THE SUPREME COURT'S RECENT DISPARATE IMPACT CASE AND ITS IMPLICATIONS FOR GENDER EQUITY

The Supreme Court recently held in Alexander v. Sandoval that private plaintiffs could not sue to enforce federal regulations prohibiting actions that have a "disparate impact" on the basis of race, color, or national origin.

Some attorneys have taken the ruling to mean that "disparate impact" gender discrimination, too, cannot form the basis of a private lawsuit. That consequence does not automatically follow from the Court's ruling, however, and hastily filed motions for reconsideration in light of Sandoval may turn out to be meritless.

Moreover, even if courts ultimately hold that Sandoval precludes gender-based disparate impact suits, many weapons against gender discrimination will still remain. Female college applicants will face serious difficulties in challenging the disparate impact of standardized tests, for example, but female sports coaches and players who face discrimination should still have essentially the same opportunities to sue.

The regulations at issue in Sandoval were promulgated under Title VI — a broad-ranging federal statute that prohibits discrimination on the basis of race, color, or national origin in federally assisted programs and activities. Programs and activities of most post-secondary educational institutions, as well as many of the activities of state and local governments, fall under Title VI.

Title VI itself, the Supreme Court has held in the past, prohibits only intentional discrimination–decisions made or policies enacted expressly on the basis of race, color, or national origin. But Title VI also empowers various federal agencies to enact regulations necessary to "effectuate" Title VI. And many of those regulations prohibit discrimination that does not have an express racial basis–reaching actions that are, on their face, racially neutral, but have a disproportionately adverse effect on a particular racial group.

Justice Scalia, speaking for a majority of five, did not invalidate these regulations. Instead, assuming they were valid, he limited their ability to be enforced. In effect, that means the federal agency that promulgated the regulations can enforce them, but private plaintiffs cannot.

Beginning as early as last week, lawyers began filing court papers asking for reconsideration of cases or issues based on the ruling in Sandoval. A recent ruling by a federal court in New Jersey shutting down a new $50 million cement plant based on a claim that it disproportionately impacts minority neighborhoods is surely in jeopardy.

So are ongoing lawsuits challenging, respectively, the racially disparate effects of the University of California at Berkeley's reliance on the SAT, and the NCAA's imposition of a minimum SAT requirement.

But lawyers are also seeking reconsideration in cases brought not under Title VI, but under Title IX — which prohibits sex-based discrimination by federally assisted educational institutions.

Superficially, that seems to make sense. Title IX was patterned after Title VI and, in many respects, they have been interpreted similarly. But on closer examination, many of these claims reflect a misunderstanding of Sandoval.

The Office for Civil Rights (OCR) — the primary agency charged with administering Title IX — has issued regulations, like those under Title VI, that prohibit "disparate impact" discrimination. If Sandoval is applied in this context, private plaintiffs will no longer be able to sue to enforce those regulations.

Nor is OCR itself likely to enforce them. Although it has the authority to terminate the federal funding of an institution that fails to comply with Title IX or its regulations, it has never in its 35-year history done so. One suspects that the Bush Administration will not break this precedent.

Does Title IX, like Title VI, require proof of intentional discrimination? The question is still unsettled, and there is good reason to think the answer is no.

For one thing, there is no comparable legislative history for Title IX. When it was passed, in 1972, the Equal Protection Clause's meaning for sex-based discrimination was, at best, uncertain. There was no express consideration of the relationship between Title IX and the Constitution. Thus, Title IX, unlike Title VI, does not seem inherently limited to only intentional discrimination.

But whether Congress had the authority to enact a statute proscribing disparate impact discrimination under either the Spending Clause or Section V of the Fourteenth Amendment is another matter. What needs to be recognized now is that the question of whether and how Sandoval applies to cases of sex discrimination is complicated–not, as defense attorneys are suggesting, an open and shut issue.

But suppose Sandoval does apply to Title IX, preventing private enforcement of its disparate impact regulations. What then? For female students, it's bad news.

Currently, a Title IX regulation prohibits educational institutions from relying on any test or criterion for admission that has a disproportionately adverse effect on persons on the basis of sex, unless it is a valid predictor of success in the educational endeavor and there is no less discriminatory alternative.

This regulation has been used to challenge the use of standardized tests like the SAT, GRE, and LSAT in admissions. On each of these tests, men consistently outperform women, leading to Title IX challenges. (Similar challenges to racial disparities in testing have been brought under Title VI).

For example, a federal district court in New York invalidated a school's scholarship program under Title IX's testing regulation because it relied solely on the SAT, adversely affecting female applicants. Private litigants will not be able to bring this kind of suit if Sandoval is applied to Title IX.

But for female coaches and athletes, even the worst-case scenario is pretty good.

A Title IX regulation also prohibits educational institutions from relying on any test or criterion when making employment decisions that have an adverse impact on one sex (namely, women).

Disparate impact theory has been used to challenge gender inequity in coaches' pay, an entrenched, nationwide problem. Studies show that coaches of women's sports teams get paid less than coaches of men's sports teams. Moreover, female coaches of men's sports teams get paid less than their male counterparts.

Female coaches find it hard to show intentional discrimination. Schools can easily point to a gender-neutral factor, like revenue-generation or experience playing the sport, to justify pay disparities.

Thus, disparate impact theory can be helpful in challenging inequity in coaches' pay. Fortunately, even if Sandoval is applied to Title IX, female coaches will still be able to fall back on another statute. Title VII, the federal employment discrimination statute — which applies to most, if not all, coaches — prohibits gender discrimination, and expressly creates a cause of action for disparate impact discrimination in particular.

Female athletes also have little to fear even if the Court's decision in Sandoval is applied to Title IX.

Title IX is famous for its revolutionary impact on women's sports. Through litigation, women across the country at all levels of schooling have obtained greater sports opportunities.

Fortunately for female athletes, however, these were not disparate impact cases, but claims of intentional discrimination — generally premised on the schools' conscious decision to allocate greater resources to men's sports teams (more teams, more and better coaches, more scholarships, etc.).

These claims should not, therefore, be affected by Sandoval, no matter how broadly it applies, as long as courts recognize them for what they are: claims of intentional discrimination.

Unfortunately, the Fifth Circuit Court of Appeals, in Pederson v. LSU, a June 2000 decision, has muddied this point. While it ultimately found LSU's unequal treatment of female athletes to constitute intentional discrimination, the court looked for evidence of gender-animus or outmoded gender-stereotyping in its search for intent. But intentional discrimination does not require proof of woman-hating; it simply entails proving that the school has treated similarly situated groups differently on the basis of sex, which LSU clearly did.

In summary, although Sandoval's ruling may seem ominous, its effect on gender discrimination claims will be limited. Female coaches can continue their fight for equal treatment. And female school athletes can continue their fight for equal opportunity — that is, if they can survive sex discriminatory tests and get into school in the first place.