Amicus Curiae Brief — Alexander v. Sandoval

No. 99-1908

" +8500

In The ! )

Supreme Court of the United States <

- o

JAMES ALEXANDER, in his official capacity as the

Director of the Alabama Department of Public Safety,

and the ALABAMA DEPARTMENT OF PUBLIC SAFETY,

Petitioners,

hes, 14, = AD} "FILED

MARTHA SANDOVAL, individually and on behalf

of all others similarly situated,

Respondent.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

+

BRIEF OF CENTER ON RACE, POVERTY AND THE

ENVIRONMENT, NLG/MAURICE AND JANE SUGAR

LAW CENTER FOR SOCIAL AND ECONOMIC

JUSTICE, FLINT GENESEE UNITED FOR ACTION,

JUSTICE AND ENVIRONMENTAL SAFETY,

RESIDENTS OF SANBORN COURT, NEW YORK

LAWYERS FOR THE PUBLIC INTEREST,

INSTITUTE FOR PUBLIC REPRESENTATION,

MEXICAN-AMERICAN LEGAL DEFENSE AND

EDUCATIONAL FUND, AND COMMUNITIES FOR

A BETTER ENVIRONMENT AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

¢

Luxe W. Coe

(Counsel of Record)

CeNTER ON Race, Poverty

AND THE ENVIRONMENT

631 Howard Street, Suite 330

San Francisco, CA 94105

(415) 495-8990

[Additional Counsel Listed On Inside Cover]

BEST AVAILABLE COPY

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Additional Counsel:

Juue H. Hurwitz Douc tas PARKER

ALMA L. Lowry INSTITUTE FOR PUBLIC

NLG/Sucar Law CENTER REPRESENTATION

645 Griswold, Suite 1800 600 New Jersey Ave., N.W.,

Detroit, MI 48226 Suite 312

(313) 962-6540 Washington, D.C. 20001

(202) 662-9535

MARIANNE L. ENGELMAN LADO

New York LAWYERS FOR THE

Pusuic INTEREST

151 W. 30th Street, 11th Floor

New York, NY 10001

(212) 244-4664

i

QUESTION PRESENTED

Whether individuals who have been injured by a

federally funded entity’s violation of Title VI regulations,

issued pursuant to Section 602 of the Civil Rights Act of

1964, may bring a private action against the violator to

end the discriminatory behavior.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............cccccccccces iv

STATEMENT OF INTEREST OF AMICI CURIAE.... 1

SUMMARY OF ARGUMENT................-5-055> 4

RETIRE oo cccccccccocceccccsecceccecseconssvcs 5

I. CONGRESS INTENDED TITLE VI TO CREATE

A BROAD PERSONAL RIGHT AGAINST DIS-

CRIMINATION EXPANSIVE ENOUGH TO

INCLUDE THE PROTECTIONS PROVIDED BY

NEED o cc cecccccnccsecescesoutgenseese 6

Il. A PRIVATE RIGHT OF ACTION TO ENFORCE

THE REGULATIONS IMPLEMENTING TITLE

VI IS CONSISTENT WITH AND NECESSARY

TO FULFILL THE PURPOSES OF TITLE V.... 11

A. Administrative Enforcement Alone is Insuf-

ficient to Ensure Compliance With Title VI

Regulations. .....cccccccccccccccccccccess 11

1. The agencies’ record demonstrates that

administrative enforcement alone can-

not fulfill the purposes of Title VI and

its implementing regulations .......... 12

2. The process for administrative enforce-

ment of Title VI regulations does not

allow full or effective participation by

individual complainants............... 18

B. Allowing a Private Right of Action Is Con-

sistent with the Goals and Structure of Title

Ws ececccuectuccecensssabesedaenndeadd 20

Ill. ALLOWING A PRIVATE RIGHT OF ACTION

DOES NOT CREATE LEGAL UNCERTAINTY,

IMPOSE ADDITIONAL BURDENS ON RECIP-

IENTS OF FEDERAL FUNDS OR OPEN THE

“FLOODGATES OF LITIGATION”............. 22

eee

TABLE OF CONTENTS - Continued

Page

A. Allowing a Private Right of Action Under

Title VI Regulations Will Not Overly Bur-

CP GP Gens dcccdcccndncdtabencabets 23

B. Allowing A Private Right of Action Under

Title VI Regulations Does Not Impose New

or Unworkable Burdens on Recipients of

Federal Funds

ED adtinedcucedsucsumadied indian danse 29

iv

TABLE OF AUTHORITIES

Page

Cases:

