Title VI and the Constitution: A Regulatory Model for Defining ‘Discrimination’

Abstract

In recent years confusion has surrounded the proper interpretation of title V1 of the Civil Rights Act of 1964, which prohibits discrimination in programs receiving federal financial assistance. Some courts have held that the title prohibits only intentional discrimination. Others have held that it proscribes actions having discriminatory effects as well, an interpretation that imposes a great burden on federal grantees. The Supreme Court heightened the confusion when five individual justices in Regents of the University of California v. Bakke questioned the propriety of the Court's earlier adoption of an "effects" test for title VI. Professor Abernathy argues that this confusion results from a misdirected inquiry on the part of the courts. After a comprehensive review of pertinent legislative history, Professor Abernathy concludes that Congress did not intend title VI to require either an "intent" or an "effects" test Instead, Congress accepted a compromise position, delegating the definition of discrimination to the administrative agency responsible for implementing each affected program. As a result of his analysis, Professor Abernathy suggests standards under which agencies should adopt regulatory decisions.

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