Some states have attempted to allocate COVID relief funds on the basis of race. Fortune 500 companies such as Coca-Cola have announced that they will penalize law firms that don’t use race to decide who will work on their matters. School boards from the state of Virginia to the city of Madison, Wis., have said that their teachers must abandon race-neutral approaches and focus on equal outcomes on things like evaluations and the imposition of discipline. The Biden administration’s most recent “relief” package hands out money to distressed farmers based on race. Such are the wages of the shift in “social justice” circles from equality of opportunity among the races (a rule of non-discrimination) to “equity.” Despite its growing popularity, however, equity remains a poor fit for the American legal system.
This recent shift is more accurately described as a call for discrimination. It insists that those selecting others for things such as employment, college admission, contracts, and public and private benefits must choose by race so that members of different groups are “represented” in acceptable proportions.
The theoretical basis for this approach is rooted in the belief that racial disparities speak for themselves. Ibram X. Kendi, perhaps the most prominent advocate of the new dispensation, writes that “racial discrimination is the sole cause of racial disparities in this country and in the world at large.” In this view, there is no need to identify some particular discriminatory act or policy that has resulted in a particular discriminatory episode: It’s racism all the way down.
If all disparities are the result of racism, whether current or ancient, Kendi reasons, “the only remedy to resist racist discrimination is antiracist discrimination.” Kendi writes that “the remedy to past discrimination is present discrimination” and “the only remedy to present discrimination is future discrimination.” Thus, “equity” calls for discrimination across the board. The ideas, long present on the academic left, that “color-blindness” is a myth and “race-neutrality” perpetuates injustice have obtained increased purchase.
But will such “antiracist” discrimination survive judicial scrutiny? Current law looks with disfavor on this type of “benign” discrimination. While the Supreme Court has permitted a limited and opaque use of race to achieve diversity in college admissions, other forms of racial preference must generally be justified by discrete and focused discriminatory acts, and the use of race must be closely tailored to the remediation of the direct impact of this particular discriminatory conduct. Group disparity, or even the fact of general societal discrimination, is not enough. To be sure, there have been justices — at times as many as four — who would endorse some form of “benign” discrimination to achieve something approximating “equity.” But although the context and the particular legal text that a plaintiff invokes will matter, our law, in addressing statutory and constitutional claims of discrimination, has not yet endorsed “anti-racist discrimination.” To the contrary, it has almost always seen guarantees of equal protection and non-discrimination as creating individual rights to equal treatment, not group rights to equal outcomes.
Some may argue that the new idea of “equity” may find support in the existing concept of “disparate impact.” The more foundational concept of “disparate treatment” involves what most of us would regard as discrimination — a discrete and identifiable treatment of two similarly situated individuals differently because of race. While one might think that disparate treatment is precisely — and only — what the commands of non-discrimination found in the federal and state constitutions and civil-rights laws were intended to prohibit, courts have developed the concept of “disparate impact” to address circumstances in which outcomes differ by race but discriminatory treatment cannot be proven.
Litigants have been fighting for decades over when disparate-impact analysis can be used and what precisely it means. It is generally unavailable in constitutional cases, but even in such cases, it often becomes a vehicle for “proving” discriminatory treatment and intent.
In most formulations, disparate-impact analysis requires the identification of a specific practice — say, the requirement of a college degree for a particular position, or the use of standardized tests in college admissions — that has a “disparate” impact on different racial groups. Unless such practices can be found to meet some standard of justification (e.g., be shown to be a business necessity for an employer), an inference of discrimination can be found.
Many critics have maintained that this principle effectively mandates equality of outcome, and often (but not always), that is its effect. Given the vagaries of litigation, it creates a powerful incentive to eliminate disparity. In addition, the need for a challenged practice to be justified may imply some obligation not to adopt even neutral practices that have a disparate impact without justification. But, without endorsing all the ways in which disparate-impact theory has been applied, the requirement of a specific practice with a direct, traceable, and current impact is applicable mainly to securing equality of opportunity for individuals or tightly defined classes of individuals subjected to a particular criterion, rather than large groups said to have faced societal discrimination.
Contra Kendi, it is not racism all the way down.
This understanding of disparate impact is broadly — if a bit uncomfortably — consistent with what has been the majority view of the U.S. Supreme Court. The Court has generally held that the constitutional guarantee of equal protection and statutory prohibitions of discrimination create individual rights. A group has no standing to insist on a proportionate share of anything. No person of any race may be treated differently because of race, save for situations where such treatment is necessary to remediate discrete instances of discrimination. Race-based remedies cannot be justified by something as broad as “structural racism.” As Justice Scalia famously put it, from a constitutional perspective, there can be “no such thing as a creditor or debtor race” because that concept “is alien to the Constitution’s focus on the individual.”
The concept of equity turns this on its head. It’s rooted in the notion of systemic racism, for which there is literally no definition other than a desire for equal outcomes. The Aspen Institute defines this “structural racism” as a “system in which public policies, institutional practices, cultural representations, and other norms work in various, often reinforcing ways to perpetuate racial group inequity.” It goes on to state that “in a racially equitable society, the distribution of society’s benefits and burdens would not be skewed by race.” In other words, structural or systemic racism is nothing more than racial disparity. Because something that can come from anything (institutional practices, cultural representations, etc.) need come from no particular thing, there is no need to identify specific discriminatory practices that could be halted. Group disparities must be made to disappear.
In this view, there is a creditor and a debtor race, and individuals of the latter must pay those of the former — by being discriminated against to achieve racial balance — without regard to individual culpability or injury. Contrary to our traditional focus on the individual, the right to equity is a group right designed to remediate a group injury. While it finds a weak antecedent in the concept of disparate impact, any expanded application of equity would work a radical transformation of American law. It is unlikely that the current Supreme Court will transform disparate-impact analysis in this way, but changing legal doctrine is always a long game. Those who remain committed to a race-neutral society must understand the nature of the attack.