Facially neutral laws that disadvantage minorities Washington V. Davis

• White 1976. Significance.

• Held that a facially neutral law with a racially discriminatory impact is not unconstitutional unless it was enacted with a racially discriminatory purpose.

• This finally resolved what was left ambiguous in Strauder: the core wrong that the equal protection clause prohibits is discriminatory purpose.

• Upshot of present doctrine is that discriminatory impact alone cannot violate equal protection clause, but (see the cases cited above) it may violate dormant commerce clause. Do these rules, taken together, make sense? Why should impact matter more in commerce context than in context of race?

• Facts. This case involved a suit brought by a unsuccessful black applicants for positions as Washington, D.C. policemen. They had failed a written test of verbal ability and reading comprehension, which blacks failed for times as frequently as whites. Ps claimed that this differential impact made the hiring process violative of equal protection even though those who composed or selected the test had no intent to discriminate against blacks. (Ps also produced evidence suggesting that performance on the test did not necessarily correlate with job performance.)

• Holding. SCt held that racial discrimination violative of the Equal Protection Clause exists only where it is a product of a discriminatory purpose. While a showing of disproportionate racial impact is certainly one factor in ascertaining intent, it can never by itself be sufficient to prove discriminatory intent. Here, other facts, including the D.C. Police Department’s affirmative efforts to recruit more black policemen, negated any finding of a discriminatory purpose in the use of the test (which was used throughout the Federal Civil Service).

• Comparison to Title VII. SCt conceded that under Title VII of 1964 Civil Rights Act, a hiring practice which disqualifies a substantially disproportionate number of blacks will be stricken, even without a showing of discriminatory intent. But SCt declined to establish a “no-intent” standard where the source of the discrimination claim was simply the Equal Protection Clause, as distinguished from a specifically-worded congressional statute.

• Rationale. SCt was especially concerned that absence of an intent requirement might invalidate “a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.” In a footnote, the SCt listed numerous statutory schemes that might be open to attack under such a standard, including such items as sales taxes, bridge tolls, minimum wage laws and professional licensing requirements.

• Koppelman

• SCt’s decision was heavily driven by concerns about the institutional limitations of the judiciary. (this notion expressed directly above)

• Do these concerns justify the conclusion that, absent discriminatory intent, there can be no constitutional violation whatsoever?

1. Consider Sager’s view (56) that USC is judicially under enforced.

2. It is arguable that institutional concerns cut against the doctrine that the SCt adopted: Karst argued that because judges are reluctant to impugn motives of other officials, such doctrine will inevitably tend to validate official decisions. [further reasoning in footnote]

3. Koppelman: because SCt’s approach promises “only that decision makers will act with pure hearts,” it implies that “the only harm that the USC recognizes is the harm caused to the souls of white people when they commit sin of racism.”

4. Alan Freeman (CLS critic of anti discrimination law)

1. Castigated SCt for devising a doctrine of anti discrimination law on basis of the “perpetrator perspective,” from which racial discrimination appears to be merely “the misguided conduct of particular actors” in “a world where, but for the conduct of these misguided ones, the system of equality of opportunity would work to provide a distribution of the good things in life without racial disparities and where deprivations that did correlate with race would be ‘deserved’ by those deprived on grounds of insufficient ‘merit.’”

2. By requiring that any civil rights claimant show that he is the individual victim of intentional discrimination, the perpetrator perspective allows the SCt to say “that Black Americans can be without jobs, have their children in all-black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of anti discrimination law.

3. Instead, anti discrimination law should be based upon the “victim perspective,” which “would ask in each case whether the particular conditions complained of, viewed in their social and historical context, are a manifestation of racial oppression.” Rather than searching for a guilty perpetrator, such perspective would entail “a demand for results.” From victim perspective, “the problem will not be solved until the conditions associated with it have been eliminated. To remedy the condition of racial discrimination would demand affirmative efforts to change the condition.”

4. Is this a judicially-manageable view of 14^th Amendment? How would one know when amendment was violated?