46. RECAP: When the Rules Look Fair—But the Results Don’t
Let's revisit disparate impact one more time
Imagine two kids.
They live in the same city but go to different schools.
One gets suspended for wearing a hoodie. The other gets a warning and a smile.
Different outcomes. Same rule.
Now zoom out. Multiply that story by hundreds or thousands. A pattern starts to appear.
Here’s the legal question:
Can we call it discrimination if no one intended it—but the outcomes consistently harm one group more than another?
That’s the puzzle courts have been trying to solve for decades.
Disparate Impact: What Happens When the Problem Isn’t the Language, But the Outcome
In many civil rights cases, it’s not enough to say, “This hurt me.” You have to show why it hurt—and that the cause was something specific: a test, a rule, a zoning law, an algorithm.
This is called the causality requirement in disparate impact claims.
Let’s break it down simply:
Disparate treatment = intentional discrimination
Disparate impact = unintentional discrimination based on outcomes
Under some laws (like the Equal Protection Clause of the Constitution), you need to prove intent. But under others—like the Fair Housing Act—you can win a case by showing a policy led to unequal results, even without racist intent.
But here's the key:
You still have to show that a specific policy caused the unfair pattern.
That’s the line the Supreme Court drew in Texas Dept. of Housing v. Inclusive Communities Project (2015). The Court allowed disparate impact claims—but warned that statistical differences alone weren’t enough. Plaintiffs had to pinpoint a particular decision or rule that created the problem.
The Court wanted to prevent lawsuits from targeting well-meaning policies or creating what it called “unconstitutional racial quotas.”
It’s a tough balance:
How do we protect people from systems that produce inequality—without forcing government actors to use race in ways that might backfire or even violate the Constitution?
So What Does Count as a Specific Policy?
Let’s look at three real-world examples. In each one, we see clear racial disparities—but the challenge is connecting those outcomes to a rule that can be tested, questioned, and potentially changed.
1. School Discipline Disparities
A 2021 investigation found that Black students are suspended at much higher rates than white students across hundreds of U.S. school districts—even when the behavior was similar.
This isn’t new. Civil rights groups have been raising alarms for years.
But to win in court, families would need to show which specific policies caused the disparities. Was it a “zero tolerance” rule? Was it vague language like “willful defiance,” which allows teachers and administrators to use personal judgment that may carry bias?
The gap alone isn’t enough. The policy must be identifiable, and shown to be unnecessary or unfairly applied.
2. Housing Segregation Through Zoning Laws
In many cities, it’s technically illegal to discriminate in housing. But that doesn’t stop it from happening.
The Biden administration tried to reform zoning laws that make it nearly impossible to build affordable housing in wealthier (and often whiter) neighborhoods. These policies (like minimum lot sizes or bans on multi-family housing) don’t mention race, but they often lead to racially segregated communities.
To bring a successful legal challenge, plaintiffs would need to show that a particular zoning rule led to exclusion or racial imbalance.
Again, the outcome alone doesn’t win the case. The rule has to be named, studied, and linked to the impact.
3. Mortgage Lending and Biased Algorithms
A 2022 investigation by The Markup found that Black applicants were up to 80% more likely to be denied a mortgage than white applicants with similar financial profiles. This held true even when income, loan size, and neighborhood were controlled for.
The culprit? Likely the algorithms used to evaluate creditworthiness.
But to make a legal case, plaintiffs would need to show that the algorithm itself or the way it was applied produced the bias. And then they’d need to argue that this system could be changed without harming the lender’s goals (like minimizing risk).
It’s not easy. But these cases are exactly where the battle over disparate impact is unfolding in real time.
The Bigger Question
If a policy repeatedly harms one group more than another, shouldn’t that be enough?
Not according to the current legal standard. And that’s where the debate lies.
One side argues that requiring proof of intent ignores how modern discrimination really works—quietly, systemically, without a smoking gun.
The other side warns that loosening the standard might force governments or employers to make race-based decisions, which could create new kinds of injustice.
And so the courts walk a line:
Trying to root out unfairness without turning equality into just another numbers game.
This is a very clear and insightful explanation of how although rules may appear in neutral form, it does not mean that such rules are fair in practice. Evidently, disparate treatment and disparate impact make clear that outcomes, not just intents, must be considered when evaluating fairness.
This concept connects closely to various fundamental rights. For reference, a rule that appears neutral, but disproportionately burdens a protected group, does not just raise policy concerns; it can undermine the principles of equal protection and due process. Fundamental rights are not preserved simply because a rule is wrote neutrally and uniformly, for true protection requires that those rights are meaningfully enjoyed in daily life.
This predicament reminds me of the case of Allen v. Wright (1984). The IRS had been accused of failing to deny tax exempt status to racially discriminate private schools, effectively subsidizing these schools, which the plaintiffs alleged undermined desegregation in public education, which in turn would deny their children an integrated education experience.
However, the Supreme Court found that the IRS's actions were too attenuated to prove an actual injury to the plaintiffs, and therefore the case was dismissed for a lack of standing. And yet, some parents that resisted segregated education efforts independently chose to enroll their children in racially discriminate schools, and the IRS subsidized these schools.
While there may have not been any ill intent behind the IRS's actions, the subsidy to racially discriminate schools did create an indirect - systemic, if you will - discriminatory impact on black communities that were seeking an integrated education environment. On one hand, it doesn't strike me as appropriate to hold the IRS accountable for the independent choices of others when there was no ill intent behind their funding choices, and yet on the other hand the IRS did subsidize discriminatory private schools which created the space and opportunity for systemic racism to grow.
It is a frustrating predicament that seems to either leave us at the mercy of society's independent choices or forcing the government to make race-based decisions.