Lawsuits against schools and colleges have nothing to do with our troops and their needs. But that didn’t stop Senators from seeking to add a harmful provision long sought by trial lawyers to the 2013 Defense Authorization bill last night. The provision, proposed in Senate Amendment 3215 by Senators Sherrod Brown (D-Ohio), Al Franken (D-Minn.), Bernie Sanders (Vt.) and Sheldon Whitehouse (D-R.I.), would dramatically expand the reach of a federal statute, Title VI, to allow colleges, schools, and recipients of federal funds to be sued for “disparate impact.” Disparate impact is a race-neutral practice that weeds out more minorities than whites despite having no discriminatory motive behind it -- like a standardized test that more minorities fail than whites. The provision would also allow colleges, schools, and other institutions to be sued for unlimited punitive damages. Currently, disparate-impact lawsuits against colleges and schools are barred by the Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). Punitive damages under Title VI are barred by the Supreme Court's decision in Barnes v. Gorman, 536 U.S. 181 (2002), where even liberal Justices like David Souter concluded that punitive damages are inappropriate under spending clause legislation like the Rehabilitation Act and Title VI. The specter of liability for disparate impact could make schools get rid of standardized tests designed to ensure that students are really learning, and detect failing schools, since all but the easiest standardized tests arguably have a racially "disparate impact." It could also result in racial quotas in school discipline; the Obama administration has already pressured some school districts to adopt de facto racial quotas in school discipline (school districts are loath to defy the administration lest it cut off their federal funds), requiring even liberal school districts that already bend over backwards not to suspend disruptive black students to cut their suspension rates, and spend millions of dollars to comply with bureaucratic dictates imposed by the Education Department's Office for Civil Rights, where I used to work. The ability to sue over disparate impact would give not just the administration but also trial lawyers the ability to sue school systems and force them to adopt de facto quotas, since suspension rates are generally higher among black students than among white and Asia students, just as a disproportionate fraction of felons are black (the Supreme Court's Armstrong decision says this is not the product of racism, but higher crime rates among certain racial groups; juvenile infraction rates also differ widely among racial groups). Trial lawyers can recover hundreds of thousands of dollars in attorneys fees if they succeed in suing a school or college, even if they fail to prove damages. Such liability could also lead to more campus speech codes, as colleges, terrified of racial harassment liability under Title VI, clamp down on any speech that might conceivably contribute to what is perceived as a racially hostile learning environment. Students have already been accused of racial harassment on campus for expressing commonplace conservative and other views about affirmative action and the death penalty. (See Brief Amici Curiae of Students for Individual Liberty, et al., in Davis v. Monroe County Board of Education, 1998 WL 847365 (filed Dec. 8, 1998) (citing examples).) Racial harassment codes were voided by the federal courts after they were used to punish First Amendment protected speech in cases like Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), UWM Post v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991), and Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1989). But schools persist in imposing overbroad harassment policies, both because they would rather be sued for First Amendment violations than for racial harassment (since state universities are generally shielded from monetary liability for First Amendment violations by the Eleventh Amendment, but they are liable for monetary damages for racial harassment.), and because private colleges are not directly subject to the First Amendment at all, but can be sued for racial harassment. People can already sue for racial harassment under Title VI, but only modest numbers of people do, since only compensatory damages are available, not punitive damages (which can be many, many times larger than compensatory damages), meaning a student has to be more than just a little offended by speech for it to be worth suing under current law (people seldom recover more than $200,000 in compensatory damages in harassment cases, although punitive damages awards can be in the millions). If punitive damages are available, that makes it much more viable to bring racial harassment lawsuits over campus speech or conduct that is not that extreme or outrageous. As a result, to avoid liability, private colleges in particular may clamp down on campus speech about racial topics like affirmative action and the death penalty, lest such speech provide potential "building blocks" of a hostile environment claim under the "totality of circumstances" test. By expanding Title VI liability to cover "disparate impact," rather than just intentional discrimination, the provision may also unduly broaden the definition of what speech is "harassment" by resulting in unintentionally offensive speech about racial topics being classified as harassment even when it was not intended to demean minority student. The Obama administration takes the position that speech that is not even aimed at the complainant (like a Confederate flag) can be racial harassment, while the Clinton administration once left open the possibility that criticizing affirmative action could be racial harassment. See Stuart Taylor, Jr., A Clintonite Threat to Free Speech, LEGAL TIMES, May 9, 1994 at 27 (quoting Education Department General Counsel Judith Winston). Here is the Title VI provision likely to be added to the Defense Authorization:
SEC. 1806. RELATED CHANGES TO TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--CLARIFICATION OF PROHIBITED DISCRIMINATION, PRIVATE RIGHT OF ACTION, AND AVAILABLE RELIEF. (a) Clarification of Prohibited Discrimination.--Section 601 of the Civil Rights Act of 1964 (42 U.S.C. 2000d) is amended-- (1) by striking ``No'' and inserting ``(a) No''; and (2) by adding at the end the following new subsection: ``(b)(1) Discrimination based on disparate impact with respect to a program or activity is established under this section only if-- ``(A) a Federal department or agency, or any person aggrieved, demonstrates that an entity subject to this title has a policy or practice with respect to the program or activity that causes a disparate impact on the basis of race, color, or national origin; and ``(B)(i) the entity fails to demonstrate that the challenged policy or practice is related to, and necessary to achieve, the substantial and legitimate nondiscriminatory goals of the program or activity; or ``(ii) the Federal department or agency, or the person aggrieved, demonstrates that a less discriminatory alternative policy or practice exists, and the entity refuses to adopt such alternative policy or practice. ``(2) In this subsection, the term `demonstrates' means meets the burdens of production and persuasion.''. (b) Private Right of Action and Available Relief.--Section 602 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1) is amended-- (1) by striking ``Each'' and inserting ``(a) Each''; and (2) by adding at the end the following new subsection: ``(b) Any person aggrieved by the failure of an entity to comply with section 601 may bring a civil action in any Federal or State court of competent jurisdiction to enforce such person's rights and may recover equitable relief, reasonable attorney's fees, and costs. The aggrieved person may also recover legal relief (including compensatory and, from nongovernmental entities, punitive damages) in the case of noncompliance that is intentional discrimination. ``(c) Nothing in subsection (b) limits the authority of a Federal department or agency to enforce section 601.''.