Equal protection vs. equal results

OPINION:

Comment on last Monday’s Supreme Court decision upholding Indiana’s voter identification law has been swift, and wide in scope. Analysis has focused on topics ranging from the decision’s impact on upcoming presidential primaries to how the 2000 election decision in Bush v. Gore informed the court’s opinion.

Yet one of the decision’s most compelling and important aspects has gone somewhat unnoticed: how the court dealt (or didn’t deal) with the “disparate impact” theory of discrimination law.

Common sense dictates that if you’re trying to determine whether a government action violates the Constitution’s guarantee of equal protection of the laws, you would look to see whether the government actually is protecting people unequally. That is, a law would violate equal protection principles if it treated different groups of people in a disparate manner.

Sadly, though, common sense isn’t necessarily that common in modern courts. Some jurists have warped the Constitution’s protections to require not equal protection, but equal results.

One private-sector example of this disparate impact argument involves college entrance exams. There is a statistical gap between the average scores of students from different racial backgrounds on these tests. Most would argue that these results are owed as much to societal factors such as the relative prevalence of two-parent homes and also income levels between racial groups.

Not so, say disparate impact theorists. If the tests produce different results for different groups, the test must be racially biased, they say. This tautology of sorts is, in its own way, impervious to logical argument. For under disparate impact analysis, actual bias in testing is irrelevant; the results are all that matters, and if they don’t come out “right,” the test discriminates.

It’s not hard to see how such results-oriented absurdity could wreak havoc when applied to state actions. The Supreme Court itself has recognized the potential for chaos, writing in 1996 that “under a disparate-impact theory … regulatory measures always considered to be constitutionally valid, such as sales taxes, state university tuition, and criminal penalties, would have to be struck down.”

The court’s prior recognition of the dangers of the disparate impact theory makes its decision in the voter ID case somewhat vexing. The challengers of the Indiana law argued, in part, that the statute was unconstitutional because it would have a disproportionate impact on racial minorities, the poor and the elderly.

A concurring opinion authored by Justice Antonin Scalia, and joined by Justices Clarence Thomas and Samuel Alito, rejected this premise out of hand, declaring such focus on disparate impacts to be irrelevant since the law evidenced no discriminatory intent and required the same action of all Indianans.

But the majority opinion — which will have the authority of precedent going forward — at least tacitly accepted the disparate impact premise. Its analysis dealt primarily with the fact there was no real proof that the ID law burdened anybody. But the majority also felt the need to write that there was no concrete proof the law had a disparate impact on various “classes of voters.”

For the court to even entertain such an argument is a dangerous concession with potentially harmful future effects. Aggrieved parties may deem it an invitation to challenge neutral actions ranging from college admissions standards to civil service exams, claiming they are constitutionally infirm because they result in different outcomes for certain insular groups.

The day after the Supreme Court decision, Democrats in the House and Senate introduced the “Environmental Justice Enforcement Act,” which is intended to overturn a 2001 Supreme Court decision that barred minority plaintiffs from making certain disparate impact claims.

While the timing may be coincidental, the plaintiffs this proposed law envisions — racial minorities who putatively are harmed “more” than other groups by industry’s environmental impacts — surely were emboldened by the Indiana voting rights case.

In 1991, former Justice Sandra Day O’Connor wrote of the “unending stream of constitutional challenges” adoption of the disparate impact theory would lead to. The Constitution guarantees equal laws, not equal results, and the court would have been wise to say so.

Steven Geoffrey Gieseler is a lawyer with the Pacific Legal Foundation, the nation’s oldest and largest public interest law firm dedicated to protecting individual liberties against government intrusion. He was the author of PLF’s amicus curiae brief in the Supreme Court’s Indiana voter identification case, arguing against any application of the disparate impact theory.