This post kicks off a series on weaponizing antidiscrimination law.
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Title VI of the Civil Rights Act of 1964 represents in many respects the crowning achievement of the Civil Rights Movement. The law, which prohibits the use of federal funds to racially discriminate, helps to ensure that it is in the economic self-interest of the many public and private institutions that receive federal money to provide equal treatment to all. In this way, one might argue that it works to engineer the “interest convergence” that Derrick Bell argued is a precondition for meaningful progress toward racial equality in the United States. Certainly, all the evidence suggests that it was the enactment of Title VI, rather than the Supreme Court decision in Brown v. Board of Education ten years earlier, that resulted in the meaningful, although never total, desegregation of America’s public schools over the course of the 1960s and 1970s. And although Title VI would not have been possible absent Brown, it was Title VI, not Brown, that represented the Civil Rights Movement’s ability to translate righteous anger and political energy into durable regulatory power. By vesting administrative agencies with an ongoing duty to ensure that federal funds are not used to discriminate, Title VI’s drafters attempted to ensure that progress towards racial equality would not have to depend upon the heroic (or not so heroic) intervention of judges.
The statute did not always fulfill the great ambitions of its drafters, however. For many years, the agencies charged with enforcing Title VI failed to do so vigorously—a fact that led many to describe Title VI as the “sleeping giant” of civil rights. And although over the last few decades that giant has awoken, today the crown jewel of the Civil Rights Movement is being mobilized as a powerful force against integration. Indeed, the Trump administration has interpreted Title VI to prevent educational institutions from adopting programs or policies that are expressly intended to produce a less racially segregated educational environment, including even those that do not use racial categories to achieve these ends. The administration has gone so far as to suggest that merely teaching students about the history of racial subordination in the United States, or otherwise implying that “certain racial groups bear unique moral burdens that others do not,” would violate the statute. And it has threatened to terminate—and in some cases, actually suspended—funds to institutions that fail to comply with its interpretation. The result has been to make Title VI one of the most powerful weapons against desegregation that the Trump administration possesses.
That Title VI has been transformed in this way represents a vertigo-inducing inversion of the statute’s purpose. How did this come about? And what reforms might be necessary to prevent a similar inversion of statutory meaning in the future? As this post will suggest, neither the courts nor the bad faith of the Trump administrators are entirely to blame, although both have played a role. Instead, the transformation of Title VI reflects a deeper problem with how the federal civil rights regime has come to operate, and one that, if a miracle occurs and political forces committed to the goals of the Civil Rights Movement once again come to power in D.C., progressives should think seriously about reforming.
Don’t (Just) Blame the Court
In considering the perversion of Title VI, it is tempting to assume that the Supreme Court is to blame. The administration, after all, has relied heavily on the Court—and in particular, its ruling last year in SFFA v. Harvard College—to justify its legal interpretations. And there is no doubt that Court’s equal protection case law is partially responsible for the transformation in the statute’s meaning. The Court’s embrace of a formal as opposed to a substantive view of racial equality (the so-called “colorblind” Constitution), and its insistence that Title VI’s ban on race discrimination be interpreted in parallel to the Equal Protection Clause, provide strong support for some of the claims the Trump administration has made about the statute, including, most importantly, its claim that regulated entities violate Title VI whenever they “distribute benefits or burdens based on race,” even when they do so for what have historically been understood as benign (integrative) rather than invidious (exclusionary) ends. This is not something the Court has expressly held, except when it comes to the racially classificatory admissions policies at issue in SFFA. But it is something the logic of decisions such as SFFA strongly implies. Were this all the administration interpreted Title VI to forbid when it comes to pro-racial diversity programs, the result would be a significant change in statutory meaning that could indeed be blamed on the Court.
But this is not all that the administration has interpreted Title VI to prohibit. Instead, it has interpreted the statute to prohibit all programs that work to improve racial diversity on campus, including those that do not treat students or faculty differently based on their race. For example, the administration has claimed that it would “be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.” This is because, on the administration’s view, the goal of promoting racial diversity is constitutionally impermissible no matter what means are used to achieve it. As noted above, the administration has also interpreted Title VI to prohibit certain kinds of pro-diversity speech.
