Justice Alito Is Wrong—Discrimination and Racism are Different Things

July 13, 2021, 8:00 AM

In its decision in Brnovich v. DNC, the U.S. Supreme Court continued a slow and steady reversal of protections from the civil rights era in the 1960s. Historically federal law protected people of color from discriminatory treatment. But in the decades since, the Supreme Court reversed civil rights protections for people of color, ignoring the will of Congress and everyday Americans who want to live their lives free from discrimination.

Often ignored when examining the law is its effect on people’s lives. In the 1960s, when Congress passed the Voting Rights Act, people of color were 11% of the U.S. population. But in each subsequent decade, the share of the U.S. population that is people of color increased by approximately 5%, to 40% of the population today. By 2045, people of color together will be the majority of the US population.

This is the hidden narrative behind Brnovich—the more people of color there are, the more the Supreme Court seeks to limit their rights.

Action Need Not Have Discriminatory Intent to Have Discriminatory Effect

Can people of color experience discrimination if they can’t prove someone actively tried to discriminate against them?

Obviously yes, and during the civil rights era, the law protected against such discrimination. Congress designed laws like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 to protect people of color from discrimination.

Title VI of the Civil Rights Act says that no person should be subjected to discrimination based on their race from an agency receiving federal funding. The same was true of the original version of Section 2 of the Voting Rights Act, which was similarly broad, stating that no state or political subdivision could “abridg[e] the right…to vote on account of race”.

For decades, the Supreme Court recognized that a person of color could be subjected to discrimination under these laws without having to prove that someone actively intended to discriminate against them—they only needed to prove a discriminatory effect, also known as a “disparate impact.”

SCOTUS Repeatedly Overrules Protections Against Discriminatory Effects

Despite the original intentions of the twin pieces of legislation, the Supreme Court began limiting the discriminatory effects tests of these civil rights statutes. For example, in 2001, in Alexander v. Sandoval, it limited Title VI of the Civil Rights Act to prevent people of color from suing to enforce that right unless they could prove an agency intentionally discriminated against them.

Similarly, in 1980, in Mobile v. Bolden, the Supreme Court limited Section 2’s prohibition on voting discrimination to where a person could prove intentional discrimination. In response to Bolden, Congress in 1982 amended Section 2 to the language that exists today, explicitly writing the discriminatory effect rule into the Voting Rights Act.

That law now states: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color…” (emphasis added).

Poll Taxes, Literacy Tests Were Facially Neutral, But Had Discriminatory Effects

The Brnovich case involved two Arizona laws that were facially neutral but had clear discriminatory effects against communities of color. One of them, banning helping neighbors from bringing ballots to a mailbox, affected Native Americans more than four times as Whites—18% of rural Native Americans in Arizona have mail delivery to their home compared to 86% of rural White voters.

If Justice Samuel Alito, writing for the 6-3 majority, and the other conservatives were textualist like they claim, they would have sided with the progressive justices and found Arizona’s policies violated Section 2 of the Voting Rights Act.

Instead, they doubted that Congress ever intended to have Section 2 prohibit “facially neutral” laws that could still have a discriminatory effect, so long as they had been in widespread use. (Poll taxes and literacy tests were widespread during the Jim Crow era and were also facially neutral.)

In doing so, the conservative majority went in direct opposition to the text of Section 2 and the congressional record, which made clear that the purpose of the legislation was to codify the discriminatory effect rule.

America Must Restore Laws Banning Discriminatory Effects

Definitions of concepts like racism remain divisive to this day. Conservative senators grilled women nominees of color about whether acknowledging systemic racism means everyone is a racist. As of the end of June, nine states banned schools from teaching critical race theory, which takes a critical look at the racial injustices that exist in U.S. law.

Regardless of how you feel about the term racism, America needs laws that protect the soon-to-be new majority of people of color from discrimination. The Supreme Court gutted the discriminatory effects test in Brnovich because discriminatory effects are easy to prove in court and racist intent is very difficult to prove.

Congress must repudiate the Supreme Court’s actions in Brnovich and again enshrine the discriminatory effects test into Section 2 of the Voting Rights Act, Title VI of the Civil Rights Act, and elsewhere in the law. When people of color become the demographic majority in 20 years, America must still be a democracy that respects the rights of everyone within its borders.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Adam Fernandez is a civil rights attorney and vice president of policy and strategic engagement at Lawyers for Good Government, a nonprofit organization composed of more than 125,000 lawyers devoted to the advancement of civil and human rights.

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