Guardians Ass'n of New York City Police Department, Inc. v. Civil Service Commission of New York

COFFRIN, District Judge

(concurring):

1 join Judge Meskill’s opinion in all respects except that I would reverse on the Title VI issue for different reasons. I disagree with his conclusions that Title VI does not permit a private action for compensatory relief and that the issue may be resolved on that ground alone. I would reverse as to the relief ordered below pursuant to Title VI because, as the district court found, there is no evidence of discriminatory intent in this case.

In reaching his conclusion concerning the availability of private actions under Title VI Judge Meskill relies upon Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11 , 100 S.Ct. 242 , 62 L.Ed.2d 146 (1979). That decision holds that the necessarily implicit private right to an equitable remedy of rescission under section 215 of the Investment Advisors Act of 1940, 15 U.S.C. §§ 80b-l to 80b-21, is exclusive and no private right to a legal remedy for damages exists under section 206 of that Act. The Supreme Court reached this conclusion *273 by a careful analysis of the statutory scheme and its language and found in section 215 an express intent that certain contracts be void. They reasoned therefrom that the customary legal remedies for voidness, including rescission, must be available to the contracting parties. By contrast section 206 merely declares certain conduct to be unlawful without thereby necessarily creating a private cause of action for damages.

Transamerica does provide ample authority for the proposition that a statutory scheme may distinguish and limit the remedies available in an implied private right of action. In the instant case, however, a true distinction between types of relief is not drawn by Judge Meskill. Rather, without finding that noncompensatory relief is available privately under Title VI, he simply would hold that compensatory relief is not. To the extent that a distinction may be inferred from this approach Judge Mes-kill does not find it in the language of Title VI but rather in the treatment of that Title by the federal judiciary, despite his stated purpose of discerning the intent of Congress as the Supreme Court did in Trans-america. Regardless of the approach I do not believe this case demands an attempt to distinguish between the remedies available under Title VI as the language of the Investment Advisors Act demanded the Supreme Court’s distinction in Transamerica.

Section 601 of the Civil Rights Act, unlike section 206 of the Investment Advisors Act and contrary to Judge Meskill’s characterization, is not cast in the prohibitory language of a penal statute. It does not forbid discrimination by recipients of federal funds, it provides simply that persons shall not be excluded from the benefit of those funds because of race, color or national origin. Its language is not directed to a violator’s conduct, it is directed to the victims’ rights. Section 602, moreover, does not provide such victims a remedy of any sort, even indirectly. 1 It provides the executive branch with an enforcement mechanism and sanction power the existence of which would be questionable in the absence of express language. NAACP v. Medical Center, Inc., 599 F.2d 1247 , 1255 (3d Cir. 1979). The Title VI language does not compel Judge Meskill’s distinction between kinds of remedies. If section 601 does not imply a private right to compensatory relief it would be because it implies no private right to any type of remedy rather than because it requires distinct treatment of compensatory relief.

In contrast to its treatment of the Mortgage Advisors Act in Transamerica, the Supreme Court has examined Title VI without even hinting that private rights of action thereunder would depend for their existence on distinctions among the remedies sought. In Cannon v. University of Chicago, 441 U.S. 677 , 99 S.Ct. 1946 , 60 L.Ed.2d 560 (1979), the Court analyzed Title IX of the Education Amendments of 1972 by comparing it with the virtually identical language of Title VI of the Civil Rights Act. The unmistakable import of the finding of a private right of action unlimited as to remedy under Title IX is that the same conclusion would be reached if the issue of the existence of a private right under Title VI were presented. Significantly the Court did not distinguish among the kinds of remedies sought or available under Title IX, saying simply that “petitioner may maintain her lawsuit.” Id. at 717 , 99 S.Ct. at 1968 . The petitioner’s action sought declaratory, injunctive and monetary relief in the district court; that court indicated in its Opinion that monetary relief would be inappropriate. Cannon v. University of Chicago, 406 F.Supp. 1257, 1259 (N.D.Ill.1976). The Seventh Circuit affirmed without com *274 ment on the district court’s distinction among the remedies sought. Cannon v. University of Chicago, 559 F.2d 1063 (7th Cir. 1976).

I am persuaded by Cannon and Regents of the University of California v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978), that a private right of action exists under Title VI irrespective of the compensatory effect of the relief sought or granted. Transamerica concerns a statute wholly different from Title VI in content and philosophical purpose, and the distinction it draws among privately available remedies along legal and equitable lines simply does not support Judge Meskill’s distinction in the present case along compensatory and noncompensatory lines; Transamerica fails to persuade me as it does him.

