(WOMENSENEWS)–Last week the Supreme Court, in one of its by now routine 5-4 votes, announced an ominous but little understood decision in Alexander v. Sandoval.
Its history and the process by which this case got to the court, its actual holding, as well as its obviously intended implications, are thoroughly chilling, not only to the rights of minorities, its immediate subject, but to all women as well.
The case involved a challenge by a Hispanic woman, Martha Sandoval, to a new requirement by the state of Alabama that drivers license tests can be taken only in English. She argued, under well-established law and precedent, that the rule, whether intentionally or not, has a discriminatory effect on her and keeps her from getting a drivers license because of her national origin. James Alexander, director of Alabama’s department of public safety, was named as defendant.
That both the federal trial and appellate courts agreed with her was not surprising since the principles she invoked had been recognized by the Supreme Court since the mid-1970s and repeatedly ratified by the Congress since then.
What was shocking was the fact that the current high court took the case at all, and then that it agreed with Alabama, a state that has an extensive record of resisting the rights of minorities, to limit the scope of a vitally important civil rights protection. It was the second time this term that the court entertained a challenge by Alabama to a previously well-established civil rights protection. The other case involved the Americans With Disabilities Act.
Sandoval brought her case under Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination on the basis of race and national origin by recipients of federal financial assistance, and Alabama, like every other state, receives large infusions of federal transportation money. In exchange for that aid, they are supposed to refrain from discrimination.
Supposedly Impartial Practices Can Have Discriminatory Impact
But many supposedly impartial practices have a tremendously discriminatory impact on racial and ethnic minorities, as well as women, girls and other protected groups. Examples include racial profiling by police, placing potentially toxic plants or waste treatment facilities in minority neighborhoods, height and weight requirements for employment and other selection procedures, such as written tests, and so on.
Intentional discrimination, on the other hand, may be difficult to prove, even where it exists. That the intent may have been benign does not soften the harsh effects. Thus, thirty years ago, a unanimous Supreme Court led by Warren Burger, the conservative chief, not the liberal Earl Warren, roundly condemned unintentional discrimination that nevertheless harmed minorities, characterizing it as a “built-in headwind.”
Yet the current court, by a bare majority, has seen fit to limit access to federal courts to challenge this kind of systemic discrimination when committed with the use of federal funds.
Voting against Sandoval were Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O’Connor, Antonin Scalia and Clarence Thomas.
The Sandoval decision will, in all likelihood, apply with equal force to similar provisions of Title IX of the Education Amendment of 1972 that prohibits discrimination on the basis of sex in federally assisted education programs. Similarly, the decision also can be expected to apply to Section 504 of the Rehabilitation Act of 1974 and Title II of the Americans With Disabilities Act, which prohibit discrimination on the basis of disability in federally funded programs.
Biased Educational Practices Could Be Exempt From Challenge
For women and girls, this means that educational practices such as standardized tests, which have a discriminatory effect on women, that is, disparate impact, are likely to become exempt from an individual challenge under Title IX. It is a known fact, for example, that women tend to score lower than men on the SAT, despite the fact that women tend to get higher grades in college, which is what the aptitude test is supposed to predict.
The result is that women must get higher grades in high school to gain an equal shot at admission to the same colleges as higher-scoring men, and they may lose out on numerous scholarship opportunities in which standardized tests are a deciding factor.
Even more worrisome is the fact that the same ultra-conservative judicial activists have signaled their hostility to civil rights laws in general and to the use of the disparate impact theory, in particular, and may very well be getting ready to jettison it from a whole range of civil rights protections. That would be a great tragedy.
We are long past the time when anyone is foolish enough to put out a sign saying “No blacks need apply” or print separate columns for “help wanted–male” and “help wanted–female,” but the results are still all too often the same.
All women, minority men and women, and the disabled of both genders and many races have made great progress in the last 40 years.
But if recent developments in the courts have been any indication, nothing, not even long-entrenched legal precedents, is set in stone. Hard-won access to opportunities previously attained and those not yet achieved hang in the balance.
Isabelle Katz Pinzler is special counsel and director of the Federalism Project of the NOW Legal Defense and Education Fund and was deputy assistant attorney general in the Clinton Justice Department. Women’s Enews is a media project of NOW Legal Defense.For more information, read the Alexander v. Sandoval decision: