Deborah Hellman (University of Virginia School of Law) & Lily Hu (Yale University – Department of Philosophy) have posted Disparate Treatment and Discriminatory Harm (Legal Theory (forthcoming)) on SSRN. Here is the abstract:
When do facially neutral laws, which treat people differently on the basis of traits that are not legally suspect, amount to disparate treatment on the basis of a suspect trait like race or sex? According to U.S. constitutional law, they do so when they are enacted for impermissible reasons and also produce a discriminatory effect. To date, much ink has been spilled about the first element of this claim, as scholars debate what sorts of intentions are legally impermissible. The second element, by contrast, has largely been ignored. Yet in order to answer such controversial questions as whether a public magnet school may change its admissions policy from one facially neutral method to another in order to increase racial diversity, we need to better understand what effects constitute discriminatory harms. This Article takes up that task. It explores the normative disagreement that underlies the controversy regarding how to assess whether a discriminatory effect is present and diagnoses a genuine moral conflict that any test for discriminatory harm must navigate.
Highly recommended.