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Book Chapter

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Six years ago, Ricci v. DeStefano foregrounded the possibility that statutory disparate-impact standards like the one in Title VIl might be on a collision course with the Fourteenth Amendment's Equal Protection Clause. For many observers, it was a radically new possibility. Until that point, disparate-impact doctrine had usually been understood as an ally of equal protection rather than as a potentially conflicting aspect of the law. But between the 1970s and the beginning of the present century, equal protection doctrine became more individualistic and less tolerant of race-conscious actions intended to redress inherited racial hierarchies. Those developments put equal protection in increasing tension with disparate-impact doctrine, which is reasonably understood as race-conscious and which takes groups rather than individuals as a basic unit of analysis. The Supreme Court officially ducked the possibility of a constitutional conflict in Ricci, but the fact of potential conflict-and, accordingly, the potential end of statutory disparate-impact standards in race discrimination cases-was brought squarely into view.