By Christopher Dunn — With the arrival of the administration of President Barack Obama, civil-rights advocates have high hopes for a new era of civil-rights advocacy and protections. The president bolstered those hopes with his signing last month of legislation negating a 2007 United States Supreme Court decision that seriously undermined sex-discrimination protections in Title VII of the Civil Rights Act of 1964.
Important as that step was, it was just the first “fix” of many being considered to address Supreme Court decisions that have seriously damaged the Civil Rights Act. Of particular significance is possible legislative restoration of essential protections against race discrimination that the Court eviscerated in 2001. The rise and fall of these historic protections in the Supreme Court, beyond illustrating the Court’s central role in civil rights, provide a roadmap for appropriate legislative reform.
An Overview of “Title VI”
Included in the Civil Rights Act of 1964 was a Title VI, which addressed racial discrimination. Specifically, it provided that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Given the vast number of state, municipal, and local entities as well as private institutions that receive financial assistance from the federal government, Title VI’s statutory prohibition provides far-reaching protections against racial discrimination.
In its 1983 decision in Guardians Association v. Civil Service Commission, however, the court ruled that this prohibition, which is found in section 601 of the statute, reached only intentional racial discrimination. Because so much of the intentional discrimination that existed when the Civil Rights Act was enacted in 1964 had been eradicated by the time the court decided Guardians Association, this ruling threatened to substantially undermine the vitality of the statute by preventing it from reaching less explicit forms of racial discrimination that were becoming far more common.
Nonetheless, the statute remained important because it was extended to federal-fund recipients that, even without a showing of intent, took actions that had a disparate impact on minorities. This considerable extension was based on section 602 of the statute, which authorizes federal agencies to promulgate regulations implementing section 601. And pursuant to section 602, every federal department and over two dozen federal agencies have promulgated regulations specifying that recipients of federal funds cannot use “criteria or methods of administration which have the effect of subjecting individuals to discrimination.”
Under these so-called “disparate-impact” regulations, a federal-funds recipients’ policy or practice, even though race-neutral on its face, may violate Title VI if it imposes a disparate impact on minorities that cannot be legally justified. Title VI disparate-impact regulations have been used to challenge a wide array of policies and practices, including (to name just a very few) procedures used to hire, evaluate, and promote government employees; admissions and testing procedures employed by schools; procedures used in conjunction with public contracts; and policies governing access to housing.
Private Suits Under Title VI
Conspicuously absent from Title VI is any language that deals with the issue of whether private parties can bring lawsuits to challenge discriminatory practices by recipients of federal funds. In the absence of such lawsuits, enforcement of the statute would be left to the federal government, which could cut off or seek to recoup its funds as a sanction.
As early as 1974, however, the Supreme Court recognized that private suits were available. In Lau v. Nichols, a class of non-English-speaking Chinese students challenged the San Francisco school district’s failure to provide services that would compensate for the students’ language deficiencies and alleged violations of the equal protection clause and of Title VI. The district court had dismissed the claim, and the Ninth Circuit had affirmed, but the Supreme Court reversed.
The court addressed only the Title VI claim and in doing so relied expressly on the impact regulation then in effect, quoting the mandate that no recipient “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination.” The court then held that the defendants’ failure to provide the language services at issue violated the Title VI regulations:
It seems obvious that the Chinese-speaking minority receives fewer benefits than the English-speaking majority from respondent’s schools system, which denies them a meaningful opportunity to participate in the educational program – all earmarks of the discrimination banned by the regulations.
Nine years later came Guardians’ Association, which involved a challenge to written examinations administered by New York City to make entry-level appointments to the police department. While ruling there that the statute’s non-discrimination provision was limited to intentional discrimination, the court seemed to endorse a private cause of action for violations of that impact regulations. And shortly thereafter, in Alexander v. Choate, the court, in a case involving section 504 of the Rehabilitation Act, observed that Guardians’ Association “suggests that the regulations implementing § 504 ... could make actionable the disparate impact challenged in this case.” Consistent with these rulings, nine of the federal Courts of Appeals had endorsed the availability of a cause of action for private litigants seeking to remedy violations of Title VI’s impact regulations.
