The Constitution vs. ‘Disparate Impact’

The Supreme Court’s citation this month of “our colorblind Constitution,” in a brief unsigned opinion, was a small capstone on its efforts to remove racial calculations from college admissions and redistricting. Yet more can be done to make the law colorblind, and the judiciary doesn’t have to do it alone.

The Justice Department took a good step recently by telling the Equal Employment Opportunity Commission (EEOC) that its policy on “disparate impact” is unconstitutional. In some cases, says a new opinion by the Office of Legal Counsel (OLC), companies might be held liable for statistical disparities, even if they have no wrongful intent and weren’t trying to discriminate.