The recently-argued Supreme Court case of Fisher v. University of Texas has many people believing that the Court is likely to strike down the explicit use of racial preferences by governmental institutions in the name of "diversity." [MI podcast; earlier at POL; Cato event; Bader; SCOTUSblog]
But given the institutional support for racial preferences, it seems far from clear to me that even the broadest possible 5-4 Supreme Court decision in Fisher will be effective.
Take, for example, Ricci v. DeStefano. As Jim Copland predicted at the time, the Supreme Court's command against explicit racial preferences was all but nullified by non-Asian minority plaintiffs arguing that any testing regime more strenuous than a lottery where nearly everyone passed violated disparate impact: the Vulcan Society decisions came down shortly thereafter.
Title VI of the Civil Rights Act doesn't permit disparate impact theories in litigation over education discrimination under Alexander v. Sandoval, 532 U.S. 275 (2001). But that hasn't prevented the Department of Education from threatening school boards with such theories, and many liberal school boards are happy to comply at the expense of student discipline. Similarly, we see complaints being brought against magnet schools that seem indistinguishable from "disparate impact" complaints; Thomas Jefferson High School in Fairfax is 26% white, less than the rest of the school district, but the NAACP has brought a suit complaining that the magnet school admits too many Asians and not enough non-Asian minorities, and appears to be getting federal assistance. And Hans Bader reports that Democratic senators are proposing legislation to undo the small fig-leaf of protection Alexander v. Sandoval provides.
Bader notes that Title VI does not currently permit punitive damages under Barnes v. Gorman, 536 U.S. 181 (2002). But as I've noted elsewhere, the absence of punitive damages is largely irrelevant in a world with uncapped non-economic damages. We see this in yesterday's case of Zeno v. Pine Plains Central School Dist. where, because somewhat above-run-of-the-mill bullying of a special-education student had a racial component (the school was almost entirely white, the plaintiff half-Latino, and the n-word was used), the plaintiff was able to obtain a $1 million judgment consisting of noneconomic damages. Who needs punitive damages when that's possible?
Perhaps Asian-American students can strike back against the Department of Education's attempt to impose discipline quotas by Title VI racial harassment claims against all-too-typical racial bullying. (If I could clone myself and open a second law firm, there's an underserved niche of Asian-American students who aren't being represented against the widespread institutional discrimination against them; it's odd to me that most plaintiffs challenging illegal racial preferences are white, when Asian-Americans are the largest victims.)
Given the degree to which the Obama administration has been pushing destructive disparate impact policies, I am disappointed that it was not an issue in the 2012 election. The media certainly makes it difficult to criticize racial preferences (witness the MSNBC-stoked faux racism outrage over Republican senators that supported Condoleeza Rice but oppose Susan Rice or the Houston Chronicle smear of plaintiff Deborah Fisher), and I've certainly been attacked in briefing over my litigation challenge to racial preferences. But the issue seems to me a winner—are Republicans really worried about losing that last 2% of the African-American vote? Wouldn't it be nice to give more than 30% of Asians a reason to vote Republican? (One reason I'm inclined to think an attack on the unfairness of racial preferences would have electoral salience in addition to being good public policy: the untenably ludicrous Sixth Circuit 8-7 en banc decision striking down Michigan's ban on racial preferences was delayed until after the election, though the timing could have been a coincidence.) But it's hard to see how we can move past a world where any criticism of racial preferences is ironically called racist if politicians cower instead of standing up for what's right. And if disparate impact theory isn't more effectively challenged, it will do the country little good if or when Fisher v. University of Texas ends a shameful endorsement of racial preferences by the Supreme Court.