Discrimination by Proxy

By Alexander, Larry; Cole, Kevin | Constitutional Commentary, Winter 1997 | Go to article overview
Save to active project

Discrimination by Proxy


Alexander, Larry, Cole, Kevin, Constitutional Commentary


I. THE PRINCIPLES

Here are three well-settled principles of constitutional law:

The Anti-Discrimination Principle. Government cannot use racial classifications, even as the most cost-effective proxies for other traits, unless using them as the most cost-effective proxies is necessary to further a compelling interest.(1) (The same holds for use of a gender classification as a cost-effective proxy, except government's burden is lower: the classification must be substantially related to an important interest.(2)).

The Disparate Impact Principle. A non-racial (or nongender) classification that produces a disparate racial (or gender) impact is not forbidden on that ground by itself.(3)

The Intent Principle. However, a non-racial (or nongender) classification adopted as a close proxy for race (or gender)--that is, because of its disparate impact--is assessed the same way as an explicit racial (or gender) classification, that is, under the Anti-Discrimination Principle.(4)

II. THE PROBLEM

Now consider the admissions policies of three hypothetical state-supported law schools in, say, the plains states:

School A has admitted students solely on the basis of how they score on the LSAT. It has recently discovered that the LSAT overpredicts the performance of blacks relative to whites. It does not believe that race is causally related to the variation between predicted and actual performance; rather, it believes that race merely correlates with other factors that are causally related to that variation. However, it is unable either to identify those factors or to test for them in any way that would be cost-effective. It determines that classifying LSAT scores on the basis of the race of the applicant and then discounting the scores of all black applicants is the most cost-effective way of improving the performance of its entering class. University counsel concludes, however, that such a policy would violate the Anti-Discrimination Principle.

School B has historically followed the same admissions policy as School A, that is, admitting those with the highest LSAT scores. Recently, however, School B has decided for a variety of reasons to become a "regional" law school and restrict admissions to applicants from the plains states. It expects student quality to decline somewhat, at least in the short term, because of the constriction of the applicant pool. However, it discovers that its incoming students under the new policy, despite a lower average LSAT score, are outperforming previous entering classes.

School C, surprised by the news from School B, asks a statistician to analyze School B's policies. The statistician reports that the performance of School B's students is due to the fact that there are few black applicants to law school in the plains states. In the past, most of the white applicants to Schools A, B, and C had come from the plains states, but most of the black applicants had come from outside the region. Therefore, School B's policy, while not as effective in improving performance as the racial classification that School A rejected as unconstitutional, is more effective than an unrestricted admissions policy based solely on LSAT because it has an effect similar to the rejected racial classification.

School C would like to adopt the "plains states only" admissions policy of School B. Its sole reason is that it believes the performance of its students will improve. It asks University counsel whether that policy, adopted for that reason, would violate the Intent Principle rather than merely come under the Disparate Impact Principle. How should University counsel answer?

III. UNDERSTANDING THE RELATIONSHIP AMONG THE PRINCIPLES

University counsel should begin by analyzing the relation among the three principles. The Disparate Impact Principle, although frequently criticized prior to Washington v.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Discrimination by Proxy
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?