I’m teaching Race and the Law for the first time this semester. Last week we spent some time with Ricci v. DeStefano (the New Haven firefighters’ case) as a way of discussing disparate treatment and disparate impact doctrine. They had not read the case before class. At the beginning of the class, I passed out the facts for the students to read. Half of them received the facts from the majority opinion, and half received the facts from the dissent. They then had a few minutes to discuss the facts with their small groups and decide whether the city had violated Title VII under disparate impact doctrine. (All members of each small group had read the same version of the facts.)
I then asked for a show of hands. With a few exceptions, students who had read the majority’s facts believed that no violation had occurred, while students who had read the dissent’s facts believed that a violation had occurred.
I copied this exercise from my own first-year legal writing class, in which we read different versions of the facts in BMW v. Gore. That case, however, involved fairly mundane issues about the diminished value of your BMW after it has been damaged and repainted. The students in my Race and the Law class are, I think, more likely than the average person to perceive discrimination in a given set of facts and/or to support policies designed to root out disparate impacts. That may be why the “few exceptions” were all in one direction–a few students who had read the majority’s facts believed a violation had occurred, but not vice versa. Still, it was interesting that the effect was so powerful.