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Individuals Cannot Sue Over Unintentional Bias
Private citizens cannot sue federally supported state agencies over policies that have a "disparate impact" on, or unintentionally help or hurt, people of a certain race, the Supreme Court said in a 5 to 4 ruling in April. The decision may hamper antidiscrimination lawsuits in higher education by preventing people from suing public colleges and universities over policies that affect people of a particular race or ethnicity.
The ruling came in Alexander v. Sandoval, a class-action suit alleging that the Alabama Department of Public Safety violated Title VI of the Civil Rights Act of 1964 by offering driver's license examinations only in English. The court did not consider the question whether Alabama was entitled to offer driver's license examinations only in English, or whether doing so violated Title VI of the Civil Rights Act, which states that no person shall, "on the ground of race, color, or national origin, be excluded from participation in, denied the benefits of, or be subjected to discrimination" under any program receiving funds from the federal government. Instead, the Court focused on whether individuals are entitled to sue to enforce the provisions of the act.
Under the ruling, to prevail in a private Title VI case, a citizen must show that he or she was intentionally discriminated against. "Intent doesn't have to be intent to harm anyone, just intent to treat members of different racial groups differently," says Linda Hamilton Krieger, professor of law at the University of California, Berkeley. Someone denied admission to a university can still sue over the institution's affirmative action policy, because such policies intentionally use race as a basis for treating people differently. But, after Sandoval, someone denied admission to a university cannot sue under Title VI over a university's reliance on standardized test scores in admissions. Although certain racial groups routinely underperform on the tests compared with other racial groups, the tests are not meant to differentiate among such groups.
"Standardized tests are the major barrier to entry for minorities seeking access to higher education," says Krieger, "and many of these tests have never been validated against subsequent performance. The only way to challenge such tests was through the concept of disparate impact." As the use of high-stakes standardized tests becomes more widespread, Krieger points out, this becomes more of a problem.
The federal government is still free to bring suit or otherwise challenge policies that have a disparate impact on members of minority groups, but most observers agree that the current administration is unlikely to do so.
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