Since Barack Obama's election as America's 44th president, commentators have debated whether the nation is now a "post-racial" society. More than one op-ed contributor has cited the 2008 election results as proof that it is time to abandon equal opportunity programs in schools, corporations, law firms, and other social institutions. "After all," they proclaim, "the president is black."
Not so fast: Just ask Harvard history professor Henry Louis Gates if we're over the hump on racism. As you recall, Gates, an African American, was arrested at his own home last summer by a white Cambridge police officer who was investigating a possible burglary—after Gates had shown identification that proved he lived there.
As the Gates incident teaches, race in America remains a hot-button issue. But it also emphasizes that different ethnic groups often perceive the same event differently and that, when dealing with race, perspective is crucial.
Overt racism is relatively easy to prove in court. Subconscious bias, on the other hand, is more difficult to analyze. And such subconscious bias can play a major role in producing racially tainted results. A person may not overtly exhibit racial bias but nevertheless may be affected by subtle prejudices that are hard to pin down. In addition to the subtleties of subconscious prejudice, lawyers and judges continue to grapple with a daunting reality: In America, troubling disparities still persist along racial lines.
In the era of Obama, some may ask, how is it possible that racial disparity stubbornly lingers in education, health care, penal sentencing, and environmental impacts? But even after accounting for various socioeconomic factors, such as income, education, and individual conduct, it does. People of color in school often suffer more frequent and harsher punishment for the same disciplinary infractions when compared to their white peers. Young African Americans also tend to receive more severe sentences than their white counterparts who commit similar crimes and have similar criminal histories. Polluters more often locate their toxic operations in minority communities. And consistently poorer health in minority communities is in part the result of inferior medical care provided there.
Whatever the causes of these disparities, most fair-thinking Americans agree that such conditions are antithetical to our expectation of equality. And for lawyers, a number of legal requirements—stiff impediments to many minority litigants—block the path to justice on their behalf.
Bias cases brought under the Equal Protection Clause of the 14th Amendment involve an onerous burden: proof of the government's discriminatory intent. (The 14th Amendment applies only to "state action" (Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)).)
Under Washington v. Davis (426 U.S. 229, 245 (1976)), there can be no equal protection claim based on disparate impact. Disparate treatment is the key, as the court declared it would not "embrac[e] the proposition that a law or other official act ... is unconstitutional solely because it has a racially disproportionate impact." (426 U.S. at 239.)
In subsequent cases, the U.S. Supreme Court clarified that a plaintiff must show that a "discriminatory purpose [was] a motivating factor in the decision [or law/policy challenged]." (Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265–266 (1977).) This rule applies to disputes over prison rights (Lewis v. Casey, 518 U.S. 343 (1996)), employment and gender discrimination (Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979)), and disability rights (Alexander v. Choate, 469 U.S. 287, 293 (1985)).
The Court has also made it clear that for remedial government "affirmative action" programs to pass constitutional muster, there must be specific evidence that the governmental entity involved actually discriminated in the past and that the program at issue is carefully tailored to remedy that particular discrimination (City of Richmond v. Croson, 488 U.S. 469, (1989)). In addition, strict judicial scrutiny applies to all racial classifications imposed by the government (Adarand Constructors v. Peña, 515 U.S. 200 (1995)).
What about cases involving subtle and hidden biases that are, nevertheless, motivating factors in decision making? Social scientists have long observed that unconscious bias can profoundly impact a person's conduct. (See Anthony G. Greenwald and Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945 (2006).)
Under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §sect; 2000e-2000e-17), the nation's most commonly invoked employment-discrimination statute, discrimination that results from a disparate impact can indeed qualify for remedial action. (See Griggs v. Duke Power Co., 401 U.S. 424 (1971).) The Ninth Circuit has squarely ruled that a plaintiff can prevail even though the discriminating actor did not consciously set out to discriminate or act maliciously (EEOC v. Inland Marine, 729 F.2d 1229 (9th Cir. 1984)).
A poignant example is the ongoing Wal-Mart litigation. In that case, preliminary testimony from one of the plaintiffs' expert witnesses utilized a "social framework analysis" to suggest that managers with high levels of discretion in compensation and promotion decisions tend to unknowingly engage in spontaneous and automatic stereotyping and in-group favoritism that (1) systematically resulted in the most favorable jobs being filled by men and (2) allowed managers to unintentionally reinforce structural barriers to women's advancement. (See Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1178–1180 (9th Cir. 2007), rehearing en banc ordered, 556 F.3d 919 (9th Cir. 2009).) However the Ninth Circuit eventually resolves the Wal-Mart case, the reality of subconscious bias will not go away.
In theory, nothing could be fairer than a neutral job-related test to select candidates for hiring and promotion. When a computer scores the test, it does not look at the race of the test takers or sort them by group. Instead, all that counts are the answers.
A problem arises, however, when the test disproportionately screens out minority applicants. If that happens, a crucial inquiry is whether the test is actually both neutral and job-related. In job-testing litigation, many long-held perceptions will be challenged. Exactly what job duties is an employer testing for? What are the essential functions of the job itself? Under focused review, many seemingly neutral examinations fail: They are not truly "job-related" (Griggs, 401 U.S. at 431, 436).
Courts have wrestled with this issue for years, and a recent U.S. Supreme Court decision (Ricci v. DeStefano, 129 S. Ct. 2658 (2009)) highlights the dilemma. The case began when a group of white and Hispanic firefighters sued the city of New Haven, Connecticut, alleging a violation of their rights under the Equal Protection Clause and Title VII when the city failed to certify the results of a promotion exam that had a disproportionately negative impact on black firefighters.
