Amicus Curiae Brief — Alexander v. Sandoval
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DEC (2 26ee
No. 99-1908
IN THE
Supreme Court of the Gnited States
JAMES ALEXANDER, in his official capacity as the
Director of the Alabama Department of Public Safety, and the
ALABAMA DEPARTMENT OF PUBLIC SAFETY,
Petitioners,
V
MARTHA SANDOVAL, /ndividually and on
Behalf of All Others Similarly Situated,
Respondents.
On Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit
BRIEF FOR NATIONAL WOMEN’S LAW CENTER,
AMERICAN ASSOCIATION OF UNIVERSITY
WOMEN, AMERICAN JEWISH COMMITTEE, et al.,
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
(Additional Amici Listed Inside)
MARCIA D. GREENBERGER GEORGE W. JONES, JR.*
VERNA L. WILLIAMS JACQUELINE G. COOPER
LESLIE T. ANNEXSTEIN SIDLEY & AUSTIN
NATIONAL WOMEN’S LAW 1722 Eye St, N.|W
CENTER Washington, D.C 20006
11 Dupont Circle, N.W., (202) 736-8000
Suite 800
Washington, D.C. 20036
(202) 588-5180
Counsel for Amici
December 13, 2000 * Counsel of Record
WiLSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20001
QUESTION PRESENTED
Whether disparate impact regulations adopted by federal
agencies to effectuate Title VI of the Civil Rights Act of 1964
are enforceable by private litigants in actions for declaratory
and injunctive relief?
(i)
ii
ADDITIONAL AMICI
Anti-Defamation League
Connecticut Women’s Education And Legal Fund, Inc.
Council Of The Great City Schools
Girls Incorporated
National Organization For Women Foundation
National Partnership For Women & Families
Now Legal Defense And Education Fund
Title IX Advocacy Project
Trial Lawyers For Public Justice, P.C.
Women Employed
Women’s Law Project
Women’s Sports Foundation
TABLE OF CONTENTS
Pye |)
a iinnenne
B. PROCEEDINGS BELOW. 2...
SUMMARY OF ARGUMENT .......... a ashidenanineeiin a
1. THE PRIVATE RIGHT OF ACTION TO
ENFORCE TITLE VI OF THE CIVIL RIGHTS
ACT OF 1964 AND THE DISPARATE
IMPACT REGULATIONS ARE WELL-
ESTABLISHED ELEMENTS OF _ THE
FEDERAL CIVIL RIGHTS ENFORCEMENT
EE LE
A. The Private Right Of Action To Enforce Title
VI Against D oth Public And Private Recipients
Of Federal Financial Assistance Is Well-
i csovcsncccncnens
B. The Disparate Impact Regulations Are Valid
And Well-Established......00.00.00ooooooon.
Il. THE DISPARATE IMPACT REGULATIONS
CAN BE ENFORCED IN A PRIVATE RIGHT
OF ACTION FOR EQUITABLE RELIEF. ........
(iii)
10
10
10
14
IV
TABLE OF CONTENTS—continued
Page
Ill. FULL PRIVATE ENFORCEMENT OF THE
CIVIL RIGHTS LAWS IS ESSENTIAL TO
PROVIDE EQUAL OPPORTUNITY. ................ 26
SEI ccencesncecsssesnccsosensseresvbiunpanncaanenvensnonsiionts 29
APPENDIX A... aelesahes la
Fe tacctvcctetrinnstnnnesecsenmemmesinamepinnndusiniale 8a
Vv
TABLE OF AUTHORITIES
Page
CASES
Alexander v. Choate, 469 U.S. 287 (1985)....4, 5, 15, 19
Batterton v. Francis, 432 U.S. 416 (1977) ............ 15
Blessing v. Freestone, 520 U.S. 329 (1997) ... 14, 22, 23
Boulahanis v. Bd. of Regents, 198 F.3d 633 (7th
Cir. 1999), cert. denied, 120 S. Ct. 2762 ;
ES ee an ee a eee One To 25
Bryan v. Koch, 627 F.2d 612 (2d Cir. 1980)... 12, 18, 25
Buchanan v. City of Bolivar, 99 F.3d 1352 (6th
SI TIIUTTIsentcnscaiicenieididemnineniaiientmtenstinniinidieiiiadbeniaiiatias 12, 25
Burton v. City of Belle Glade, 178 F.3d 1175
RE rete ern a 25
Cannon v. Univ. of Chicago, 441 US. 677
REE ee SNE eee nee eee passim
Castaneda v. Pickard, 781 F.2d 456 (Sth Cir.
i i cas al oa ae 25
Cent. Bank v. First Interstate Bank, 511 U.S. 164
EEE EES easeeioneatentrorancomeee 21
Chrysler Corp v. Brown, 441 U.S. 281 (1979) ...... 15
Cureton v. NCAA, 37 F. Supp. 2d 687 (E.D. Pa.),
rev'd on jurisdictional grounds, 198 F.3d 107
I er eae 28
David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988)... 25
In re Employment Discrimination Litig. Against
the State of Ala., 198 F.3d 1305 (11th Cir.
LAL TAA EIT 17
Ernst & Ernst v. Hochfelder, 425 US. 185
ae 21
Ferguson v. City of Charleston, 186 F.3d 469 (4th
Cir. 1999), cert. granted, 120 S. Ct. 1239
REESE es oe a ee 25
Franklin vy. Gwinnett County Pub. Sch., 503 U.S.
i 12, 13
vi
TABLE OF AUTHORITIES—continued
Page
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
IIIT insssicsinasabeeniiceniibcchsiitidenanidasiniaiiten 9, 16, 20, 25, 26
Georgia State Conference of Branches of NAACP
v. Georgia, 775 F.2d 1403 (11th Cir. 1985)....... 25
Grove City Coll. v. Bell, 465 U.S. 555 (1984)....... 19
Guardians Ass'n vy. Civil Serv. Comm'n, 463 U.S.
ere: errr nan passim
Indianapolis Minority Contractors Ass'n v. Wiley,
187 F.3d 743 (7th Cir. 1999) .......................02.. 25
Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984) ..... 25
Latinos Unidos de Chelsea en Accion (LUCHA)
v. Sec'y of Hous. & Urban Dev., 799 F.2d 774
EE See eo On ER 25
Lau v. Nichols, 414 U.S. 563 (1974) ..00000. 4, 25
Middlesex County Sewerage Auth. v. Nat'l Sea
Clammers Ass'n, 453 U.S. 1 (1981).......... edie 23
New York Urban League, Inc. vy. New York, 7\
F.3d 1031 (2d Cir. 1995S)...........000. ee. 12, 18, 26
North Haven Bd. of Educ. v. Bell, 456 U.S. 512
Cece eeenres ee nese 19, 20, 25
Pennhurst State Sch. & Hosp. v. Halderman, 451
Se riaiiiacaicieai bless iastsinlaeaailiensclinse 9, 25
Powell v. Ridge, 189 F.3d 387 (3rd Cir. 1999)... 25
Quarles v. Oxford Mun. Separate Sch. Dist., 868
PE EY ER aneeceenecnnsinpeniacennennninenane 25
Regents of the Univ. of Cal. v. Bakke, 438 US.
I canal tai acadaadieaatiaianctael 23, 24, 25
Sharif v. New York State Educ. Dep't, 709 F.
Supp. 345 (S.D.N_Y. 1989)... 28
Smith v. Robinson, 468 U.S. 992 (1984)....000000...... 22
Square D Co. v. Niagara Frontier Tariff Bureau,
Inc., 476 U.S. 409 (1986) .................0 eee. 20
Suter v. Artist M, 503 U.S. 347 (1992).................. 22
United States v. O'Hagan, 521 U.S. 642 (1997)... 15, 21
vil
TABLE OF AUTHORITIES—continued
Page
United States vy. LULAC, 793 F.2d 636 (Sth Cir.
Sirti cineca dint dieddenihlinelieiteateinseaatae 12, 25
Washington v. Davis, 426 U.S. 229 (1976) ........... 17
Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498
ERT SCH ENe ne eon Me eee eee ae 22, 23
Wright v. City of Roanoke Redev. & Hous. Auth.,
eve 22, 23
STATUTES AND REGULATIONS
Civil Rights Restoration Act of 1987, Pub. L.
i Te 14
20 U.S.C. § 1617 (repealed 1979) 00... 13
een 2
Se ee 2,7
REE ne ae ae eR 13
Sr ee re ee 10
EIST PARTE 3
a EER ee eee 15
EEE SEE ENON Ae er eon are 12
RE AR aces ven nat nenrOUS Ir 27
ha adidas da iacal aaa 27
Tae ee ae 27
| ESTE Sen ne me 27
| SE aS eE ae ee aoe 27
40 Fed. Reg. 24128 (June 4, 1975)... 19
LEGISLATIVE HISTORY
Civil Rights Act of 1984: Hearings on S. 2568
Before the Subcomm. on the Const. of the
Senate Comm. on the Judiciary, 98th Cong.
EASELS SEM ASME Ree ee 20, 24
vill
TABLE OF AUTHORITIES—continued
Page
Civil Rights Restoration Act of 1985: Joint
Hearings on H.R. 700 Before the House Comm.
on Educ. & Labor and the Subcomm. on Civil
& Const. Rights of the House Comm. on the
Judiciary, 99th Cong. (1985) ooo... ee, 24
S. Rep. No. 94-1011 (1976) ooo... 14
H.R. Rep. No. 98-829, pt. 1 (1984) 00, 14, 20
130 Cong. Rec. 27935 (1984) (Sen. Kennedy) ...... 20
134 Cong. Rec. 42567 (1988) (Sen. Hatch)........... 25
OTHER AUTHORITIES
Nat’! Advisory Council on Women’s Educ.
Programs, Jitle 1X: The Half Full, Half Empty
SE I oi cncndatinsinsibiandiiniedianan a 28
Nat’! Coalition for Women and Girls in Educ.,
Title IX at 25: Report Card on Gender Equity
| TELE SG Nene ee A ne ery SARA 28, 29
INTEREST OF THE AMICI CURIAE'
Amici curiae are organizations committed to the
elimination of discrimination on the basis of gender, race, or
national origin through effective enforcement of the civil
rights laws. Amici submit this brief to address the important
issue of whether disparate impact regulations adopted to
effectuate Title VI of the Civil Rights Act of 1964 are
privately enforceable in actions for declaratory and injunctive
relief. Descriptions of amici and their membership are set
forth in Appendix A.
STATEMENT
A. FACTUAL BACKGROUND.
Until 1991, Alabama — like almost every other State -
administered the written portion of its driver’s license exam
in several foreign languages. During this time, as officials of
the Alabama Department of Public Safety (“the Department”)
testified, the Department did not experience any significant
problems in administering the foreign language examinations,
either in terms of the costs of doing so or the integrity of the
exam process. Pet. App. 168a. Translations of the exami-
nation into foreign languages were produced at no cost to the
Department, and the Department undertook to develop new
foreign language examinations if the demand was great
enough. /d. Nor was there any evidence that non-English
speaking drivers in Alabama posed a greater safety risk than
English-speaking drivers. /d. at 168a-169a.
' No counsel for any party authored this brief either in whole or in part,
and no persons other than the amici curiae and their counsel made any
monetary contribution to its preparation or submission. The parties’
written consents to the filing of this brief have been filed with the Clerk of
the Court.
2
This long-standing practice abruptly ended following the
ratification in 1990 of Amendment 509 to the Alabama
Constitution, which establishes English as the official lan-
guage of the State and requires officials of the State to “take
all steps necessary to insure that the role of English as the
common language of the state of Alabama is preserved and
enhanced.” Pursuant to Amendment 509, the Department
adopted an English-only policy with respect to the driver’s
licensing process, requiring all phases of the process,
including the written exam, to be conducted in English. Non-
English speaking applicants taking the exam are not allowed
to use translators, translation dictionaries, or other interpretive
aids. Pet. App. 170a-171a.
At the same time that Alabama requires non-English
speaking applicants to take the written exam in English, it
“render[s] substantial aid, and provide[s] substantial assis-
tance above and beyond the standard examination procedure
for illiterate and handicapped English speaking applicants.”
Pet. App. 175a. For example, the Department administers
oral examinations for illiterate applicants and administers
videotaped sign language examinations for hearing-impaired
applicants. /d at 179a-180a. In addition, Alabama allows
non-English speakers who hold valid driver’s licenses from
other States or foreign countries to either drive in Alabama
with their foreign licenses, or exchange them for Alabama
licenses without taking either the written or performance
exam. /d. at 185a.
B. PROCEEDINGS BELOW.
The instant suit was filed against the Department and its
Director on December 31, 1996 by Martha Sandoval, on her
own behalf and as representative of the class of Alabama
residents who are otherwise qualified to obtain a driver’s
license but cannot do so because they are net sufficiently
fluent in English. The plaintiffs asserted claims under 42
U.S.C. §§ 1981 & 1983, the Equal Protection Clause of the
Fourteenth Amendment, and Title VI of the Civil Rights Act
3
of 1964, 42 U.S.C. §§ 2000d, ef seg., and its implementing
regulations, alleging that the Department’s English-only
policy with respect to the driver’s licensing process violated
their right to be free from discrimination on the basis of
national origin. They sought a judgment declaring the
Department’s policy to be unlawful and unconstitutional and
an injunction prohibiting its enforcement.
After a bench trial, the District Court ruled in plaintiffs’
favor. In addressing various threshold issues, the District
Court rejected defendants’ argument that plaintiffs lacked a
private right of action to enforce Title VI’s disparate impact
regulations. Pet. App. 82a-117a.
On the merits, the District Court held that the Department's
English-only policy had a disparate impact on the basis of
national origin.’ It entered an injunction prohibiting the
Department’s enforcement of the English-only policy pursu-
ant to Title VI and ordered the Department “in conjunction —
with the Plaintiffs, [to] fashion proposed policies and
practices for the accommodation of Alabama’s non-English
speaking residents who seek Alabama driver’s licenses.” Pet.
App. 252a-253a.
The Eleventh Circuit affirmed the District Court’s ruling
that there is an implied private cause of action to enforce
disparate impact regulations promulgated pursuant to Title
VI? The court of appeals noted that it had recognized an
? At trial, the District Court granted the defendants’ motion for
judgment as a matter of law on plaintiffs’ claims of intentional
discrimination “with the full agreement of the Plaintiffs.” Pet. App. 247a.
The District Court also granted defendants’ motion for summary judgment
on plaintiffs’ Section 1981 claims on the ground that they were
duplicative of their Section 1983 claims. Pet. App. Sa-Ga;, buf see
Sandoval Brief in Opposition to Petition for Certiorari at 3 (noting that
district court “ultimately reserved ruling on ... Equal Protection” claim).
* The Eleventh Circuit also rejected the State’s arguments that the
instant lawsuit is barred by the Eleventh Amendment and that the District
4
implied private cause of action to enforce Title VI disparate
impact regulations in three prior cases. Pet. App. 38a-40a. It
further noted that its position was consistent with that of at
least eight other courts of appeals. /d. at 40a-4la. Although
acknowledging that this Court “has yet to squarely answer the
question,” it concluded that a “close reading” of Law v.
Nichols, 414 U.S. 563 (1974), Guardians Association v. Civil
Service Commission of New York, 463 U.S. 582 (1983), and
Alexander vy. Choate, 469 U.S. 287 (1985), “necessarily
establishe[d] several holdings logically supporting an implied
private cause of action under section 602 of Title VI.” Pet.
App. at 42a.
SUMMARY OF ARGUMENT
I.
This Court should reject Petitioners’ invitation to disrupt
settled law in two significant areas of federal civil rights
enforcement. In the 36 years since Title VI of the Civil
Rights Act of 1964 was enacted, both the private right of
action to enforce § 601 of the Act against public as well as
private recipients of federal financial assistance and the
disparate impact regulations adopted to “effectuate” § 601
have become well-established elements of the federal civil
rights enforcement scheme.
Since this Court’s decision in Cannon v. University of
Chicago, 441 U.S. 677 (1979), the availability of a federal
court private right of action to enforce the federal nghts
created by § 601 against both public and private recipients of
federal financial assistance has been firmly established. In
the three decades since Title VI was enacted, Congress
consistently has acted on the premise that a federal court
private right of action to enforce the federal rights created
Court erred in concluding, on the merits, that the State’s English-only
policy for driver’s license exams has a disparate impact on the basis of
national origin. Those rulings are not at issue here.
—_ —_——— _ -
5
under § 601 was available. In enacting Title IX of the
Education Amendments of 1972, Congress acted on the
premise that there was a private right of action under Title VI.
Section 718 of the Education Amendments of 1972, which
authorized federal courts to award attorney’s fees in private
actions against public education agencies “explicitly
presumes the availability of private suits to enforce Title VI in
the education context.” Cannon, 441 US. at 699 & n.26.
The Civil Rights Attorneys Fees Act of 1976 authorizes an
award of attorneys fees to prevailing parties in actions to
enforce Title VI. The Rehabilitation Act Amendments of
1986, which abrogate the States’ Eleventh Amendment
immunity under Title VI and other civil rights statutes,
confirm the availability of a private right of action to enforce
Title VI against State recipients of federal financial
assistance. Finally, throughout the debates on the legislation
that became the Civil Rights Restoration Act of 1987,
Congress confirmed its understanding and acceptance of the
well-established private right of action to enforce Title VI
against recipients of federal financial assistance.
The disparate impact regulations have been a part of the
civil rights enforcement scheme almost from the beginning.
Those regulations are reasonable, properly adopted pursuant
to an express delegation of authority to “effectuate” § 601,
and have the force and effect of law. See Alexander, 469 U.S.
at 293 (explaining the Court’s previous holding that “Title VI
itself directly reached only instances of intentional
discrimination,“ but “actions having an unjustifiable disparate
impact on minorities could be redressed through agency
regulations designed to implement the purposes of Title VI’).