Alexander v. Choate, 469 U.S. 287 (1985)............ 6, 27

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ......... 10

Bd. of Ed. v. Harris, 444 U.S. 130 (1979) ............. 28

Buchanan v. City of Bolivar, Tenn., 99 F.3d 1352 (6th

GO BSD cvcccccccccccceuccesesoessesecesceseeess 23

Cannon v. University of Chicago, 441 U.S. 677 (1979)

Seesececesoesccecesenssnceeesesedése 6, 8, 12, 18, 20, 23

Castaneda by Castaneda v. Pickard, 781 F.2d 456 (Sth

GO WEED ovine ccccccccccccccaccccoscesecscdécceese 23

Chester Residents Concerned for Quality Living v.

Seif, 132 F.3d 925 (3d Cir. 1997), vacated as moot,

SES US. SS CRORE «cc ccccccccccccccccccccsccccces 24

City of Chicago v. Lindley, 66 F.3d 819 (7th Cir.

errr rrrrrrrtT Tr rrr rT TT TTT TTT 27

Cort v. Ash, 422 U.S. 66 (1975) .........-. cece cece eee 5

David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988)....... 23

Elston v. Talladega County Bd. of Ed., 997 F.2d 1394

CRO) GER BEG ccc ccccccccccccecesosccscescecs 27, 28

Federal Housing Admin. v. Darlington, Inc., 358 U.S.

BD Gd ve cccccccccccceccncsccussecececoesesosees 9

Ferguson v. City of Charleston, 186 F.3d 469 (4th Cir.

av ccccccdcvecccosechesesecconssesccssseeseess 28

Gebser v. Lago Vista Independent School District, 524

CI BPS GIS o cc cccccccccncccccccccovccocesesess 21

Guardians Ass'n v. Civil Service Comm’n, 463 U.S.

Bee Gc ccc ccccccccccccccccsnedsecnes 9, 10, 21, 26

Vv

TABLE OF AUTHORITIES - Continued

Page

Jersey Heights Neighborhood Ass'n v. Glendening, 174

Fee SD Gee GI Fo occccccccccdecsccsceccccccee 8

Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984)

secesnacecncoeesadauhesecccuceenacdéseeus 22, 23, 27, 28

Latinos Unidos de Chelsea v. Secretary of Hous. &

Dev., 799 F.2d 774 (1st Cir. 1986).................. 23

Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456

Se SE ED odedncecedacccoccccccbcuscsdsecases 10

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

Geer Gee So scccccesecnccdccecencccccecessceccuns 20

New York Urban League, Inc. v. New York, 71 F.3d

ee Ge GE Sets btncnuecccusscconnesecd 23, 28

Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999).......... 23

Richardson v. Hotel Corporation of America, 332

F. Supp. 519 (E.D. La. 1971), aff’d, 468 F.2d 591

See ES ME nc naccnccdccnscedcccacccsKedeescensc 20

Rozar v. Mullis, 85 F.3d 556 (11th Cir. 1996)......... 24

Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999)

SCREENS CAdedensonsececepecenesceceseesce 21, 23, 27, 28

Sierra Club v. Morton, 405 U.S. 727 (1972) ........... 18

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) ..... 5

Transamerica Mortgage Advisors, Inc. v. Lewis, 444

RE I Ee 5

United States v. LULAC, 793 F.2d 636 (5th Cir. 1986)

jeecdsensenkeldnettueedeekssadeséensuh<éccenescd 27, 28

United States v. Rutherford, 442 U.S. 544 (1979)....... 10

United States Steel Corp. v. United States, 385

F. Supp. 346 (W.D. Pa. 1974).........ccccccccceees 20

vi

TABLE OF AUTHORITIES - Continued

Page

Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996)..... 23

Washington Legal Foundation v. Lamar, 984 F.2d 483

(D.C. Cir. 1993). ......ccceccccccccececeeccceeeeeees 8

Women’s Equity Action League v. Cavazos, 906 F.2d

FED CIDDD) . cc ccccccccccccccccccccccccvecececeecs 7,8

STATUTES AND Pusuic Laws:

Civil Rights Attorney’s Fees Award Act, P.L.

