Now Her Children Gather Round Her

by Jay Marshall Wolman

Georgetown University has decided to violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.  In a grand gesture that has alternately received praise or been derided as empty, the descendants of some 272 slaves sold by the Jesuits in 1838 to keep the ship afloat will now receive an admission preference.

Missing from the discussion is a conversation about racial discrimination.  More commonly seen in employment law, there are two major categories of discrimination: disparate treatment and disparate impact.  Disparate treatment claims are pretty straightforward, where you generally try to show overt or masked bias (e.g. “No Irish Need Apply”).  Disparate impact is harder.  First established in Griggs v. Duke Power, 401 U.S. 424 (1971), the essential theory is that a facially neutral policy (e.g., the requirement of a highschool diploma to get a job) that really isn’t necessary and favors or disfavors a particular protected group is unlawful.

Racial discrimination in higher education is prohibited under Title VI for the recipients of federal funds.  Pretty much any major university is going to fall into the ambit of this statute.  The regulations implementing Title VI essentially prohibit universities from implementing policies that have a racially disparate impact, save for affirmative action programs to correct prior discrimination.

Georgetown’s new policy is, at a minimum, one that would have a disparate impact on admissions.  Although some of the descendants of these slaves may identify as White, Latino, Asian, or Native American, it is a pretty safe bet that the overwhelming majority would identify as African American.  [Arguably, it is disparate treatment, as it discriminates in favor of those with an African American ancestor, but the law does not specifically categorize mixed race persons, and the “one drop rule” isn’t good law.]

That said, Title VI is a right without a remedy, or at least a useful remedy.  In Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court ruled that there was no private right of action under Title VI.  Basically, it means that students who would have been admitted but for this new admissions criterion cannot sue Georgetown.  [This is not to be confused with public universities that could be sued for discrimination under the 14th Amendment.]  Only the U.S. Department of Justice could sue Georgetown for violating Title VI.

I have no problem with Georgetown wanting to do something for the descendants of the people it harmed–clearly, the Jesuits never had to purchase the slaves, utilize their labor, or sell them.  And the history of slavery has likely had an adverse impact on these descendants in some manner.  There is a strong moral case for Georgetown taking such action.  [Full disclosure:  I am an alumnus of the Georgetown University Law Center.]  But, I just don’t see how it passes muster under a disparate impact theory.  It is not affirmative action in the sense it is correcting for a history of discrimination in the admissions process.  Should Georgetown retract its policy or should the law change to accommodate Georgetown?  And, if the latter, how would you draft an exception to the law that nefarious persons might not drive a truck through?