racial profiling still exists);
8. Krissah Thompson & Cheryl W. Thompson, After Arrest, Cambridge Reflects on Racial Rift: Forum To Explore Deep-Seated Issues, WASH. POST, July 26, 2009, at Al (claiming that Gates arrest illustrates continued existence of deep-seated racial tensions);
9. Krissah Thompson & Cheryl W Thompson, Obama Speaks of Blacks' Struggle, WASH. POST, July 17, 2009, at Al (same);
10. Toobin, supra note 1 (rejecting claim that Obama election has leveled playing field in way that now precludes need for remedial racial measures);
11. see also Henry Louis Gates, Jr., A Conversation with William Julius Wilson on the Election of Barock Obama, 6 Du Bois REV. 15, 20-21 (2009) (disputing post-racial claim).
12. President Obama's background is described in his autobiography, BARACK OBAMA, DREAMS FROM MY FATHER: A STORY OF RACE AND INHERITANCE (2004).
13. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 406-07, 453-54 (1857) (holding that blacks could not be citizens within the meaning of the United States Constitution for purpose of establishing diversity jurisdiction and invalidating congressional statute enacted to limit spread of slavery as interfering with property rights of slave owners), superseded by constitutional amendment, U.S. CONST. amends. XIII, XIV.
14. Plessy v. Ferguson, 163 U.S. 537, 548, 550-51 (1896) (upholding constitutionality of separate-butequal regime of racial discrimination in public facilities by finding that segregation did not constitute unconstitutional discrimination under the Equal Protection Clause),
15. overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
16. Korematsu v. United States, 323 U.S. 214, 217-218 (1944) (upholding World War II exclusion order that led to Japanese-American internment).
17. -129 S. Ct. 2658 (2009).
18. See id. at 2673-74, 2681 (holding that effort to remedy disparate impact constituted intentional discrimination against whites);
19. cf. id. at 2699 (Ginsburg, J., dissenting) (arguing that majority undermines disparate impact cause of action recognized in Griggs v. Duke Power, 401 U.S. 424, 431-432 (1971)).
20. -426 U.S. 229, 244-245 (1976) (adopting intent requirement to establish equal protection violation).
21. See Ricci, 129 S. Ct. at 2676 (expressly leaving open question of whether measures to comply with Title VJJ disparate impact provision are constitutional);
22. cf. id. at 2681-2682 (Scalia, J., concurring) (suggesting that Title VII disparate impact provision was unconstitutional).
23. See KIMBERLE CRENSHAW ET AL., CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT, at 24-27 (1995).
24. See GIRARDEAU A. SPANN, RACE AGAINST THE COURT 161 (1993) (arguing that Supreme Court has historically performed "veiled majoritarian" function of sacrificing racial minority interests for benefit of white majority).
25. -21 U.S. (8 Wheat.) 543, 587-588 (1823) (holding that European discovery and conquest divested original Indian inhabitants of title to land that now constitutes the United States).
26. -60 U.S. (19 How.) 393, 406-07, 452 (1857).
27. -163 U.S. 537, 548, 550-551 (1896) (upholding constitutionality of separate-but-equal regime of racial discrimination in public facilities by finding that segregation did not constitute unconstitutional discrimination under the Equal Protection Clause).
28. See MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 61-97, 117-35, 135-70 (2004) (discussing formal minority victories in Supreme Court that made little practical difference in preventing actual discrimination).
29. See generally DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II (2008);
30. CHARLES LANE, THE DAY FREEDOM DIED: THE COLFAX MASSACRE, THE SUPREME COURT, AND THE BETRAYAL OF RECONSTRUCTION (2008)
31. -323 U.S. 214, 215-219 (1944).
32. See Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 495 (1954) (rejecting separate-but-equal doctrine and declaring official school segregation to be unconstitutional).
33. See Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955) (tempering effect of Brown I by declining to order immediate school desegregation and instead requiring desegregation "with all deliberate speed").
34. See GEOFFREY STONE ET AL., CONSTITUTIONAL LAW 473-479 (6th ed. 2009) (discussing delay in implementation of Brown I).
35. -350 U.S. 891, 891 (1955) (per curiam). In Naim, the United States Supreme Court was asked to hold unconstitutional a Virginia miscegenation statute that had been upheld by the Virginia Supreme Court of Appeals.
36. See id. The United States Supreme Court vacated the Virginia decision and remanded for clarification of the record.
37. Id.
38. The Virginia Supreme Court of Appeals, however, merely reaffirmed its earlier decision and refused to clarify the record. Naim v. Naim, 90 S.E.2d 849, 850 (1956) (per curiam).