The foregoing leads me to disagree with Judge Meskill’s legal conclusion about the privately available remedies under Title VI. In addition I am unconvinced that that conclusion, if correct as a matter of law, disposes entirely of the Title VI issues this case presents. Judge Meskill would hold that compensatory relief is not privately available under Title VI, but he does not specify the details of Judge Carter’s ten page Order that this holding would affect. He concedes in footnote 43 that the Order includes noncompensatory elements and observes that two of these elements are incidentally available to the entire class under Title VII, making the issue of their availability under Title VI unnecessary to decide. His analysis, however, fails to consider the noncompensatory relief in Judge Carter’s Order that may not incidentally benefit the entire class under Title VII. Judge Meskill apparently would leave to the district court on remand the task of sorting through the Order and determining the disposition of its elements according to their compensatory character. Because reasonable minds might disagree on the characterization of given elements of the Order, 2 it is conceivable if not inevitable that the district court on remand will identify elements as to the disposition of which the court would have been given no guidance. Moreover, Judge Meskill’s approach apparently would open the door to needless litigation and appeal in this case and others of questions about the compensatory character of particular remedies. 3

Notwithstanding my difficulties with Judge Meskill’s approach, I concur in his reversal of the Title VI component of Judge Carter’s Order because, as stated earlier, I believe Title VI requires proof of discriminatory intent. Inasmuch as the evidence in this case supports only a finding of discriminatory impact I too would reverse.

Judge Carter’s holding that the substantive standard for illegal employment discrimination under Title VI is the “impact” standard of Title VII rather than the “intent” standard of the Constitution, Guardians Association v. Civil Service Commission, 466 F.Supp. 1273, 1287 (S.D.N.Y.1979), appears to be contradicted by Bakke . Justice Powell concluded that “Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.” Bakke, 438 U.S. at 287 , 98 S.Ct. at 2747 . Justices Brennan, White, Marshall and Blackmun agreed with that assessment in unequivocal language. Id. at 325, 328 , 98 S.Ct. at 2768 . Justice Brennan, speaking for himself and the other three Justices stated: “In our view, Title VI prohibits *275 only those uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies.” Id. at 328 , 98 S.Ct. at 2768 . A majority of the Court thus seems to take the position that conduct is not actionable under Title VI unless it is actionable under the Constitution, which under its current construction imposes an “intent” standard. Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976).

Although Lau v. Nichols, 414 U.S. 563 , 94 S.Ct. 786 , 39 L.Ed.2d 1 (1974), may be read for the contrary proposition, as indeed Judge Carter read it, Guardians, 466 F.Supp. at 1285 , Bakke appears to undercut Lau’s currency.

We recognize that Lau . . may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion . that Title Vi’s standard . is no broader than the Constitution’s, we have serious doubts concerning the correctness of what appears to be the premise of that decision.

Bakke, 438 U.S. at 352 , 98 S.Ct. at 2780 (Brennan, J., White, Marshall and Black-mun, JJ., concurring).

Such a construction of Title VI leads to the unhappy anomaly that there would be a more stringent standard for proving illegal discrimination by employers utilizing federal funds than there would be for nonfederally-funded employers under Title VII. Nevertheless the language of Bakke seems to compel this result. 4

Judge Carter found that there was no intentional discrimination in this case, Guardians, 466 F.Supp. at 1275 , which leads to the conclusion that, under the analysis outlined above, appellants’ conduct is not actionable under Title VI. It is for this reason that I would reverse.

. It would seem to go without saying that one does not remedy a deprivation by terminating entirely the source of the benefit deprived. This is the only “remedy” Judge Meskill identifies.

. Although Judge Meskill apparently would characterize constructive seniority as compensatory relief, text accompanying notes 43 & 44 supra, this remedy seems to meet Judge Mes-kill’s definition of noncompensatory relief, note 43 supra, because it corrects a present wrong. This court should not view such a remedy as retrospective compensation for past harm simply because the judicial process takes time.

. It seems almost inevitable that whatever the district court would do on remand would return to this court on appeal-the issue being whether the district court correctly identified the compensatory and therefore unavailable remedies granted under Title VI.

. Although I reach this conclusion I am aware of a possible analysis that employs Lau and arrives at a different result. Since Lau is based on a specific HEW regulation rather than the general language of Title VI, Lau may be read for the proposition that Title VI permits agencies that administer Title VI funds to impose an impact standard in their regulations although Title VI does not itself require such a standard. See Lau, 414 U.S. at 569 , 94 S.Ct. at 789 ; id. at 571 , 94 S.Ct. at 790 (Stewart, J., concurring). Board of Education v. Califano, 584 F.2d 576 (2d Cir. 1978) approved such an analysis, id. at 588-89 & n. 38, and a different panel of this court later observed that Bakke did not expressly overrule Lau. Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 716 (2d Cir. 1979); accord, Lora v. Board of Education, 623 F.2d 248 at 252 (1980) (Oakes, J., concurring). This analysis, however, fails to convince me that we should affirm Judge Carter on the Title VI issue.