Our politics seem defined by the fights that never go away. With every shift of presidential power, the winning side conspicuously reverses its predecessor’s work on high-profile issues, going back to what it had been doing before that predecessor took office.
But important fights can end, and their endings tend to define eras. Consider, for instance, the constitutionality of the New Deal. That question dominated American politics from 1933 to 1952. Critics demanded restoration of the long-ignored “Constitution in exile.” But when Dwight Eisenhower declined to roll back the New Deal, Franklin Delano Roosevelt won the argument from the grave. The intensity of the battle doesn’t guarantee the longevity of the war. Sometimes, the defeated party accepts the public’s verdict and stops demanding rematches.
That may be happening in American civil rights law. In its name, contemporary progressives advocate the use of disparate-impact analysis to force private parties to treat Americans differently based on race and ancestry. Yet, after promising loudly to do otherwise, the Biden administration has largely avoided defending the legality of this practice in its enforcement of Title VI of the 1964 Civil Rights Act.
Because of the size of the federal government, the stakes for Title VI enforcement are high. Federal outlays account for about 20 percent of American GDP. Title VI applies to all recipients of those outlays. Many non-recipients may plan to bid for federal contracts or grants in the future, so they’ll need to demonstrate compliance with Title VI, too. Title VI, then, directly or indirectly, effectively governs more than 20 percent of the national economy.
But Title VI is a nondiscrimination statute. Applying the theory of disparate impact—which seeks to uncover intentional but hidden discrimination—turns Title VI on its head by transforming the statute into a cudgel that would require discrimination. The Biden administration wants to compel the very practice that Congress passed Title VI to forbid. The administration has indeed deployed disparate-impact theory through Title VI, pushing for what it calls “equity” through a host of administrative actions.
Still, in at least two settings where parties challenged that deployment as illegal—school disciplinary policies and environmental policy—the administration has dodged consequent litigation. The White House implicitly concedes that it lacks the power to use civil rights regulations to require discrimination.
Since just after the Civil War, the Fourteenth Amendment has barred states from denying anyone equal protection under the law. Since the landmark 1954 Supreme Court cases of Brown v. Board of Education and Bolling v. Sharpe, the Constitution has been interpreted to include a parallel constraint on the power of the federal government. For 70 years, the nation has understood these promises to block intentional discrimination by government based on race.
Both Congress and the states have passed nondiscrimination laws governing the parallel conduct of private parties—most prominently, the Civil Rights Acts of 1866 and 1964. With narrow exceptions, these measures forbid intentional discrimination by private parties. That is, they bar intentionally disparate treatment of individuals because of their demographic characteristics.
Enter the Equal Employment Opportunity Commission, a creature of the Civil Rights Act of 1964. The EEOC developed an alternative theory for liability under Title VII of the act, which prohibits employment discrimination—disparate impact. The EEOC’s theory, later adopted by the courts, ignored questions of employer intent and didn’t ask for evidence that an employer treated anyone differently because of his or her demography. Instead, it assessed statistics to assign liability to employers whose policies affected groups differently—even when the policies themselves said nothing about demography, the employer didn’t intend them to have any demographic effect, and the employer applied them fairly. (See “The Genealogy of Woke Capital,” Autumn 2021.) Disparate-impact analysis transformed indirect, circumstantial evidence of discrimination into a stand-alone basis for liability.
This analysis was a poor fit for statutes that banned discrimination because of immutable characteristics. The statutes don’t bar impacts; they bar discrimination. But in 1991, Congress added language to Title VII that addressed disparate-impact claims. Lawmakers did not amend Title VII’s language barring discriminatory employment practices, which continued to prohibit only employment actions made “because of . . . race, color, religion, sex, or national origin.” But they nonetheless added a statutory acknowledgment of the possibility of disparate-impact liability, setting a separate burden of proof for claims “based on disparate impact.” Still, that grudging, partial amendment of Title VII did not alter the Fourteenth Amendment, the constitutional prohibition on federal discrimination, or any other federal or state nondiscrimination law—including Title VI. These provisions continued to ban only intentional discrimination based on particular demographic factors.
