Hans Bader, of the Competitive Enterprise Institute, wonders too. In his latest article, he writes about a peculiar attempt by Congress to overrule the Supreme Court with respect to Title VI of the Civil Rights Act and Title IX of the Education Amendments Act of 1972. The changes would allow agencies to be subject to disparate impact lawsuits and liable for punitive damages.
Title VI prevents discrimination by government agencies that receive federal funds. If an agency is found in violation of Title VI, that agency may lose its federal funding. Title IX prevents discrimination at educational facilities that receive federal funding. The Civil Rights Restoration Act, passed in 1988, extended Title IX coverage to all programs of any educational institution that receives any federal assistance, whether direct or indirect.
According to the legal theory of disparate impact, a law or even a decision by the government may be illegal if it has a disproportionate adverse impact on members of a minority group. Even action that is facially neutral and taken without any discriminatory intent may be challenged. Disparate impact lawsuits against colleges and schools are currently barred by the Supreme Court’s decision in Alexander v. Sandoval. Punitive damages under Title VI and Title IX are barred by the Supreme Court’s decision in Barnes v. Gorman.
In his article, Bader describes the reasons why Title VI and Title IX should not be allowed to encompass disparate impact lawsuits, and how Congress has hidden this proposed legislation in the 2013 Defense Authorization bill.