Given the Supreme Court’s consistent – though hardly definitive –treatment of Title VI, it was a surprise in 1998 when the court granted a writ of certiorari in a case from the Third Circuit (involving a disparate-impact claim under regulations promulgated by the Environmental Protection Agency) in which the question presented was whether Congress intended “to create a private cause of action in federal court ... under section 602 of Title VI of the Civil Rights Act of 1964, simply by alleging discriminatory effect of the administration of programs and activities of federally funded state and local agency.” The case became moot, however, and the appeal was dismissed (though in doing so the Supreme Court vacated the Third Circuit’s lengthy opinion holding that such a cause of action did exist).
It did not take long, however, for the court, which was growing increasingly conservative, to find another opportunity to revisit the enforceability of Title VI. And that opportunity presented itself three years later in the form Sandoval v. Alexander.
Sandovol and Its Aftermath
At issue in Alexander v. Sandoval was a policy, spurred by a 1990 amendment to the Alabama Constitution making English the state’s official language, that required applicants for drivers licenses to pass examinations administered only in English. Perhaps sensing a willingness by the Supreme Court to revisit basic principles of Title VI, Alabama advanced three fundamental challenges. First, the state argued that no private cause of action existed to remedy even acts of intentional discrimination prohibited by section 601 of Title VI. Second, it contended that, even if such a private right of action did exist, it did not extend to impact regulations promulgated by federal agencies pursuant to section 602. Finally, Alabama argued that Title VI disparate-impact regulations, regardless of the availability of a private cause of action, were invalid because they extended beyond the intentional-discrimination prohibition contained in section 601 and therefore could not be said to reflect the intent of Congress when it enacted Title VI.
The court split 5-4, with Justice Scalia writing for a majority that included justices Rehnquist, O’Connor, Kennedy and Thomas. On the first issue of whether private litigants could sue under section 601 to challenge intentional discrimination, the court squarely rejected the state’s position: “It is beyond dispute that private individuals may sue to enforce § 601.” And with respect to the last issue about whether section 602's disparate-impact regulations were valid notwithstanding section 601 being limited to intentional discrimination, the court only assumed they were “for purposes of deciding this case” because the state had not properly challenged their validity.
That left to be decided the issue of whether a private right of action existed to enforce the impact regulations. More specifically, the question was whether, since Title VI did not by its terms authorize private lawsuits, an “implied” right of action existed to enforce the disparate impact regulation.
Employing an analysis that purported to be guided by Congressional intent, the court readily concluded that Congress did not intend to create an implied right of action to enforce the Title VI’s disparate-impact regulations. As an initial matter, it held that section 602 itself did not create any such right. This was not surprising, given that section 602 purported to do nothing more than to authorize federal agencies to issue regulations.
More significantly, the Court rejected the more fundamental proposition that the regulations created enforceable rights, concluding that this argument “skips an analytical step.” According to the court:
Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice but not the sorcerer himself.
Because section 601 was limited to intentional discrimination and because section 602 created no enforceable rights, argued the court, there was no connection between the disparate-impact regulations and any Congressionally-created enforceable right. Thus, the disparate-impact regulations were rendered unenforceable through an implied right of action.
Sandoval did not necessarily mark the death knell of Title VI disparate-impact litigation because, as the dissent pointed out, private parties might still be able to resort to suing under 42 U.S.C. § 1983, which the court in 1980 had held creates an express cause of action to enforce certain rights contained in federal statutes and the Constitution. The three Courts of Appeals that have addressed the issue since Sandoval, however, all have held that no cause of action is available even under section 1983 to enforce Title VI’s disparate-impact regulations. In doing so, the lower courts have relied on the Sandoval analysis to conclude that the regulations themselves simply contain no enforceable rights and therefore have nothing that can be enforced through section 1983. And thus ended private litigation seeking to remedy a wide range of racially discriminatory practices.
A Legislative Fix
Last April, identical bills were introduced in the House of Representative and in the Senate that would restore the enforceability of Title VI’s disparate-impact regulations. In light of the Supreme Court’s interpretation of Title VI in Sandoval, which effectively precluded any notion of enforceable disparate-impact regulations, the proposed legislation simply dispenses with a regulatory approach to racially disparate impact practices. Rather, it amends section 601 – the section that expressly bars intentional discrimination – to add a new subsection that would also bar any practice “that causes a disparate impact on the basis of race, color, or national origin.” It also would amend section 602 to expressly state that private individuals could bring lawsuits to remedy violations under Title VI, including the new disparate-impact provision.
These bills expired with the end of the last Congress but are likely to be reintroduced this coming summer. If civil-rights advocates have their way, President Obama will have another opportunity to sign a bill restoring important discrimination protections that have fallen victim to the Supreme Court.