by Michael Dorf
During the just-concluded Ninth Circuit oral argument in the immigration case, Judge Clifton seemed to temporarily stump Washington SG Noah Purcell when he asked whether Purcell could come up with any case in which a facially neutral law was deemed discriminatory based on the fact that it harmed only fifteen percent of the disfavored class. Purcell more or less regained his footing by answering--correctly--that in order to prevail on a discrimination claim a plaintiff has never had to show that the challenged policy harms all members of the disfavored class or that it harms only members of the disfavored class. Nevertheless, he did leave the door slightly ajar by not addressing the numerical threshold.
I'd like to help SG Purcell out with a hypothetical. Suppose that a racist police chief wants to act out his racism but disguise the character of his actions. Thus, he instructs his beat officers to dramatically step up unjustified stop-and-frisk activity in the city's designated high-crime neighborhoods. Suppose further that only 15% of the city's African Americans live in the designated high-crime neighborhoods but that the population of the high-crime neighborhoods is 95% African American. (By comparison, Somalia is 98.6% Muslim, Iraq is 96% Muslim, and Yemen is nearly 100% Muslim. Syria is "only" 87% Muslim.) If there were solid evidence that the police chief had in fact decided to use the high-crime neighborhood designation simply to get at African Americans, this would be a slam-dunk case of unlawful racial discrimination. And that would continue to be true even if the designation of a neighborhood as "high crime" had been made by the previous (non-racist) mayor as a basis for a legitimate crime-control initiative, such as designating where to send extra patrol cars.
Thus, there is nothing to Judge Clifton's "math" objection. He might think that the evidence of subjective motivation is insufficient. (At one point he disturbingly referred to the evidence that is not only in the record but public record as mere "allegations.") But if the subjective motivation evidence is given its fair weight, there is nothing in the 15% figure or the fact that Congress and the Obama administration previously listed the seven countries for a different counterterrorism purpose that undercuts the state's case against the Trump executive order.