"Desperate" Impact

Campus Report ^ | October 13, 2009 | Brittany Fortier

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“Desperate” Impact?

by: Brittany Fortier, October 13, 2009

As the Supreme Court begins a new session, the Cato Institute held its 8th annual Constitution Day Conference and Supreme Court Review on September 17, 2009. This day also marked the 222nd anniversary of the adoption of the U.S. Constitution, and panelists discussed whether the Supreme Court decisions of the previous year were faithful to the intentions of our Founding Fathers.

Roger Clegg, President and General Counsel for the Center for Equal Opportunity, called the “disparate impact” approach to civil rights law used by the Court in cases such as Ricci v. DiStefano a “very bad idea” and “unconstitutional to boot.”

Ricci, a case decided by Justice Sonia Sotomayor while she was a judge on the 2nd Circuit, involved an employment test disputed by a group of white firefighters in New Haven, Conn. The Supreme Court overruled Ricci in a 5 to 4 decision, saying that by ignoring the test results (which disproportionately favored the white firefighters), New Haven violated Title VII of the Civil Rights Act of 1964.

“I think the Ricci case opens the door for litigants to challenge disparate impact in any of the realms in which it’s raised, and we know that the Obama administration is planning to use it aggressively,” said Kenneth Marcus, the Ackerman Chair at the City University of New York (CUNY)/Baruch College School of Public Affairs.

Critics of the disparate impact approach oppose the idea that employers should have to take race, ethnicity or gender into account at all when making a hiring decision. This opposition is based on the idea that the allegedly benevolent purposes of the disparate impact approach do not justify what amounts to racial preferences and reverse discrimination....

[La Lydia]

Disparate impact is very different from desperate impact.