94-559, 90 Stat. 2641 (1976) ..... 2... cece eee e eee ees 20

42 U.S.C. § 19BB... 2... cc cc ce ecceceeeeeeeeeecnenes 9, 20

Civil Rights Act of 1964, Title VI, 42 U.S.C.

§ 2000d-2000d-7 .... 2... 6c cee eee eee eee ee eees passim

42 U.S.C. § 2000d-1......... cece eee cece e eee e ee eeee 6, 12

42 U.S.C. § 2000d-7..... 6... eee ee eee ee etter ee eens 9

42 U.S.C. § 2000e-2(k)(1).. 2... 6c eee cee eens 27

42 U.S.C. § 2000e-2(k)(1)(A)(i). . 6.6 ee eee 28

42 U.S.C. §§ 2000e-2(k)(1)(A)(ii), (kK)(I((C) ...... eee 28

Civil Rights Act (CRA) of 1964 as amended by

CRA of 1991, Pub. L. No. 102-166, 105 Stat. 1071

(1991), codified at 42 U.S.C. §§ 2000e, et seq....... 27

REGULATIONS:

28 C.F.R. §§ 42.104(b)(2)-(3) .. «2... cece eee ee eens 7

28 C.F.R. § 42.107(b).. 1... cece ee eee eee eens 11

28 C.F.R. §§ 42.107(b)-(d) ... 2... ee cece cece eens 19

* eee -

Vii

TABLE OF AUTHORITIES - Continued

Page

28 C.F.R. §§ 42.108(c), 42.110(g)(2).........ccceeeeee. 19

29 C.R.R. §§ 31.3(b)(2)-(3) .. 0... cc cccccccccccceeecuccs 7

BD COM. 6 Wb Ti ososicdcckcnccanccsdeaceceascuns 11

29 C.RR. § 31.7(b)-(d)... 0... ccc cece ccccceccceceeuen 19

29 C.RR. §§ 31.8(b), 31.10... 00... ccc ccccccccceccucs 19

32 C.ER. §§ 195.4(b)(2)-(3) oo. oo. cc cc cccccccccccccecee 7

32 C.ER. § 195.8(b).. 0... ccc ccccccccccccceceey 12

32 C.RR. §§ 195.8(b)-(d) ... 0... cece ccc ccccceceeees 19

32 C.RR. §§ 195.9(c), 195.11. .... 0. cc cc ccecececeececs 19

96 CORR. GB 100.9(2)43).........cccccccccccccccccccce 7

I Oi vicivicincanndtcccececesdadecscucu: 12

34 C.RR. §§ 100.7(b)-(d) 0.0... coc cccccccccceccccees 19

34 C.RR. §§ 100.8(c), 100.10......... 0. cece eeeeceeeee 19

40 C.FR. §§ 7.35(b), (Cc)... ccc cece cccccccccccucccceces 7

Pe irccndidkinccacatecanéudceucetdeccn: 19

WI Bids nas nccctcccsecccccccuaceccas 12

40 CBR. § 7.120(4)(1)(i) oo. occ cccccccecceccecceecee. 17

GI, Bini ceive vicccovduocdncnsceeensa 19

42 C.RR. § 42.110(b).... 0.0... cece ccc cccccccceeeeees 19

45 C.F.R. §§ 80.3(2)-(3).........cccccccccccccecccceees 7

WP SO, © Oi ine vn cncccvcccvcsccsccscodescesc: 12

45 C.RR. §§ 80.7(b)-(d) 0.0.0... cece cece cccccececees 19

45 C.RR. §§ 80.8(c), 80.10.......... cc ccc cccececceeee 19

Vili

TABLE OF AUTHORITIES ~— Continued

Page

49 C.F.R. §§ 21.5(b)(2)-(3) .. 2... cece ee eee eee e eens 7

49 C.F.R. §§ 21.11(b)-(d) .... 2... cece ee ee eee eee eens 19

49 C.F.R. §§ 21.13(c), 21.17. ..... 6. cece eee e eee eees 19

MISCELLANEOUS

H. Rep. 914, 88th Cong., 2d Sess. (1964), Addi-

tional Views of George Meader, reprinted in 1964

UGSCAN 2991, 2625 20... cccccsccccccccsescccccvess 6

Sen. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976),

reprinted in 1976 USSCAN 5908, 5912 .........-+-. 20

110 Cong. Rec. 1520, 1538, 1613, 6561, 11225,

13378, 14345, 13333 (1964) ...........6 eee eee 6, 7, 20

134 Cong. Rec. 99-100, 4257, 18879-800 (1988) ........ 9

Civil Rights Restoration Act of 1985: Joint Hearings

on H.R. 700 Before the House Committee on Educa-

tion & Labor and the Subcommittee on Civil &

Constitutional Rights of the House Committee on

the Judiciary, 99th Cong., 1st Sess. (1985).........-- Yy

Civil Rights Act of 1984: Hearings on S. 2568 Before

the Subcommittee on the Constitution of the Senate

Committee on the Judiciary, 98th Cong., 2d Sess.

CRIED < vccccscccceccecceccccsccssesesaccescecconees 9

Department of Education, Office of Civil Rights,

Annual Report to Congress: Guaranteeing Equal

Access to High-Standards Education (1998) ...13, 19, 25

