Supreme Court cases have led to the integration of public schools, the elimination of literacy tests in voter registration, and the legalization of interracial marriage, said Yale Law Professor Owen Fiss during this year’s Jorde Symposium. These outcomes—which each stemmed from individuals fighting against discrimination from a specific institution—played a crucial role in the struggle for racial equality, and as the Court has changed in the last half-century, its decisions have both strengthened and undermined this progress.
“The principal challenge we now face,” said Fiss, Sterling Professor Emeritus of Law at Yale, “stems from practices that perpetuate or carry over to one domain, such as employment, the disadvantages Blacks had earlier received in another domain, such as education. Inequality begets inequality.”
Each year for the Jorde Symposium, the Brennan Center invites top legal scholars to discuss issues central to the legacy of Justice William J. Brennan, Jr. During this year’s event, held at the Law School on April 23, 2018, Fiss spoke about “Equality in a Fragmented Society,” focusing on the Second Reconstruction—the period after World War II during which civil rights activists worked with the government to address racial inequality—as well as Supreme Court cases that have sought to eliminate racial subordination. In particular, Fiss considered the 1971 case of Griggs v. Duke Power Company and the theory of cumulative responsibility, which condemns institutions from perpetuating the disadvantages Blacks have received in the past. The symposium included comments from Reva Siegel, Professor of Law at Yale Law School, and Justin Driver, the University of Chicago’s Harry N. Wyatt Professor of Law.
In Griggs, the Supreme Court prohibited employers from using tests that have a disparate impact on Black applicants. The firms using these tests were not considered solely responsible for the discrimination, Fiss said, but under the theory of cumulative responsibility, everyone was obliged to do everything they could to minimize systematic racial subordination. The Court unanimously ruled that discriminatory impact was unlawful regardless of intent and set a legal precedent, known as the Griggs Principle, to govern employment discrimination suits.
“We should not view decisions such as Griggs as an application or even an extension of individually focused anti-discrimination rule,” Fiss said. “Rather, these judicial decisions should be seen as driven by larger, more structural considerations.”
This commitment to the Second Reconstruction as well as the theory of cumulative responsibility began to wane in late 1970s, Fiss said, when some of the justices responsible for Brown v. Board of Education stepped down and new justices were appointed to the Court. In the 1976 case of Washington v. Davis, Black applicants turned down for positions in the Washington, DC, police department claimed that the department used racially discriminatory hiring procedures. The Supreme Court rejected this claim on the merits but went further. It held that the rule prohibiting disparate impact was not a constitutional rule, but only a requirement of Title VII of the Civil Rights Act of 1964
“The Court’s decision to downgrade the Griggs Principle from constitution to statute enlarged the power of Congress to supervise the application and interpretation of disparate impact doctrine,” Fiss said. “Responsibility for the Griggs Principle was handed to Congress.”
In the years following the Griggs decision, Congress worked to undo the decisions of the Supreme Court that cut back on the achievements of the Second Reconstruction in a number of areas, and in that vein enacted the Civil Rights Act of 1991, which codified the Griggs principle and disparate impact liability in employment cases. Then in 2015, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Court, in an opinion by Justice Anthony M. Kennedy, gave further sweep to the Griggs principle by extending it from employment to housing.
“In Inclusive Communities, Kennedy was clear that housing policies should be judged on the basis of their effects, not their purpose,” Fiss said. “He also indicated a willingness to apply the Griggs Principle to set aside barriers—analogous to those arising in the employment context—that blacks might encounter in obtaining access to housing.”
The United States has made great progress in dismantling the racial caste structure that has long plagued the country, Fiss said, but there is still a great deal of work to be done. Continuing the process of reconstruction, he added, will require leadership by the judicial branch and a continued application of the Griggs Principle, and an emphasis on discriminatory impact.
“One such building block is to focus, when evaluating state action, on effects rather than purpose,” Fiss said. “Disparate impact of the type prescribed by the Griggs Principle is an effect or consequence, but it is not the only kind of effect or consequence of which the judiciary might take cognizant. There are others.”
In response to the lecture, Siegel, who is one of Fiss’s former students, agreed that the courts played an enormous role in what she referred to as the “constitutionalization” of disparate impact law. However, she saw the conflict as more dialogic than purely court-centered, and stressed the role of the president in these reforms as well.
“The struggles of disparate impact law have unfolded not only in Congress and in the Court, but also in the executive branch,” Siegel said. “If you look at the Obama administration, there were amazing frontiers of disparate impact enforcement under Title VI.”
Driver also commented on the lecture, citing research from his upcoming book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. In the 1973 case of Keyes v. School District No. 1, Denver, the Supreme Court held that segregation in Denver public schools was a product of gerrymandered attendance lines and the construction of a small school for racial minorities. By focusing on intent, Driver said, the Court missed an opportunity to devise a standard to eradicate de facto segregation.
“Rather than broadly requiring educators to remedy segregated school conditions, wherever they appeared and whatever their origins, Keyes instead held Denver liable for its racially isolated schools by issuing a highly fact-sensitive decision and finding fault with the school board itself,” Driver said.
Driver stressed Keyes’ significance in demonstrating the Court’s de jure/de facto distinction with respect to discrimination, given that its decision was handed down three years before Washington v. Davis. He also agreed with Siegel that the courts aren’t solely responsible for addressing discrimination in schools and other institutions in the United States.
“The tepid appetite for genuine racial integration in education represents a continuous theme in modern American education,” Driver said. “The primary obstacle to realizing meaningfully integrated schools nowadays comes not in the form of an unbending judiciary, but instead an inert body politic.”