The Creep of Disparate Impact

One of the least understood concepts in law is disparate impact, and Dahlia Lithwick understands it no better than your average sophomore.

It is high time now for “too much justice.” Overturning Washington v. Davis would move the country significantly closer to racial equality. Such a reevaluation need not topple the entire legal system overnight.

High time, indeed. Washington v. Davis was a very curious decision, seeking to invalidate “Test 21” to become a District of Columbia police officer because black test takers disproportionately failed the test because it was “culturally slanted to favor whites.” At the time of the case, one of the core attacks was the validity of tests as a gauge of performance, and there was significant reason to believe that Test 21, although not created for any invidious purpose, had no particular validity in determining who would make a good cop.

But the issue in the case was whether the disparate impact analysis from Title VII, approved in Griggs v. Duke Power, should apply to an Equal Protection clause claim. The 7-2 Court held it should not, meaning that the burden was to prove invidious discrimination to prevail rather than to prove disparate impact and shift the burden to the employer to prove a sufficient non-discriminatory justification.

Disparate impact, as a legal concept, is an evidentiary rebuttable presumption. Since proof of discriminatory intent is hard, if not impossible, to prove, the Griggs Court held that if a facially neutral act resulted in a disparate racial impact, one that affected black people disproportionately to white people, it was then presumed discriminatory, and the evidentiary burden of coming forward with evidence to show its job-relatedness as justification shifted to the defendant. It was not only limited to cases brought under Title VII, but further limited to race. This removed a huge hurdle to addressing racial discrimination in employment, evidence of invidious discriminatory intent almost always impossible to prove.

But in Washington v. Davis, the Supreme Court refused to extend disparate impact beyond Title VII to all claims of racial discrimination under the Equal Protection Clause. That’s what Lithwick contends perpetuates “systemic racism.”

But discriminatory intent is virtually impossible to prove. Who openly admits they are racist? This nearly insurmountable bar means that laws that treat Black people worse than white people (for example, laws requiring exponentially harsher sentences for crack possession than for cocaine use) remain tolerated throughout society.

As Osagie K. Obasogie noted in the New York Times, the result of this decision was the perpetuation of systemic racial discrimination and the ascendance of “what is now known as the ‘intent doctrine,’ which emerged in later cases as a simplistic search for a smoking gun—individual bad actors intentionally doing bad things with nothing but racial animus on their minds.”

There’s a subtle, but significant shift buried in there. It went from employment discrimination to all government acts, including those like the sentence for crack as opposed to powdered cocaine, and the ubiquitous weed argument.

The result is a kind of cyclical trap. Requiring evidence of racist intent means that many laws that harm minorities, either by design or as a result of vestigial racial bias, nevertheless survive constitutional scrutiny. Those laws in turn perpetuate racial disparities and weaken minorities’ political power, while the people who make laws have no incentive to upend the order they have created. For example, an April statistical analysis in Iowa revealed that 7.3 times more Black people in that state and 3.64 times more Black people nationally were arrested for marijuana possession than white people, even though both groups use the substance to approximately the same extent.

The argument, from a disparate impact perspective, seems pretty darn strong. If white and black people smoke weed at “approximately the same extent,” why are black people arrested at such higher frequency. What the argument tacitly fails to mention is that the people arrested (for the most part) possessed marijuana, so it’s not as if they were innocent of the crime. Whether it should be a crime is a different question.

It also neglected to ask (or to “interrogate,” the fashionable word for “ask” since it’s longer and sounds more serious) why this happens. The answers are fairly clear and well known, that police deployment in black communities is far greater than white communities, that the cultural methods of buying grass on street corner in the open and smoking it on the street differ from whites, who tend to buy in secret and use it in private. This may be the product of racial culture, or poverty, but it’s how it happens, making it far easier for cops to observe and arrest a black person.

As for crack, the genesis of the disparate sentences was dumb and wrong, but similarly clear at the time. Crack exploded on the scene and generated an immediate myth of super-powers, somewhat akin to fentanyl v. heroin today. It was nonsense, but everybody believed it at the time, and so the sentence guidelines were written to make crack 100 times worse than powdered cocaine.

Later, the argument shifted to crack being favored by black people, whereas coke was the white person’s Studio 54 drug. Of course, in the beginning, the black community hated crack far worse than the white community because of the destruction it posed to their neighborhoods. Nobody wanted their kids waking up to dead bodies in the streets from the night before, and there were plenty.

Yet, Lithwick calls for the extension of disparate impact beyond employment to all government action.

Such a reevaluation need not topple the entire legal system overnight. The court could, for example, find that a disparate impact creates a presumption of illegality that the government has to ultimately rebut by satisfying strict scrutiny. The government, after all, has in its possession the evidence explaining its actions. And if the government cannot respond, or gives a pretextual response, minority plaintiffs should prevail.

If you’re against the War on Drugs, you’re probably thinking to yourself, “I’m not seeing a problem here.” But consider crimes of violence, murder for example, which have the same disparate impact. Or the banal offense of speeding, same deal. Would we want black people to get their first murder free, or maybe allow black people to drive 20 miles over the speed limit before they could be stopped, whereas white people are constrained to drive in accordance with it?

The underlying assumption that Lithwick omits from her special pleading is that crimes, like employment, should produce the same racial ratios, and if they don’t, racial discrimination must be presumed (although she adds, surreptitiously, that it can only be rebutted by evidence that survives strict scrutiny. That’s not the test under Griggs). So there can only be two remedies if she’s right: eliminate the crime or give black people special dispensation for committing it to compensate for the disparate impact. It might be fine with drugs, but murders or muggings?

