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The Trouble With Racial Quotas In Disparate Impact Remedial Orders, Wencong Fa

William & Mary Bill of Rights Journal

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. Last year’s Supreme Court decision in Texas Department of Housing & 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 led to only race-neutral remedial orders enjoining the practice causing the disparate impact.

This Article analyzes the constitutionality of another …