This Article addresses whether a cause of action exists under federal statutes to challenge gender and racial inequity in federally funded programs. The question has widespread ramifications because Congress appropriates funds to millions of programs that are subject to these statutes. The Court has held that the only cause of action that exists under these statutes is for intentional discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of intentional discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of intentional discrimination without accounting for the more complex nuances in recent cases. Thus, lower courts continue to assume that intentional discrimination includes only actions that are motivated by animus or the inappropriate consideration of gender or race. A thorough analysis of Supreme Court precedent, however, provides a different answer. Specifically, in regard to Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments, the Court has also recognized that intentional discrimination occurs when a funding recipient makes a conscious choice that frustrates the congressional objective to eliminate discrimination and inequity in federally funded programs. More specifically, the Court’s decisions reveal three factors that are consistently present when the Court has imposed liability under this broader notion of intentional discrimination: whether the defendant made a value choice in regard to the challenged activity or conditions, whether permitting the activity or conditions within a federally funded program would be inconsistent with congressional objectives, and whether the defendant’s choice is a cause of the continuance of the activity or condition. However, to permit plaintiffs to establish that any circumstances beyond those in the Court’s recent decisions are inconsistent with congressional objectives, federal agencies must provide regulations and guidance that specifically identify those circumstances.
Derek W. Black, The Mysteriously Reappearing Cause of Action: the Court’s Expanded Concept of Intentional Gender and Race Discrimination in Federally Funded Programs, 67 Md. L. Rev. 358 (2008).