12 thoughts on “The Creep of Disparate Impact

  1. KP

    ” It might be fine with drugs, but murders or muggings?’ Yes! get woke!

    Its years since the bar shifted from ‘equal opportunities’ to ‘equal outcomes’, so now Harrison Bergeron rules!
    From South Africa (“Here’s the keys to your BMW Mr new black Vice-Chairman, your office is here with your new phone, please enjoy yourself and don’t touch anything” to New Zealand (too many examples of blatant racism to advantage Maoris to list here) all the Western world is queuing up to screw the whites so they can artificially raise the rest.
    Don’t worry if your black surgeon got his medical degree with his 40% pass marks, you’ll be fine…

    1. SHG Post author

      It would be better if you made your point without feeling compelled to denigrate anyone on the basis of race. Providing equal opportunity doesn’t require burdening any race, but rather eliminating racial burdens for everyone.

  2. Richard Kopf


    My letter:

    Dear Dahlia, please apply and then explain the disparate impact analysis you like so much to all federal child porn cases, especially those that involve “hands on” production and abuse, to white male defendants. After all, over 99 percent of those offenders are male, and over 80 percent, far above their percentage of the entire population*, are white, while black defendants account for only about 4 percent of the cases, far below their percentage of the entire population. See Quick Facts— Child Pornography Offenders, USSG (2020 ) (“80.3% were White, 11.9% were Hispanic, 4.3 % were Black, and 3.5% were Other races.”) (FY 2015 through FY 2019 Datafiles). ”

    Her response:

    White males are icky. As an original sin, it begins at birth.

    All the best.


    *As of 2014, white men constituted 31 percent of the U.S. population according to Nia-Malika Henderson writing for the Washington Post.

    1. SHG Post author

      I wonder if there are any stats as to who, by race, possesses kiddie porn? Maybe it’s just a white guy thing, but I wish it was a nobody thing more than you could possibly know.

      1. Richard Kopf


        Good question. Hard to know. I can’t find any “uncaught possessor” estimates by race. But, I can find the following:

        According to the Center for Missing and Exploited Children, “An estimated 50,000 people in the U.S. are believed to be consistently trading illegal images involving children at any one time.” (NCMEC)” The Demand Project .

        “An FBI investigation of a single website hosted on Tor had approximately 200,000 registered users and 100,000 individuals had accessed the site during a 12-day period.” The National Strategy for Child Exploitation Prevention and Interdiction, Department of Justice, page 83 (April, 2016).

        Given the foregoing, and then extrapolating from federal prosecution data, I am guessing that whites are far more likely to possess this stuff than blacks. But extrapolation, like disparate impact, is iffy.

        All the best.


        PS Me too regarding your wish. A steady diet of looking at these images early in my career as a sentencing judge caused me to stop. For a long time, I have relied only upon written descriptions in the PSR for sentencing purposes. These images can never be unseen.

        1. SHG Post author

          That was one (but not the only) reason I turned down these cases, as long as the defendant had access to other counsel.

  3. B. McLeod

    This extension of disparate impact rationale outside its original borders is how a lot of folks believe they are “proving” the pervasiveness of “systemic racism.” If the percentage of blacks experiencing any particular issue is greater than the percentage of blacks in the general population, it must be due to “systemic racism.” No economic, class, regional or other factors are to be considered. It is a fallacious misuse of statistics, and similar reasoning would “prove” that asians are systematically oppressing everybody.

    Lithwick has also lost sight of the fact that “racial equality” has been displaced by the demand for “racial equity.” She isn’t even addressing the correct objective.

  4. Jay

    Greenfield law school is going to blow your mind when you find out straw man arguments conflating malum en se and malum prohibitum crimes don’t convince anyone but Nebraskan djs

    1. SHG Post author

      Despite your presentation, you almost have a point this time, even if it’s not a distinction made by Lithwick to argue that her point is limited to malum in se. Except for the fact that I used speeding as well to cover that point. Drunk driving would have worked too. You get a C on the final.

  5. Rengit

    Re: crack vs. powder cocaine sentencing

    In addition to the reasons you give for the sentencing disparities, my impression was that the actual practice of crack dealing and distribution in America was much, much more violent than cocaine dealing, given crack’s extremely low street price (less than $10 in many places, which additionally made it much more accessible to kids than expensive powder), necessitating physical control of territory and elimination of competitors to make the business viable. I have never heard much of the violence of powder cocaine dealing from the 70s or 80s in America aside from some neighborhoods in Miami, the typical entry port, although of course cocaine trafficking was very violent in Latin American countries like Colombia. Hence, because of the extreme violence associated with crack dealing as opposed to powder cocaine (or heroin, or any other illegal drug) trade, we had the sentencing disparities. It may have been hard to convict a drug kingpin like Rayful Edmond for ordering murders, but if you could get him on crack trafficking charges, a much easier task, then he was gone for decades given the harsh sentencing for crack.

    I wasn’t alive at the time, the mid 80s, though, so I am curious what messaging and news coverage people who were actually alive at the time were getting, because all of the current discussion and recent literature appears to be motivated to establish the whole New Jim Crow narrative.

    1. SHG Post author

      It was violent, as people killed for corners because corners made people rich. Back then, there were very organized gangs, disciplined and run very business-like, and on occasion full-scale war broke out between them. But I’m not sure how much of a role that played in the 100:1 sentencing.

Comments are closed.