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 Recent commentary from National Journal: Political Pulse: The 'Vision Thing' Isn't a Problem (May 8, 2001) President Bush's ideological coherence has apparently impressed the American people. By William Schneider Social Studies: Koizumi Brings Japan to the Brink—But of What? (May 8, 2001) If Japan's new leader bungles this chance to resolve the banking mess, the next opportunity may come too late. By Jonathan Rauch Media: Triangulation, Again (May 8, 2001) Bush's boringness isn't boring at all—or it shouldn't be to pressies who aren't dozing at their keyboards. By William Powers Political Pulse: Elián González Defeated Al Gore (May 2, 2001) Cuban-Americans are the only bright spot in GOP's prospects among Hispanics. By William Schneider Media: Thanking Our Stars (May 2, 2001) If we really want to be sophisticated about our ever-evolving media, we should revise how we think about famous people and their increasingly visible role in our lives. By William Powers On Books: Meg Greenfield's Song of Regret (May 2, 2001) In our new book review section, William Powers takes a tour of Meg Greenfield's Washington. By William Powers More from National Journal. |
Legal Affairs 
The Case for Curbing Civil Rights LawsuitsThere's something to be said for using the 1964 Civil Rights Act to combat real discrimination, not imagined bias. by Stuart Taylor Jr. ..... A 5-4 Supreme Court decision on April 24 left standing a silly Alabama policy that makes life unnecessarily difficult for some foreign-born Americans by requiring that they take their driver's license exam in English. More important, the Court's decision made it harder for many other potential plaintiffs to sue for possible violations of a key provision of the 1964 Civil Rights Act, which bars public and private programs that receive federal financial assistance (as most do) from discriminating on the basis of race or national origin. The four more-liberal Justices, in a dissent by John Paul Stevens, called the decision "unfounded in our precedent and hostile to decades of settled expectations." The New York Times said that it "substantially limited the effectiveness" of the act's ban against discrimination." The Washington Post called it "retrograde." I think I like it. This is not because of any fondness for discrimination (which I despise) or English-only laws, or because of any disregard for the 1964 act, one of the noblest laws ever put on the books. It is because Justice Antonin Scalia's majority opinion in Alexander vs. Sandoval is a judicious corrective to the excesses of the bureaucrats, judges, and justices who have too often transformed Title VI and other provisions of the 1964 act from landmarks of racial justice into fountainheads of unwarranted lawsuits. In this case, the "interpretation" advocated by civil rights groups and the four dissenters would have subjected federally assisted programs to thousands of private lawsuits for conduct that the 1964 act was not intended to bar. It may be journalistically incorrect to disparage any litigation sporting the "civil rights" label. But there is something to be said for enforcing the 1964 act the way Congress wrote it. That means using it to combat real discrimination, not to attack standardized tests and other legitimate practices that are in no way motivated by bias but nonetheless have "disparate impacts," in the sense that most whites (and Asians) and men fare better than most minorities and women. One reason to like Alexander vs. Sandoval is that it may squelch dumb lawsuits, such as the pending challenge to the use of advanced placement credits and SAT scores in the admissions process at the University of California (Berkeley)—which is run by some of the most passionate advocates of racial diversity on the face of the Earth—as "discrimination" against African-Americans and other groups. Also, the pending disparate-impact attack on Pennsylvania's school financing system—which is similar to the systems in other states—because mostly white districts tend to be wealthier than mostly black districts. Also, the suit attacking a fare increase for New York City's bus and subway systems because—well, you can guess. Another reason to like the decision is that while many big Rehnquist Court rulings have greatly enlarged the Court's powers at the expense of Congress, this one restores to Congress a power long usurped by the judiciary and federal bureaucrats: the power to pass laws with the expectation that they will be enforced as written, rather than as someone thinks they should have been written. To be sure, broad interpretations of the 1964 act initially helped make its provisions effective against the still-pervasive but sometimes-hard-to-prove patterns of intentional discrimination and unconscious bias that denied even the most outstanding African-Americans and women access to the best jobs and other opportunities. But even as real discrimination has more and more become the exception rather than the rule, and as unprecedented opportunities have opened up for well-qualified minorities and women, some federal agencies and courts have become more and more aggressive in tarring as "discriminatory" legitimate practices that quite clearly involve no bias, prejudice, or other group-based animus. The courts have made it unlawful for employers (under Title VII of the 1964 act) or federally funded programs (under Title VI) to use any such practice if it has a disparate impact on minorities, women, or the foreign born, unless the defendant can carry the heavy burden of proving its