39. Nevertheless, the United States Supreme Court declined to recall or amend the mandate, finding that the constitutional question had not been "properly presented." Nairn v. Naim, 350 U.S. 985, 985 (1956) (per curiam).
40. This allowed the Virginia Court's decision to remain in effect
41. Id.
42. Because the neutrality principle that had been announced in Brown I seemed to make the Virginia miscegenation statute unconstitutional, and because the Supreme Court's failure to resolve Naim on the merits also seemed to violate a federal statute giving the Supreme Court mandatory jurisdiction over the case, the Supreme Court's actions in Naim have been vigorously criticized. See, e.g., Gerald Gunther, The Subtle Vices of the "Passive Virtues"-A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 12 (1964) ("[T]here are a very few dismissals similarly indefensible in law.");
43. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 34 (1959) (noting that dismissal of the miscegenation case was "wholly without basis in the law").
44. The Supreme Court ultimately invalidated the Virginia miscegenation statute as a manifestation of white supremacy eleven years later in Loving v. Virginia, 388 U.S. 1, 6, 11-12 (1967), when only sixteen states still had miscegenation statutes on the books.
45. See Keyes v. Sch. Dist No. 1, 413 U.S. 189, 208-09, 212 (1973) (adopting expansive interpretation of de jure segregation but reaffirming prohibition on use of race-conscious remedies to eliminate de facto segregation);
46. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 17-18 (1971) (same);
47. see also STONE ET AL., supra note 19, at 479-88 (discussing current de facto school segregation);
48. cf. Washington v. Davis, 426 U.S. 229, 244-45 (1976) (reading Equal Protection Clause to permit racially disparate impact not directly caused by intentional discrimination);
49. Milliken v. Bradley, 418 U.S. 717, 733-35, 744-45 (1974) (refusing to allow inter-district judicial remedies for de facto school segregation, thereby permitting suburban schools to remain predominantly white and inner-city schools to remain overwhelmingly minority).
50. See, e.g.. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 293-95, 307 (1978) (controlling opinion of Powell, J.) (reading Brown I to prohibit affirmative action that benefits racial minorities at the expense of whites).
51. See SPANN, supra note 11, at 19-26, 94-99, 104-160 (1993) (arguing that Supreme Court has historically performed "veiled majoritarian" function of sacrificing racial minority interests for benefit of white majority).
52. See supra text accompanying notes 17-22 (discussing Brown, school segregation, and affirmative action).
53. -334 U.S. 1, 13, 19-20 (1948) (prohibiting judicial enforcement of restrictive covenants but not holding such covenants unlawful).
54. See generally JAMES W. LOEWEN, SUNDOWN TOWNS: A HIDDEN DIMENSION OF AMERICAN RACISM passim (2005) (documenting history of intentional residential segregation in United States);
55. DOUGLAS MASSEY & NANCY DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS passim (1993) (discussing concept of urban residential "hypersegregation" in United States).
56. -100 U.S. 303, 310 (1880) (prohibiting discrimination in selection of jury venire).
57. -476 U.S. 79, 88-89 (1986) (prohibiting discrimination in selection of petit jury).
58. -500 U.S. 352, 369-370 (1992) (permitting Latino jurors to be struck because they spoke Spanish and might not therefore, rely on official English translation of Spanish testimony).
59. -364 U.S. 339, 341-342 (1960) (holding that racial gerrymander to disenfranchise black voters would be unconstitutional).
60. -509 U.S. 630, 649-51, 653-658 (1993) (granting white voters cause of action to challenge creation of majority-minority voting districts).
61. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 225-27 (1995) (overruling Metro Broadcasting by rejecting application of intermediate scrutiny to some minority-favoring racial classifications and applying strict scrutiny to federal affirmative action program designed to benefit minority contractors),
62. overruling Metro Broadcasting Co. v. FCC, 497 U.S. 547, 600-01 (1990).
63. See generally GIRARDEAU A. SPANN, THE LAW OF AFFIRMATIVE ACTION: TWENTY-FIVE YEARS OF SUPREME COURT DECISIONS ON RACE AND REMEDIES 159-63 (2000) (discussing Supreme Court affirmative action decisions and voting blocs).
64. The Court's current treatment of affirmative action is arguably inconsistent. Compare Grutter v. Bollinger, 539 U.S. 306, 327-30, 334 (2003)
65. (upholding University of Michigan law school affirmative action program for student admissions), with Gratz v. Bollinger, 539 U.S. 244, 255-57, 275-76 (2003) (invalidating arguably indistinguishable University of Michigan undergraduate affirmative action program on same day that Grutter was decided).
