The Justice Department’s Civil Rights Division has announced that it opened an “environmental justice” investigation into the Alabama Department of Public Health and the Lowndes County Health Department. The DOJ’s press release states that the Civil Rights Division
will examine whether the Alabama Department of Public Health and the Lowndes County Health Department operate their onsite wastewater disposal program and infectious diseases and outbreaks program in a manner that discriminates against Black residents of Lowndes County in violation of Title VI of the Civil Rights Act of 1964.
The investigation will also examine whether the health departments’ policies and practices have caused Black residents of Lowndes County to have diminished access to adequate sanitation systems and to disproportionately and unjustifiably bear the risk of adverse health effects associated with inadequate wastewater treatment, such as hookworm infections.
Is there is a factual basis for conducting this noble-sounding investigation? I don’t know. But I doubt that there is a legal basis for conducting it.
It seems from the press release that DOJ is relying on a theory of disparate impact discrimination under Title VI of the Civil Rights Act of 1964 — i.e., that, while not intended to, the water system at issue disproportionately harms Blacks. But this assumes that Title VI authorizes disparate impact claims. I doubt that a majority of the Supreme Court’s current justices would agree with that assumption.
In Alexander v. Sandoval, a 2001 case, the Supreme Court noted that interpreting Title VI to cover unintentional discrimination is in “considerable tension” with the fact that the Title VI statute itself “prohibits only intentional discrimination.” The Justice Department will rely on a regulation proclaiming that Title VI does authorize disparate impact claims. But the Court called “strange” the argument that executive agencies would have the authority to adopt regulations that purport to prohibit disparate impact on members of a specific racial group absent any evidence of intentional discrimination.
According to this discussion, ever since the Alexander v. Sandoval decision, the federal government has been “very wary of proceeding with a Title VI [disparate impact] claim that could find its way through the courts and to the Supreme Court.” And that analysis was written at a time when the Court was more liberal than it is now.
I suspect the Biden DOJ understands the considerable legal difficulty associated with bringing a disparate impact case under Title VI. But I also think the DOJ expects the targets of the Alabama investigation to roll over and settle, rather than incur the very substantial costs of litigating against the federal government. If so, the DOJ can accomplish its goal without having to litigate.
If/when this happens, Kristen Clarke and the rest of the leftist Biden DOJ gang will be able to crow about their victory in what the press release calls “the Department of Justice’s first Title VI environmental justice investigation for one of the department’s funding recipients.” The public may (or may not) benefit from the “victory.” But the interests of real justice won’t be served by the assertion of a lawless claim against targets that probably can’t afford to defend against it.