My Problem with Washington v. Davis

Washington v. Davis is a 1976 Supreme Court case which ruled, in essence, that the Fourteenth Amendment's Equal Protection Clause is not a self-executing ban on all government policies which have racially disparate impacts. That is to say, just because some policy has a more negative effect on black people than white people is not enough to make it into a violation of the Equal Protection Clause. To be even more specific, the point is that if all the person challenging the policy can show is that such a disparate impact exists, they lose; instead they need to show that the policy had racially discriminatory intent. Now, in some sense this has to be right. Most states fund themselves predominantly through property taxes and sales taxes and therefore have regressive tax codes, unlike the income-tax-funded federal government. Black people tend to be poorer, and are therefore disproportionately burdened by regressive tax codes. But the Equal Protection Clause cannot reasonably be construed as making sales taxes off-limits. My tendency has been, therefore, to say that I more or less agree with the statement in Washington v. Davis that disparate impact alone does not make a constitutional violation, though I might want to press pretty hard on letting disparate impact be considered evidence of discriminatory intent, perhaps even in the absence of any other evidence.

But then let's consider the specifics of the case Washington v. Davis itself, and how it relates to this week's outrage in Ferguson, Missouri. The facts of the case are that two African-Americans had applied for positions in the Washington, D.C. police department, and had been rejected based on their scores on Test 21, a verbal skills test used throughout the federal bureaucracy. They sued, because as it happens, black people failed Test 21 at a much, much higher rate than white people. (Like three times higher I think, roughly 60% versus 20%.) Now, interestingly, the Court also ended up ruling that, in fact, there was no disparate impact, because the Civil Rights Act of 1964 uses a disparate impact standard. I'm not exactly sure how they got to that conclusion, and my guess, from a judicial-sociology perspective, is that the main difference between dissenters Thurgood Marshall and William Brennan and the majority was their understanding of the disparate effects of the policy.

But in any event, now let's ask the key question: assuming, for the sake of argument, that the effect of Test 21 was to result in a more-or-less all-white police force in a majority-black city, and also assuming for the sake of argument that Test 21 was adopted with absolutely, positively no intent for that to happen, but only with intent to make sure that police officers had good verbal skills (an undoubtedly good thing!), is there really no problem here? Because, as we see so dramatically in Ferguson, the police are basically the instrument of government. They are the ones who actually impose governance and law upon the people. They are the ones who wield the violent force which the government is said to have a monopoly on the legitimate use of. And they, therefore, are the ones in position to perpetrate government abuse of the people. Hell, they're in a better position to do that than legislators, whose abusive actions can be more easily challenged in and nullified by the courts. When a cop kills someone, well, there's no such thing as compensatory damages for that.

And so I think there's a very real sense in which having a police force almost exclusively comprised of members of the historically oppressor race policing a large population of the historically oppressed race is kind of, y'know, just not okay, whether or not you meant for it to happen. For similar though arguably less weighty reasons ('cause we're not talking about the people walking around with guns on their hips), I think it's just not okay to have policies in place whose result is that your state bureaucracy is segregated into an all-male group of powerful office-holders and decision-makers and an all-female secretary pool. (That's the facts of the next case in the disparate impact sequence, Personnel Administrator of Massachusetts v. Feeney.) And I become particularly skeptical of the actual facts of Washington v. Davis when I think about how easy it is for verbal skills tests to become, in essence, whiteness tests. I mean, hell, there's a reason why segregationists used literacy tests. Now, yes, there does have to be some accommodation to the perfectly legitimate government interest in making sure its people can basically communicate. But guess what? Adult black people tend to communicate with one another pretty well. So if your "verbal skills test" is flunking most of them, maybe that means you're really testing mostly for "ability to talk like a white person," something that probably isn't that necessary for being a Washington, D.C. police officer. And shouldn't that be unconstitutional, even if it was kind of accidental? If we believe that the constitution commits us to racial equality (which we do; see Brown v. Board of Education), and if we believe that it forbids systems of caste, shouldn't it just not be possible to constitutionally set a whole bunch of white dudes to police a large black population?