Over the years, presidential administrations came and went, not knowing whether the parallel language of other nondiscrimination laws was subject to the same kind of alchemy that courts had used for Title VII. In 1981, the Department of Education asked its Office of Civil Rights (OCR) whether Title VI’s bar on discrimination should be read to impose disparate-impact liability on federal funding recipients. As it dispensed funds to schools nationwide, the department wanted to know whether it should worry about recipients’ disciplinary policies that affected demographic groups differently.
The assistant secretary of education for civil rights who answered was named Clarence Thomas, and he responded with good sense. “Where there is evenhandedness in the application of discipline criteria,” Thomas wrote, “there can be no finding of a Title VI violation, even when black students or other minorities are disciplined at a disproportionately high rate.” For three decades, this remained the department’s governing interpretation. And in 2011, the Supreme Court reached the same conclusion in Alexander v. Sandoval, writing that “Title VI itself directly reaches only instances of intentional discrimination.” While the Supreme Court didn’t directly opine about whether any Title VI regulation could or did administratively impose blanket disparate-impact liability, it strongly implied that this could not constitutionally be the case, an implication that such academics as Gail Heriot explored further. That should have settled the question: Title VI did not apply to facially neutral policies that lacked a discriminatory intent and were applied evenly, even if those policies wound up producing disparate impacts.
In 2014, however, the Obama administration’s OCR and Justice Department took a very different position. Without explaining why, or admitting that they had changed any governmental position, or citing Sandoval, Obama’s subordinates claimed in a “guidance” document: “The administration of student discipline can result in unlawful discrimination [violating Title VI] based on race in two ways: first if a student is subjected to different treatment based on the student’s race, and second, if a policy is neutral on its face—meaning the policy itself does not mention race—and is administered in an evenhanded manner but has a disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race” [italics in original].
That injection of disparate impact into Title VI had real-world consequences. The Obama administration insisted that no groups of American students behaved substantively differently in any American school. Catherine Lhamon, who served as head of the OCR in the Obama administration and has returned to that role today, asserted as much. “Students of color as a whole, as well as by individual racial group, do not commit more disciplinable offenses than their white peers,” she wrote at the time. (As Heriot noted, this is at odds with the evidence: aggregate statistics show stark disparities in student misbehavior among demographic groups.)
The Obama-era guidance required that federal-funding recipients must allocate punishments in proportion to groups’ share of the student population. How could schools possibly achieve that end, given the well-documented differences in group behavior? The only way to avoid inflicting a disparate impact was to punish students differently because of their race—with members of worse-behaved groups receiving lighter punishments than members of better-behaved groups. Thus did President Obama construe Title VI to require the very treatment that its text prohibits.
Obama’s guidance was never challenged in court, before the Trump administration swiftly rescinded it. In 2018, a new document explained how the department would assess schools’ disciplinary policies’ compliance with Title VI. The document restored an interpretation of Title VI requiring the individualized treatment of students, without regard to their demography or the resulting group allocations of punishments. It explained that the statute, as interpreted by the courts, authorized no other result. But the story did not end there.
At the same time, a parallel development was unfolding in the very different setting of environmental law. Academics who had long argued that the Environmental Protection Agency should consider the demography of those affected by environmental decisions were rising to positions of power.
At the forefront stood Marianne Engelman-Lado, an environmental-advocacy lawyer and a lecturer at Yale. Her academic work called for “civil rights enforcement in the environmental justice context.” “EPA has historically failed to hold decisionmakers accountable,” she wrote in a 2017 law review article, but the agency “can and should reform its civil rights compliance and enforcement program.”
Proposing to incorporate demographic factors into what was once a technocratic decision-making arena, these academics argued that the EPA should reinvent itself to prohibit disparate impact by changing its enforcement of the Title VI regulations that it had adopted in 1973. The goal: for the EPA to consider the race and ethnicity of affected populations in its decision-making—from approving permits to siting facilities to funding state environmental agencies. This playbook would soon be implemented.
