No Private Right to Enforce Title VI Disparate Impact Regulation: Alexander v. Sandoval
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Note: A previous version of this article contained an error in the WestLaw citation. The correct citation for Sandoval is 2001 WL 408983.
The majority and dissenting opinions debate, in none too polite a fashion, the meaning of applicable Supreme Court decisions and the structure of the Title VI statute. The underlying conflict, however, is between the view of the dissent (which was the majority view at the time Title VI was adopted), that courts should “provide such remedies as are necessary to make effective the congressional purpose,” J.I. Case Co. v. Borak 377 U.S. 426, 433 (1964), and a more restrictive, but unarticulated approach to implying a private right of action adopted by the majority. Exactly how specific the intent is required to create a private right of action was left for another day. Slip opinion of the Court at 17.
Section 601 of Title VI, 42 U.S.C.§ 2000d, prohibits recipients of federal funds from discriminating based on race, color or national origin. Section 602, 42 U.S.C. § 2000d-1 authorizes regulations “to effectuate the provisions of [section 601].” One such regulation bars “methods of administration which have the effect of subjecting individuals to discrimination…” 28 C.F.R. § 42.104(b)(2). This regulation is one that applies the disparate impact test, which determines whether facially neutral rules have a discriminatory effect. Such discrimination is barred regardless of whether the discriminatory effect is intentional.
Plaintiff Sandoval sued the Director of the Alabama Department of Public Safety to enjoin a practice of administering driver’s license tests only in English. Among other things, Alabama did not require any written test for illiterate English speakers. Sandoval asserted a violation of the Title VI disparate impact regulations.
The majority of the Court held that Congress did not intend to create a private right of action to enforce the disparate impact regulations. The majority acknowledged that the Court had recognized a private right of action to enforce Section 601, but Section 601 applies only to intentional discrimination. The majority could find nothing in its prior decisions to support a private right of action to enforce the disparate impact regulations, although it agreed that regulations that bar intentional discrimination can be the subject of a private action. Prior cases, it asserted, that uphold a private right of action under Title VI and comparable statutes, were intentional discrimination cases.
The majority finds disparate impact regulations cannot apply under Section 601 because they prohibit conduct permitted by 601. Section 602 also focuses on the party to be regulated, the recipient of funds, rather than the persons to benefit from the regulations; it therefore carries no implication of a Congressional intent “to confer rights on a particular class of persons.”
The dissent challenges every assertion by the majority. It particularly relies on Congress’ understanding at the time Title VI was enacted that there would be a remedy to enforce a federal right and subsequent Congressional legislation applicable to Title VI that specifically recognized private rights of action by waiving state sovereign immunity. See 42 U.S.C. § 200d-7.
IMPLICATIONS OF THE DECISION
The full implications of the decision remain to be seen. The case has broader impact than the recent sovereign immunity decisions of the Court because the holding of no private right of action to enforce the Title VI disparate impact regulations applies to all public and private recipients of federal funds, not just states. The dissent asserts that the disparate impact regulations can still be enforced under 42 U.S.C. § 1983 against governmental officials and others acting under color of state law, but one may wonder whether the majority or the more conservative Courts of Appeals would allow such suits in light of the Sandoval holding. In Suter v. Artist M., 112 S.Ct. 1360 (1992), the Court treated the issue of Congressional intent to create enforceable rights under Section 1983 in much the same fashion as it treated intent to create a private right of action under the same statute. Allowing a 1983 remedy would result in the anomaly that Title VI disparate impact regulations were enforceable against governmental defendants but not against private parties.
More useful perhaps may be the statement of the dissent in fn. 13 that facially neutral actions that have a disparate impact may be evidence of intentional discrimination and hence would be actionable under the majority’s recognition of a private right of action alleging intentional discrimination. Indeed, it might have been possible to frame Sandoval’s claim as one of intentional discrimination against persons of national origin in non-English speaking countries.
On the other hand, the majority opinion has some seeds of even more restrictive applications of what it has begun in Sandoval. Although the majority accepts for the purposes of the case that the disparate impact regulations are authorized by Section 602, it suggests some reservations on the subject. Slip op. at 5. The majority also seems to invite in a future case an argument that the test for private causes of action against States “and perhaps nonfederal state actors generally” must meet a “clear statement rule,” slip. op. at 17, a result which would apply to a wide variety of federal statutes and could be applied to Section 1983 claims as well.
The majority also raises the specter that the provisions for cut off of federal funds for violation of the disparate impact regulations, if valid, may evidence an intent to preclude a private right of action. This suggestion is wholly inconsistent with allowing private suits for intentional discrimination, which is also a reason for a funding termination. and a comparable argument was rejected many years ago in Rosado v. Wyman, 397 U.S. 397 (1970).
Of particular concern is the application of the Sandoval decision to cases to enforce the disparate impact regulations under such statutes as Section 504 of the Rehabilitation Act of 1974, 28 U.S.C. § 794, Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq, and the Education Amendments of 1972 barring gender discrimination in education, 20 U.S.C. § 1681 et seq., all of which have remedial provisions which refer to Title VI or are comparable to it. Each statute must be analyzed separately in the context of private right of action. For example, the Supreme Court has assumed without deciding that Section 504 covers disparate impact discrimination, 469 U.S. 287 (1985). Disparate impact regulations could thus be enforced under the statutory provision much the same as intentional discrimination regulations under Title VI. Similarly, ADA Title II expressly requires its regulations be consistent with the 504 regulations. 42 U.S.C. § 12134(b). In addition, there is substantial legislative history in support of the position that Title II bars disparate impact discrimination (see memorandum in NSCLC's Federal Rights Project section).