Ca. Gov't Code §11135: A Challenge to Contemporary State-Funded Discrimination

Danfeng S.V. Koon, Equal Justice Society & U.C. Berkeley

Abstract

Racially disproportionate outcomes persist in our schools, hospitals, courts, and neighborhoods. While some of these disparities stem from historical inequalities, socio-economic differences, and individual behavior, considerable racial disparities persist, even after holding these factors constant. These disparities are particularly troubling because they are attributable to the unconscious biases embedded in the policies and practices of our public institutions and represent the most pernicious form of contemporary discrimination. This article argues that unlike other disparities, these “super disparities,” can and must be legally redressed. While federal redress for state-funded disparate impacts has been largely foreclosed after Alexander v. Sandoval, California Government Code §11135 provides a unique and promising state solution. This state law analog to Title IV of the 1964 Civil Rights Act, prohibits intentional, as well as unintentional discrimination, in all state-funded activities. Given the opportunity, state and federal courts should interpret §11135 broadly and consistent with clear legislative intent. Courts should, not only, affirm the private right of action to raise disparate impact challenges, but apply the stringent “business necessity” standard in all cases. Only by requiring state-funded institutions to justify discriminatory policies with a showing of “business necessity” will policymaker commit the necessary time and resources to ensure rational and unbiased decision-making.