Travis Crum: “Justice Alito Embraces a Retrogression Standard”

The following is a guest post from Travis Crum:

Earlier this week, the Supreme Court denied cert in Coalition for TJ v. Fairfax County School Board, an important case about intentional discrimination and what facially neutral policies to promote diversity can be implemented after SFFA v. Harvard. Justice Alito, joined by Justice Thomas, authored a fiery dissent from denial of cert. As Rick noted on this blog, Alito’s dissental struck a very different tune than his majority opinion in Brnovich v. DNC—or, for that matter, his dissent in Inclusive Communities Project.

Here, I want to expand on Rick’s point and emphasize that Justice Alito’s approach is not your ordinary disparate impact standard, like one would use under Title VII or the Fair Housing Act (FHA). The former statute, for example, looks to the effect of a policy on the success of minority job applicants as measured against their availability in the local labor market. By contrast, Justice Alito embraced a retrogression standard—and one that applies even when a racial group is over-represented.

In response to the 2020 Black Lives Matter protests, the Fairfax County School Board moved away from a test-based admissions policy and adopted new facially neutral policies to increase diversity at an elite magnet school. These policy changes had their intended result and boosted the percentage of Black and Hispanic students, as well as White students. Meanwhile, the percentage of Asian American students dropped, both in absolute and relative terms. Prior to the policy changes, Asian American students were over-represented in the student body compared to the area’s general population.

According to Justice Alito, the Court should have granted cert to resolve whether the disparate impact on Asian American students was evidence of intentional discrimination under Arlington Heights. Alito accused the Fourth Circuit of permitting intentional discrimination “so long as it is not too severe.” Alito focused on the drop in Asian American students and raised a hypothetical about the permissibility of benching Black basketball players—who were over-represented on the team compared to their school’s population—in favor of White players.

Longtime readers of this blog will be familiar with Section 5 of the VRA’s retrogression standard, which prohibited covered jurisdictions from reducing racial minorities’ political power compared to the benchmark law. As a practical matter, the retrogression standard meant a covered jurisdiction could not dismantle majority-minority districts. It maintained a floor for minority representation and preserved subsequent victories. Section 5’s retrogression standard was justified on the grounds that covered jurisdictions had played a game of whack-a-mole prior to the VRA’s passage. The preclearance mechanism froze in place prior wins and shifted the burden of proof to the covered jurisdiction to change its policies.

But as part of a constitutional inquiry, Alito’s version of retrogression differs substantially from Section 5’s. First, Alito would apply his retrogression standard to any racial group, including those that are over-represented. Section 5, by contrast, concerned itself with racial minorities, who, as the Court recently reminded us in Allen v. Milligan, are almost always under-represented in politics.

Second, as with all anti-discrimination standards, a baseline is necessary. Section 5 used the prior law as the benchmark. Because Section 5 focused on racial minorities, it did not impose liability if an additional majority-minority district was created, thereby meaning there was one fewer majority-white district. Under Alito’s approach, any change to the status quo is retrogression to some group. The logical conclusion of Alito’s argument is racial balancing to maintain the status quo—and yet, the Court’s colorblind conservatives have repeatedly admonished against racial balancing.

Third, as relevant here, Section 5 put the burden on the covered jurisdiction to prove there was no retrogressive effect. And that was the end of the inquiry. Per Arlington Heights, Alito’s approach would place the burden on plaintiffs to prove retrogression as one of many factors establishing that race was a motivating factor in the decision-making process. This distinction could ameliorate the implications of Alito’s argument.

In my view, Arlington Heights’s disparate impact factor is capacious enough to consider both types of disparate impact: looking at how a group is represented in comparison to its percentage of the population and how the new policy changed a group’s relative success. After all, Arlington Heights is a multi-factor inquiry into motive, and no type of data should not be off the table in ferreting out discriminatory intent. Furthermore, Alito is correct that discriminatory intent can target racial or ethnic minorities who are over-represented. Indeed, the early twentieth century witnessed the re-writing of admissions policies to limit the number of Jewish students in the Ivy League.

What is striking is Justice Alito embracing a sub-silentio retrogression standard given his past writings on the dangers of disparate impact liability. I suspect that similar cases will continue to percolate in the lower courts and that cert will be granted in one of them in the next few years. Only then will we know if Alito’s endorsement of retrogression becomes constitutional law.

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