necessity. Among the casualties have been written tests, which are designed to screen the qualifications of candidates for jobs and promotions, and minimum physical-strength requirements for would-be firefighters, whose responsibilities would include carrying unconscious people out of burning buildings. The conversion of nondiscrimination guarantees into engines of disparate-impact litigation has been most advanced in the Title VII context. (Congress blessed some such disparate-impact lawsuits under Title VII in 1991.) But in recent years, a stream of disparate-impact suits under Title VI has plagued state and local governments, universities, and other institutions. This despite the fact that nothing in the text of Title VI's two provisions suggests that it bars anything but intentional discrimination, or authorizes lawsuits by anyone but federal agencies. Title VI's first provision prohibits "discrimination under any program or activity receiving Federal financial assistance" against any individual "on the ground of race, color, or national origin." The second provision simply directs federal agencies to adopt regulations to "effectuate" the first. It also authorizes agencies—and only agencies—to remedy violations by cutting off federal funds or going to court. At the same time, it protects funding recipients from unwarranted litigation or funding cutoffs by requiring the federal agencies to first give notice of the suspected discrimination, then to seek a voluntary resolution, then to hold a hearing, and then to notify Congress. But federal agencies and courts—reasoning that Congress had not quite meant what it said, or said what it meant—proceeded long ago to add embellishments. First, in 1964 the Justice Department adopted a regulation barring funding recipients from engaging in practices that "have the effect of subjecting individuals to discrimination." Other federal agencies have followed suit. Advocates tout such regulations as necessary to combat intentional discrimination that is hard to prove directly. But, meanwhile, they have used the regulations and lawsuits to bring disparate-impact attacks against practices that are quite clearly untainted by any form of discriminatory intent or bias. Second, in 1979 the Supreme Court ruled that Congress had silently intended to authorize private litigants to take recipients of federal funds straight to court under both Title VI and a similarly worded 1972 law (Title IX) against gender discrimination. This was a strange reading of the 1964 act. Congress ratified it in 1986, however. And third, in a fractured 1983 decision, five Justices suggested, without quite ruling, that Title VI empowers federal agencies to issue regulations barring practices that merely have a disparate impact—even though the Court has consistently held that Title VI itself bars only intentional discrimination. This left a "seeming peculiarity" in the law, as Stevens observed in his April 24 dissent. Why would Congress authorize federal agencies to outlaw the same disparate-impact-producing practices that Congress itself had decided to allow? Stevens disparaged the precedents (including one he had joined), holding that Title VI bans only intentional discrimination. Scalia, on the other hand, exuded disdain for the disparate-impact regulations. But Scalia did not invalidate the regulations—not just yet, at least. Instead, he ruled that Title VI does not authorize private lawsuits to enforce them. This slices the salami awfully thin. It is not the most compelling interpretation of the Court's almost-incoherent Title VI precedents. And it flouts the virtually unanimous views of lower federal courts on the issue. But it does have the virtues of avoiding yet another distortion of the 1964 act's original intent and, perhaps, of preventing a flood of frivolous lawsuits. At the same time, it should leave victims of real discrimination with ample opportunities to prove it—in some cases by citing severely disparate impacts as circumstantial evidence of discriminatory intent. Not all of the lawsuits prevented will be frivolous, of course. Some of the people denied access to federal court will have sympathetic claims. One such is Martha Sandoval, the Mobile, Ala., house cleaner who was on the losing end of the April 24 decision. She had sued after being denied a driver's license because the state would not let her take the written exam in Spanish. This policy, unique among the 50 states, seems unjustified by safety concerns because it disqualifies even people who have learned enough English to understand traffic signs. It imposes unnecessary inconvenience, even hardship, on foreign-born people such as Sandoval. It should be abolished. But the Alabama policy does not involve intentional discrimination, and does not warrant a federal civil rights lawsuit. Better that we should have some dumb laws than thousands more dumb lawsuits.
What do you think? Discuss this article in the Politics & Society conference of Post & Riposte. More from National Journal. More on politics and society in Atlantic Unbound and The Atlantic Monthly. Stuart Taylor Jr. is a senior writer and columnist for National Journal and a contributing editor at Newsweek. This column appears every week in National Journal, a weekly magazine covering politics and government published in Washington, D.C. For information on National Journal Group publications, see NationalJournal.com. Copyright © 2001 by The Atlantic Monthly Group. All rights reserved. | [an error occurred while processing this directive] | ||
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