Johnson - DISPARITY RULES Olatunde C.A. Johnson * In 1992,...

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DISPARITY RULES Olatunde C.A. Johnson * In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority con- tact standard (DMC), is potentially more far-reaching than traditional dis- parate impact standards: It requires the reduction of racial disparities re- gardless of whether those disparities were motivated by intentional discrimination or justified by “legitimate” agency interests. Instead, the stat- ute encourages states to address how their practices exacerbate racial disadvantage. This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial disparity. A limitation of the disparate impact framework, particu- larly in the context of Title VI of the 1964 Civil Rights Act, is that courts adopted a narrow view of causation, unwilling to risk holding public actors responsible for broader racial inequality. By contrast the DMC standard, enforced not through litigation but through federal government oversight and advocacy by nongovernmental organizations, requires public actors to ad- dress how their practices interact with conditions of racial inequality, even apart from their complicity in creating those conditions. The DMC approach innovatively responds to the complex mechanisms that sustain contemporary racial inequality. Legal commentary has properly focused on the role of implicit bias, but this Article argues that one must look beyond bias to combat structural patterns of racial inequality. The Article concludes by discussing federal statutes similar to DMC, and suggests that these approaches might be the manifestation of a new civil rights politics. I NTRODUCTION .................................................. 375 I. G ENERATING D ISPARITY .................................... 381 II. F EENEY S L EGACY ......................................... 386 A. The Feeney Problem. ................................. 386 B. Title VI: Power and Limits . .......................... 390 III. B EYOND G RIGGS -B ASED D ISPARATE I MPACT .................. 401 A. The Problem of Racial Disparity in Juvenile Justice . . . 402 B. The DMC Regime . .................................. 407 C. Informing Disparity. ................................. 410 IV. I MPLICATIONS ............................................ 416 * Associate Professor of Law, Columbia Law School. For helpful comments and suggestions on earlier versions of this Article, I am grateful to Susan Sturm, Martha Minnow, Lani Guinier, John Witt, Michael Dorf, Ariela Dubler, Elizabeth Emens, Cynthia
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This note was uploaded on 09/08/2010 for the course PHIL 292 at San Jose State.

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Johnson - DISPARITY RULES Olatunde C.A. Johnson * In 1992,...

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