66. See, e.g., Gratz, 539 U.S. at 299-304 (2003) (Ginsburg, J., dissenting) (discussing, in case that invalidated affirmative action program, striking racial disparities that continue to exist in distribution of societal resources).
67. See SPANN, supra note 32, at 159-63 (discussing Supreme Court voting record in affirmative action and redisrricting cases);
68. see also Girardeau A. Spann, Disintegration, 46 U. LOUISVILLE L. REV. 565, 566-75 (2008)
69. (discussing Supreme Court decision in Parents Involved in Community Schools v. Seattle School District Number 1, 551 U.S. 701 (2007) (plurality opinion), which invalidated voluntary race-conscious efforts to prevent resegregation of public schools).
70. See, e.g.. City of Richmond v. J.A. Croson Co., 448 U.S. 469, 498-508 (1989) (utilizing assumptions to invalidate minority construction set-aside);
71. see also Adarand Constructors, 515 U.S. at 226-31 (applying strict scrutiny to construction set-aside that presumed racial minorities to be economically and socially more disadvantaged than whites);
72. Shaw v Reno, 509 U.S. 630, 642-52, 653-58 (1993) (creating cause of action for white voters to challenge majority-minority voting districts as reverse discrimination against whites that is not necessary to remedy past voting discrimination against minorities).
73. -551 U.S. 701, 711, 722 (2007) (plurality opinion).
74. Id. at 709-711
75. See id. at 746-748
76. -129 S. Ct. 2658 (2009).
77. See id. at 2664.
78. See id. at 2682 (Scalia, J., concurring) (suggesting that Title VII disparate impact provision was unconstitutional);
79. cf. id. at 2676 (majority opinion) (declining to address constitutionality of Title VII disparate impact provision).
80. See, e.g., cases cited supra note 35.
81. See SPANN, supra note 11, at 19-26, 94-99, 104-160 (1993) (arguing that Supreme Court has historically performed "veiled majoritarian" function of sacrificing racial minority interests for benefit of white majority).
82. -426 U.S. 229, 238-248 (1976).
83. -442 U.S. 256,278-279 (1979).
84. Id.
85. See Washington, 442 U.S. at 242-44 (citing prior Supreme Court decisions);
86. see also SPANN, supra note 111 at 38-39 (discussing Washington v. Davis).
87. See Washington, AAl U.S. at 244-245, 245 n.12 (citing 13 courts of appeals decisions and four district court decisions).
88. Id. at 248 (discussing breadth of disparate impact principle);
89. see also SPANN, supra note 11, at 38 (discussing Washington v. Davis intent requirement).
90. See KLARMAN, supra note 15, at 28-39 (discussing disenfranchisement).
91. See id. at 39-43, 55-57 (discussing jury service);
92. cf. LANE, supra note 15, passim (discussing violent Louisiana massacre used to prevent black and white Republican office holders from assuming office).
93. See KLARMAN, supra note 15, at 71-76, 86-88 (discussing peonage system based on vagrancy laws and convict labor);
94. see generally BLACKMON, supra note 15, passim (same).
95. See KLARMAN, supra note 15, at 8-10;
96. id. at 33-39 (voting);
97. id. at 39, 41-43 (juries);
98. cf. id. at 72, 86-88, 96-97 (invalidating some peonage laws, but not ending practice of peonage).
99. See Washington, 426 U.S. at 248.
100. -401 U.S. 424, 429-32 (1971);
101. see also SPANN, supra note 11, at 38-40 (discussing Washington v. Davis and Griggs).
102. Griggs, 401 U.S. at 429.
103. -42 U.S.C. §2000e-2 (2006).
104. Griggs, 401 U.S. at 429-430
105. See Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493, 506-07, 516-517 (2003) (discussing criticism of Griggs and actual intent of Congress).
106. Civil Rights Act of 1991, Pub. L. No. 102-166, § 3(2), 105 Stat 1071, 1071 (making reference to Griggs and other Supreme Court decisions recognizing disparate impact claims);
107. see also SPANN, supra note 11, at 1, 173-74 (discussing Civil Rights Act of 1991);
108. Primus, supra note 59, at 516-518 (discussing Griggs and Civll Rights Act of 1991).
109. -129 S. Ct 2658 (2009).