Department of Education, Office of Civil Rights,

Case Resolution Manual 12 (Feb. 1998) ............. 19

— ~<——we ~~ «aw -

TS ee

ix

TABLE OF AUTHORITIES - Continued

Page

Department of Education, Office of Civil Rights,

How to File a Discrimination Claim with the Office

of Civil Rights (Nov. 14, 2000).................000-

Environmental Protection Agency, Draft Revised

Guidance for Investigating Title VI Administra-

tive Complaints Challenging Permits, 65 Fed.

CE) Se GSA vveckecncncsccasocieceduess 19

Environmental Protection Agency, Draft Title VI

Guidance for EPA Assistance Recipients

Administering Environmental Permitting Pro-

grams, 65 Fed. Reg. 39650 (2000) .................

Environmental Protection Agency, Status Sum-

mary Table of EPA Title VI Administrative

Complaints (10/04/00). ................000000ee 15

Environmental Protection Agency, Title VI Com-

plaints Filed With EPA (10/04/00)................

H. Comm. On Gov’t Operations, Investigation of

the Office for Civil Rights in the Department of

Health and Human Services (April 15, 1987) ........

Michael Meltsner, Equality and Health, 115 Penn. L.

Ee Ge UP Re deeutedEddbbvarckaveecenssceceess

David Barton Smith, Health Care Divided: Race and

Healing a Nation 317-20 (Ann Arbor: Univ. of

I a a

David Barton Smith, “Addressing Racial Inequal-

ities in Health Care: Civil Rights Monitoring

and Report Cards,” 23 Health Politics, Policy and

Se FP SE BESEh on cer deseesnesscadéevieivedocss

United States Commission on Civil Rights, The

Federal Enforcement Effort (1970)...................

x

TABLE OF AUTHORITIES - Continued

Page

United States Commission on Civil Rights, The

Federal Enforcement Effort — Seven Months Later

55-56 (May 1971)......-.-- eee cence eee cece ee eeere 13

United States Commission on Civil Rights, The

Federal Enforcement Effort - One Year Later (Nov.

SIDED. occ cccvcccccccecscccncnccccevcesdccsocecese 13

United States Commission on Civil Rights, Federal

Title VI Enforcement to Ensure Nondiscrimination

in Federally Assisted Programs (June 1996)...11, 12, 13

United States Commission on Civil Rights, The

Health Care Challenge: Acknowledging Disparity,

Confronting Discrimination and Ensuring Equality,

Vol. II: The Role of Federal Civil Rights Enforce-

nent (1999)... ccccccccccccccccsccssccees 14, 15, 16

STATEMENT OF INTEREST OF AMICI CURIAE

The National Lawyers’ Guild/Maurice and Jane

Sugar Law Center for Social and Economic Justice (the

Guild Law Center or GLC)! is a national public interest

law center that focuses on economic and environmental

justice issues. The GLC represents amicus FGUA in their

Title VI administrative claim pending before the Environ-

mental Protection Agency (EPA), and has worked exten-

sively on behalf of low income and minority communities

addressing environmental justice issues. The GLC’s abil-

ity to effectively represent its client groups will be

affected by the decision in this case.

Flint-Genesee United for Action, Justice and Environ-

mental Safety (FGUA) is a non-profit community organi-

zation formed in opposition to the Genesee Power

Station, a wood waste incinerator/electrical generator

located in a predominantly African-American community

in Flint, Michigan. FGUA participated in filing an admin-

istrative complaint under the EPA’s Title VI regulations to

challenge the permitting process. The complaint was filed

in December 1992 and has been under investigation since

January 1995.

