For decades, lawyers and legal scholars have disagreed over how much resource redistribution to expect from federal courts and Congress in satisfaction of the Fourteenth Amendment's promise of equal protection. Of particular importance to this debate and to the nation given its kaleidoscopic history of inequality, is the question of racial redistribution of resources. A key dimension of that question is whether to accept the Supreme Court's limitation of equal protection to public actors' disparate treatment of members of different races or instead demand constitutional remedies for the racially disparate impact of public action.
For a substantial segment of the nation's population as well as its judiciary and legal culture, governmentally mandated redistribution, and particularly racial redistribution, of resources to remedy the disparate results of public action is anathema to our constitutional order – so much so that such redistribution may provoke violence that horribly magnifies inequality. Avoiding that prospect leads us to propose a new constitutional understanding of the relationship between disparate impact and treatment to serve as an alternative to racial redistribution – or, should our legal culture change sufficiently in reaction to current events, as a necessary supplement to redistribution.
While acknowledging the need to mind the racial and other gaps that public action persistently creates and tolerates, our strategy calls upon public actors and oversight bodies to mine the gaps for dispositive evidence of disparate treatment. Compared with how federal courts and our legal culture currently understand disparate treatment, our approach is more honest about the existence and meaning of centuries of unrelenting racial disparities and more insistent on transparency about why disparities keep occurring and whether they are innocent. Yet, the proposal also is moderated by its continuing prioritization of disparate treatment over disparate impact per se; by the extent to which it remains constitutionally and culturally precedented; by its objective of reform but not necessarily outright racial redistribution; and by its effort to avoid rowing upstream against the nation's individualistic current or being swept by it over treacherous and violent falls.
In offering this approach, we recognize the need constantly to calibrate the breadth of the concession being made to liberty over equality and community, in order to keep the voracious appetite of the nation's individualism from consuming all hope of equity and social solidarity among diverse populations.
James S. Liebman, Kayla C. Butler & Ian Buksunski,
Mine the Gap: Using Racial Disparities to Expose and Eradicate Racism,
S. Cal. Rev. L. & Soc. Just.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2751