The New York Times and Wall Street Journal each have editorials this morning on the civil-rights initiative announced last week by the Department of Education, and which I criticized here and here. Predictably, the Times lauds the initiative but the Journal questions it — and quotes yours truly regarding the initiative’s tenuous legality. Allow me to elaborate briefly on that point.
The statutory authority on which DoEd relies is Title VI of the 1964 Civil Rights Act, but the Supreme Court has ruled repeatedly that this statute bans only “disparate treatment” (that is, actual discrimination) and not actions that have only a “disparate impact.” DoEd will, presumably, rely instead on the regulations it has promulgated under Title VI, which do adopt a disparate-impact approach. But, you may ask, how can regulations promulgated under a statute ban what the statute itself allows? Good question — and, indeed, the Supreme Court itself raised that issue a few years ago in Alexander v. Sandoval, but has never resolved it. What’s more, the whole quota-inducing, get-your-numbers-right disparate-impact approach raises constitutional problems, as Justice Scalia noted in his concurring opinion last year in the New Haven firefighters case.
The bottom line is that DoEd’s initiative is on shaky legal ground. Here’s hoping that one of its targets will challenge it.