Overview: We are seeking up to 25 law firms and corporate legal departments to help create a pathway to reinstate a private cause of action for disparate impact discrimination from the federal government. The research and analysis completed in this project has the potential to create a new way to prevent racial discrimination in the US.
Background: In 1964, Congress passed Title VI of the Civil Rights Act of 1964, which created a private right of action for any person subjected to discrimination on the basis of their race, color, or national origin, from any program or activity receiving Federal financial assistance. For almost 40 years, this private right of action was strong—to prove a person was discriminated against, they would only need to prove that the program had the effect of treating them differently because of their race, by suing to implement “disparate impact” regulations promulgated by 24 federal agencies.
But in 2001, the Supreme Court in Alexander v. Sandoval reinterpreted Title VI to only allow a person to sue if they could prove that the agency receiving federal funds intentionally discriminated against them—after 2001 only the federal government had the right to enforce its “disparate impact” regulations. This had the effect of gutting the law and the incentive for agencies receiving federal funding—from police departments to school districts—to ensure that they do not have policies that significantly treat people differently because of their race.
Congress has the ability to change the law to again allow the public to file disparate impact lawsuits. In fact, one such bill, the Equity and Inclusion Enforcement Act of 2019 (EIEA), passed the House of Representatives in September 2020. But it’s been 20 years since there was a private right of action to enforce Title VI disparate impact, and frankly there has been a loss of expertise of all the different ways it could be used, and thus not as much excitement about fixing it as there could and should be. This project aims to change that.
Assignments: Law firms and legal departments will research one (or more) of the 24 specific federal agencies (or in the case of the DOJ - two sub-issues at the DOJ) that used to have a disparate impact rule in place. This project will seek to understand the state of the private rights of action in each agency before the 2001 Sandoval ruling. Firms and legal departments will also examine whether that agency has taken any public effort to implement that regulation since 2001, and the kinds of grants it gives out that could be challenged under a new private right of action to sue under disparate impact.
25 assignments are available. Each assignment will take between 10-20 hours each to complete, and we are asking that the research be completed by close of business June 25, 2021.
After the research is complete, we will write a report about what it would mean for there to once again be private rights of action to sue recipients of federal funds for disparate impact discrimination.
To express interest in this project, please fill out the form on this page and select “Lawyers for Racial Justice: Disparate Impact” in the Projects field.