Backgrounder on State-Sponsored Discrimination
Congress passed Title VI of the Civil Rights Act of 1964 and Title IX of the Education amendments of 1972 to prevent states from using federal dollars -- designated for schools, public works, and other services -- to discriminate against individuals on the basis of race, national origin, sex, disability, and age. But in recent years the Supreme Court has chipped away at Congress' good intentions and limited the protections individuals have from state-sponsored discrimination.
How has the Supreme Court undermined these protections?
Through narrow and regressive interpretations in various cases, the Supreme Court has denied individuals the right to sue the state or service provider while placing high burdens upon individuals to prove discrimination.
What did the Supreme Court say in Alexander v. Sandoval ?
Title VI of the Civil Rights Act of 1964 prohibits federally funded programs from discriminating on the basis of race, color, or national origin. But in 2001 the Supreme Court decided in Alexander v. Sandoval that Title VI of the Civil Rights Act of 1964 does not permit individuals to sue in order to stop an apparently neutral practice that has the effect of discriminating, thereby contradicting more than 30 years of settled law. Now, after Sandoval, individuals may sue only if they can prove that discrimination is "intentional."
Is there a difference between intentional and unintentional discrimination?
In Sandoval, the Court made a distinction between disparate treatment, also known as intentional discrimination, and disparate impact. Disparate treatment refers to discrimination that is motivated by some sort of bias.
Disparate impact, on the other hand, refers to the effect of certain practices that are fair in form but discriminatory in practice. The victims in Sandoval, for example, argued an English-only exam denied them driver’s licenses in effect, since it was not a widely spoken language in their country of origin. Many victims of discrimination will be denied justice because the Sandoval decision means only the federal government -- not private citizens -- can sue under Title VI in disparate impact cases.
Ripple effects of Alexander v. Sandoval.
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Because of this decision, civil rights plaintiffs are far more reliant on the federal government to bring their cases, rather than sue on their own. This is an inadequate alternative since federal agencies often are overburdened and unable to ensure individualized relief.
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Sandoval has been applied to bar retaliation lawsuits, thus effectively permitting employers to punish those who complain about discrimination.
What did the court decide in Gebser v. Lago Vista Independent School District ?
Title IX of the Education Amendments of 1972 makes it illegal for federally-funded education programs to discriminate on the basis of sex. But, the Supreme Court decided in Gebser v. Lago Vista Independent School District (1998) that students subjected to sexual harassment must prove that school officials both had "actual notice of" and were "deliberately indifferent to" such harassment in order to receive any damages for violations of the law. This decision thwarts Congress’ intention of protecting students from harassment when it passed Title IX by encouraging schools to insulate themselves from the knowledge of harassment rather than adopting practices that minimize the danger of harassment.
As a result of Gebser, students sexually harassed in school do not have the same legal protections as workers, or even their teachers, who are sexually harassed in the workplace.
Ripple effect of Gebser.
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Though it arose under Title IX (gender discrimination), lower courts have applied Gebser to limit liability for damages for harassment based on race, color, and national origin. Thus, Gebser makes it virtually impossible for victims of harassment who sue under Title IX, Title VI, or other related statutes, to obtain damages, a critical remedy for individuals harmed by harassment.
Why federally funded discrimination matters.
Recent Supreme Court decisions have transformed the legal landscape by using federal funds to exempt state employees from the protections civil rights laws. Contending with discrimination in the private sector is intolerable enough, but when such discrimination is perpetuated with the support of tax dollars it makes a mockery of even the most robust civil rights laws. It also means many fundamental and necessary public services -- such as driver's licenses and public education -- can now be administered in ways that unfairly exclude people because of their race, color, gender, or national origin.
