Professor Richard Primus posts on SSRN The Future of Disparate Impact (Michigan Law Review, Forthcoming) H/T Legal Theory Blog.
The Supreme Court’s decision in Ricci v. DeStefano (i.e., the New Haven firefighters case) foregrounded the question of whether Title VII’s disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.
The article asks that I not cite without permission, so I shall not cite it. But I highly recommend you read it through. Justice Scalia cited Profssor Primus’s article on Equal Protection in Ricci, so I am looking forward to his analysis.
I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. See generally Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493 (2003).
I discuss the aftermath of Ricci in a forthcoming article in the Loyola Law Review, titled Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One
The disparate impact analysis came under intense scrutiny in the recent landmark Civil Rights case, Ricci v. DeStefano Although the Supreme Court punted on the issue of whether the disparate analysis impact violates the Constitution, a lone concurring Justice sounded the clarion call. Like Jacob’s vision of the ladder, Justice Scalia’s concurrence in Ricci presciently portends the “evil day” in which the Court confronts the question of “[w]hether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection.”