The “disparate impact” approach to civil rights enforcement makes it presumptively illegal to use selection criteria that result in statistical disparities based on, inter alia, race or ethnicity. It is no defense that the use of a challenged criterion had no discriminatory motive; the only defense is if its use meets some “necessity” standard. The inevitable result is to encourage race-based decision-making when selection criteria are chosen and implemented. Yet using this approach is widespread and found in numerous statutes and regulations. Given the Supreme Court’s decision striking down racial preferences in SFFA v. Harvard, what impact will this have on the disparate-impact approach?
Featuring:

Mr. Dan Morenoff, Executive Director & Secretary, American Civil Rights Project
Mr. Joshua P. Thompson, Director of Equality and Opportunity Litigation, Pacific Legal Foundation
Hon. Jenny R. Yang, Adjunct Professor of Law, New York University School of Law
Moderator: Hon. John B. Nalbandian, Judge, United States Court of Appeals, Sixth Circuit