SS and Disparate Impact - Sheet1

Question 1

“‘Distinctions between citizens solely because of their ancestry are odious to a free people whose institutions are founded upon the doctrine of equality.’”

Answer 1

Hyrabayshi

Question 2

“[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect …. [C]ourts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can . . . .”

Answer 2

Korematsu v. United States (1944)

Question 3

“[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability . . . .”

Answer 3

Griggs v. Duke Power (1971)

Question 4

“[I]t is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing”

Answer 4

Washington v. Davis (1976)

Question 5

“[T]he line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.” Subjective discriminatory intent is a “common threat” in our cases. But it is neither necessary nor sufficient for a finding of unconstitutionality—it would be too high a burden to require plaintiffs to uncover the actual subjective intent, and an otherwise constitutional law also should not be struck down simply because one of the decision makers had an improper motive. “A law conscripting clerics should not be invalidated because an atheist voted for it.”

Answer 5

Washington v. Davis (1976)Stevens (concurring):

Question 6

“[T]he validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. . . . [W]ithin their sphere, military authorities are not more outside the bounds of obedience to the Constitution than are judges within theirs . . . .”

Answer 6

Korematsu v. United States (1944)Frankfurter (concurring):

Question 7

“If Congress in peace-time legislation [rather than the military during war-time] should enact such a criminal law, I should suppose this court would refuse to enforce it.” I cannot subscribe to the reasonableness doctrine in this context. The Court is in no position to determine the “reasonableness” of military commanders—it will have no alternative to taking the military at its word. I cannot say whether these orders were reasonable or not, but even if they were, “I deny that it follows that they are constitutional.” Judicial recognition of a law like this is “a far more subtle blow to liberty than the promulgation of the order itself”—even an unconstitutional military order lasts only as long as the war, but judicial acceptance of the order “rationalizes the Constitution to show that the Constitution sanctions such an order . . . .”

Answer 7

Korematsu v. United States (1944)Jackson (dissenting):

Question 8

“prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities” and thus “may call for a correspondingly more searching judicial inquiry.”

Answer 8

Carolene Products footnote

Question 9

(No compelling purpose): There is no legitimate purpose independent of invidious racial discrimination and maintaining White Supremacy.

Answer 9

Loving v. Virginia (1967)

Question 10

But “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another”—especially if “the discrimination is very difficult to explain on nonracial grounds” (e.g. excluding blacks from juries).

Answer 10

Washington v. Davis (1976)

Question 11

Congress did not intend to guarantee everyone a job. “What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”

Answer 11

Griggs v. Duke Power (1971)

Question 12

Defendant cannot rely on studies demonstrating racism in the system overall—he “must prove that the decisionmakers in his case acted with discriminatory purpose.” He would also have to demonstrate that Georgia kept its capital sentencing system in place because of its disparate impact on blacks. The criminal justice system necessarily requires discretionary judgments—we must demand exceptionally clear proof that that discretion was abused here. A nationwide study is insufficient to address what happened in this particular case.

Answer 12

McCleskey v. Kemp (1987)

Question 13

Disparate impact “[s]tanding alone,… does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.” Discriminatory purpose or intent has always been the constitutional starting point. See Keyes (requiring “a current condition of segregation resulting from intentional state action”); Strauder (excluding a black juror was unconstitutional, but there was no requirement that juries proportionally reflect the community).

Answer 13

Washington v. Davis (1976)

Question 14

Distinguished Batson - in those cases, the State has an opportunity to put the decision maker on the stand to offer a non-discriminatory reason for the decision. Here, the State has no practical opportunity to challenge the study, and can’t put the jurors or prosecutors on the stand.

Answer 14

McCleskey v. Kemp (1987)

Question 15

Held: UNCONSTITUTIONAL. The redrawing was clearly motivated by discriminatory purposes—no other conclusion was even possible. It was “irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislature is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.”

