One Law of Race?

One Law of Race? Stephen M. Rich  ABSTRACT: Is race discrimination a single social phenomenon, and, if it is, why not govern it by a single legal rule? The temptation to conform constitutional and statutory standards in race equality law is powerful and appears to have captured the imagination of the Supreme Court in several of its most recent decisions. Historically, the Court’s decisions in this area have sometimes promoted convergence between constitutional and statutory standards, often by using constitutional precedents to resolve issues of statutory interpretation. At other times, they have promoted divergence, by honoring the authority of political institutions to establish equality norms that exceed constitutional guarantees. These oscillating interpretive strategies have received little attention in the scholarship on race equality law, and the Court itself has offered no framework for anticipating when it will choose either strategy. This Article identifies the primary rationales by which the Court justifies its choice of strategy. In contrast to scholarship arguing that convergence is a consequence of the migration of public values across legal domains, this Article discusses the Court’s tendency to explain its choice of strategy by weighing two types of considerations: some regarding empirical assumptions about the nature of race discrimination and others regarding jurisprudential rules that define the role of courts in our democracy. Convergence has intuitive appeal because it promises judicial economy and satisfies our expectation that like cases should be treated alike. This Article, however, argues against judicially-imposed convergence of the kind demonstrated by the Court’s recent decisions as an artificial restriction on lawmaking and legal interpretation that both narrows the breadth of options open to political institutions to address racial inequality and interferes with the judiciary’s charge to faithfully interpret and enforce the law. This Article argues that the Court should observe differences in constitutional and statutory bodies of race equality law when those differences are expressed by the text of legal provisions or revealed by the purposes for which provisions were proposed or enacted. This approach best preserves for political  Associate Professor of Law, Gould School of Law, University of Southern California. I am grateful for generous comments on early drafts of this paper by Ariela Gross, David Cruz, Neil Siegel, Vicki Schultz, and Nomi Stolzenberg. I also thank the attendees of the USC Gould School of Law Faculty Workshop and the Labor and Employment Law Colloquium for their thoughtful questions and comments. 202 IOWA LAW REVIEW [Vol. 100:201 institutions the flexibility to develop legal rules to address shifting obstacles to racial equality and to respond to the public’s evolving understanding of the meaning of equality. I. INTRODUCTION ............................................................................. 203 II. THE DYNAMICS OF CONVERGENCE AND DIVERGENCE IN RACE EQUALITY LAW .............................................................................. 211 A. T WO I LLUSTRATIVE C ASES ....................................................... 214 1. Divergence: Washington v. Davis ................................... 214 2. Convergence: General Building Contractors Ass’n v. Pennsylvania ................................................................... 220 B. C OMPARING C ONVERGENCE AND D IVERGENCE S TRATEGIES ........ 226 III. SHIFTING STRATEGIES OF CONVERGENCE AND DIVERGENCE: RACE EQUALITY LAW TODAY .................................................................. 232 A. E MPLOYMENT D ISCRIMINATION AND A FFIRMATIVE A CTION ....... 232 1. Disparate Impact and Discriminatory Purpose After Ricci ................................................................................. 233 2. Affirmative Action After Ricci and Fisher ...................... 238 B. V OTING R IGHTS ...................................................................... 246 IV. RESISTING CONVERGENCE IN RACE EQUALITY LAW ...................... 254 A. T HE A PPEAL OF C ONVERGENCE ................................................ 254 B. T HE P ITFALLS OF C ONVERGENCE .............................................. 255 C. D IVERGENCE I S O NLY W HAT W E M AKE OF I T ............................ 262 V. CONCLUSION ................................................................................ 266 2014] ONE LAW OF RACE? 203 I. INTRODUCTION When interpreting constitutional and statutory race equality law, the Supreme Court has oscillated between two contradictory interpretive strategies. Sometimes the Court has pursued a strategy of divergence , enforcing differences in constitutional and statutory law expressed by the text of particular provisions or revealed by consulting the purposes for which those provisions were proposed or enacted. At other times, the Court has pursued a strategy of convergence , aligning the substance and scope of legal protections derived from constitutional and statutory sources notwithstanding their apparent differences. The Court has never declared one strategy superior to the other, nor has it examined its own practices to diagnose the competing considerations used to justify its choice of strategy. This Article offers such a diagnosis by identifying the primary rationales on which the Court has relied to justify one choice of strategy over another. Convergence holds considerable intuitive appeal, particularly when predicated on the empirical assumption that the nature of race discrimination is consistent across the wide range of social circumstances in which the law seeks to promote equality. This Article argues, however, that the temptation to organize race equality law around a single set of assumptions prejudices judicial interpretation and threatens to strip political institutions of the ability to develop and to implement a diversity of legal approaches to the problem of racial inequality. The argument may seem superfluous. Some prominent cases in the Court’s race equality jurisprudence suggest that divergence is the norm. Not the least of these is Washington v. Davis , in which the Court famously concluded that disparate-impact doctrine is not a feature of the Constitution’s equality guarantee, 1 even though it had previously recognized the doctrine under Title VII of the Civil Rights Act of 1964. 2 Davis reflects a view of constitutional governance in which Congress may enact laws requiring a “more probing judicial review of” potentially discriminatory behavior than what the Constitution requires, provided that it does so pursuant to a legitimate grant of legislative authority. 3 Although the decision’s substance and rationale have been understandably controversial, 4 the Davis Court 1. Washington v. Davis, 426 U.S. 229, 242 (1976). 2. See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (interpreting Title VII to prohibit practices that “operate[] to exclude [African Americans]”). 3. Davis , 426 U.S. at 247. 4. See, e.g. , Kenneth L. Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment , 91 HARV. L. REV. 1, 48–51 (1977) (criticizing Davis on the ground that its discriminatory purpose theory of race discrimination failed to take into account the historical formation of a racial caste system); Michael J. Perry, The Disproportionate Impact Theory of Racial Discrimination , 125 U. PA. L. REV. 540, 544 (1977) (criticizing Davis for its failure to adequately explain why disparate-impact theory is not a proper theory of race discrimination under the Constitution); see also Owen M. Fiss, Groups and the Equal Protection Clause , 5 PHIL. & PUB. AFF. 107, 157–59 (1976) (arguing that a “differential 204 IOWA LAW REVIEW [Vol. 100:201 justified divergence by invoking its institutional duty to honor differences in the substance and scope of constitutional and statutory law. In the area of race equality law more generally, divergence conveys the additional benefit of preserving for Congress and the states discretion to experiment with different approaches to promoting equality. Moreover, if the Court is generally mistrustful of legislative standards that diverge from constitutional norms, it will have difficulty discharging its duty to faithfully interpret statutory law. Divergence, however, can be counterintuitive. Constitutional and statutory laws at times subscribe to a common agenda to defeat race discrimination in parallel, or even identical, circumstances; and, in situations where both constitutional and statutory standards apply, divergence may be “most troubling.” 5 It contradicts basic expectations that like cases ought to be treated alike and that laws regulating the same conduct ought to be guided by a common, objective understanding of that conduct. In race equality law, this would mean a common understanding of the nature of race discrimination and its relationship to inequality. Finally, as a matter of moral intuition, it may appear that the prohibition against race discrimination ought to be absolute, and that a society that genuinely condemns such discrimination ought to make no allowances for any distinctions based on race. 6 The Supreme Court’s current colorblindness approach to equal protection frequently appears guided by this intuition. 7 Perhaps not surprisingly then, the Court has increasingly favored convergence. In Ricci v. DeStefano , for example, the Court resolved a purely statutory question regarding how to manage a conflict between the disparate impact” test should apply to equal protection claims because the Constitution should not tolerate the perpetuation of social underclasses). 5. George Rutherglen & Daniel R. Ortiz, Affirmative Action Under the Constitution and Title VII: From Confusion to Convergence , 35 UCLA L. REV. 467, 469–70 (1988) (arguing that the difference in “coverage” under constitutional and statutory law leading...