JUSTICE ANTONIN SCALIA FOCUSES ON THE ESSENTIAL QUESTION: HOW DO WE ACHIEVE EQUAL PROTECTION AND AVOID DISPARATE IMPACT?

SUPREME COURT OF THE UNITED STATES
FRANK RICCI, ET AL., PETITIONERS
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
JUSTICE SCALIA, concurring.
I join the Court’s opinion in full, but write separately to
observe that its resolution of this dispute merely post-
pones the evil day on which the Court will have to confront
the question: Whether, or to what extent, are the dispa-
rate-impact provisions of Title VII of the Civil Rights Act
of 1964 consistent with the Constitution’s guarantee of
equal protection? The question is not an easy one. See
generally Primus, Equal Protection and Disparate Impact:
Round Three, 117 Harv. L. Rev. 493 (2003).
The difficulty is this: Whether or not Title VII’s dispa-
rate-treatment provisions forbid “remedial” race-based
actions when a disparate-impact violation would not oth-
erwise result—the question resolved by the Court today—
it is clear that Title VII not only permits but affirmatively
requires such actions when a disparate-impact violation
would otherwise result.  See ante, at 20–21.  But if the
Federal Government is prohibited from discriminating on
the basis of race, Bolling v. Sharpe, 347 U. S. 497, 500
(1954), then surely it is also prohibited from enacting laws
mandating that third parties—e.g., employers, whether
private, State, or municipal—discriminate on the basis of
race. See Buchanan v. Warley, 245 U. S. 60, 78–82 (1917).
As the facts of these cases illustrate, Title VII’s disparate-
impact provisions place a racial thumb on the scales, often
requiring employers to evaluate the racial outcomes of
their policies, and to make decisions based on (because of)
those racial outcomes. That type of racial decisionmaking
is, as the Court explains, discriminatory.  See ante, at 19;
Personnel Administrator of Mass. v. Feeney, 442 U. S. 256,
279 (1979).
To be sure, the disparate-impact laws do not mandate
imposition of quotas, but it is not clear why that should
provide a safe harbor.  Would a private employer not be
guilty of unlawful discrimination if he refrained from
establishing a racial hiring quota but intentionally de-
signed his hiring practices to achieve the same end?
Surely he would.  Intentional discrimination is still occur-
ring, just one step up the chain.  Government compulsion
of such design would therefore seemingly violate equal
protection principles.  Nor would it matter that Title VII
requires consideration of race on a wholesale, rather than
retail, level. “[T]he Government must treat citizens as
individuals, not as simply components of a racial, reli-
gious, sexual or national class.” Miller v. Johnson, 515
U. S. 900, 911 (1995) (internal quotation marks omitted).
And of course the purportedly benign motive for the dispa-
rate-impact provisions cannot save the statute.  See Ada­
rand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995).
It might be possible to defend the law by framing it as
simply an evidentiary tool used to identify genuine, inten-
tional discrimination—to “smoke out,” as it were, dispa-
rate treatment.  See Primus, supra, at 498–499, 520–521.
Disparate impact is sometimes (though not always, see
Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 992
(plurality opinion)) a signal of something illicit, so a
regulator might allow statistical disparities to play some
role in the evidentiary process. Cf. McDonnell Douglas
Corp. v. Green, 411 U. S. 792, 802–803 (1973).  But argua-
bly the disparate-impact provisions sweep too broadly to
be fairly characterized in such a fashion—since they fail to
provide an affirmative defense for good-faith (i.e., nonra-
cially motivated) conduct, or perhaps even for good faith
plus hiring standards that are entirely reasonable.  See
post, at 15–16, and n. 1 (GINSBURG, J., dissenting) (de-
scribing the demanding nature of the “business necessity”
defense). This is a question that this Court will have to
consider in due course.  It is one thing to free plaintiffs
from proving an employer’s illicit intent, but quite another
to preclude the employer from proving that its motives
were pure and its actions reasonable.
The Court’s resolution of these cases makes it unneces-
sary to resolve these matters today.  But the war between
disparate impact and equal protection will be waged
sooner or later, and it behooves us to begin thinking about
how—and on what terms—to make peace between them.

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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