Part I of this Note outlines the limitations on congressional power under Section V and their implications for justifying the constitutionality of the disparate impact standard. Part II explores the prohibition of intentional discrimination as a justification for the disparate impact standard and argues that justifying the disparate impact standard through this theory, as some courts currently do, may eventually narrow disparate impact doctrine and thus constrain the possibilities for substantive equality in employment. This Part also analogizes the limits of using an intentional discrimination rationale to justify the disparate impact standard to the limits of using the diversity rationale to justify affirmative action in higher education admissions programs. It concludes by pointing out the inadequacies of alternative effects-based theories. Part III makes the case that an equal citizenship theory, based on a moral interpretation of the Fourteenth Amendment, best justifies the disparate impact standard. Finally, Part IV confronts some of the institutional issues underlying the equal citizenship theory as a justification for the disparate impact standard and suggests that Congress should have power under Section V both to interpret the Equal Protection Clause and to enact legislation that promotes equal citizenship.
Rebecca S. Giltner,
Justifying the Disparate Impact Standard Under a Theory of Equal Citizenship,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol10/iss2/4