The Trouble with Racial Quotas in Disparate Impact Remedial Orders

Justice Scalia’s concurring opinion in Ricci v. DeStefano highlighted severe conceptual tensions between the Equal Protection Clause of the Fourteenth Amendment, which protects individuals from racial discrimination, and disparate impact liability, which protects racial groups from adverse effects. This year’s Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. suggested that disparate impact liability under the Fair Housing Act was constitutionally unproblematic because successful fair housing lawsuits over the past four decades have only led to race-neutral remedial orders enjoining the practice causing the disparate impact. This Article analyzes the constitutionality of another disparate impact remedy: the imposition of racial quotas. Employment lawsuits brought under Title VII of the Civil Rights Act of 1964 have resulted in such remedies, potentially opening the door to an as-applied constitutional challenge arguing that the imposition of these remedies violates the Equal Protection Clause. The outcome will likely hinge upon the standard of review. Many have argued that a deferential standard is appropriate in light of federal court decisions approving the use of race in census questionnaires, suspect descriptions, and school zoning. This Article challenges that notion, and argues that the proper standard is strict scrutiny.