By Isabella Jackson-Saitz and Eve Hill

In late April, the Supreme Court decided Louisiana v. Callais, eviscerating what remained of the Voting Rights Act. Within weeks, the Department of Justice and the Department of Transportation were citing the decision to unwind disparate impact protections in areas of the law beyond voting. The through-line is a legal theory that Congress cannot outlaw practices with discriminatory results, only practices challengers can prove were carried out with discriminatory intent. If that theory prevails, plaintiffs across civil rights law will lose one of their most effective tools for proving discrimination.

Background

Nearly a century after Reconstruction, Congress enacted the Voting Rights Act—the single most consequential piece of civil rights legislation ever passed—to give life to the promise Fourteenth and Fifteenth Amendments. In 1982, Congress amended the statute to explicitly prohibit discriminatory “results.” Congress built later statutes, including the Civil Rights Act of 1964 and the Americans with Disabilities Act, on the same insight: those who want to discriminate will often do so while maintaining plausible deniability. Disparate impact liability lets plaintiffs win relief by pointing to discriminatory results, without needing a smoking gun of discriminatory intent.

Callais dealt with three streams of the Court’s voting rights jurisprudence: racial vote dilution claims under Section 2 of the Voting Rights Act, Shaw claims alleging that race played an excessive role in districting, and political gerrymandering claims the Court has already declared non-justiciable. Section 2, as amended by Congress in 1982, was designed to reach not only intentional discrimination but also practices that left minority voters with less opportunity to elect the representatives of their choice—the results test.

Callais cast doubt on Congress’s results test. Justice Alito invoked City of Boerne v. Flores for the proposition that a law enforcing the Fifteenth Amendment by prohibiting mere disparate impact fails to enforce a right the Amendment secures. That reading of Boerne does not hold up. Boerne said a law “can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” The Court has long recognized that outlawing disparate results is a legitimate way of capturing purposeful discrimination, precisely because discriminatory motive is so hard to prove directly. Disparate impact tests exist to make prohibitions on intentional discrimination enforceable.

Spillover

Callais was a voting rights decision. It has not stayed one.

In June, the Department of Justice’s Office of Legal Counsel released an opinion—written by T. Elliot Gaiser, a former clerk to Justice Alito—citing Callais to make disparate impact claims harder to prove in employment discrimination cases. The opinion agrees that Title VII prohibits intentional racial discrimination but takes issue with precedent from 1971 holding that in some circumstances, Title VII outlaws practices with a discriminatory effect. That precedent was woven into Title VII in 1991, but OLC tries to excise Congress’s decision from the law. OLC relies on Callais to argue that disparate impact law needs to be “update[d]” to eliminate constitutional concerns, just as vote dilution law was updated in Callais. The Department of Transportation followed shortly after, announcing it would strip disparate impact standards from its own regulations.

The position taken by both agencies is the same: Congress lacks the power to prohibit disparate impact as a means of reaching intentional discrimination, whether the context is voting, employment, or transportation. And disparate impact standards exist across the law: in housing and disability rights as well as voting and transportation.

What’s next?

Two things follow from where this leaves us. First, it is possible this theory prevails at the current Supreme Court. Nothing about Callais’s reasoning is confined to voting, and the agencies invoking it know that. Second, both the Trump Administration and the Supreme Court are working to move these questions out of Congress’s hands and into the Court’s. Disparate impact liability has always reflected a legislative judgment about how discrimination operates and how to prove it. Recasting that judgment as constitutionally suspect does not just narrow one statute. It transfers the power to decide how discrimination law works from the branch that wrote these statutes to the branch reinterpreting them.

But advocates still have room to work.

OLC opinions are not judicial holdings, and every one of this Administration’s theories must be tested in court. Plaintiffs’ lawyers can still bring disparate impact arguments rooted in the text of the laws that Congress passed, and employers and other regulated entities do not have license to discriminate just because the current administration says they might. The throughline in this administration’s approach is an effort to convert a series of democratic, legislative judgments into a single constitutional rule, decided once, by nine people, instead of repeatedly, by elected representatives who considered evidence about how discrimination works. That legal sea change is not self-executing. It requires courts to adopt it, agencies to enforce it, and everyone else to accept it as settled. Each one of those steps is yet to come, and that’s where the work remains.

Brown, Goldstein & Levy is a nationally recognized leader when it comes to protecting civil rights. If you or a loved one has encountered discrimination, consider contacting us today to discuss your situation.

This blog was primarily authored by BGL summer associate Isabella Jackson-Saitz. At the time of publication, Isabella is a rising 3L at Stanford University Law School, where she is a Student Attorney in the Community Law Clinic and leader of the Housing Law Pro Bono Project. Last summer, she interned on the Senate Judiciary Committee where she performed legal and policy research, and at a plaintiff-side employment law firm.