The Center on Race, Poverty and the Environment

(CRPE) is a national environmental justice organization,

1 Amici curiae file this motion with the consent of all parties.

The written consent is on file with the Court. Pursuant to

Supreme Court Rule 37.6, amici affirm that no counsel for anv

party in this case authored this brief in whole or in part; ana,

furthermore, that no person or entity, other than amici and their

counsel, has made a monetary contribution specifically for the

preparation or submission of this brief.

which represents low-income communities in environ-

mental disputes. CRPE represents 28 community groups

and individuals in six states who have filed Title VI

administrative complaints with the EPA, and the Depart-

ments of Energy, Housing and Urban Development, the

Interior and Transportation. CRPE’s ability to represent

its clients will be directly affected by this case.

Residents of Sanborn Court (RSC) is an unincorpo-

rated community group made up of residents of the

Sanborn Court housing development in Salinas, Califor-

nia. RSC’s membership is more than 95% Latino and

primarily farmworkers. RSC filed a Title VI administra-

tive complaint with the EPA in August 1995, alleging

discriminatory impact from the siting of a toxic waste

facility one block away. No decision has been reached on

that claim.

The Institute for Public Representation (IPR) is a

public interest law firm and clinical education program at

the Georgetown University Law Center. Attorneys and

law students at IPR represent individual and organiza-

tional clients in a wide range of civil rights and environ-

mental law cases. IPR attorneys have worked extensively

on environmental justice issues, focusing on the problems

facing low-income and minority communities in the Dis-

trict of Columbia area. IPR’s ability to represent these

clients will be directly affected by the decision in this

case.

New York Lawyers for the Public Interest (NYLPI) is

a non-profit law firm that works in three project areas:

access to health care, environmental justice and disability

rights. NYLPI directly represents individuals throughout

New York City and New York State and, also, harnesses

the resources of more than eighty of New York’s law

firms and corporate legal department to provide free

legal assistance to community organizations and not-for-

profits. NYLPI’s ability to represent clients in commu-

nities across New York on issues of discrimination on the

basis of race and ethnicity will be directly affected by the

decision in this case.

The Mexican American Legal Defense and Educa-

tional Fund (MALDEF) is a national non-profit organiza-

tion whose mission is to protect and promote the civil

rights of the more than 30 million Latinos living in the

United States. This litigation raises important issues rele-

vant to the ability of the organization and the petitioners

they represent to challenge discrimination through Title

VI actions, particularly in the areas of education and

public resource equity. MALDFEF relies on the regulations

promulgated under Title VI as a means to effect justice in

lawsuits filed against agencies receiving federal funds.

Communities for a Better Environment (“CBE”) is a

California-based environmental health and justice organi-

zation with members throughout the state. For over

twenty years, CBE has used science, law, and organizing

to improve the urban environment in California. CBE

believes that access to the courts to redress injuries is an

important tool for all people, especially for members of

minority groups who face disproportionate burdens from

discrimination and the effects of environmental degrada-

tion.

SUMMARY OF ARGUMENT

A private right of action to enforce the regulations

adopted to implement Title VI is entirely consistent with

the purpose and history of that civil rights statute. The

legislative history of Title VI shows that Congress

intended for § 601, which grants individuals protection

from discrimination in federally-funded programs, to be

read together with § 602, which requires agencies to

adopt regulations implementing and effectuating § 601.

As a result, the unquestioned private right of action to

enforce the statute must extend to the precise types of

discrimination identified by agencies in the regulations.

Since the passage of Title VI and the implication of a

private right of action under § 601, Congress has

amended the statute on many occasions and, in doing so,

ratified this construction.

Implication of a private right of action to enforce the

regulations adopted under Title VI is also consistent with

Congress’ intent to ensure effective protection of the indi-

vidual rights created in the statute. Administrative

enforcement has experienced serious backlogs and a

demonstrated inability to effectively ensure compliance

with Title VI regulations. Because administrative enforce-

ment alone has not and cannot reach all prohibited dis-

criminatory behavior, private enforcement is essential to

effectuate the statutory goal of ensuring that federal

funds do not perpetuate discrimination. Moreover, the

availability of a private right of action has not resulted

and will not result in the flood of litigation or “parade of

horribles” presented by Petitioner and many of the amici

filing in support of Petitioner. Lower courts, including

nine federal circuits, have allowed such actions for over

two decades without overwhelming their dockets or sub-

jecting recipients of federal funds to unlimited liability.

