Excerpted from: Christopher Dunn, Time to Fix Civil Rights Act of 1964 Race Discrimination Protections,
2/24/2009 New York Law Journal 3 (col 1) (6 footnotes omitted).
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 U.S. Supreme Court decision
that seriously undermined sex-discrimination protections in Title VII of the Civil Rights Act of
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
Overview of 'Title VI'
Included in the Civil Rights Act of 1964 was a Title VI, which addressed racial discrimination
by entities receiving federal funds. 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 §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
Nonetheless, the statute remained important because it was extended to federal-funds recipients
that, even without a showing of intent, took actions that had a disparate impact on minorities.
This considerable extension was based on §602 of the statute, which authorizes federal agencies
to promulgate regulations implementing §601. And pursuant to §602, every federal department
and more than 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 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.
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
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
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 §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
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 of Alexander v. Sandoval.
'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
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
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. 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
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
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.