Congress expressly authorized federal agencies to adopt
appropriate regulations to “effectuate” § 601 of Title VI. This
Court has concluded that §601 directly reaches only
intentional discrimination. As a condition of federal financial
assistance, however, the agency disparate impact regulations
impose limited obligations reasonably necessary to effectuate
6
§ 601. Direct proof of intentional discrimination is seldom
available, and the distinction between intentional discrimi-
nation and “disparate impact” is not always clear. A policy or
practice that disproportionately and adversely affects a racial
or ethnic group, adopted with knowledge of its likely
disparate effects, may evidence intentional discrimination.
Absent sufficient justification, knowing adoption of a policy
or practice that produces discriminatory effects might well
support an inference of intentional discrimination.
Given the difficulties of proving intentional discrimination
without direct evidence, there is a risk that some intentional
discrimination will remain concealed. For this reason, it is
reasonable for federal agencies to require recipients of
financial assistance to avoid unjustified practices that have the
effect of discriminating on the basis of race, color, or national
origin. In effect, the regulations require recipients of federal
financial assistance to steer clear of any policy or practice that
approaches intentional discrimination of the sort directly
proscribed by §601 as a condition of receiving federal
financial assistance. No State is required to accept federal
financial assistance. If a State chooses to do so, however, the
disparate impact regulations impose reasonable obligations to
effectuate the requirements of § 601. The regulations create
an appropriate margin of safety to assure that federal tax
dollars are not used to finance programs that effectively
exclude participation on the basis of race, color, or national
origin.
Shortly after Title VI was enacted, the Department of
Justice, which participated in drafting Title VI, also drafted
model regulations reflecting its contemporaneous view of the
conditions appropriate to effectuate §601. The model
regulations incorporated a disparate impact standard. Federal
agencies responsible for administering financial assistance
programs promptly adopted regulations to implement Title VI
based on the model regulations, which incorporated the
disparate impact standard. In the intervening three decades,
j
effectuating regulations adopted throughout the Executive
Branch of the federal government have incorporated the
disparate impact standard. In consideration of federal finan-
cial assistance under a host of programs, public and private
recipients voluntarily have assumed a duty to comply with the
disparate impact regulations by avoiding unnecessary
practices or policies that have the effect of discriminating on
the basis of race, color, or national origin.
For decades, Congress has acquiesced in the disparate
impact regulations adopted to effectuate Title VI as well as
the parallel language of Title IX relating to discrimination on
the basis of sex. In 1975, Congress considered disparate
impact regulations proposed to effectuate Title IX. Pursuant
to a statutorily prescribed “laying before” procedure, the
regulations implementing Title IX were submitted to
Congress for review before they became effective. Congress
permitted the Title IX disparate impact regulations to become
effective without change. Similarly, during consideration of
legislation that became the Civil Rights Restoration Act of
1987, opponents of the legislation argued that broadening the
reach of Title VI and Title IX would have far-reaching
consequences precisely because of the disparate impact
regulations. Yet, Congress took no action to limit the
regulations or disapprove them as inappropriate conditions for
federal financial assistance. )
Disparate impact regulations can be enforced in a private
right of action for equitable relief. The standard for determin-
ing whether federal regulations can be enforced in a private
right of action implied under Title VI should be no more
stringent than that used for determining whether such
regulations can be enforced in an express private right of
action under 42 U.S.C. § 1983.
Whether the private right of action is express, as under
§ 1983, or implied under Title VI, Congress has provided a
8
remedy authorizing a person to seek enforcement of Title VI
rights in & federal court. For that reason, the separation of
powers issues raised by implying a private right of action in
the first instance are not implicated in this case, and there is
no question of jurisdiction or judicial power. Here, the issue
is simply whether the disparate impact regulations can be
enforced in the private right of action that Congress has
authorized.
If the disparate impact regulations create federal rights
enforceable under Title VI, they should be presumptively
enforceable in a private right of action that Congress has
authorized. As in the § 1983 context, therefore, unless there
is some indication that Congress intended to foreclose private
enforcement of the regulations, equitable relief to compel
compliance in an appropriate case should be available.
In determining whether a particular statute or regulation is a
“law” that can be enforced in a § 1983 action, this Court has
identified three relevant considerations: (first, whether the
language of the statute or regulation creates an enforceable
federal right for the benefit of the plaintiff (i.e., whether the
statute or regulation imposes a duty that is not too vague or
amorphous to be enforced by a federal court); second,
whether Congress expressly foreclosed private enforcement,
third, whether private enforcement would be inconsistent with
a comprehensive alternative enforcement scheme established
by Congress.
Applying the § 1983 analytic framework in this analogous
context leads to the straightforward conclusion that the
disparate impact regulations can be enforced in a private right
of action for equitable relief under Title VI. First, the
disparate impact regulations create a federal right. As an
express condition of federal financial assistance, the
regulations require recipients of federal financial assistance to
assume a duty to refrain from using unnecessary practices that
have the effect of discriminating on the basis of race, color, or
national origin. Thus, the regulations establish a correlative
9
right of every person in the United States to participate in
programs financed with federal tax dollars free from the
burdens of unnecessary practices that have the effect of
discriminating on the basis of race, color, or national origin.
Second, there is no evidence Congress intended to foreclose
private enforcement of the disparate impact regulations.
Third, private enforcement of the disparate impact regulations
will not interfere with the administrative enforcement scheme
prescribed in § 602.
As requirements imposed only as a condition of federal
financial assistance, the disparate impact regulations provide
an appropriate basis for equitable relief, which would not
include damages. See Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 287 (1998). Petitioners’ reliance on Pennhurst
State School & Hospital v. Halderman, 451 US. | (1981), is
entirely misplaced. The duty to comply with the requirements
of the disparate impact regulations is unambiguous and
longstanding, the regulations indisputably can be enforced by
administrative action. The prospect of private enforcement
has been clear since this Court’s 1973 decision in Lau v.
Nichols. Moreover, whether Alabama anticipated the result in
this case or not, the plaintiffs seek nothing more than
prospective compliance with the requirements of the regula-
tions, as construed by the district court and the court of
appeals. If Alabama believes the obligation to offer its writ-
ten driving test in languages other than English is unreason-
ably burdensome, it can forgo federal financial assistance and
avoid the obligation entirely. Alabama cannot, however, take
the money and ignore the obligation.
Title VI, Title IX, and other similar civil rights statutes, as
well as the disparate impact regulations adopted to effectuate
them, have contributed significantly to the increased
participation in all aspects of our society by those protected
by these laws. Effective federal civil rights enforcement is
vital to continued progress toward full participation.
10
ARGUMENT
I. THE PRIVATE RIGHT OF ACTION TO
ENFORCE TITLE VI OF THE CIVIL RIGHTS
ACT OF 1964 AND THE DISPARATE IMPACT
REGULATIONS ARE WELL-ESTABLISHED
ELEMENTS OF THE FEDERAL CIVIL RIGHTS
ENFORCEMENT SCHEME.
In the 36 years since the Civil Rights Act of 1964 was
enacted, the private right of action to enforce the requirements
of Title VI against all recipients of federal financial assistance
and the disparate impact regulations have become well-
established elements of the federal civil rights enforcement
scheme — accepted as appropriate throughout the Executive
Branch and by Congress, by the lower federal courts, and by
recipients of federal financial assistance. The Court should
reject Petitioners’ invitation to disrupt well-settled principles
of law governing these two important elements of federal
civil rights enforcement.
A. The Private Right Of Action To Enforce Title VI
Against Both Public And Private Recipients Of
Federal Financial Assistance Is Well-Established.
Section 601 of the Civil Rights Act of 1964 provides that
“No persen 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.” 42 U.S.C. § 2000d. Since this Court’s decision
in Cannon v. University of Chicago, 441 U.S. 677 (1977), the
availability of a federal private right of action to enforce
federal rights created under § 601 of the Civil Rights Act of
1964 (“Title VI") in a federal court has been firmly
established.
In Cannon the Court held that Congress intended a private
right of action to enforce the requirements of § 901 of the
Education Amendments of 1972 (“Title IX”). The Court
explained that the language of Title 1X “explicitly confer{red]
a benefit on persons discriminated against on the basis of
sex,” 441 US. at 694, the plaintiff in that case was a member
of the “class for whose special benefit the statute was
enacted,” id, and therefore “the first of the four factors
identified in Cort [v. Ash, 422 U.S. 66 (1975)] favors the
implication of a private right of action.” /d at 693-94. The
pertinent language of Title VI is identical to the language of
Title IX, “[e]xcept for the substitution of the word ‘sex’ in
Title IX to replace the words ‘race, color, or national origin’
in Title VI.” /d. at 694-95. Indeed, “Title [IX was patterned
after Title VI of the Civil Rights Act of 1964.” Jd. at 694.
