Monday, July 10, 2023

Bleg on SFFA: Whatever happened to Title VI?

Back in the 1980s, when I first began to acquaint myself with mainstream conservative writings of prior decades, e.g. God and Man at Yale (1951), Up From Liberalism (1959), and others that I don't recall and am too lazy to research, their expressed view of the 14th Amendment was that it required equal application of the existing laws but didn't require the laws themselves to be race neutral*. This view was in at least legal (though perhaps not moral) defense of segregated education, and in particular against the arguments put forward by the plaintiffs in Brown vs. Board that the 14th Amendment did indeed require race neutrality. The SCOTUS decision in that case (citation needed) didn't explicitly endorse race neutrality but rather concluded that segregation inevitably led to unequal outcomes. (The reasoning here was worse than I'm making it sound and required accepting some ridiculous propositions and shady low-N studies involving children and dolls.)

This was prior to the Civil Rights Act of 1964, which specifically did require that both public education (Title IV) and any program receiving federal funds (Title VI) be administered without regard to race. By the late 1980s when I discovered it, conservative writing was now advocating for race neutrality. This was well into the affirmative action regime, of course, and the writers at Commentary magazine had noticed that Jews in particular were being hard hit by its "reverse discrimination" (as it was usually called).

What strikes me as needing an explanation is that in these late battles against and provisional victory over affirmative action, There have been almost no references to the Civil Rights Act of 1964. I haven't seen it in the excerpts from the SFFA decision nor in the commentary around it. Why not? Is this no longer good law? Was it repealed or modified to allow racial discrimination to achieve diversity? The Civil Rights Act of 1991 allowed the EEOC to bring disparate impact lawsuits against employers but that doesn't sound like it applied here.

I would appreciate comments explaining this to me.

* As used here, "neutrality" means "race blind". I spell this out because I have read news articles that are incoherent until you realize that they use the word "neutrality" to mean "not having a disparate impact".

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