Law Commons^™

Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea Curcio, Carol Chomsky, Eileen Kaufman

Eileen Kaufman

The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

Valerie Schneider

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

ABSTRACT

Ricci v. DeStefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important. The majority and concurring opinions make proving disparate treatment much easier than under prior law, in a way that may utterly defeat that cause.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII, “anti-subordination” and “anti-classification.” The …

Disentangling Disparate Impact And Disparate Treatment: Adapting The Canadian Approach, Joseph A. Seiner

Joseph A. Seiner

The legal framework for alleging disparate impact and disparate treatment claims in cases involving discriminatory employment standards has long been confused. The uncertainty of how to proceed in these cases has created analytical problems for both the federal courts and the litigants. There is a fine line between intentional and unintentional discrimination claims when it comes to employment standards, and that line is often blurred. A uniform approach for analyzing these cases is therefore needed. This article looks to the Canadian approach of analyzing discrimination claims in the employment standards context, and, borrowing from that model, proposes a three-part analytical …