Johnson, Olatunde C. A.
March 2007
Columbia Law Review;Mar2007, Vol. 107 Issue 2, p374
Academic Journal
In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination or justified by ‘legitimate’ agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage. This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial disparity. A limitation of the disparate impact framework, particularly in the context of Title VI of the 1964 Civil Rights Act, is that courts adopted a narrow view of causation, unwilling to risk holding public actors responsible for broader racial inequality. By contrast the DMC standard, enforced not through litigation but through federal government oversight and advocacy by nongovernmental organizations, requires public actors to address how their practices interact with conditions of racial inequality, even apart from their complicity in creating those conditions. The DMC approach innovatively responds to the complex mechanisms that sustain contemporary racial inequality. Legal commentary has properly focused on the role of implicit bias, but this Article argues that one must look beyond bias to combat structural patterns of racial inequality. The Article concludes by discussing federal statutes similar to DMC, and suggests that these approaches might be the manifestation of a new civil rights politics.


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