110. Id at 2671.
111. Id at 2604.
112. Id at 2675.
113. See Id at 2675-2676
114. Id at 2699 (Ginsburg, J., dissenting).
115. See id. at 2700.
116. See id at 2701.
117. Id at 2705.
118. See id. at 2673 (majority opinion) (recognizing prima facie disparate impact claim).
119. See id. at 2675 (citing constitutional cases that invalidated affirmative action plans under strong basis in evidence standard);
120. id. at 2700-02 (Ginsburg, J., dissenting) (same);
121. cf. Grutter v. Bollinger, 539 U.S. 306, 334 (2003) (upholding educational affirmative action plan as serving compelling state interest in promoting prospective diversity rather than as remedy for past discrimination).
122. See Ricci, 129 S. Q. at 2706-2707 (Ginsburg, J., dissenting) (arguing that standard was satisfied).
123. Id at 2677 (majority opinion) (resolving case in favor of white firefighters on summary judgment);
124. cf. id. at 2706-2707 (Ginsburg, J., dissenting) (arguing that factual disputes precluded summary judgment).
125. See id. at 2676 (majority opinion)
126. See id. at 2682 (Scalia, J., concurring).
127. Cf. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct 2504, 2511-13 (2009) (threatening to declare section 5 of Voting Rights Act unconstitutional if Congress does not modify the statute);
128. id. at 2519 (Thomas, J., concurring in the judgment in part and dissenting in part) ("The Court quite properly alerts Congress that §5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.").
129. See Girardeau A. Spann, The Conscience of a Court, 63 U. MIAMI L. REV. 431, 437-438 (2009) (discussing conservative Supreme Court voting bloc on issue of race).
130. -539 U.S. 306, 343 (2003).
131. -539 U.S. 244, 251 (2003).
132. Grutter, 539 U.S. at 310 (listing votes of Justices).
133. STONE ET AL., supra note 19, at lxxxviii-xc (table showing replacement of Justice O'Connor by Justice Alito).
134. -551 U.S. 701, 708 (2007) (listing votes of Justices).
135. See Spann, supra note 77, at 437-438 (discussing conservative Supreme Court voting bloc on issue of race).
136. -426 U.S. 229, 248 (1976).
137. See Ricci v. DeStefano, 129 S. Ct 2658, 2672-2673 (2009) (describing Title VII disparate impact test).
138. See id. at 2696-2699 (Ginsburg, J., dissenting) (emphasizing that Civil Rights Act of 1991 was intended to overrule Supreme Court's restrictive Title VII decisions).
139. Although I fear that Ricci has sounded an effective death knell for Title VII disparate impact claims, at least one federal district court has upheld a disparate impact claim in the aftermath of Ricci. In United States v. Vulcan Society, 637 F. Supp. 2d 77, 79 (E.D.N.Y 2009), the court invahdated New York City's reliance on firefighter selection exams that were used to choose candidates for admission to the New York City Fire Academy, holding that those exams had an impermissible racially disparate impact that constituted an employment discrimination violation of Title VII. The Vulcan court distinguished Ricci by finding that Ricci addressed a potential disparate impact violation of Title VII, whereas Vulcan addressed an actual violation of Title Vu.
140. Id at 83.
141. See infra text accompanying note 107 (discussing "societal discrimination").
142. See Richard Lazarus, Super Wicked Problems and Climate Change: Restraining the Present To Liberate the Future, 94 CORNELL L. REV. 1153, 1193-1200 (2009) (discussing theoretical foundations for precornmitment strategies).
143. See EUsabeth BumiUer & Adam Nagoumey, Bush, Resetting Agenda, Says U.S. Must Cut Reliance on Oil, N. Y. TIMES, Feb. 1, 2006, at Al (quoting President Bush).
144. See supra text accompanying notes 11-22 (describing illustrative cases).
145. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 746-748 (2007) (plurality opinion) (citing Brown II as authorizing resegregation of pubUc schools).
146. See Charles R. Lawrence III The Id the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 322-323 (1987) (arguing that much contemporary racial discrimination is unconscious).
147. See Gratz v. Bollinger, 539 U.S. 244, 299 (2003) (Ginsburg, J., dissenting).
148. See id. at 299-302 (discussing striking racial disparities that continue to exist in distribution of societal resources).
149. See Ian Ayres, PERVASIVE PREJUDICE?: UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRTMINATION 19-44, 165-232, 233-311 (2001) (documenting statistical discrimination).
150. See Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1509-1514 (2005) (discussing unconscious racial bias revealed by Implicit Association Test).
