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Justice Alito Embraces a Retrogression Standard

Document Type

Blog Posting

Publication Date

2024

Publication Title

Election Law Blog

Abstract

Earlier this week, the Supreme Court denied cert in Coalition for TJ v. Fairfax County School Board, an important case about intentional discrimination and what facially neutral policies to promote diversity can be implemented after SFFA v. Harvard. Justice Alito, joined by Justice Thomas, authored a fiery dissent from denial of cert. As Rick noted on this blog, Alito’s dissental struck a very different tune than his majority opinion in Brnovich v. DNC—or, for that matter, his dissent in Inclusive Communities Project.

Here, I want to expand on Rick’s point and emphasize that Justice Alito’s approach is not your ordinary disparate impact standard, like one would use under Title VII or the Fair Housing Act (FHA). The former statute, for example, looks to the effect of a policy on the success of minority job applicants as measured against their availability in the local labor market. By contrast, Justice Alito embraced a retrogression standard—and one that applies even when a racial group is over-represented.

Keywords

Supreme Court, Justice Alito, Discrimination, Disparate Impact, Diversity, Voting Rights Act

Publication Citation

Travis Crum, Justice Alito Embraces a Retrogression Standard, Election Law Blog, (February 22, 2024, 6:19 PM), https://electionlawblog.org/?p=141598

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