The second Cort factor supported implication of a private
right of action. The Court found compelling evidence that
Congress intended Title IX to be enforced in private actions
in federal courts in the same way Congress understood Title
VI was enforced /d at 703 (“We have no doubt that
Congress intended to create Title IX remedies comparable to
those available under Title VI and that it understood Title VI
as authorizing an implied private cause of action for victims
of the prohibiied discrimination”).
The third Cort factor is whether private enforcement is
consistent with the purposes of the legislation. “Title IX, like
its model Title VI, sought to accomplish two related, but
nevertheless somewhat different, objectives. First, Congress
wanted to avoid the use of federal resources to support discri-
minatory practices, second, it wanted to provide individual
citizens effective protection against those practices.” /d at
704. The Court found that an implied private right of action
was consistent with the administrative fund termination
scheme established in Title IX. Because of the severity of
fund termination, the Court explained, a private right of
action was a useful and potentially more efficient supplement
to the administrative scheme. /d_ at 704-06.
12
The fourth Cort factor also favored implication of a private
right of action under Title IX. Sex discrimination — like
discrimination on the basis of race, color, and national origin,
addressed in Title VI — traditionally has not been the exclu-
sive concern of the States. On the contrary, “[s]ince the Civil
War, the Federal Government and the federal courts have
been the “‘primary and powerful reliances’” in protecting
citizens against such discrimination” /d at 708 (citations
omitted, emphasis added).
The respondent in Cannon agreed that the virtually
identical provisions of Title VI and Title IX should be
construed in the same way, but argued that no private right of
action had been intended under Title VI. /d at 710. Al-
though noting “the relevant inquiry is not whether Congress
correctly perceived the then state of the law, but rather what
its perception of the state of the law was,” id at 711, the
Court rejected the argument on the merits. After a careful
“review of the legislative history of Title VI, the Court found
no evidence “that any member of Congress voted in favor of
the statute in reliance on an understanding that Title VI did
not include a private remedy.” /d. at 716; see id. at 710-16.
Cannon thus established the availability of a private nght of
action under both Title 1X and Title VI.
In the 36 years since the Civil Rights Act of 1964 was
enacted, Congress consistently has acted on the presumption
that there was a private right of action under Title VI. In
Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 72
(1992), this Court explained that the Rehabilitation Act
Amendments of 1986, 100 Stat. i845, 42 US.C. § 2000d-7,
* Not surprisingly, therefore, the lower federal courts consistently have
assumed the availability of a private nght of action under Title VI. See,
e.g., Buchanan v. City of Bolivar, 99 F.3d 1352 (6th Cir. 1996), New York
Urban League, Inc. v. New York, 71 F.3d 1031 (2d Cir. 1995), United
States v. LULAC, 793 F.2d 636, 648-49 (Sth Cir. 1986), Brvan v. Koch,
627 F.2d 612, 616 (2d Cir. 1980)
13
which abrogated the States’ Eleventh Amendment immunity
under Title IX, Title VI, § 504 of the Rehabilitation Act of
1973, and the Age Discrimination Act of 1975, “cannot be
read except as a validation of Cannon’s holding” that a
private right of action for damages is available under Title IX.
Justice Scalia emphasized the point: “The Rehabilitation Act
Amendments of 1986, 42 U.S.C. § 2000d-7(a)(2), must be
read, in my view, not only ‘as a validation of Cannon’s
holding,’ but also as an implicit acknowledgment that
damages are available.” /d at 78 (citation omitted). The
same is Clearly true with respect to Title VI.
Long before the Rehabilitation Act Amendments of 1986,
however, the premise that there was a private right of action
to enforce the requirements of Title VI in federal courts
against public and private recipients of federal financial
assistance had been affirmed by Congress on many occasions.
For example, Section 718 of the Education Amendments of
1972, 20 USC. § 1617 (repealed 1979), which authorized
federal courts to award attorneys fees to the prevailing parties
in private actions against public education agencies to enforce
Title VI in the context of elementary and secondary
education, “explicitly presumes the availability of private
suits to enforce Title VI in the education context.” Cannon,
441 US. at 699, see id. at 699.26. As described above, in
enacting Title IX, Congress expressly presumed that a private
right of action was available under Title VI.
The Civil Rights Attorneys Fees Awards Act of 1976
authorizes an award of fees to prevailing parties in actions to
enforce Title VI. 42 US.C. § 1988. The Senate Report
accompanying the attorneys fees statute confirms Congress’
understanding that private enforcement of Title VI was not
only available, but essential to the effective enforcement of
the civil rights laws: “All of these civil rights laws [including
Title VI] depend heavily upon private enforcement, and fee
awards have proved an essential remedy if private citizens are
to have a meaningful opportunity to vindicate the important
14
Congressional policies which these laws contain.” S. Rep.
No. 94-1011, at 2 (1976), quoted in Cannon, 441 U.S. at 685-
86n6°
Throughout the four-year debate on what became the Civil
Rights Restoration Act of 1987, Pub. L. 100-259, 102 Stat.
28, Congress reiterated and confirmed its understanding that
there was a private right of action under Title VI, Title IX,
and § 504 of the Rehabilitation Act. F.g., HR. Rep. No.
98-829, pt. 1, at 33, 35 (1984)°
B. The Disparate Impact Regulations Are Valid
And Well-Established.
Contrary to the suggestion in Petitioners’ Brief (at 26-27),
the validity of the disparate impact regulations is not before
the Court in this case. The issue was not raised in or decided
by the court of appeals; nor is it fairly encompassed by the
question presented in the petition for writ of certiorari.
Accordingly, the Court need not address the validity of the
regulations. See, e.g., Blessing v. Freestone, 520 U.S. 329,
* See Cannon, 441 U.S. at 686-87 n.7 (quoting 122 Cong. Rec. 31472
(1976) (Sen. Kennedy)) (“It is Congress{'] obligation to enforce the 14th
amendment by eliminating enurely such forms of discrimination, and that
is why both title VI of the Civil Rights Act of 1964 and title IX of the
Education Amendments of 1972 have been included [in the amendment to
§ 1988]. As basic provisions of the civil nghts enforcement scheme that
Congress has created, it is essential that private enforcement be made
possible by authorizing attorneys’ fees in this essential area of the law.”)
(alterations in onginal).
° It is not entirely clear, but Petitioners seem to concede (albeit
grudgingly) that it is far too late in the day to question the availability of a
private right of action under Title VI against State and private recipients of
federal financial assistance. See Brief for Petitioners at 45 (“Cannon
suggested, without deciding the issue, that Section 601 of Title VI permits
an implied right of action for intentional-discrimination claims. The
Cannon suggestion also may have been codified in the Rehabilitation Act
Amendments of 1986....”) (emphasis added, citations omitted).
15S
340 n.3 (1997) (“We decline to address ... questions which
_.. were not presented in the petition for certiorari.”).’
In any event, the disparate inypact regulations are valid and
enforceable. See Alexander, 469 1).S. at 293; Guardians, 463
U.S. at 584 n2, 607 n27 (White, J.); id at 623 n.15
(Marshall, J., dissenting); id at 642-45 (Stevens, Brennan,
and Blackmun, JJ., dissenting). Congress expressly “autho-
rized and directed” “[e]ach Federal department and agency ...
empowered to extend Federal financial assistance to any
program or activity” to adopt “rules, regulations, or orders of
general applicability ... consistent with achievement of the
objectives of the statute authorizing the financial assistance”
“to effectuate” § 601 of the Civil Rights Act of 1964 “with
respect to such programs or activity.” 42 U.S.C. § 2000d-1.*
Reasonable regulations properly adopted pursuant to an
express delegation of rulemaking authority have the force and
effect of law. See, e.g., United States v. O'Hagan, 521 U.S.
642, 673 (1997), Chrysler Corp v. Brown, 441 U.S. 281, 301-
03 (1979); Batterton v. Francis, 432 U.S. 416 (1977).
There is no basis for revisiting the long standing and
consistent position of the Executive Branch that the disparate
impact regulations are appropriate to “effectuate” Title VI.
Justice Marshall described the early history of the regulations
in Guardians as follows:
Shortly after enactment of Title VI, a Presidential task
force produced model Title VI enforcement regulations
specifying that recipients of federal funds not use
“criteria or methods of administration which have the
effect of subjecting individuals to discrimination.” The
” The reasons the Court should not address the validity of the
regulations in the circumstances of this case are more fully described in
the brief of amicus NAACP Legal Defense and Education Fund, Inc. at 2-
6, 9-13.
* Section 602 of Title VI is set out in full in Appendix B to this brief.
App. 8a-9a.
16
Justice Department, which had helped draft the language
of Title VI, participated heavily in preparing the
regulations. Seven federal agencies and departments
carrying out the mandate of Title VI soon promulgated
regulations that applied a disparate-impact or “effects”
test.
463 US. at 618-19 (dissenting opinion) (citations and foot-
notes omitted). Since “the initial promulgation of regulations
adopting an impact standard, every Cabinet Department and
about 40 federal agencies [have] adopted standards
interpreting Title VI to bar programs with a discriminatory
impact.” /d. at 619 (Marshall, J., dissenting).