Answer 15

Gomillion v. Lightfoot (1960)

Question 16

Laid out factors for finding discriminatory intent:(1) impact of official action - e.g., Yick Wo(2) historical background - e.g. Guinn; Lane(3) specific sequence of events leading up to he decision(4) departures from the normal procedural sequence(5) substantive departures from the expected decision (6) legislative or administrative history Burden would then shift to state to show that the same decision would have resulted even if the impermissible purpose not been considered. If the state can show that it would have enacted the law for another reason other than discrimination, rational basis review would apply.

Answer 16

Arlington Heights (1977)

Question 17

McCleskey established a prima facie case that he was the victim of racial discrimination. The study demonstrated how each actor the in process is influenced by race. As such, the burden shifts to the State to show that race was not a motivating factor.

Answer 17

McCleskey v. Kemp (1987)Blackmun, with Marshall, Stevens, and Brennan (dissenting):

Question 18

No evidence that Congress passed the law “because of” its impact on blacks. Feeney. We question the DC’s reliance on “unconscious racism” and the media hype referenced by Congress—this “simply does not address the question whether Congress acted with a discriminatory purpose.” “[T]he evidence of the haste with which Congress acted and the action it took is as easily explained by the seriousness of the perceived problem as by racial animus.”

Answer 18

United States v. Clary (8th Cir. 1994)

Question 19

Reaffirmed Davis. Plaintiffs had to show that intent to discriminate was a “motivating factor.” Although disparate impact could be a starting point, it is only one factor among many that can demonstrate a discriminatory intent. Some laws are clearly discriminatory by their effect, e.g. Yick Wo (1886); Gomillion, but these cases are rare—most of the time a showing of discriminatory impact without more is not enough to show a constitutional violation.

Answer 19

Arlington Heights (1977)

Question 20

SS applies. “Racial classifications raise special fears that they are motivated by an invidious purpose.” It doesn’t matter that the law is said to apply equally. Racial classifications “threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.”

Answer 20

Johnson v. California (2005)

Question 21

The Act prohibits employment criteria that operates to “freeze” the status quo by imposing impossible burdens, like the stork and fox fable. “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.

Answer 21

Griggs v. Duke Power (1971)

Question 22

The disparity in meeting these requirements is “directly reachable to race.” Blacks “have long received inferior education in segregated schools.”Neither requirement offered here is demonstrated to “bear a demonstrable relationship to successful performance” of the work. They were adopted “without meaningful study” of their relationship to job performance.

Answer 22

Griggs v. Duke Power (1971)

Question 23

The results of this study are compelling. They demonstrate the persistence of racism as a present problem. “[W]e remain imprisoned by the past as long as we deny its influence in the present.”

Answer 23

McCleskey v. Kemp (1987)Brennan, with Marshall, Blackmun, and Stevens (dissenting):

Question 24

The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.”

Answer 24

Griggs v. Duke Power (1971)

Question 25

This conviction is based solely on ancestry. “I need hardly labor the conclusion that Constitutional rights have been violated.”

Answer 25

Korematsu v. United States (1944)Roberts (dissenting):

Question 26

This exclusionary order “goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism . . . .”The proper judicial test is whether a deprivation of individual constitutional rights is “reasonable.” Under a plea of military necessity, the question is “whether the deprivation is reasonably related to a public danger that is so ‘immediate, imminent, and impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.” The order has no reasonable relation to such dangers. (1) It is over-inclusive. It does not allow for individual determinations. It relies for its reasonableness upon the assumption that all persons of Japanese ancestry are a threat. The Commanding General’s Final Report gives away the racism—calling all individuals of Japanese descent “subversive” and belonging to an “enemy race.” (2) It is under-inclusive. Individuals of other groups, such as Germans and Italians, have been deemed threats.

Answer 26

Korematsu v. United States (1944)Murphy (dissenting):

Question 27

To require anything less than intent would be a slippery slope—it “would raise serious questions about, and perhaps 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.”

Answer 27

Washington v. Davis (1976)

Question 28

Whatever the intent of the ordinance was, public authorities charged with implementing the law were operating with an “unequal and oppressive” mind, and their actions were imputed to the state as administrators of the law.

Answer 28

Yick Wo v. Hopkins (1886)