Last week I wrote about disparate impact theory in the context of an ACLU complaint against South Orange-Maplewood School District. Here, ACLU charges that the Essex County district is discriminating against Columbia High School minority students by disproportionately suspending them and relegating them to lower level classes than their white peers. In the complaint to the federal Office on Civil Rights, the ACLU concedes that South Orange-Maplewood has no intent to discriminate and, in fact, the district has worked hard to provide equitable opportunities regardless of race. However, the disproportionate results outweigh intention and justify federal intervention.
That’s disparate impact theory: it’s not about intent; it’s about outcome, and has been applied with mixed success to fair housing, lending practices, and labor laws.
In a blow to this strategy, a federal judge just threw out the Obama Administration’s complaint based on the 1968 Fair Housing Act. From today’s Wall St. Journal:
So it’s big news that Judge Richard Leon has ruled that the 1968 act “unambiguously prohibits only intentional discrimination” and thus the 2013 Housing and Urban Development rule violates the law. Judge Leon noted that when Congress amended unemployment law in 1991, it expressly did not amend housing law to include disparate impact.
“Only intentional discrimination.” That’s the key phrase here. If this interpretation is applied to ACLU’s complaint in South Orange-Maplewood, then the district’[s intent to be non-discriminatory is not invalidated by the outcome that more minority kids are suspended and placed in lower-level classes.