Upon taking office, the Biden administration touted a new civil rights agenda that expressly promised to restore and expand the use of disparate-impact analysis in Title VI enforcement. Educational and environmental enforcement were to be important cogs in this machine. When President Biden nominated Lhamon to return to the Education Department, she testified that it was “crucial to reinstate guidance on the topic” of school discipline. The department issued a Request for Information in June 2021, approvingly quoting the 2014 guidance in support of its restoration. The acting assistant secretary for civil rights indicated that the OCR’s preparation of new guidance would not be “starting from scratch”: it would work from the 2014 guidance to apply disparate-impact theory to recipients’ disciplinary policies through Title VI. Initially, the department indicated that it would provide replacement guidance before the 2021–22 school year started.
The EPA, too, would incorporate disparate-impact analysis into its decisions, allegedly implementing decades-old Title VI regulations. President Biden’s nominee for EPA director, Michael Regan, testified that he would make “environmental justice” a focus of the agency. To that end, he hired Engelman-Lado as the agency’s deputy general counsel. When the administration reorganized the EPA to craft a new Office of Environmental Justice and External Civil Rights, she stepped in to lead it.
So far, the administration was behaving as expected. Yet something was amiss. Unlike the Obama administration, whose Title VI guidance never made it to court, the Biden administration soon faced legal challenges. Americans submitted thousands of comments in response to the Education Department’s 2021 Request for Information. Some, including those filed by a coalition of state attorneys general, raised legal problems with the new guidance that the department had teased its intent to issue. I filed one such comment on behalf of the American Civil Rights Project, a public-interest law firm where I serve as executive director.
Yet the administration repeatedly ducked the fight. The Education Department responded with prolonged silence. It issued no guidance before the 2021–22 school year began. It issued no guidance during the year. It issued no Title VI–related guidance the following summer, even as its Office of Special Education Programs released guidance in July 2022 on what a parallel statute had to say about school disciplinary policies. And that guidance struck a profoundly different chord from the OCR’s 2021 Request for Information—stating that “statistical evidence suggesting disproportionate use of discipline for certain conduct, alone, does not prove discrimination under the federal laws . . . but may raise a basis for examination of whether . . . discrimination is occurring.” The department seemed within spitting distance of the belief that a disparate impact is nothing more than circumstantial evidence of intentional discrimination.
Only in mid-2023 did the department finally release its long-promised guidance on Title VI’s interaction with recipients’ school disciplinary policies. First, in March, buried as an attachment to Education Secretary Miguel Cardona’s letter on the impropriety of corporal punishment, the department released “Guiding Principles for Creating Safe, Inclusive, Supportive, and Fair School Climates.” The source was the department’s Office of Planning, Evaluation and Policy Development.
Observers quickly noticed that the March publication bore no resemblance to what the department had promised in 2021. The Guiding Principles never suggested that the department would undertake disparate-impact analysis of any school’s or system’s reported disciplinary data. It never asserted that, should it find any school’s or system’s disciplinary policies to have a disparate impact, this would, on its own, mean that the school or system had violated Title VI. In fact, it made use of the word “disparate” only once, in a footnote—and not in the phrase “disparate impact.” While it recited fashionable talking points, even suggesting that funding recipients might want to categorize students by their demography and “analyze discipline data disaggregated by race, ethnicity, gender identity, and disability status, among other characteristics to ensure that policies and procedures do not unfairly disadvantage a group of students,” the department presented this solely as a suggestion. It read as a brainstormed proposal, not as a condition on funding.
Progressives were alarmed. In April 2023, an umbrella organization of left-wing activist groups “committed to advocating for legislative and federal action to protect the interests and educational rights of Black and Brown students and youth through a racial and educational equity lens” described the March release as a “stunning . . . insult.” The group attacked the “anemic document” as “not a serious guide to schools and communities on how to achieve safe, well-disciplined, and equitable schools. Rather, it is vague, ineffectual, and slapdash.”
Finally, in an apparent response, in May 2023, the Department of Education supplemented its March release with “Resource on Confronting Racial Discrimination in Student Discipline.” Like the 2014 and 2018 guidance packages, and unlike those from 2022 and March 2023, this release came from the OCR and the DOJ, carrying the full imprimatur of the administration’s legal team.
