Suing schools and colleges has nothing to do with supporting our troops.
But that didn’t stop Senators from seeking to add an amendment, SA 3215, to the 2013 Defense Authorization bill on Thursday, containing provisions that would overturn two Supreme Court rulings in order to promote such lawsuits. The amendment, proposed by Senators Sherrod Brown (D-OH), Al Franken (D-Minn.), Bernie Sanders (Vt.) and Sheldon Whitehouse (D-R.I.), would dramatically expand the reach of two federal statutes, Title VI and Title IX, 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 amendment, backed by trial lawyers, 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 and Title IX 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. Sections 1806 and 1807 of the amendment would override those Supreme Court rulings, undermining academic standards, and pressuring schools to adopt speech codes and quotas.
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 reluctant to defy the Administration’s legally-dubious demands 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 Asian students, just as a disproportionate fraction of convicted 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 significant damages.
Expanding Title VI liability and punitive damages 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 convicted of racial and sexual harassment by campus administrators for expressing commonplace conservative and other views about affirmative action, feminism, and the racial implications of 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).) Several 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). A sexual harassment code was struck down on First Amendment grounds in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008).