Disparate impact claims under Title VI regulations will

continue to be appropriately limited by the standards of

liability and burdens of proof imposed by courts, as they

have been for years.

°

ARGUMENT

The availability of an implied private right of action

under any law hinges ultimately on Congressional intent.

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,

15-16 (1979). Courts have looked to several factors to

determine Congressional intent, including: 1) the purpose

and structure of the particular law; 2) Congressional

explanations of its function; 3) the necessity of a private

right of action to fulfill the purposes of the law; and 4)

compatibility of such an action with the law. See id. at

17-19; Touche Ross & Co. v. Redington, 442 U.S. 560, 568-70

(1979); Cort v. Ash, 422 U.S. 66, 78 (1975). In this case,

Congressional intent to create a private right of action

expansive enough to enforce Title VI regulations is dem-

onstrated by the Act’s purpose, which was to provide a

broad individual right to be protected from racial, ethnic

and national origin discrimination, and the structure of

the Act, which makes private enforcement necessary to

achieve this goal.

I. CONGRESS INTENDED TITLE VI TO CREATE A

BROAD PERSONAL RIGHT AGAINST DISCRIMI-

NATION EXPANSIVE ENOUGH TO INCLUDE THE

PROTECTIONS PROVIDED BY REGULATION.

Although Title VI was enacted both to prevent fed-

eral funds from supporting discriminatory programs and

to give individuals an effective remedy against discrimi-

nation, Cannon v. University of Chicago, 441 U.S. 677, 704

(1979), the principal motivation was to protect and

enforce individual rights, 110 Cong. Rec. 6561 (Sen.

Kuchel), 11225 (Sen. Cooper). Given this predominant

concern, this Court has already found that there is an

implied private right of action directly under § 601 of

Title VI, which prohibits discrimination in federally-

funded programs. Alexander v. Choate, 469 U.S. 287, 293

(1985); Cannon, 441 U.S. at 693-94.

Section 601 alone, however, was not intended to pro-

vide the full measure of protection available under Title

VI. Rather, by also passing § 602 of the Act, Congress

directed federal agencies:

“ .. . to effectuate the provisions of Section

2000d of this title . . . by issuing rules, regula-

tions, or orders of general applicability ... ”

42 U.S.C. § 2000d-1. (Emphasis added). Congress recog-

nized that federal agencies were more familiar with the

ways in which discriminatory behavior and decisions

would manifest themselves in specific federally-funded

programs and were most capable of crafting regulations

designed to end those practices. See H. Rep. 914, 88th

Cong., 2d Sess. (1964), Additional Views of George

Meader, reprinted in 1964 USSCAN 2391, 2425; 110 Cong.

Rec. 1613. As a result, federal agencies promulgated the

disparate impact regulations, which are the subject of this

dispute.?

A careful review of the legislative history demon-

strates that Congress intended §§ 601 and 602 to operate

jointly to create a uniform system of rights and enforce-

ment mechanisms. Congress characterized § 601 as set-

ting the general policy and § 602 as establishing the more

precise requirements and methods for implementation. In

response to an argument that these sections were incon-

sistent, proponents of the legislation insisted that the

sections must be read together to modify or inform each

other and could not be read independently. See 110 Cong.

Rec. 13378, 14345. Because Congress intended the law

and its regulations jointly to define the duties of federal

fund recipients and the corresponding individual right

against discrimination, the private right of action avail-

able under Title VI must allow for judicial enforcement of

both the statute and its implementing reguiations.

Indeed, courts have long assumed the availability of

a broad private right of action, both in cases brought

directly under the regulations and in cases brought to

compel agency enforcement of them. In Women's Equity

Action League v. Cavazos, 906 F.2d 742 (1990), plaintiffs

brought suit under the Administrative Procedure Act

2 See, e.g., 28 C.F.R. §§ 42.104(b)(2)-(3) (Justice or DOJ); 29

C.F.R. §§ 31.3(b)(2)-(3) (Labor); 32 C.F.R. §§ 195.4(b)(2)-(3)

(Defense); 49 C.F.R. §§ 21.5(b)(2)-(3) (Transportation or DOT); 34

C.F.R. §§ 100.3(2)-(3) (Education or DOEd); 45 C.F.R.

