Suing schools and colleges has nothing to do with supporting our troops.

But that didn’t stop Senators from seeking to add an amendment, SA 3215, to the 2013 Defense Authorization bill on Thursday, containing provisions that would overturn two Supreme Court rulings in order to promote such lawsuits. The amendment, proposed by Senators Sherrod Brown (D-OH), Al Franken (D-Minn.), Bernie Sanders (Vt.) and Sheldon Whitehouse (D-R.I.), would dramatically expand the reach of two federal statutes, Title VI and Title IX, to allow colleges, schools, and recipients of federal funds to be sued for “disparate impact.”

Disparate impact is a race-neutral practice that weeds out more minorities than whites despite having no discriminatory motive behind it — like a standardized test that more minorities fail than whites. The amendment, backed by trial lawyers, would also allow colleges, schools, and other institutions to be sued for unlimited punitive damages.

Currently, disparate-impact lawsuits against colleges and schools are barred by the Supreme Court’s decision in Alexander v. Sandoval, 532 U.S. 275 (2001). Punitive damages under Title VI and Title IX are barred by the Supreme Court’s decision in Barnes v. Gorman, 536 U.S. 181 (2002), where even liberal Justices like David Souter concluded that punitive damages are inappropriate under spending clause legislation like the Rehabilitation Act and Title VI. Sections 1806 and 1807 of the amendment would override those Supreme Court rulings, undermining academic standards, and pressuring schools to adopt speech codes and quotas.

The specter of liability for disparate impact could make schools get rid of standardized tests designed to ensure that students are really learning, and detect failing schools, since all but the easiest standardized tests arguably have a racially “disparate impact.”

It could also result in racial quotas in school discipline. The Obama Administration has already pressured some school districts to adopt de facto racial quotas in school discipline (school districts are reluctant to defy the Administration’s legally-dubious demands lest it cut off their federal funds), requiring even liberal school districts that already bend over backwards not to suspend disruptive black students to cut their suspension rates, and spend millions of dollars to comply with bureaucratic dictates imposed by the Education Department’s Office for Civil Rights, where I used to work.

The ability to sue over disparate impact would give not just the administration but also trial lawyers the ability to sue school systems and force them to adopt de facto quotas, since suspension rates are generally higher among black students than among white and Asian students, just as a disproportionate fraction of convicted felons are black (the Supreme Court’s Armstrong decision says this is not the product of racism, but higher crime rates among certain racial groups; juvenile infraction rates also differ widely among racial groups). Trial lawyers can recover hundreds of thousands of dollars in attorneys fees if they succeed in suing a school or college, even if they fail to prove significant damages.

Expanding Title VI liability and punitive damages could also lead to more campus speech codes, as colleges, terrified of racial harassment liability under Title VI, clamp down on any speech that might conceivably contribute to what is perceived as a racially hostile learning environment. Students have already been convicted of racial and sexual harassment by campus administrators for expressing commonplace conservative and other views about affirmative action, feminism, and the racial implications of the death penalty. (See Brief Amici Curiae of Students for Individual Liberty, et al., in Davis v. Monroe County Board of Education, 1998 WL 847365 (filed Dec. 8, 1998) (citing examples).) Several racial harassment codes were voided by the federal courts after they were used to punish First Amendment protected speech in cases like Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), UWM Post v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991), and Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1989). A sexual harassment code was struck down on First Amendment grounds in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008).

But schools persist in imposing overbroad harassment policies, both because they would rather be sued for First Amendment violations than for racial or sexual harassment (since state universities are generally shielded from monetary liability for First Amendment violations by the Eleventh Amendment, but they are liable for monetary damages for racial and sexual harassment), and because private colleges are not directly subject to the First Amendment at all, but can be sued for racial and sexual harassment. People can already sue for racial harassment under Title VI, and sexual harassment under Title IX, but only modest numbers of students do, since only compensatory damages are available, not punitive damages (which can be many, many times larger than compensatory damages), meaning a student has to be more than just a little offended by speech for it to be worth suing under current law (people seldom recover more than $200,000 in compensatory damages in harassment cases, although punitive damages awards can be in the millions). (Students who do not wish to sue can also obtain redress by filing an administrative complaint with the Education Department’s Office for Civil Rights).

If punitive damages are available, that makes it much more viable to bring racial and sexual harassment lawsuits over campus speech or conduct that is not that extreme or outrageous. As a result, to avoid liability, private colleges in particular may clamp down on campus speech about racial and sexual issues like affirmative action and feminism, lest such speech provide potential “building blocks” of a hostile environment claim under the “totality of circumstances” test. By expanding Title VI and Title IX liability to cover “disparate impact,” rather than just intentional discrimination, the provision may also unduly broaden the definition of what speech is “harassment” by resulting in unintentionally offensive speech about racial topics being classified as harassment even when it was not intended to demean minority students.

