Hidden In Plain Sight: Disparate-Impact Discrimination as a Legal-Theoretical Paradigm for Difference-Conscious Public Policy

Abstract

In this dissertation, I argue that the liberal multicultural paradigm of difference accommodation would have greater potency, tenability and relevance if scholars contextualized their claims and approach as intrinsic to U.S. political history and philosophy, as opposed to portraying it as extrinsic and antithetical to these political-philosophic traditions. Reframing liberal multiculturalism in this fashion allows for the acknowledgment of an extant legal-theoretical framework--disparate-impact discrimination--that addresses some of the demands of racial justice and aligns with the liberal multicultural commitment to cultural recognition. This is a significant contribution to the liberal multicultural paradigm of difference accommodation, as existing liberal multicultural theory does not incorporate demands for racial justice. Moreover, recasting liberal multiculturalism in this fashion contributes to the endeavors of difference theorists in general and liberal multiculturalists in particular by showing that, within the United States, difference-sensitive policies have been desirable, necessary and efficacious. A failure to reframe liberal multiculturalism in this way, however, reinforces the view that difference-conscious policies are foreign to the United States--a view consistent with the individualized reading of equal protection that has become ascendant on the U.S. Supreme Court. This reading of equal protection expresses hostility toward any race-conscious policies and has brought once inviolable, moderate race-conscious policies under attack. The current trajectory of race-conscious policies in the U.S., and the disavowal of the history on which such race-conscious policies are based, creates some urgency for remedying this oversight.