§§ 80.3(2)-(3) (Health and Human Services or HHS); 40 C.F.R.

§§ 7.35(b), (c) (EPA).

against the Department of Education (DOEd) for its fail-

ure to enforce fully Title VI. The D.C. Circuit found that

the plaintiffs had a private right of action directly against

the recipients of federal funding, who were allegedly

violating Title VI. Id. at 750-51. Relying on Cannon, supra,

the court found that “Congress considered private suits

to end discrimination not merely adequate but in fact the

proper means for individuals to enforce Title VI,” and,

because individuals had an adequate remedy under Title

VI, the APA provided no additional relief. Id. See also

Washington Legal Foundation v. Lamar, 984 F.2d 483, 485-86

(D.C. Cir. 1993). The same analysis has been applied to a

recent action that sought to compel the Department of

Transportation (DOT) to enforce its Title VI disparate

impact regulations. Jersey Heights Neighborhood Ass'n v.

Glendening, 174 F.3d 180, 191-92 (4th Cir. 1999). In dis-

missing the plaintiffs’ claim against DOT, the Fourth Cir-

cuit implicitly found that plaintiffs had a direct remedy

against the funding recipients for violation of DOT's reg-

ulations and that this remedy was “not only ‘adequate,’

but, as the Supreme Court recognized, is preferable to a

direct suit against the agency itself.” Id. If Title VI regula-

tions are not privately enforceable, victims of discrimina-

tion in federally-funded programs will be left without a

remedy against either the federal agency that failed to

enforce its regulations or the federally-funded entity that

violated those regulations unless Cavazos and its progeny

are revisited by the courts.

Since the passage of Title VI, Congress has consis-

tently demonstrated its intention to allow for private

enforcement of the Act as a whole. In 1968, Congress

rejected an amendment to Title VI that would have

defined “discrimination” to include only intentional acts

and, arguably, invalidated the disparate impact regula-

tions then under consideration. Guardians Ass'n v. Civil

Service Comm'n, 463 U.S. 582, 620 (1983) (Marshall, J.,

dissenting). Congress then expanded the availability of

private suits by allowing for recovery of attorney’s fees,

42 U.S.C. § 1988, and abrogating states’ sovereign immu-

nity from suit, 42 U.S.C. § 2000d-7. In 1988, four years

after the Court’s decision in Guardians, Congress

amended Title VI to reverse a judicial interpretation nar-

rowing the term “programs” and, despite repeated warn-

ings that this amendment would greatly expand the reach

of the private rights of action assumed to be available

under Title VI regulations, chose not to preclude a private

right of action or to limit the scope of the regulations

themselves. See 134 Cong. Rec. 99-100 (Sen. Hatch), 4257

(Sen. Hatch), 18879-800 (Rep. Fields) (1988); Civil Rights

Restoration Act of 1985: Joint Hearings on H.R. 700 Before the

House Committee on Education & Labor and the Subcommittee

on Civil & Constitutional Rights of the House Committee on

the Judiciary, 99th Cong., 1st Sess. 734, 1095, 1099 (1985);

Civil Rights Act of 1984: Hearings on S. 2568 Before the

Subcommittee on the Constitution of the Senate Committee on

the Judiciary, 98th Cong., 2d Sess. 23-24, 153-54, 200

(1984).

While the action or inaction of subsequent Con-

gresses is not determinative of the legislative intent

behind the original measure, such consistent interpreta-

tions over the course of many years are entitled to

weight. See Federal Housing Admin. v. Darlington, Inc., 358

U.S. 80, 90 (1958). Congressional inaction can be partic-

ularly significant where Congress fails to correct a long-

10

standing and well-known administrative or judicial inter-

pretation of a statute, despite having made substantive

changes to other portions of the statute. Ankenbrandt v.

Richards, 504 U.S. 689, 700-01 (1992); Guardians, 463 U.S.

at 620-21 (Marshall, J., dissenting); United States v. Ruther-

ford, 442 U.S. 544, 554 (1979). See also Merrill Lynch, Pierce,

Fenner & Smith v. Curran, 456 U.S. 353, 379-81 (1982). This

presumption is especially strong where the interpretation

involves a matter of “considerable public controversy,” as

in the case of civil rights laws. Guardians, 463 U.S. at

620-21 (Marshall, J., dissenting). Since Congress was fully

aware of the availability of a private right of action

during its frequent debates over amendments to the stat-

ute, its apparent unwillingness to amend Title VI to pre-

clude a private right of action under the regulations

suggests that Congress has ratified both the disparate

impact regulations and an individual right to enforce

those regulations.

