Disparate Impact in the Crosshairs

As structural inequality persists and overt racial animus becomes rarer, the ability to attack policies that have a disproportionately adverse effect on racial and ethnic minorities is crucial. But while the disparate impact doctrine is vitally important for protecting equal opportunity, it is once again in the crosshairs. The Supreme Court has already rejected a private right of action to enforce the disparate impact standard under Title VI of the Civil Rights Act and may do so this term under the Fair Housing Act in Texas Department of Housing & Community Affairs v. Inclusive Communities Project. Conservatives have planned further attacks on disparate impact in other contexts, including employment and voting. How have advocates used the disparate impact standard to confront contemporary racial inequality, and how have litigators adapted to Supreme Court decisions limiting the availability of the disparate impact standard? 

 

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