As Sonja Starr and I explain in a recent paper, this very expansive interpretation of what the constitutional or statutory colorblindness principles require is not one that the Supreme Court has ever endorsed. Instead, the Court has interpreted the colorblindness ideal to limit the means that private and government decisionmakers can use to promote racial integration, but to leave considerable room for political actors, and private institutions like schools and universities, to decide for themselves whether and to what extent they wish to advance antisubordinating goals via race-neutral mechanisms. The Court has, as Reva Siegel puts it, “underst[ood] the repair of racial injustice as fundamentally political, a responsibility of representative institutions of government as well as [and perhaps more than] courts.” Indeed, even as conservative a jurist as Justice Thomas could assert recently, in his SFFA concurrence, that racially classificatory policies like the ones struck down in that case were unnecessary to ensure diversity on campus because schools could “continue to enroll racially diverse classes by race-neutral means.” And the Court has insisted again and again that racist speech—however one interprets that category—is entitled to full constitutional protection. The administration’s statutory interpretation departs sharply from the Court’s in both these respects.
What this means is that the inversion of Title VI’s meaning cannot be blamed solely on the Supreme Court or, more generally, on a judicially supremacist legal culture. Instead, the inversion of Title IV should be blamed on the departmentalism that was deliberately written into its statutory design. By empowering agency officials to issue guidance, launch investigations, and impose sanctions without having to first obtaining judicial approval, Title VI’s drafters ensured that courts would not be the only institutions with significant power to shape the statute’s meaning. They clearly hoped that administrators would use the significant interpretive discretion afforded them to advance what many lawmakers recognized at the time to be the politically difficult project of racial integration more efficiently and effectively than courts could.
This is not how things turned out. Despite some expansive interpretations of the statute by Lyndon B. Johnson’s department of Health, Education and Welfare (HEW), in subsequent decades administrative officials adopted often very cautious interpretations of the statute—in part because it was politically easier to do so—and even then, failed to vigorously enforce its terms. The result was that, from the Carter administration on, civil rights advocates were largely forced to turn to the courts to make Title VI’s promise of racial equality meaningful.
This administrative reticence changed somewhat during the Obama administration. In 2010, Arne Duncan, Obama’s Secretary of Education, promised to reinvigorate Title VI enforcement, by, among other things, embedding a disparate impact analysis into the Department’s interpretation of its non-discrimination mandate. Duncan’s efforts to breathe new life into the statute did not, however, fly under the political radar, as perhaps Title VI’s drafters had hoped. Instead, they generated strong pushback from conservative groups, who complained bitterly about “executive overreach and federal interference run amok” and were ultimately halted by the first Trump administration. Indeed, outrage at Duncan’s efforts to wake the sleeping giant may have helped generate momentum, ironically enough, for the second Trump administration’s own executive overreach in the opposite direction.
Whatever the case, the freedom that administrative agencies possess to act on the basis of statutory interpretations that have not been vetted by courts has allowed the Trump Administration to advance a view of statutory colorblindness that, until January, was embraced by only the most radical elements of the conservative legal movement. And although it is true that this freedom can be checked by courts, few institutions will risk challenging the administration’s adventurous legal interpretations, given the amount of money that is on the line. Instead, they will simply adopt the administration’s interpretations of their non-discrimination responsibilities. Indeed, just last week, Emory University joined the growing ranks of educational institutions that have abandoned their DEI programming for fear that it violates “federal laws and mandates,” notwithstanding the lack of any judicial opinion that holds, or even suggests, that most of this programming is anything other than fully protected speech.
Reimagining Administrative Departmentalism
The lawmakers who drafted Title VI were not naive about the possibility that the administrative officials charged with enforcing the statute might abuse their discretion. Even Congressman Emanuel Celler, chair of the House Judiciary Committee and a strong supporter of the law, observed that one “wouldn’t want to have the tremendous power [to terminate] so many billions and billions of dollars… to be in the control of someone who would turn the spigot on and off with whim or caprice.”
To avoid agencies like HEW from abusing the “tremendous power” that had been given to them, legislators included in the statute a number of procedural requirements. For example, they permitted agencies to terminate funds only after they had “determined that compliance cannot be secured by voluntary means” and prohibited agencies from cutting off funds without giving the recipient the opportunity to defend itself in an adversarial hearing. They also required agencies to provide the House or Senate committees that oversaw the program in question “a full written report of the circumstances and the grounds” for terminating funding, so that members of Congress could use their political influence to stop it from happening if they so desired, and they required agencies to wait 30 days before acting, to permit this political process to play out.
