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 nother
intriguing part of Justice Scalia's opinion is the issue he doesn't
address, at the very beginning of his decision.
He points
out that Title VI itself has been interpreted by the Court to ban
only intentional discrimination, but the regulations at issue here
go beyond that, banning actions that have only a disproportionate
effect. There is a huge difference between the two — that is,
between a guarantee of nondiscrimination and a guarantee of racial
and ethnic proportionality. But, Scalia continues, Alabama didn't
challenge the validity of the regulations in this case, and so the
Court will assume "for the purposes of deciding this case"
that the government had the authority to issue these regulations.
What Scalia
has done is invite another litigant to challenge in some future
case the authority of an agency to issue regulations that rely on
the "disparate impact" approach. If the Court then ruled
that all such regulations are invalid, this would strike a devastating
blow against the insistence of the civil rights establishment on
de facto quotas in all federal programs. It would also make
it impossible to challenge English-language provisions.
Legislation
will immediately be introduced in Congress to overturn today's decision.
Many Republicans will be reluctant to oppose it, particularly in
light of Justice Stevens's insistence that the decision upsets the
status quo — which will be quoted by the legislation's sponsors
as evidence that they are simply "restoring" civil rights
that had long been established. But if such a Republican feels that
he or she has to vote for some bill, it might draw the distinction
drawn by Justice Scalia, and spell out that, indeed, regulations
promulgated under Title VI should go no further than Title VI: (1)
Private individuals who otherwise have standing may sue to enforce
regulations promulgated under Title VI; but (2) No regulation may
be promulgated to effectuate Title VI that prohibits actions which
have a disparate impact but do not constitute disparate treatment,
including but not limited to any action that requires the use of
English.
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