U.S. Circuit Judge James C. Ho, a former Gibson Dunn & Crutcher LLP partner whom former President Donald Trump appointed to the federal bench in 2017, penned a six-page concurrence Thursday that challenged the viability of disparate impact as a legal claim.
The concurrence accompanied a majority opinion that reinstated one part of a Black property owner's lawsuit alleging a Texas harbor expansion project is using discriminatory tactics to gobble up real estate in a historically Black neighborhood.
According to Judge Ho's concurrence, it's Congress, not judges or agency officials, that should decide whether Title VI encompasses disparate impact theory. Title VI of the Civil Rights Act of 1964 bars discrimination in federally funded programs.
"Congress enacted Title VI of the Civil Rights Act of 1964 to prohibit intentional racial discrimination — not to restrict neutral policies untainted by racial intent that happen to lead to racially disproportionate outcomes," he said.
Disparate impact theory is the notion that allows legal challenges to policies that appear nondiscriminatory on their face but actually have a disproportionately negative effect on certain demographics.
Judge Ho said the theory necessitates racial bias to remedy it, writing that, "for disparate impact advocates, requiring discrimination may not be a problem — it may be the whole point."
He pitted the notion against the idea of "color blindness" and tied it to critical race theory, a body of legal scholarship that states there is racism embedded in the systems and laws the country runs on, leading to unfair impacts on Black, Latino, Native American and other nonwhite communities.
Critical race theory is facing a backlash from American conservative politicians and commentators, with red states around the country moving ahead with laws to ban the study from schools. Judge Ho appeared to join that criticism on Thursday.
"There's a big difference between prohibiting racial discrimination and endorsing disparate impact theory," Judge Ho said. "It's the difference between securing equality of opportunity regardless of race and guaranteeing equality of outcome based on race."
"It's the difference between color blindness and critical race theory," Judge Ho added.
He said if people suing under Title VI can use disparate impact theory to back up their claims, Congress should have to spell that out.
"It's said that the road to hell is paved with good intentions," he said. "That's why we have laws on the books, like Title VI, that simply forbid the 'sordid business' of 'divvying us up by race' — no matter what our intentions," Judge Ho said.
He later added, "If we are to adopt disparate impact theory as a matter of national policy, it must be done by Congress — not 'by judicial or administrative fiat.'"
His arguments echoed concerns raised by his colleague U.S. Circuit Judge Edith H. Jones in a similar concurrence; both writings came in a case lodged by a Manning Rollerson, a Black property owner in the East End neighborhood of Freeport, Texas. Rollerson said the city was using dubious, discriminatory tactics to buy up land from the historically Black neighborhood to support a port expansion project.
Rollerson said the strategy used by Port Freeport to complete a harbor improvement project — which it's working on with the U.S. Army Corps of Engineers — violated civil rights law.
To finish the project, the Port has said it needs to buy land in East End, which sits adjacent to the channel. Rollerson has said the Port's tactics for buying the land have been deceitful and manipulative, including threatening East End property owners, lying about liens property owners have, severely lowballing offers, and working in conjunction with city officials to keep property values low, among other strategies.
The three-judge panel on the case backed a trial court's dismissal of Rollerson's civil rights allegations against the city over the project, but revived the East End resident's allegation under the Administrative Procedure Act, which allows challenges to federal agency actions.
Rollerson had filed a complaint with the Corps to review the project for discrimination, though the agency dismissed Rollerson's filing, finding the project wasn't federally funded, so they couldn't take a look.
All three panel members said the trial court needs to reevaluate whether the project is federally funded. If it is, and Rollerson can bring his Title VI claims with the Corps, Judges Jones and Ho said the agency shouldn't let Rollerson move forward with a disparate impact theory.
"Even if the district court decides that the project invoked Title VI, however, the Corps then bears a minimal burden to explain if it chooses to exercise discretion not to pursue some kind of racial disparate impact claim against the Port," Judge Jones said.
Judge Ho said he "share[s] Judge Jones's concerns about unelected agency officials usurping Congress's authority when it comes to disparate impact theory."
U.S. Circuit Judges Edith H. Jones, Catharina Haynes and James Ho sat on the panel for the Fifth Circuit.
Counsel for the parties did not respond to requests for comment.
Rollerson is represented by Amy Catherine Dinn of Lone Star Legal Aid and Colin Scott Cox of the Environmental Integrity Project.
Port Freeport is represented by Barry Abrams of Blank Rome LLP.
The Army Corps is represented by Jimmy Anthony Rodriguez of the U.S. Attorney's Office for the Southern District of Texas.
The case is Rollerson v. Brazos River, case number 20-40027, in the U.S. Court of Appeals for the Fifth Circuit.
--Editing by Tim Ruel.
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