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,3 the Court, in a case involving §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.”4 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 of Alexander v. Sandoval.5

‘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 §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 §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 §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 Antonin Scalia writing for a majority that included Justices William Rehnquist, Sandra Day O’Connor, Anthony Kennedy and Clarence Thomas.

On the first issue of whether private litigants could sue under §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 §602′s disparate-impact regulations were valid notwithstanding §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 §602 itself did not create any such right. This was not surprising, given that §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 §601 was limited to intentional discrimination and because §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 §1983 to enforce Title VI’s disparate-impact regulations.6 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 §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 §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 §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, Mr. Obama will have another opportunity to sign a bill restoring important discrimination protections that have fallen victim to the Supreme Court.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

Endnotes:

1. 463 U.S. 582 (1983).

2. 414 U.S. 563 (1974).

3. 469 U.S. 287, 294 (1985).

4. See Seif v. Chester Residents Concerned for Quality Living, 66 U.S.L.W. 3693 (4/21/98), cert. granted, 66 U.S.L.W. 3781 (June 9, 1998).

5. 532 U.S. 275 (2001).

6. See Wilson v. Collins, 517 F.3d 421 (6th Cir. 2008); Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003); South Camden Citizen’s Action v. New Jersey Department of Environmental Protection, 274 F.3d 771 (3rd Cir. 2001).