151. See Po Branson & Amy Merryman, See Baby Discriminate: Kids as Young as 6 Months Judge Others Based on Skin Color. What's a Parent To Do?, NEWSWEEK, Sept. 14, 2009, at 53 (describing racial attitudes in young children).
152. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Q. 2504, 2508-11, 2513-17 (2009) (discussing facts and holding);
153. id. at 2511-13 (suggesting that section 5 of the Voting Rights Act of 1965 would now be unconstitutional). Justice Thomas expressed similar sentiments, stating that "[t]he Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional."
154. See id. at 2519 (Thomas, J., concurring in the judgment in part and dissenting in part).
155. See generally LOEWEN, supra note 26, passim (documenting history of intentional residential segregation in United States);
156. MASSEY & DENTON, supra note 26, passim (discussing concept of urban residential "hypersegregation" in United States).
157. See Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1714-1715 (1993) (discussing sense of white entitlement).
158. See, e.g., Yamiche Alcindor, Seeking Healing, Seeing Hostility: Some at Black Family Reunion Criticize Protests Against Obama, WASH. POST, Sept 14, 2009, at B I (discussing racially motivated opposition to Obama);
159. Maureen Dowd, Boy, Oh, Boy, N.Y TIMES, Sept. 13, 2009, at WK.17 (same);
160. Colbert I. King, A Dangerous Kind of Hate, WASH. POST, Sept. 12, 2009, at A17 (same);
161. Anne E. Kornblut & Krissah Thompson, Race Issue Deflected Now as in Campaign: Obama Maintains Criticism Is About Policy Differences, WASH. POST, Sept 17, 2009, at A1 (discussing comments of former President Carter that some opposition to President Obama is racially motivated);
162. cf. Hendrik Hertzberg, Comment: Lies, NEW YORKER, Sept. 21, 2009, at 33 (including race among factors motivating paranoia generated by Obama and his programs).
163. See Krissah Thompson, Minority Groups Raise Voices on Reform: Advocates Still Wary of Making Race a Central Issue in Health Care Debate, WASH. POST, Oct. 8, 2009, at A9 (discussing participation of minorities in health care debate).
164. See ANDREW HACKER, Two NATIONS: BLACK AND WHITE SEPARATE, HOSTILE, UNEQUAL 43-44 (2003) (describing survey).
165. See generally id passim (describing many ways in which blacks and whites continue to Uve in two different worlds, where blacks are treated as inferior to whites).
166. See infra note 107 (citing "societal discrimination" cases).
167. See infra note 107.
168. This position was articulated by Justice Powell in Regents of the University of California v. Bakke, 438 U.S. 265, 307-10 (1978),
169. and'reasserted by Justice Powell in Wygant v. Jackson Board of Education, 476 U.S. 267, 274-79 (1986) (plurality opinion). Lead by Justice O'Connor, this view has since been adopted by a majority of the full Supreme Court.
170. See Grutter v. Bollinger, 539 U.S. 306, 323-25 (2003) (citing Bakke as rejecting interest in remedying societal discrimination);
171. id. at 330 (rejecting racial balancing as "patently unconstitutional");
172. see also Metro Broad, v. F.C.C, 497 U.S. 547, 612-14 (1990) (O'Connor, J., dissenting);
173. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494-96 (1989) (pluraUty opinion) (rejecting societal discrimination);
174. Johnson v. Transp. Agency, 480 U.S. 616, 647-53 (1987) (O'Connor, J., concurring in the judgment) (same);
175. Wygant, 476 U.S. at 288 (O'Connor, J. concurring) (same). Most recently, Chief Justice Roberts reiterated this view in the 2007 Resegregation Cases.
176. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732-33 (2007) (plurality opinion) (same).
177. See, e.g.. Parents Involved, 551 U.S. at 848, 850-852 (Breyer, J., dissenting) (emphasizing that race-neutral efforts had failed to prevent school resegregation).
178. See supra note 107.
179. See, e.g.. Parents Involved 551 U.S. at 732-33 (plurality opinion) (prohibiting racial balance);
180. Grutter, 539 U.S. at 327 (requiring particularized remedies).
181. Ricci v. DeStefano, 129 S. Ct 2658, 2681 (2009).
182. See id. at 2705 (Ginsburg, J., dissenting) (discussing alternative of using assessment centers or different test weightings).
183. See id. (discussing alternatives);
184. id. at 2668-2669 (majority opinion) (discussing evidence that whites outperform minorities on standardized tests).
