The Risks Posed to National Security and Other Programs by Proposals to Authorize Private Disparate Impact Claims Under Title VI
46 HARV. J. ON LEGIS. 57 (2009)
This article begins by summarizing the evolution of disparate impact discrimination as a legal claim. It analyzes the national security exception to such claims in the employment provisions of Title VII of the Civil Rights Act of 1964 and the lack of such an exception in Title VI, which prohibits discrimination by entities receiving federal financial assistance. The article then elaborates on the impact statutory amendments broadening the application of disparate impact claims would have on national security, particularly in regard to aviation security. Finally, the article discusses how private Title VI disparate impact claims could subject other government programs -- such as federal welfare reform and state and local English language policies -- to lawsuits in which courts could prohibit their implementation, or order significant changes in their administration, to the detriment of elected legislatures and democratic government.
