No I said there is a recognized legal distinction between individual acts of discrimination (disparate treatment) and "systemic" forms (disparate impact) and it isn't about whether or not a law is codified discrimination.
SCOTUS rulings are interpretations of law, not new laws in and of themselves. When SCOTUS recognized that there is a cause of action for disparate impact discrimination under Title VII, Title VIII, the ADA, etc. then that means standing originates from that legislation not from the SCOTUS case.
Disparate impact claims have since been used together with the equal protection clause to challenge things like racial biases in jury composition, standardized testing, criminal sentencing (the death penalty), etc. all of which are clearly forms of underlying "systemic" discrimination in which instrumentalities of the system itself are working against black persons despite the lack of any legally codified discrimination.
So where's the lie?
1. "Disparate impact theory is the idea that discrimination need not inhere in overt acts. Some people do call it "unintentional discrimination" like you say but it's more so the idea that
if there is smoke, there is fire. "
2. Based on compiled FBI data (which is in turn skewed by voluntary reporting) Vox found that US police kill black persons at disproportionate rates. Black people accounted for 13% of the population but 31% of police victims in 2012. The Guardian reports in 2015 that racial minorities made up 37.4% of the population in the US and 46.6% of armed AND unarmed victims, but were 62.7% percent of unarmed people killed by police.
https://www.vox.com/cards/police-bru...-police-racism
Minorities are more likely to be stopped by the police. Coviello, D. and Persico, N. (2013). An Economic Analysis of Black-White Disparities in NYPD’s Stop and Frisk Program.
Minorities are more likely to be convicted of a crime. Anwar, S., Bayer, P., and Hjalmarsson, R. (2012). The impact of jury race in criminal trials.
Minorities are more likely to be issued a longer prison sentence relative to observably similar whites. Rehavi, M. M. and Starr, S. B. (2014). Racial disparity in federal criminal sentences.
Nice strawman. Except if you look above, the statistics about how minorities are treated differently are already contextualized to different levels of policing present in communities and account different base rates for races being victims.
For example, higher crime rates in black communities (which itself is a lingering socioeconomic effect of "legally systemic" oppression) only explains at most 80% of black overrepresentation in prison according to the Sentencing Project. This means that up to 39 percent of the racially disparate rate of imprisonment is attributable to other factors.
http://sentencingproject.org/doc/pub...ves_Matter.pdf
So disparity cannot be explained away with mere happenstance (and even if it could, as I said, disparate rates of crime between communities should arguably be treated as institutional racism itself). The disparities originate from different treatment comparative to whites.