âEquityâ and other CRT approaches will eventually have a judicial reckoning. 5th Circuit Judge James C. Ho concurring opinion: âCitizens may fairly wonder how officials can condemn race-neutral policies as racist and defend explicitly race-conscious programs as inclusive.â
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In a concurring opinion (starting at page 22 of the pdf.) Judge Ho wrote in part (emphasis added):
I concur in the judgment and in all but Section III.A of Judge Haynesâs opinion. With respect to the intentional discrimination claim, we all agree that this case turns on geography, not race. With respect to the disparate impact claim, we all agree that remand is appropriate. I write separately to explain why I share Judge Jonesâs concerns about unelected agency officials usurping Congressâs authority when it comes to disparate impact theory.
Congress enacted Title VI of the Civil Rights Act of 1964 to prohibit intentional racial discriminationânot to restrict neutral policies untainted by racial intent that happen to lead to racially disproportionate outcomes. See 42 U.S.C. § 2000d; Alexander v. Sandoval, 532 U.S. 275, 280â81 (2001) (â[§ 2000d] prohibits only intentional discrimination,â not âactivities that have a disparate impact on racial groupsâ).
Thereâs a big difference between prohibiting racial discrimination and endorsing disparate impact theory. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 78 (1994) (disparate impact is âa significant leap away fromâ intentional racial discrimination). Itâs the difference between securing equality of opportunity regardless of race and guaranteeing equality of outcome based on race. Itâs the difference between color blindness and critical race theory. Compare Martin Luther King, Jr., I Have A Dream: Address to the March on Washington for Jobs and Freedom (Aug. 28, 1963) (âI have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.â), with Ibram X. Kendi, How to Be an Anti-Racist 18 (2019) (âA racist policy is any measure that produces or sustains racial inequity between racial groups.â); see also âWhen I See Racial Disparities, I See Racism.â Discussing Race, Gender and Mobility, N.Y. Times (Mar. 27, 2018), available at NYTs
Prohibiting racial discrimination means we must be blind to race. Disparate impact theory requires the opposite: It forces us to look at raceâto check for racial imbalance and then decide what steps must be taken to advance some people at the expense of others based on their race. But racial balancing is, of course, âpatently unconstitutional.â Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 723 (2007). Accordingly, âserious constitutional questions . . . might ariseâ if â[disparate impact] liability were imposed based solely on a showing of a statistical disparity.â Tex. Depât of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015). See also Ricci v. DeStefano, 557 U.S.557, 594â96 (2009) (Scalia, J., concurring) (same).
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So these are not frivolous concerns of discrimination that weâre talking about here. In fact, for disparate impact advocates, requiring discrimination may not be a problemâit may be the whole point. To quote one leading critical race theorist, â[t]he only remedy to past discrimination is present discrimination,â and â[t]he only remedy to present discrimination is future discrimination.â Kendi, supra, at 19.
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Itâs said that the road to hell is paved with good intentions. Thatâs why we have laws on the books, like Title VI, that simply forbid the âsordid businessâ of âdivvying us up by raceââno matter what our intentions. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part)âŚ.
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So public officials may sincerely believe that race-conscious policies are beneficial rather than corrosive. But the American people have never been the blindly trusting sort. Citizens may fairly wonder how officials can condemn race-neutral policies as racist and defend explicitly race-conscious programs as inclusive.
âEquityâ and other CRT approaches will eventually have a judicial reckoning. When that day comes, those of us attacked for speaking out for equality without regard to skin color will be vindicated, and those demanding race-based outcomes will be shamed.
That time may be years away, however, and in the meantime, tremendous damage to the fabric of the country will have been done.