185. See id at 2681.
186. See, e.g., CRENSHAW ET AL., supra note 10, at xxv (discussing structural nature of discrimination);
187. SPANN supra note 11, at 60-66 (deconstructing distinction between intent and effects standards for discrimination);
188. Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 85 CAL. L. REV. 1449, 1496-1501 (1997) (illustrating ways to invert distinction between bias and merit in affirmative action debate).
189. See supra text accompanying notes 11-22 (describing illustrative cases);
190. see also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 711, 722 (2007) (plurality opinion) (permitting resegregation of public schools);
191. id. at 745-48 (citing Brown II as authorizing resegregation).
192. See supra text accompanying notes 77-83 (discussing affirmative action cases).
193. See supra text accompanying notes 70-76 (discussing tacit threat and narrow construction in Ricci).
194. See generally LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE 1-31 (1957) (describing cognitive dissonance theory).
195. A slightly more developed musing on this Utopian race-neutral society is contained in Girardeau Spann, Just Do It, 67 LAW & CONTEMP. PROBS. 11, 16-21 (2004).
196. See supra text accompanying notes 59-60 (discussing inclusion of Title VII disparate impact provision in Civil Rights Act of 1991).
197. See supra text accompanying notes 55-58 (discussing implied disparate impact provision in Griggs). Subsequent race decisions by the more conservative Rehnquist and Roberts Courts have now made the Burger Court seem more moderate.
198. See, e.g.. SPANN, supra note 32, at 161-63 (discussing votes of Supreme Court Justices in race cases).
199. See Washington v. Davis, 426 U.S. 229, 238-48 (1976) (adopting intentional discrimination standard).
200. See Ricci v. DeStefano, 129 S. Ct 2658, 2664-65, 2672-77 (2009) (subordinating disparateimpact provision to intentional discrimination provision of Title VII).
201. Recall that members of the Court's conservative-voting bloc have virtually always voted against racial minorities in constitutional affirmative action, districting, and school desegregation cases.
202. See supra text accompanying note 34 (discussing conservative-voting bloc).
203. See infra text accompanying notes 133-138 (discussing expressive function).
204. See infra text accompanying notes 139-141 (discussing asymmetric precommitment).
205. See supra text accompanying notes 64-65 (describing Ricci holding).
206. See, e.g., U.S. CONST, amends. XIII, XIV & XV (abolishing slavery, granting citizenship and certain civil rights to newly freed black slaves, and granting right to vote to newly freed black slaves);
207. Brown v. Bd. of Educ, 347 U.S. 483, 494 (1954) (invalidating de jure school segregation);
208. see generally STONE ET AL., supra note 19, at 441-88 (discussing evolution of laws protecting racial minorities).
209. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 299-304 (2003) (Ginsburg, J., dissenting) (discussing striking racial disparities that continue to exist in distribution of societal resources).
210. See supra text accompanying notes 64-65 (describing Ricci holding).
211. See. e.g., City of Richmond v. J.A. Croson Co., 448 U.S. 469, 498-508 (1989) (discussing inadequacy of statistical evidence to establish history of discrimination in construction trades in Richmond, Virginia).
212. See Primus, supra note 59.
213. See id. at 495.
214. But see Ricci v. DeStefano, 129 S. Q. 2658, 2676 (2009) (case decided after Primus article was written, expressly reserving question of constitutionality of Title VII disparateimpact provision);
215. id. at 2682 (Scalia, J., concurring) (suggesting that Tide VII disparate impact provision is unconstitutional).
216. See Primus, supra note 59, at 494-502 (discussing tension between equal protection and disparate impact).
217. See id at 553-66 (discussing individualized and group conceptions of discrimination).
218. See id. at 566-85 (discussing effect of expressive harm on our understanding of equality).
219. See supra text accompanying notes 64-65 (describing Ricci elevation of individualized white interest to avoid intentional discrimination over group interests of racial minorities in avoiding disparate impact discrimination).
220. See Lazarus, supra note 89, at 1158-59, 1193-1204 (discussing asymmetric precommitment).
221. See id. at 1205-31 (describing potential institutional design features).
222. See id. at 1204-05 (discussing how asymmetric precommitment permits future to govern present).
223. See Ricci v. DeStefano, 129 S. Ct. 2658, 2681 (2009) (holding that desire to prevent disparate impact entailed intentional discrimination against whites).
224. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938) (suggesting that white majority might choose to impose burdens on politically underrepresented discrete and insular minori-ties).
225. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 135-79 (1980) (elaborating representation-reinforcement theory of judicial review).