This Essay, however, contends that section 602 disparate impact regulations in Tide VI are valid because Congress has implicitly sanctioned their creation, and explicitly approved them in subsequent related statutes.
Part II of this Essay discusses the legislative history of Tide VI, which suggests that Congress intended to give administrative agencies discretion to define "discrimination" in their Tide VI regulations as prohibiting either intentional conduct or actions having disparate impacts against racial minorities as long as the President approved such rules.
Part III illustrates that five different Congresses have enacted four subsequent related statutes that explicitly incorporate Tide VI disparate impact regulations as a model. In Food & Drug Administration v. Brown & Williamson, a majority of the Supreme Court, including Justice Scalia, used subsequent related statutes as a guide to interpret the authority of the Food and Drug Administration to regulate tobacco products. Similarly, the enactment of subsequent related statutes that explicitly incorporate Tide VI's disparate impact regulations as a model provide strong evidence that the Court should interpret Tide VI to authorize those regulations.
This Essay concludes that, together, the evidence in Tide VI's legislative history and subsequent related statutes supports the validity of Title VI disparate impact regulations despite the fact that the Supreme Court has limited section 601 to intentional discrimination.
Mank, Bradford, "Are Title VI's Disparate Impact Regulations Valid?" (2003). Faculty Articles and Other Publications. 271.