GPO-CONAN-2017-10-15.pdf

1519 explained in some detail how inquiry into

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1519 explained in some detail how inquiry into motivation would work. First, a plain- tiff is not required to prove that an action rested solely on discrimi- natory purpose; establishing “a discriminatory purpose” among per- missible purposes shifts the burden to the defendant to show that der discrimination raised the question of the vitality of Griggs , General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), but the disagreement among the Justices appears to be whether Griggs applies to each section of the antidiscrimination provision of Title VII. See Dothard v. Rawlinson, 433 U.S. 321 (1977); Furnco Const. Co. v. Waters, 438 U.S. 567 (1978). But see Gen- eral Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (unlike Title VII, under 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866, proof of dis- criminatory intent is required). 1517 See Washington v. Davis, 426 U.S. 229, 244 n.12 (1976) (listing and disap- proving cases). Cases that the Court did not cite include those in which the Fifth Circuit wrestled with the distinction between de facto and de jure segregation. In Cisneros v. Corpus Christi Indep. School Dist. 467 F.2d 142, 148–50 (5th Cir. 1972) (en banc), cert. denied , 413 U.S. 920 (1973), the court held that motive and purpose were irrelevant and the “ de facto and de jure nomenclature” to be “meaningless.” After the distinction was reiterated in Keyes v. Denver School District, 413 U.S. 189 (1973), the Fifth Circuit adopted the position that a decisionmaker must be pre- sumed to have intended the probable, natural, or foreseeable consequences of his decision and therefore that a school board decision that results in segregation is intentional in the constitutional sense, regardless of its motivation. United States v. Texas Educ. Agency, 532 F.2d 380 (5th Cir.), vacated and remanded for reconsidera- tion in light of Washington v. Davis, 426 U.S. 229 (1976), modified and adhered to , 564 F.2d 162, reh. denied , 579 F.2d 910 (5th Cir. 1977–78), cert denied , 443 U.S. 915 (1979). See also United States v. Texas Educ. Agency, 600 F.2d 518 (5th Cir. 1979). This form of analysis was, however, substantially cabined in Massachusetts Person- nel Adm’r v. Feeney, 442 U.S. 256, 278–80 (1979), although foreseeability as one kind of proof was acknowledged by Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464–65 (1979). 1518 Washington v. Davis, 426 U.S. at 242 (1976). 1519 429 U.S. 252 (1977). 2110 AMENDMENT 14—RIGHTS GUARANTEED
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the same decision would have resulted absent the impermissible mo- tive. 1520 Second, determining whether a discriminatory purpose was a motivating factor “demands a sensitive inquiry into such circum- stantial and direct evidence of intent as may be available.” Impact provides a starting point and “[s]ometimes a clear pattern, unex- plainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neu- tral on its face,” but this is a rare case.
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