Hans Bader on Disparate Impact Liability
In his recent article, New Pressure On Schools To Adopt Quotas, Speech Codes, And Low Standards?, senior attorney at the Competitive Enterprise Institute, Hans Bader, sheds a light on the recent effort by the Senate to expand the scope within which colleges, schools, and recipients of federal funds can be sued for "disparate impact."
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."