In many cases, the Trump administration has completely ignored these procedural requirements when enforcing the statute—as it did, for example, when it froze $400 million of Columbia’s funds without informing Congress, holding a hearing, or waiting 30 days. Given this, one might reasonably argue that it is not Title VI’s statutory design that is to blame, but rather, the failure of the Trump administration to comply with the robust safeguards built into that design.
The problem with this response is that while the administration has acted, in this context as in others, with breathtaking disregard for legal rules and procedures, it is not at all clear that, had it followed the procedural requirements of the statute to the letter, the outcome would have been very different. The abject failure of the Republican-controlled Congress to impose any meaningful check on the administration, and the willingness of administration officials to endorse very adventurous interpretations of statutory meaning—and to “find” violations on the basis of very spurious evidence—suggests that had the administration complied with the procedural requirements written into Title VI, the result would have been a somewhat slower pace of action, but not a fundamental change in its content or effects. In other words, given the highly polarized nature of politics in the United States at the present moment, the robust safeguards that lawmakers built into Title VI to prevent abuse of administrative discretion appear radically insufficient.
This suggests that, should progressives ever come to power again, they should not be satisfied with an administrative reinterpretation of the statute, like the one that Secretary Duncan proposed in 2010. Such an interpretation might be revive the integrative purposes of Title VI in the short-run, but it would do nothing to prevent a subsequent inversion of statutory meaning by another revanchist administration. Indeed, recent history suggests that, by generating resentment about executive overreach, it may only contribute to that result.
So what should progressives aim for when it comes to this and other federal civil rights laws? This is the million (or perhaps billion) dollar question raised by recent abuses of Title VI, and one that has no easy answer. But it is a question that has to be confronted, if we are to build a genuine multiracial democracy out of the ruins of the present.
One option would be to push for the defederalization of civil rights enforcement: to shift power away from the federal government and relocate it in the states. This reform would have the benefit of lowering the stakes of the exercise of administrative discretion, by ensuring a diversity of approaches. But, for precisely that reason, this solution would create serious problems of its own, by recreating the profound state-based inequalities that federal enforcement of civil rights was intended to solve.
Another, somewhat more promising possibility would be to limit the amount of discretion that federal agencies currently enjoy, either by granting more expansive private rights of action to those whose rights may have been violated, thereby encouraging courts to play a more active role in the enforcement of the statute’s non-discrimination guarantees, or by directly limiting what agencies can do to enforce the statute—for example, by permitting the termination of funds only after a judicial finding of non-compliance. But vesting more power with the courts is not an entirely satisfying solution either, for obvious reasons. Like agencies, courts can be relatively easily captured by minoritarian but highly organized political actors, as the history of the conservative legal movement attests.
Alternatively, reformers could attempt to reimagine the kind of departmentalism that undergirds the statute. Title VI’s drafters vested agencies with interpretive discretion in order to ensure more competent, technocratic enforcement of its terms. But the result was to leave the public out of the conversation about what the statute should mean and ultimately produced a situation in which there was either insufficient political will to ensure its vigorous enforcement, or sharp outrage at how it was enforced. One could instead view the departmentalism written into Title VI as a means of serving more democratic purposes: that is to say, as an opportunity for generating support for antidiscrimination mandates, and as a means by which conversation could occur, between members of the public and their regulators about what the statute should require.
Bertrall Ross has called for this kind of democratic dialogue when it comes to agency interpretation of constitutional rights guarantees, but there is no reason why it could not or should not apply to agency enforcement of Title VI’s quasi-constitutional equality guarantee. Agencies could, for example, be required to use the tools of notice and comment rulemaking before they adopt novel interpretations of the statute. Or they could hold public hearings, to explain and justify their actions; or they could be precluded from reaching settlement agreements with major institutions, without receiving the input of other stakeholders—the faculty or the students.
Whatever the option chosen, it is clear that reforms of some sort are required. Title VI is the product of a powerful political movement: a movement that took shape on the streets and in the newspapers, not only in the halls of government. What the past six decades have made quite clearly is that vindicating the values and hopes of that movement cannot be safely guaranteed by granting a small number of administrative officials broad interpretive discretion that they can wield in highly non-transparent ways. It is time, not only to flip Title VI right side up again, but to reimagine its scope and possibilities.
