54 Children’s Legal Rights Journal [Vol. 36: 1 2016]
III. PRACTICAL APPLICATION
A. I See This Issue on the News,
But Don’t Our Laws Already Address These Factors?
It is true that Disparate Race Impact (DRI), the theory that any act that disproportionately
harms minorities to be discriminatory, regardless of intent has been widely recognized by both
case law and legislation in the United States.54 Additionally, the idea of equality is hardly a new
Ben Birchall, Bad Boys, 9 SMITH J. 86, 86 (2014) (explaining that “gangs didn’t start with the Crips and Bloods. Some
stretch back thousands of years, each with their own style [and] customs”); BARBARA NEWMAN AND PHILLIP
NEWMAN, DEVELOPMENT THROUGH LIFE: A PSYCHOLOGICAL APPROACH (2011) (describing a young man joining a
gang because he was “looking for love”); CAROLYN M. DRIVER, "ABANDONED CHILDREN" RESCUED, ORPHANED,
RES TORED, AND REFINED: TURN YOUR PAIN INTO PURPOSE! TURN YOUR PURPOSE INTO PRAISE! (2012) (explaining
through experience that “hard core gang members [are] only looking for love and attention in the wrong places”).
See also, Abraham Maslow, A Theory of Human Motivation, 50 PSYCH. REV. 370-96 (1943) (introducing a spectrum
of need through ordering the human needs of food, sleep, safety, love and purpose into a hierarchy; showing that
everyone seeks a sense of love or belonging as a fundamental trait of being human); Christopher Mathias, Baltimore
Gang Members Say They Never Formed Truce to Hurt Cops, HUFFINGTON POST (Apr. 28, 2015),
gray_n_7162350.html?ir=Crime&ncid=fcbklnkushpmg00000021 (describing gang members upset about their image
in the media: “’It makes us look real bad, and it’s backing up what they are saying about us,’ the Blood member said
of the violence Monday. ‘They are saying we are animals, and we acting like savages out here. But I also don’t agree
with what’s going on, but I understand what’s going on. I understand why people are mad, but we have to handle
things another way’”).
54Race and the Supreme Court: Disparate Dilemma, THE ECONOMIST (Jan. 24, 2015),
discrimination-disparate-dilemma (providing an example from U.S. Supreme Court case of Inclusive Communities
Project (ICP) v. Texas Department of Housing, also explaining that disparate impact is much easier to prove than
deliberate discrimination which is why it is more commonly used to address racial justice issues). See Inclusive
Communities Project, Inc. v. Texas Department of Housing and Community Affairs, 747 F.3d 275, 276–77 (5th Cir.
2014)(addressing the question of whether the Fair Housing Act includes a right of action for disparate-impact claims);
Lawrence Rosenthal, Saving Disparate Impact, 34 CARDOZO L. REV. 2157-8 (2013),
http://cardozolawreview.com/content/34-6/ROSENTHAL.34.6.pdf (arguing that a 1964 case opened the door for four
decades of cases explicating the disparate-impact theory of liability; illustrating that a discussion of race and disparate
impact is decades long). See, e.g., Civil Rights Act of 1964, 42 U.S.C. § 2000e (West 2015); Voting Rights Act of
1965, 52 U.S.C. § 10101 (West 2015)(providing example of a history of legislation that aimed to overcome legal
barriers preventing African Americans from voting, and addressing disparate impact within voter rights); Brown v.
Board of Education 347 U.S. 483 (1954)(providing example of a court addressing the harmful effect of previous case
law in deciding that the “separate but equal” doctrine had no place in the field of education); Arlington Heights v.
Metro. Housing Dev. Corp., 429 U.S. 252 (1977)(addressing the question of whether a city’s denial of a zoning
request, necessary for the creation of low-and moderate-income housing, was racially discriminatory in violation of
the Fourteenth Amendment's Equal Protection Clause); Grutter v. Bollinger, 539 U.S. 306 (2003)(addressing the
question of whether the University of Michigan Law School's use of racial preferences in student admissions violates
the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964); Office of
Juvenile Justice and Delinquency Prevention, Disproportionate Minority Contact, DEP’T OF JUST.,
www.ojjdp.gov/mpg/litreviews/Disproportionate_Minority_Contact.pdf (last visited Apr. 15, 2015)(explaining
terminology, the history of DRI and that “racial and ethnic disparities in the juvenile justice system are not new”);
Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQUETTE L. REV. 243 (2013)
(explaining that “Congress has responded to trends in foster care data by enacting laws to remedy historical
discrimination in foster care while at the same time protecting children truly at risk.”).