Fundamentally, Title VI is Spending Clause legislation.
See Gebser, 524 U.S. at 286 (Title VI and Title IX “operate in
the same manner, conditioning an offer of federal funding on
a promise by the recipient not to discriminate, in what
amounts essentially to a contract between the Government
and the recipient of funds”).” The benefits and burdens of
participation in any federal financial assistance program are
entirely voluntary. Reasonable regulations requiring recipi-
ents of federal financial assistance to bear the relatively
modest burden of avoiding unnecessary policies or practices
that have the “effect” of discriminating on the basis of race,
color, or national origin in consideration of the benefits of
federal financial assistance are appropriate means of
“effectuat[ing]” § 601.
Title VI was enacted to assure that federal tax dollars
collected from all the people would not be used to subsidize
programs from which any person is excluded on the basis of
race, color, or national origin. Direct evidence of intentional
discrimination is seldom available. In many cases, the line
between disparate impact or discriminatory “effects,” on the
* Section 5 of the Fourteenth Amendment provides additional support
for Title VI and Title 1X. See note 5, ante.
17
one hand, and intentional discrimination, on the other, is
likely to be indistinct and not easily discernible. For example,
evidence that, without adequate justification, Alabama
adopted and maintained a policy knowing that it would
disproportionately exclude Hispanics from participation in a
particular program and, further, rejected alternative policies
that would have accomplished its legitimate objectives
without disparate impact on Hispanics, might not compel an
inference of intentional discrimination (although such an
inference might well be supported by such evidence). See,
e.g., Washington v. Davis, 426 US. 229, 242 (1976)
(evidence of discriminatory impact may be probative of
discriminatory intent); /n re Employment Discrimination
Litig. Against the State of Ala., 198 F.3d 1305, 1319 (11th
Cn. 1999) (disparate impact is one of the factors a court may
consider in identifying discriminatory animus).
Requiring recipients of federal financial assistance to forgo
unnecessary practices that have the effect of denying the
benefits of federally subsidized programs on the basis of race,
color, or national origin thus minimizes the risk that federal
dollars will be used to subsidize discriminatory practices
contrary to the objectives of Title VI, because of the practical
difficulty of establishing intentional discrimination without
direct evidence. The disparate impact regulations reasonably
require recipients of federal financial assistance to steer clear
of anything approaching intentional discrimination, in effect,
establishing a margin of safety appropriate to achieve
Congress’ objective. On its face the burden of the disparate
impact regulations is modest, since a recipient would be
required to forgo policies or practices that have discrimi-
natory effects only if the policies or practices cannot be
justified by reference to legitimate considerations. See, e.g.,
Guardians, 463 U.S. at 623 n.15 (Marshall, J., dissenting)
(noting that a defendant would have the opportunity to
respond to prima facie showing of discriminatory impact by
demonstrating that the policy or practice was justified by
18
nondiscriminatory considerations), see also New York Urban
League, 71 F.3d at 1038-39 (accepting State’s justification for
the asserted disparate impact), Bryan, 627 F.2d at 616-20
(same). Whatever the burden, however, it is voluntarily
assumed and endured. Alabama is always free to avoid the
burden by forgoing federal financial assistance.
Moreover, each recipient of federal financial assistance has
long been on notice that one of the conditions for federal
financial assistance is compliance with applicable disparate
impact regulations adopted by the agency or department
responsible for administration of the particular federal
financial assistance program. If the risk of an unreasonable
interpretation of the disparate impact regulations in a
particular program is too great, the State need not participate.
Alternatively, if a particular interpretation of the disparate
impact regulations is wholly unanticipated, the State always
retains the option of forgoing future federal financial
assistance and completely avoiding any such obligation.
Although this Court has construed the language of § 601 as
directly reaching only intentional discrimination, the Court
has never found any evidence that Congress intended to
approve policies or practices that had the effect of excluding
participation in federally financed programs on the basis of
race, color, or national origin. Nor is there any evidence that
Congress intended to preclude regulations that reached
discriminatory effects under particular programs. On the
contrary, in Guardians five members of the Court concluded
that the disparate impact regulations were valid and
enforceable in an action for equitable relief. 463 U.S. at 607
n.27 (White, J.) (“The dissenters ... join with me to form a
majority for upholding the validity of the regulations
incorporating a disparate-impact standard.”), see id. at 584
n.2 (White, J.), 623 n.15 (Marshall, J., dissenting), 642-45
(Stevens, Brennan, and Blackmun, JJ., dissenting). Shortly
after Guardians was decided, in an opinion for a unanimous
Court, Justice Marshall explained the holding in Guardians as
19
follows: “First, the Court held that Title VI itself directly
reached only instances of intentional discrimination. Second,
the Court held that actions having an unjustifiable disparate
impact on minorities could be redressed through agency
regulations designed to implement the purposes of Title VI.”
Alexander, 469 U.S. at 293.
At a minimum, Congress’ long acquiescence in the
disparate impact regulations confirms its view that requiring
recipients of federal financial assistance to forgo policies or
practices that have the effect of discriminating on the basis of
race, color, or national origin as a condition of federal
financial assistance is a reasonable means of effectuating the
objectives of § 601. In 1966, Congress considered and
rejected a proposal intended to invalidate the disparate impact
regulations adopted to effectuate Title VI. See Guardians,
463 U.S. at 620 & n.8 (Marshall, J., dissenting).
In 1975, drawing on the Title VI regulations, the
Department of Health, Education, and Welfare promulgated
regulations to implement Title IX, including disparate impact
regulations. As this Court has recognized, those regulations
went through a “unique” enactment process that provides
strong evidence that they — and inferentially the Title VI
regulations upon which they were based — accurately reflect
congressional intent. Grove City College v. Bell, 465 US.
555, 567 (1984). Specifically, the regulations were “sub-
mitted ... to Congress for review,” North Haven Bd. of Educ.
v. Bell, 456 U.S. 512, 531, pursuant to a statutory procedure
that afforded Congress “an opportunity to invalidate aspects
of the regulations it deemed inconsistent with Title IX,”
Grove City, 465 US. at 568. None of the proposed
regulations, which included disparate impact regulations, see
40 Fed. Reg. 24128, 24140, 24141, 24143 (June 4, 1975), was
disapproved by Congress. Although this Court has noted that
Congress’s failure to disapprove the regulations is “not
dispositive,” Grove City, 465 US. at 568, it has recognized
that “it strongly implies that the regulations accurately reflect
20
congressional intent.” North Haven, 456 US. at 533-34.
Accordingly, the unique postenactment history of Title IX
provides strong evidence that Congress regarded disparate
impact regulations as consistent with its intent and objectives
in adopting the broad anti-discrimination provisions in Title
1X and, by implication, Title VI as well.
Finally, during consideration of legislation that became the
Civil Rights Restoration Act of 1987, Congress heard
testimony that this Court had upheld the validity of the
disparate impact regulations in Guardians. See H.R. Rep.
No. 98-829, pt. 1, at 24 (“[t]he substantive regulations were
affirmed as valid in ... Guardians’), id. at 33-35, 130 Cong.
Rec. 27935 (1984) (Sen. Kennedy); Civil Rights Act of 1984:
Hearings on S. 2568 Before the Subcomm. on the Const. of
the Senate Comm. on the Judiciary, 98th Cong. 23-24 (1984)
(representatives of the U.S. Commission on Civil Rights
describing Guardians as holding that while § 601 only
proscribes intentional discrimination, disparate impact regula-
tions are permissible). Yet, Congress took no action to
disapprove the regulations.
Particularly in this “contractual” context, see, e.g., Gebser,
524 US. at 286, where the Executive Branch, the Legislative
Branch, the lower federal courts, and the recipients of federal
financial assistance have accepted the validity of the disparate
impact regulations for nearly four decades under a host of
federal spending programs and contracted on that basis, this
Court should not disrupt the settled expectations of the
parties."° Here, Congress has had ample opportunity to
consider and correct any error the agencies or the courts
'° Cf, Square D Company v. Niagara Frontier Tariff Bureau, Inc., 476
U.S. 409, 424 (1986) (quoting Burnet v. Coronado Oil & Gas Co., 285
U.S. 393, 406 (1932) (Brandeis, J., dissenting)) (“‘Stare decisis is usually
the wise policy because in most matters, it is more important that the
applicable rule of law be settled than that it be settled’” the way a current
majority of this Court might have decided the issuc in the first instance. )
-
21
might have made in this area. There is no reason for the
Court to relieve Petitioners of obligations voluntarily assumed
in consideration of federal financial assistance — obligations
that can be avoided by simply forgoing future federal
financial assistance. |!
Il. THE DISPARATE IMPACT REGULATIONS CAN
BE ENFORCED IN A PRIVATE RIGHT OF
ACTION FOR EQUITABLE RELIEF.
The standard for determining whether federal regulations
can be enforced in an implied private right of action should be
no more stringent than that used for determining whether such
regulations can be enforced in § 1983 actions."
