By Michael Kirkpatrick and Margaret Kwoka, Public Citizen Litigation Group
As Paul Taylor recognizes in the previous issue of this volume of the Harvard Journal on Legislation, Congress is considering amendments to Title VI of the Civil Rights Act of 1964 to explicitly allow private plaintiffs to use the disparate impact theory to prove discrimination by recipients of federal financial assistance. This Article responds to Taylor’s assertion that allowing such disparate impact claims could harm national security programs. The authors explore the history of the disparate impact theory under both Title VI and Title VII, explain that use of the theory is consistent with Congress’s original intent, and argue that it should be restored through legislation. In particular, this Article shows how the lack of a disparate impact standard under Title VI has left the victims of racial profiling by airlines without effective relief, and it explains why allowing disparate impact claims would enhance national security by subjecting such practices to judicial scrutiny. Particular emphasis is given to the question of the validity of racial profiling and the wisdom of insulating the practice from discrimination claims. The Article concludes that allowing private disparate impact claims under Title VI would serve to better protect against discriminatory policies and would not undermine national security.