None of the black firefighters scored well enough to be among the pool of candidates for promotion. Understanding that Title VII prohibits employment practices, including promotion exams, that have a discriminatory impact—and fearing that the black firefighters would commence litigation if the test results were certified—the fire department decided not to certify the results. Instead, the city opted to reevaluate its employment practices and look for another test, presumably one that would yield a more diverse pool of candidates. When none of the high-scoring firefighters was promoted, they filed suit.
The trial court and the Second Circuit found that the city did not violate Title VII in refusing to adopt the test results (Ricci v. DeStefano, 530 F.3d 1129 (2nd Cir. 2008)).
The U.S. Supreme Court reversed the decision, but not without first taking stock of the dilemma: The city of New Haven faced a threat of litigation both if it certified the exam and if it refused to certify. However, the Court refused to allow the city unfettered discretion to throw out exam results under the threat of litigation, even if the exam yielded a racially disparate result. Instead, wrote Justice Anthony Kennedy for the 5–4 majority, the city was required to have a "strong basis in evidence" to believe it would be subject to liability under Title VII before it could reject the results of an examination (129 S. Ct. at 2677).
Bear in mind that in the Ricci case the city declined to certify the test results based on disparate test outcomes coupled with the city's known history of discrimination in hiring and promoting firefighters. New Haven was voluntarily attempting to reevaluate the neutrality and job-relatedness of its test and promotion practices without a trial to formally determine whether the promotion exam was flawed. It goes without saying that, even after Ricci, employment tests still must be neutral and job-related to be valid.
Race in California
Like many states, California offers its own constitutional and statutory protections against discrimination. Although state law in many respects tends to mirror federal law, in some instances California law is more protective of individual rights. For example, the Equal Protection Clause of the 14th Amendment and its California counterpart (Article I, section 7 of the state constitution) read almost identically. However, the express language of related provisions contained in the California Constitution extends further than the 14th Amendment in prohibiting employment discrimination: "A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin." (Cal. Const., art. 1, sec. 8.)
California's statutory protection is also broad. The Fair Employment and Housing Act (FEHA) bars employment discrimination on the basis of age (40 and over), ancestry, color, religious creed, disability (mental and physical) including HIV and AIDS, marital status, medical condition, national origin, race, religion, sex, and sexual orientation (Cal. Gov. Code §§ 12940–12965). Title VII, by contrast, does not expressly ban discrimination based on marital status or sexual orientation, and requires fifteen or more employees as a jurisdictional prerequisite (42 U.S.C. § 2000e(b)), compared with as few as five under FEHA (Cal. Gov. Code § 12926(d)).
California voters have also gotten involved in the issue of discrimination. In 1996 the electorate adopted an initiative, popularly known as Proposition 209, amending the state constitution to say that "[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." (Cal. Const., art. 1 sec. 31(a).) Although the state Supreme Court upheld Prop. 209 (Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537 (2000)), challenges to the initiative's validity continue. Currently pending before the state Supreme Court is the question of whether Prop. 209 is unconstitutional because it creates greater political obstacles (by requiring a constitutional amendment) for persons seeking remedial race- and gender-based preferences than it does for those seeking preferences on other grounds. (See Coral Construction, Inc. v. City of San Francisco, 57 Cal. Rptr. 3d 781 (2007) (hearing granted, 65 Cal. Rptr. 3d 761 (2007) (pending as No. S152934).)
Even as controversy continues to swirl around Prop. 209, new cases are testing its limits. One of the most active areas of Prop. 209 litigation involves school-integration plans. In fact, since the enactment of the initiative, a number of public-school programs have been challenged because they involved racial factors of one sort or another, all in an effort to enhance diversity and overcome the effects of past discrimination. (See Am. Civil Rights Found. v. Los Angeles USD (169 Cal. App. 4th 436 (2008)).)
Although courts have been rather straightforward in declaring programs using racial classification illegal under Prop. 209, the ground is shifting to new and more innovative strategies to pursue diversity. Prop. 209 exempts most court-ordered integration plans (see Cal. Const., art. I, sec. 31(d)), but voluntary plans adopted by aggressive school districts have become a primary litigation target.
One such example involves the Berkeley Unified School District, which found a way to diversify its classrooms without classifying students by race. Instead, the district relied on a variety of factors to establish diversity categories for neighborhoods, and then proceeded to assign the students who live there by relying on those categories. Though the district factored in racial composition of neighborhoods, it did not look at the race of individual students.
Nevertheless, the Berkeley plan was challenged as being in violation of Prop. 209. The trial court ruled in favor of the school district, and the court of appeal agreed in an opinion holding that the Berkeley school assignment plan does not run afoul of Prop. 209's mandate for racial neutrality. "The constitutional provision prohibits unequal treatment of particular persons and groups of persons," said the court, "it does not prohibit the collection and consideration of community-wide demographic factors." (Am. Civil Rights Found. v. Berkeley USD, 172 Cal. App. 4th 207, 218.) The court also noted that the assignment policy looked at the neighborhoods where students and their families resided and considered average household income, average education level of adults in the neighborhood, and the racial composition of the neighborhood as a whole. "Every student within a given neighborhood receives the same treatment, regardless of his or her individual race," said the court (172 Cal. App. 4th at 211). Thus, the court concluded that educators who include a general recognition of the demographics of neighborhoods in student assignments, without classifying individual students by race, do not violate Prop. 209.
Whether the Berkeley decision will spawn other creative approaches to promoting diversity remains to be seen. One thing is clear, however. The door remains open for aggressive, good faith efforts to remedy the lingering effects of past discrimination.
Kimberly Thomas Rapp was formerly the director of law and public policy, and Claudia Peña is a fellow for the Equal Justice Society in San Francisco.