The reason the § 1983 analytic framework should be
borrowed in this case is because, as discussed above,
Congress has authorized a private right of action to enforce
federal rights created under Title VI. Consequeatly, the
question presented is not one of federal court jurisdiction or
judicial power as it might be in a case involving the
implication of a private right of action in the first instance.
For the same reason, the separation of powers issues raised by
'' Nothing in this Court’s decision in Central Bank v. First Interstate
Bank, 511 U.S. 164 (1994), suggests that the disparate impact regulations
are beyond the authority granted in § 602. In Central Bank this Court
reiterated the view expressed in Ernst & Ernst v. Hochfelder, 425 US.
185 (1976), that the SEC’s authority to proscribe “manipulative or
deceptive device[s] or contrivance|s},” id. at 197, does not reach conduct
that is neither manipulative nor deceptive. Central Bank, 511 U.S. at 173-
74. See generally United States vy. O'Hagan, 521 U.S. 642 (1997). In
Central Bank the Court held that Section 10(b) and the SEC’s mule 10b-5
did not reach “aiding and abetting” manipulative or deceptive conduct.
511 U.S. at 175-76. In Hochfelder, the Court held that the statute did not
reach negligence and the rule could not be read to impose damages for
negligence. 425 U.S. at 199.
'? The § 1983 analytic framework is a useful alternative to the Cort v.
Ash analysis in the circumstances of this case, although we believe the
result would be the same if the Cort v. Ash analysis were applied.
22
implying a private right of action in the first instance are not
implicated in this case. Compare Wilder v. Virginia Hosp.
Ass'n, 496 U.S. 498, 508 n.9 (1990), with Cannon, 441 US.
at 730-31, 742-47 (Powell, J., dissenting). Rather, the
controlling issue here is simply whether the disparate impact
regulations can be enforced in the private action already
determined to have been authorized by Congress. As in the
§ 1983 context, unless there is some evidence that Congress
intended to foreclose private enforcement of the disparate
impact regulations, equitable relief to compel compliance
with the regulations in an appropriate case is presumptively
appropriate.
In determining whether a statute or regulation is a “law”
that can be enforced in a § 1983 action, this Court has
identified three relevant considerations. See, e.g., Blessing,
520 US. 329 (1997), Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498 (1990); Wright v. City of Roanoke Redev. & Hous.
Auth., 479 U.S. 418 (1987). The first is whether the language
of the statute or regulation creates an enforceable federal right
for the benefit of the plaintiff (/.e., a binding obligation that is
not too vague and amorphous to be enforced by a federal
court)’ The second and third considerations are whether
Congress expressly foreclosed private enforcement, Wright,
479 US. at 423-24, and whether private enforcement would
be inconsistent with an alternative comprehensive enforce-
ment scheme. Compare Blessing, 520 U.S. at 346-48, with
Smith vy. Robinson, 468 U.S. 992, 1016-21 (1984), and
'3 This factor significantly limits the nature and scope of the regulations
that will be enforceable by private partics. See Suter v. Artist M, 503 U.S.
347, 355-57 (1992), compare Blessing, 520 U.S. at 342-46 (O'Connor, J.)
(emphasizing the need to focus on the language of the specific provision
asserted to create a federal right), with Wright, 479 US. at 438
(O'Connor, J., dissenting) (suggestion that “any regulation adopted within
the purview of the statute creates rights enforceable in federal courts,
regardless of whether Congress or promulgating agency contemplated
such a result” would be “troubling”.
23
Middlesex County Sewerage Auth. vy. Nat'l Sea Clammers
Ass'n, 453 U.S. 119-21 (1981).
Using a similar analysis to determine whether the Title V1
disparate impact regulations can be enforced in this case is
reasonably straightforward. The disparate impact regulations
create a federal right. As a condition of federal financial
assistance, the regulations require recipients to administer
their programs or activities without using unnecessary
practices that have the effect of discriminating on the basis of
race, color, or national origin. The regulations establish the -
correlative right of every person in the United States to
participate in programs financed with federal financial
assistance free from the burden of unnecessary practices that
have the effect of discriminating on the basis of race, color, or
national origin.
There is no indication that Congress intended to foreclose
private enforcement of the disparate impact regulations
adopted pursuant to § 602, just as this Court found no
indication Congress intended to foreclose a private action to
enforce § 601. See Cannon, 441 US. at 712-14 1.49, Regents
of the Univ. of Cal. v. Bakke, 438 U.S. 265, 420 n. 28 (1978)
(Stevens, J. dissenting) On the contrary, as the Court
explained in Cannon, one of the purposes of both Title LX and
Title VI was “to provide individual citizens [with] effective
protection against” discrimination. 441 U.S. at 704.
Nor will a private action to enforce the disparate impact
regulations interfere with the administrative enforcement
scheme. See Blessing, 520 US. at 347-48 , Wilder, 496 US.
at 520-23; Wright, 479 U.S. at 427-29. Contrary to the Brief
for Petitioners (17, 27-28), the oversight Congress thought
appropriate for agency termination of funding is irrelevant to
private actions by individuals seeking only to protect their
interest in participating in federally financed programs free
from unnecessary practices that effectively discriminate on
the basis of race, color, national origin, sex, or other bases
proscribed in civil rights statutes. Indeed, the distinction
24
between private enforcement action and fund termination was
specifically noted by Senators Humphrey and Case during
consideration of Title VI. Cannon, 441 US. at 713-14 n.49.
As the Court summarized the matter in Cannon: “The
administrative provisions in §§ 602 and 603 were simply
means by which additional — and far more controversial —
procedures [i.e., fund termination] were established and then
limited.” Jd at 714 n.49, see also id at 711 n.47, Bakke, 438
U.S. at 420 n.28 (Stevens, J., dissenting).
Further, during consideration of the Civil Rights Restor-
ation Act of 1987, Congress was warned that disparate impact
regulations might be enforced in private actions, but again
Congress took no action to limit the statute or the regulations.
For example, the Office of Management and Budget
submitted a memorandum stating:
Currently, the scope of [the DOE disparate impact
regulations} ... is limited to a recipient’s federally
funded programs and activities. The effect of extending
them to all of a recipient’s activities would be signifi-
cant. Any assistance to a State or city government
would, for example, apply such requirements to all of
their licensing and professional certification procedures.
As noted, bar exams, medical boards, teacher
competency exams, and a host of similar standards
alleged by advocacy groups to have “discriminatory
effects” would now be covered by the existing regula-
tions for the first time and would be subject to agency
enforcement activities and private lawsuits.
Civil Rights Act of 1984: Hearings on S. 2568 Before the
Subcomm. on the Const. of the Senate Comm. on the
Judiciary, 98th Cong. 530 (1984) (emphasis in original
omitted; emphasis added), see also id. at 532 (OMB memo-
randum warning of the prospects of increased exposure to
““discriminatory effects’” litigation in private enforcement
actions); Civil Rights Restoration Act of 1985: Joint Hearings
on H.R. 700 Before the House Comm. on Educ. & Labor and
25
the Subcomm. on Civil & Const. Rights of the House Comm.
on the Judiciary, 9%h Cong. 734, 1095, 1099 (1985); 134
Cong. Rec. 42567 (1988) (Sen. Hatch) (“Of course, advocacy
groups will be able to bring private lawsuits making the same
allegations [of violations of disparate impact regulations]
before federal judges.”).'*
In a private action, the disparate impact regulations provide
an appropriate basis for equitable relief, which would not
include recovery of damages. See Gebser, 524 U.S. at 287-92
(distinguishing between standard for damages relief and
standard for prospective relief). The obligation to comply
with the requirements of the long-standing disparate impact
regulations is unambiguous and well recognized as an impor-
tant component of the Title VI legal framework; recipients of
federal financial assistance accept the money with full notice
of the requirements and agree to comply. Recipients of
federal financial assistance have been on notice of the
prospect of private enforcement at least since this Court’s
decision in Lau v. Nichols, 414 US. 563 (1973). See
'* Several courts of appeals have expressly held that disparate impact
regulations promulgated by agencies under Title V1 may be enforced in a
private right of action. See Powell v. Ridge, 189 F.3d 387, 400 (3d Cir
1999); Burton v. City of Belle Glade, 178 F.3d 1175, 1202 (11th Cir.
1999), David K. v. Lane, 839 F.2d 1265, 1274 (7th Cir. 1988). Others
have assumed the availability of a private right of action to enforce dispa-
rate impact regulations under Title VI. See, e.g, /ndianapolis Minority
Contractors Ass'n. vy. Wiley, 187 F.3d 743 (7th Cir. 1999), Boulahanis v.
Board of Regents, 198 F.3d 633 (7th Cir. 1999), cert. denied, 120 S. Ct
2762 (2000), Ferguson v. City of Charleston, 186 F.3d 469 (4th Cir.