The Obama administration takes the position that speech that is not even aimed at the complainant (like a Confederate flag) can be racial harassment, while the Clinton administration once left open the possibility that criticizing affirmative action could be racial harassment. See Stuart Taylor, Jr., A Clintonite Threat to Free Speech, The Legal Times, May 9, 1994 at 27 (quoting Education Department General Counsel Judith Winston).

Here are the Title VI and Title IX provisions likely to be added by an amendment, SA 3215, to the National Defense Authorization Act for Fiscal Year 2013, S.3254 (this radical provision is also buried within another Senate bill that was favorably reported by a Senate Committee, S.3322, the Servicemembers’ Protection Act of 2012). The Title VI and IX provisions are found on page S7233 of the Congressional Record (Volume 158), in Sections 1806 and 1807 of the amendment. The amendment itself begins on page S7232.

SEC. 1806. RELATED CHANGES TO TITLE VI OF THE CIVIL RIGHTS ACT OF 1964–CLARIFICATION OF PROHIBITED DISCRIMINATION, PRIVATE RIGHT OF ACTION, AND AVAILABLE RELIEF.

(a) Clarification of Prohibited Discrimination.–Section 601 of the Civil Rights Act of 1964 (42 U.S.C. 2000d) is amended–

(1) by striking “No” and inserting “(a) No”; and

(2) by adding at the end the following new subsection:

“(b)(1) Discrimination based on disparate impact with respect to a program or activity is established under this section only if–

“(A) a Federal department or agency, or any person aggrieved, demonstrates that an entity subject to this title has a policy or practice with respect to the program or activity that causes a disparate impact on the basis of race, color, or national origin; and

“(B)(i) the entity fails to demonstrate that the challenged policy or practice is related to, and necessary to achieve, the substantial and legitimate nondiscriminatory goals of the program or activity; or

“(ii) the Federal department or agency, or the person aggrieved, demonstrates that a less discriminatory alternative policy or practice exists, and the entity refuses to adopt such alternative policy or practice.

“(2) In this subsection, the term `demonstrates’ means meets the burdens of production and persuasion.”.

(b) Private Right of Action and Available Relief.–Section 602 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1) is amended–

(1) by striking “Each” and inserting “(a) Each”; and

(2) by adding at the end the following new subsection:

“(b) Any person aggrieved by the failure of an entity to comply with section 601 may bring a civil action in any Federal or State court of competent jurisdiction to enforce such person’s rights and may recover equitable relief, reasonable attorney’s fees, and costs. The aggrieved person may also recover legal relief (including compensatory and, from nongovernmental entities, punitive damages) in the case of noncompliance that is intentional discrimination.

“(c) Nothing in subsection (b) limits the authority of a Federal department or agency to enforce section 601.”

SEC. 1807. RELATED CHANGES TO TITLE IX OF THE EDUCATION AMENDMENTS OF 1972–CLARIFICATION OF PROHIBITED DISCRIMINATION, PRIVATE RIGHT OF ACTION, AND AVAILABLE RELIEF.
(a) Clarification of Prohibited Discrimination.–Section 901 of the Education Amendments of 1972 (20 U.S.C. 1681) is amended–
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following new subsection:
“(c)(1) Subject to the conditions described in paragraphs (1) through (9) of subsection (a), discrimination based on disparate impact with respect to a program or activity is established under this section only if–
“(A) a Federal department of agency, or any person aggrieved, demonstrates that an entity subject to this title has a policy or practice with respect to the program or activity that causes a disparate impact on the basis of sex; and
“(B)(i) the entity fails to demonstrate that the challenged policy or practice is related to, and necessary to achieve, the substantial and legitimate nondiscriminatory goals of the program or activity; or
“(ii) the Federal department or agency, or the person aggrieved, demonstrates that a less discriminatory alternative policy or practice exists, and the entity refuses to adopt such alternative policy or practice.
“(2) In this subsection, the term `demonstrates’ means meets the burdens of production and persuasion.”.
(b) Private Right of Action and Available Relief.–Section 902 of the Education Amendments of 1972 (20 U.S.C. 1682) is amended–
(1) in the section heading, by adding at the end the following: “; PRIVATE RIGHT OF ACTION AND AVAILABLE RELIEF”;
(2) by striking “Each” and inserting “(a) Each”; and
(3) by adding at the end the following new subsection:
“(b) Any person aggrieved by the failure of an entity to comply with section 901 may bring a civil action in any Federal or State court of competent jurisdiction to enforce such person’s rights and may recover equitable relief, reasonable attorney’s fees, and costs. The aggrieved person may also recover legal relief (including compensatory and, from nongovernmental entities, punitive damages) in the case of noncompliance that is intentional discrimination.
“(c) Nothing in subsection (b) limits the authority of a Federal department or agency to enforce section 901.”.”.