Yet even this sounded nothing like the 2014 guidance. Nowhere does the document assert that facially neutral, evenhandedly applied disciplinary policies could violate Title VI because of a disparate impact. Instead, it pegs the department’s authority to pursue any such analysis entirely on the implications that such analysis might have for recipients’ underlying motivations. “While racial disparities in student discipline alone do not violate the law,” the document observes, “ensuring compliance with Federal nondiscrimination obligations can involve examining the underlying causes of such disparities.”
The Biden administration, by its own words, felt it “critical” to reinstitute the 2014 guidance’s policy. But it knew that any administrative effort to readopt that policy would trigger immediate litigation over the limitations of disparate-impact theory under Title VI. Seemingly realizing over the intervening two years that it would lose that litigation, the administration gave up the fight—even making Catherine Lhamon sign the May release formalizing its surrender.
Over in the EPA’s domain, the surrender came later and remains incomplete. The administration has not dissolved the Office of Environmental Justice and External Civil Rights, which still exists to deploy the EPA’s Title VI regulations across the agency’s activities in the name of an “environmental justice” informed by trendy notions of “equity.”
But the EPA’s flagship environmental justice effort went in a direction that the agency had not anticipated. The EPA sought to make an example of Louisiana and a pair of its regulated facilities—but rather than cower before the agency’s regulatory might, Louisiana sued. The Pelican State argued, in part, that because Title VI is not a disparate-impact statute, the EPA’s Title VI regulations cannot constitutionally be blanket disparate-impact regulations. Rather than defend the legal basis for its redirection of the entire agency, the administration closed the EPA’s related investigations, clearly hoping to moot the case. As on the educational front, activists initially thrilled by the administration’s “equity” promises noticed—and howled.
But Louisiana had already sued when the EPA backtracked. Faced with the likelihood that the EPA would seek “to impose their disparate-impact . . . mandate for most or all of the permits that Louisiana Department of Environmental Quality . . . issues during the pendency of this suit,” Louisiana refused to let the agency tuck and run. Instead, it continued to challenge the administration’s extra-lawful imposition of disparate-impact liability. In late January 2024, a federal district court addressed the merits of the EPA’s policies. When it did, the “bench slap” was stark. Extensively citing the Supreme Court’s Sandoval opinion and its progeny, the court’s preliminary injunction barred the federal government “from imposing or enforcing any disparate impact based requirements against the State or any State agency under Title VI.”
The EPA chose not to appeal the district court’s preliminary injunction. Still, the court has not yet made a case-concluding final judgment—and when it does, the agency could yet appeal that final injunction (which would subsume the preliminary one). Will it? On the one hand, the administration has committed to precisely the interpretation of Title VI’s regulations that the district court rejected in its preliminary injunction (and presumably will do so in the final ruling to come). That precedent threatens its government-wide pursuit of “equity.” But accepting the district court’s rulings as a one-off, binding the EPA and the DOJ only on enforcement efforts in Louisiana, would prevent a higher court from affirming the injunction and expanding its reach across more areas of the United States. The administration’s surrender in education and its failure to appeal the preliminary injunction suggest that it might prefer to take the loss here, too, preserving the pretense of legality in other jurisdictions.
The Biden administration’s unwillingness to defend a proportional-punishment requirement that would affect America’s 50 million schoolchildren means that no school will be required to pick between its governmental funding and treating students fairly. The administration’s attempted dodge of Louisiana’s fight means that the facilities at issue in the EPA’s canceled investigations will remain open, employing hundreds of locals. And the administration’s acceptance of the district court’s preliminary injunction has at least temporarily spared 4.6 million Louisianans from ongoing efforts by the EPA or the DOJ to force the state to discriminate based on race.
These are not small matters, but the implications go further. The Biden administration knows that it cannot successfully defend the constitutionality of its preferred cudgel for its “equity” agenda. It knows that courts will reject the claim that Title VI’s regulations impose blanket liability based solely on the disparate impacts of race-neutral, evenhandedly applied, policies. If the administration knows this and we know this, its approach cannot go unchallenged. If forced to defend itself often enough, the administration will be unable to pursue discrimination systematically while picking off complainants through capitulations, one at a time.
But the broader fight will be over only when Democrats quit not just these specific battles but the entire war. Real victory can be declared only when proponents of race discrimination stop trying to make it happen behind our backs.
Top Photo by Samuel Corum/Getty Images
