Like many other progressives, I was very excited about some of the Supreme Court decisions this term (health care, gay marriage) and deeply disturbed about others (Facebook threats should not be judged on a “reasonable person” standard, executions using new drugs can continue). One decision that did not receive as much attention but that is tremendously important, I think, is the Court’s ruling in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. In that decision, the Court held 5-4 that housing segregation, even if done unintentionally, violates the Fair Housing Act. In doing so, the Court affirmed that “disparate impact claims” about housing are legitimate. Although it is not clear that this will be the case, I hope that the decision paved the way for greater use of social science data by courts on other issues.
The Supreme Court has often rejected statistical evidence in support of disparate impact claims. For instance, in McKleskey v. Kemp, held that the significant body of research showing the racially disproportionate impact of Georgia’s death penalty was inadequate to overturn that state’s system of capital punishment. The court held that the ownership for proving that someone was a victim of discrimination fell on the petitioner, who must provide “exceptionally clear proof” of discrimination in his or her case. Likewise, in civil law, the court ruled in Washington v. Davis that laws that have a racially discriminatory effect, but which the plaintiff cannot demonstrate were enacted with the intent to discriminate, are not unconstitutional. It is nearly impossible to prove someone meant to discriminate against you, barring obvious statements of intent to which petitioners generally do not have access. Legal scholars have named McKleskey one of the worst Supreme Court decisions post World War II, and others call it “the Dred Scott of our time.”
Michelle Alexander, author of The New Jim Crow, maintains that the refusal to recognize statistical data as evidence of discrimination has inoculated the criminal justice system from both judicial and public scrutiny. It has essentially affirmed that racial discrimination in the courts is inevitable and thus acceptable. In fact, in McKleskey several justices admitted they were fearful of accepting the statistical evidence, lest it open the door for other claims of racial discrimination in criminal justice, or what Justice Brennan claimed in his dissent… the Court was afraid of “too much justice.”
In its recent decision the Court did limit disparate-impact claims to cases where a law or policy raises “artificial, arbitrary, and unnecessary barriers.” Lower courts thus have a lot of leeway to interpret whether disparate impact is the result of those barriers or other factors. Further, the Court held that statistical evidence alone is not enough – plaintiffs must also be able to prove that it was the specific law or policy that was the cause of the impact.
Nonetheless, this ruling potentially sets a precedent for using disparate impact claims to address discrimination outside of housing. Advocates hope that it can be used in employment discrimination cases, in cases in which someone was discriminated against based on their genetic data, and in cases involving the effects, or “collateral consequences” of incarceration on women, who often suffer disproportionately from policies that denied formerly incarcerated persons food stamps or certain types of jobs. I hope it now reopens the door for hearing disparate impact claims about the death penalty, as even more research studies have been conducted since the decision in McKleskey that show a racially discriminatory effect. For instance, a 2014 study by Katherine Beckett of the University of Washington found that jurors in that state were three times more likely to recommend death sentences for black defendants than for white ones, and Amnesty International has pointed out that more than 20 percent of black defendants who were executed were convicted by all-white juries.
The Court may finally be recognizing that parsing out intent and effect are not so easy, and may not be at all what is required for justice to prevail.
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