1999), cert. granted, 120 S. Ct. 1239 (2000), Buchanan v. City of Bolivar,
99 F.3d 1352 (6th Cir. 1996), New York Urban League, Inc. v. New York,
71 F.3d 1031 (2d Cir. 1995), Quarles v. Oxford Mun. Separate Sch. Dist.,
868 F.2d 750 (Sth Cir. 1989), Larry P. v. Riles, 793 F.2d 969 (9th Cir.
1984); Castaneda v. Pickard, 781 F.2d 456 (Sth Cir. 1986), United States
v. LULAC, 793.F.2d 636 (Sth Cir. 1986), Latinos Unidos de Chelsea en
Accion (LUCHA) v. Sec'y of Hous. & Urban Dev., 799 F.2d 774 (ist Cir.
1986), Georgia State Conference of Branches of NAACP vy. Georgia, 775
F.2d 1403 (11th Cir. 1985), Bryan v. Koch, 627 F.2d 612 (2d Cir. 1980).
26
Cannon, 441 U.S. 687 n8; Bakke, 438 U.S. at 419 n25
(Stevens, J., dissenting).
Whether Alabama anticipated the result in this case or not,
plaintiffs seek no more than prospective compliance with the
requirements of applicable federal regulations, as construed
by the federal district court and the court of appeals. For this
reason, Petitioners’ reliance on Pennhurst State School &
Hospital vy. Halderman, 451 US. 1 (1981) is entirely
misplaced. See Gebser, 524 U.S. at 287 (O'Connor, J)
(quoting Franklin, 503 U.S. at 74) (the central concern in
Pennhurst, Franklin, and Guardians was ensuring that the
receiving entity has “‘notice that it will be liable for a
monetary award’”). If Alabama believes the obligation to
offer its written driving test in languages other than English is
too onerous, it retains the option of forgoing federal financial
assistance and avoiding the burden altogether. Alabama
cannot, however, take the money and ignore the obligation.
Ill. FULL PRIVATE ENFORCEMENT OF THE CIVIL
RIGHTS LAWS IS ESSENTIAL TO PROVIDE
EQUAL OPPORTUNITY.
The question whether disparate impact regulations adopted
by federal agencies to effectuate Title VI of the Civil Rights
Act of 1964 are privately enforceable is important to those
who are discriminated against on the basis of race, color,
national origin, sex, age, or disability.
In the case of Title IX, for example, which protects women
against discrimination in education, this Court has held that
Title IX should be accorded “‘a sweep as broad as its
language” in order to give the anti-discrimination provision
“‘the scope its origins dictate.”” North Haven, 456 US. at
§21. Consistent with the expansive purpose of the statute, the
Department of Education’s Office for Civil Rights has
adopted regulations to effectuate Title IX that prohibit
~
*
27
conduct or policies that have a disparate impact based on
Sex.
Tule IX’s disparate impact regulations have been essential
to the progress made to date, ending policies and practices
that, although not facially gender-biased, had a dispropor-
tionately adverse impact on women. For example, Title [X’s
disparate impact regulations have stamped out discriminatory
practices against students who are married or have children —
students for whom education is particularly critical to their
prospects for economic self-sufficiency. The regulations
make clear that Title IX’s proscription against discrimination
on the basis of sex prohibits discrimination against students
on the basis of marital or parental status) 34 CFR.
§§ 106.21(c), 106.40, 106.57.
Title IX’s disparate impact regulations also are an
important means of ensuring that standardized tests are
designed and used in a manner that is free from gender bias.
The Title IX regulations provide that tests used as admissions
criteria must validly predict success in the area being tested.
See id. § 106.21(b)(2) (schools cannot use tests as admissions
criteria that have a “disproportionately adverse effect” on
women “unless the use of such test or criterion is shown to
predict validly success in the education program or activity in
question and alternative tests or criteria which do not have
such a disproportionately adverse effect are shown to be
unavailable”). It is well-documented that “[t]here is a
substantial record of disparities in scoring between male and
female students on many standardized tests dating from
'* See, e.g, 34 CFR. § 106.21(b)(2) (prohibiting tests or other criteria
for admission which have a “disproportionately adverse effect on persons
on the basis of sex”); id § 106.52 (prohibiting tests or other criteria for
employment which have “a disproportionately adverse effect on persons
on the basis of sex”), id § 106.34(d) (“Where use of a single standard of
measuring skill or progress in a physical education class has an adverse
effect on members of one sex, the recipient shall use appropnate standards
which do not have such effect.”).
28
before Title [X’s enactment and continuing over the last 25
years,” including the SAT and PSAT. Nat’! Coalition for
Women and Girls in Educ., 7itle 1X at 25: Report Card on
Gender Equity 35 (June 1997) (“Report Card’). Title 1X’s
disparate impact regulations have proven to be an important
means of challenging the design and use of such tests. For
example, in response to a complaint filed with the Education
Department's Office for Civil rights alleging that the PSAT
was gender-biased in violation of Title IX, the College Board
revised the PSAT to include a test of written English. /d. at
37. Similarly, a federal court enjoined the State of New York
from relying exclusively on SAT scores to award certain
college scholarships because it concluded that such reliance
had a discriminatory impact on female students in violation of
the Title IX regulations. Sharif v. New York State Educ.
Dep't., 709 F. Supp. 345 (S.D.N.Y. 1989). As a result, the
State began to take grades into consideration as well and “the
scholarship awards became more equitably distributed among
male and female students.” Report Card at 38.'°
Finally, Title IX has had a significant impact in women’s
higher education. In 1979, women college undergraduates
outnumbered men college undergraduates for the first time
since World War II. Nat’! Advisory Council on Women’s
Educ. Programs, 7itle 1X: The Half Full, Half Empty Glass 7
(Fall 1981). When Title [IX was enacted in 1972, women
were awarded 44 percent of all bachelor’s degrees, 41 percent
'© See also Cureton v. NCAA, 37 F. Supp. 2d 687, 697-714 (E.D. Pa.),
rev'd on jurisdictional grounds, 198 F.3d 107 (3d Cir. 1999) (district court
held (1) that NCAA minimum standardized test scores for eligibility to
participate in intercollegiate athletics and to qualify for athletic
scholarships had an unjustified disproportionate impact on African
American women and men in violation of Title VI regulations; and (2)
there were reasonable alternatives to the policy that would have met the
NCAA's legitimate objectives with less of a disproportionate impact).
The benign description of the eligibility standard offered in the NCAA
Amicus Brief (at 4) simply ignores the district court's findings.
29
of master’s degrees, 16 percent of doctoral degrees, and six
percent of first professional degrees. Report Card at 6. The
figures for 1996-97 were 56 percent of bachelor’s degrees, 51
percent of master’s degrees, 39 percent of doctoral degrees,
and 40 percent of first professional agrees. Id
CONCLUSION
For the foregoing reasons, the judgment of the court of
appeals should be affirmed.
Respectfully submitted.
MARCIA D. GREENBERGER GEORGE W. JONES, JR.*
VERNA L. WILLIAMS JACQUELINE G. COOPER
LESLIE T. ANNEXSTEIN SIDLEY & AUSTIN
NATIONAL WOMEN’S LAW 1722 Eye St., N.|W
CENTER Washington, D.C. 20006
1] Dupont Circle, N.W., (202) 736-8000
Suite 800
Washington, D.C. 20036
(202) 588-5180
Counsel for Amici
December 13, 2000 * Counsel of Record
APPENDICES
——s EEE -
la
APPENDIX A
STATEMENTS OF INTEREST
The National Women’s Law Center
The National Women’s Law Center (“Center”) is a
nonprofit legal advocacy organization dedicated to the
advancement and protection of women’s rights and the
corresponding elimination of sex discrimination from all
facets of American life. Since 1972, the Center has worked to
secure equal opportunities in education for girls and women
through full enforcement of Title IX of the Education
Amendments of 1972. The Center has provided assistance
Or participated as counsel or amicus curiae in a range of cases
to secure the equal treatment of women under the law,
including successfully arguing before the Supreme Court that
Title IX requires schools to address student-to-student sexual
harassment in Davis v. Monroe County Board of Education.
The American Association of University Women
For well over a century, American Association of
University Women (AAUW), an organization of 150,000
members, has been a catalyst for the advancement of women
and their transformation of American society. In more than
_ 1,500 communities across the country, AAUW members
work to promote education and equity for all women and
girls, lifelong learning, and positive societal change. AAUW
plays a major role in activating advocates nationwide on
AAUW’s priority issues, including: gender equity in
education; reproductive choice; social security; and
workplace and civil rights issues. .AAUW supports
constitutional protection and enforcement of civil rights for
all individuals, and opposes all forms of discrimination.
2a
The American Jewish Committee
The American Jewish Committee (“AJC”), a national
organization of approximately 100,000 members and
supporters, was founded in 1906 to protect the civil and
religious rights of Jews. AJC believes that the only way to
achieve this goal is to safeguard the civil and religious rights
of all Americans, and has long been a staunch opponent of
discrimination, whether based on religion, race, gender, or
national origin. We join in this case because we take the
position that English-only policies, which are a direct
outgrowth of the anti-immigrant movement, unfairly penalize
new immigrants, are inherently divisive, and serve no positive
function in that they have not been shown to increase English
literacy.
The Anti-Defamation League
The Anti-Defamation League (ADL) was organized in 1913
to advance good will and mutual understanding among
Americans of all creeds and races, and to combat racial and
religious prejudice in the United States. ADL has long been
vitally interested in protecting the civil rights: of all
Americans, believing that every American has a constitutional
right to be treated as an individual, equal under the law, rather
than as a part of a racial, ethnic, religious, or gender-defined
group. Pursuant to this mandate, ADL has previously filed
amicus briefs in numerous discrimination cases before this
Court, including such landmarks as Brown v. Board of
Education, 347 U.S. 483 (1954); Jones v. Alfred H. Mayer
Co., 392 U.S. 409 (1968); and Regents of the University of
California v. Bakke, 438 U.S. 265 (1978).
The Connecticut Women’s Education and Legal Fund, Inc.
The Connecticut Women's Education and Legal Fund, Inc.
(CWEALF) is a nonprofit women’s rights organization
dedicated to empowering women, girls and their families to
achieve equal opportunities in their personal and professional
3a
lives. CWEALF was founded in 1973 and has a membership
of over 1,000 individuals and organizations.
The Council of the Great City Schools
The Council of the Great City Schools was organized in
1961 and is the only organization in the nation exclusively
representing the needs of urban public schools. It is
composed of 55 large city school districts that serve over 6.0
million school children. Over 80% of Council member
students are African-American, Hispanic, or Asian American.
Council member students come to school speaking 120
different languages. All Council members are themselves
federal fund recipients, with federal funding representing just
under 11% of their total revenues. One of the Council’s
central missions is to advocate for inner-city students so that
they may share on a fair and equitable basis in the education
Opportunities that are so vital to success in our society.
Girls Incorporated
Girls Incorporated is a national organization that provides
direct services to school age girls through its affiliates and
nationally addresses gender-specific and youth issues. We
have published our Advocacy Statements that delineate our
position on such matters as equitable allocation of resources
and girls’ rights.
The National Organization for Women (NOW) Foundation
The National Organization for Women (NOW) Foundation
is a 501(c)(3) organization devoted to furthering women’s
rights through education and litigation. NOW Foundation is
affiliated with the National Organization for Women, the
largest feminist organization in the United States, with a
contributing membership of over 500,000 women and men
and more than 500 chapters in all 50 states and the District of
Columbia. Since its inception in 1986, a major goal of NOW
Foundation has been to ensure full equality for all women,
including the elimination of discrimination on the basis of
4a
race or national origin. In furtherance of that goal, NOW
Foundation has supported related litigation and legislation,
and has an ongoing interest in the availability of private rights
of action to enforce civil rights laws and the regulations
implementing them.
The National Partnership for Women & Families
The National Partnership for Women & Families is a
nonprofit, nonpartisan organization that uses public education
and advocacy to promote fairness in the workplace, quality
health care, and policies that help women and men meet the
dual demands of work and family. Founded in 1971 as the
Women’s Legal Defense Fund, the National Partnership has
grown from a smal! group of volunteers into one of the
nation’s most powerful and effective advocates for women
and families. Working with business, government, unions,
nonprofit organizations, and the media, the National
Partnership is a voice for fairness, a source for solutions, and
a force for change. The National Partnership has devoted
significant resources to combating sex and _ race
discrimination in education and has filed numerous briefs
amicus curiae in the federal circuit courts of appeal to
advance women’s opportunities in education.
NOW Legal Defense and Education Fund
NOW Legal Defense and Education Fund (NOW LDEF) is
a leading national nonprofit civil rights organization that
performs a broad range of legal and educational services in
support of women’s efforts to eliminate sex-based
discrimination and secure equal right NOW LDEF was
founded in 1970 by leaders of the National Organization for
Women. A major goal of NOW LDEF is the elimination of
barriers that deny women and girls equal opportunity. For
years, NOW LDEF has fought for educational equity for girls
and the full enforcement of Title Ix. NOW LDEF has
appeared as amicus in numerous cases concerning girls’ rights
to be free from sex discrimination in education programs
eS
Sa
under Title LX and joins this case because of its importance to
ensuring equal opportunity in all educational programs.
litle 1X Advocacy Project
The Jitle IX Advocacy Project (“the Project”) is a youth
empowerment and educational/legal advocacy organization
that was founded in September 1994 to work with young
people and their adult allies to promote gender equity in low-
income middle schools and high schools in greater Boston.
Currently, the Project focuses on eliminating 1) sexual
harassment in school, 2) discrimination against pregnant and
parenting students, and 3) gender inequity in school-based
athletics programs, all of which violate Title IX, the federal
law that prohibits gender discrimination in schools receiving
federal funds.
Trial Lawyers for Public Justice, P.C.
Trial Lawyers for Public Justice, P.C. (“TLPJ”) is a
national public interest law firm that specializes in precedent-
setting and socially significant civil litigation and is dedicated
to using trial lawyers’ skills and strategies to advance the
public good. Litigating throughout the federal and state
courts, TLPJ prosecutes cases designed to advance civil rights
and civil liberties, environmental protection and safety,
consumers’ and victims’ rights, the preservation and
improvement of the civil justice system, and the protection of
the poor and powerless| TLPJ has litigated numerous
discrimination cases under federal civil rights laws, including
Title VI of the Civil Rights Act of 1964, Title IX of the
Education Amendments of 1972, and federal agency
regulations implementing these statutes. These cases
demonstrate TLPJ’s longstanding commitment to advancing
equal opportunity in federally funded programs and activities.
To ensure that such programs and activities conduct
themselves in a non-discriminatory manner, TLPJ believes it
is critical that they continue to be subject to private lawsuits
6a
for engaging in conduct that has an unjustified disparate
impact on minorities, women and/or other protected classes.
Women Employed
Women Employed is a national association of working
women based in Chicago, with a membership of 2000. Since
1973, the organization has assisted thousands of working
women with problems of sex discrimination and harassment,
monitored the performance of equal opportunity enforcement
agencies, and developed specific, detailed proposals for
improving enforcement efforts. Women Employed believes
that women are entitled to the same rights and opportunities
as men, whether their interests lie in sports, arts, or business.
The Women’s Law Project
The Women's Law Project (WLP) is a nonprofit public
interest law firm located in Philadelphia, PA. Founded in
1974, the WLP works to abolish discrimination and injustice
and to advance the legal and economic status of women and
their families through litigation, public policy development,
public education and individual counseling. Throughout its
history, the WLP has worked to eliminate sex discrimination,
bringing and supporting litigation challenging discriminatory
practices prohibited by federal civil rights laws. The WLP
has a strong interest in the proper application of civil rights
laws to provide appropriate and necessary redress to
individuals victimized by discrimination.
The Women's Sports Foundation
The Women's Sports Foundation is a 501(c)(3) nonprofit
educational organization dedicated to expanding opportunities
_ for girls and women to participate in sports and fitness and
creating an educated public that supports gender equity in
sports. The Foundation distributes over $1 million per year in
grants and scholarships to female athletes and girls’ sports
programs, answers over 100,000 inquires a year concerning
Title IX and other women’s sports related questions, and
ee
7a
administers award programs to increase public awareness
about the achievements of women in sports.
8a
APPENDIX B
Section 602 of the Civil Rights Act of 1964 is follows:
Each Federal department and agency which is
empowered to extend federal financial assistance to any
program or activity, by way of grant, loan, or contract
other than a contract of insurance or guaranty, is
authorized and directed to effectuate the provisions of
section 2000d of this title with respect to such program
or activity by issuing rules, regulations, or orders of
general applicability which shall be consistent with
achievement of the objectives of the statute authorizing
the financial assistance in connection with which the
action is taken. No such rule, regulation, or order shall
become effective unless and until approved by the
President. Compliance with any requirement adopted
pursuant to this section may be effected (1) by the
termination of or refusal to grant or to continue
assistance under such program or activity to any
recipient as to whom there has been an express finding
on the record, after opportunity for hearing, of a failure
to comply with such requirement, but such termination
or refusal shall be limited to the particular political
entity, or part thereof, or other recipient as to whom such
a finding has been made and, shall be limited in its effect
to the particular program, or part thereof, in which such
noncompliance has been so found, or (2) by any other
means authorized by law: Provided, however, That no
such action shall be taken until the department or agency
concerned has advised the appropriate person or persons
of the failure to comply with the requirement and has
determined that compliance cannot be secured by
voluntary means. In the case of any action terminating,
or refusing to grant or continue, assistance because of
failure to comply with a requirement imposed pursuant
to this section, the head of the Federal department or
agency shall file with the committees of the House and
9a
Senate having legislative jurisdiction over the program
or activity involved a full written report of the
circumstances and the grounds for such action. No such
action shall become effective until thirty days have
elapsed after the filing of such report.
42 U.S.C. § 2000d-1.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.