Petitioner and several amici argue that, despite the

limited question presented in this appeal, this Court

should invalidate the disparate impact regulations first

promulgated more than 30 years ago, adopted by all

federal agencies which distribute federal funds and appli-

cable to all recipients of federal funds. Brief for Peti-

tioners at 25-26; Brief Amicus Curiae of Pacific Legal

Foundation and Center for Equal Opportunity (PLF Brief)

at 5-12; Brief Amicus Curiae of Washington Legal Founda-

tion et al. (WLF Brief). Assuming that the Respondent

and/or other amici discuss more fully the procedural and

substantive deficiencies of this argument, we will not

address it here. We note, however, the terrible disruption

to agency operations and the settled expectations of

11

recipients of federal funds that would be caused by

invalidating these regulations at such a late date.

Il. A PRIVATE 3IGHT OF ACTION TO ENFORCE

THE REGULATIONS IMPLEMENTING TITLE VI

IS CONSISTENT WITH AND NECESSARY TO

FULFILL THE PURPOSES OF TITLE V.

Petitioners assert that a private right of action to

enforce Title VI regulations is unnecessary because of the

existing administrative enforcement mechanism. Brief for

Petitioners at 16-17. However, vesting exclusive enforce-

ment responsibility in federal agencies was not the intent

of the statute and the agencies do not have the capacity to

be the sole enforcers of Title VI and its regulations. As the

United States Commission on Civil Rights (USCCR)

recently found, “Federal Title VI enforcement has been

effectively dormant” and “[w]ith few exceptions, the Fed-

eral agencies . . . have disregarded Title VI enforcement.”

USCCR, Federal Title VI Enforcement to Ensure Non-

discrimination in Federally Assisted Programs iii (June 1996)

(Federal Title VI Enforcement).

A. Administrative Enforcement Alone is Insuffi-

cient to Ensure Compliance With Title VI Regu-

lations.

Under the model regulations adopted by the Depart-

ment of Justice (DOJ) and, with limited modifications, by

every other federal agency, individuals who believe that a

recipient of federal funds has violated Title VI or its

regulations can file a complaint with the relevant federal

agency. 28 C.F.R. § 42.107(b) (DOJ). See also 29 C.ER.

12

§ 31.7(b) (Labor); 32 C.F.R. § 195.8(b) (Defense); 34 C.F.R.

§ 100.7(b) (DOEd); 45 C.F.R. § 80.7(b) (HHS); 40 C.FR.

§ 7.120(a) (EPA). The funding agency must then investi-

gate the claim to determine if Title VI or its regulations

have been violated before withholding funds or referring

the case to the Department of Justice. 42 U.S.C. § 2000d-1.

However, without addressing the reasons, possible

motives or underlying circumstances, the funding agen-

cies have not been able to investigate properly and

resolve all meritorious claims.

1. The agencies’ record demonstrates that

administrative enforcement alone cannot

fulfill the purposes of Title VI and its

implementing regulations.

Agencies must address many goals with limited

resources and are likely to view enforcing agency-speci-

fic, technical regulations as more central to their mission

than preventing racial or other discrimination. As a

result, as documented by the USCCR, many have under-

funded and understaffed their civil rights enforcement

programs. See USCCR, Federal Title VI Enforcement, supra,

14-18. This Court has also recognized that federal agen-

cies, faced with civil rights complaints, may “simply

decide not to investigate - a decision that often will be

based on a lack of enforcement resources, rather than any

conclusion on the merits of the complaint.” Cannon, 441

U.S. at 707 n.41.

In periodic evaluations of the success of federal

enforcement of Title VI and its implementing regulations,

the USCCR has consistently found that the agencies

~~ Sy OF

I =

13

reviewed had not provided sufficient resources to the

effort, coordinated their actions across agencies effec-

tively or developed adequate enforcement procedures.

USCCR, The Federal Enforcement Effort (1970); USCCR, The

Federal Enforcement Effort - Seven Months Later 55-56 (May

1971); USCCR, The Federal Enforcement Effort - One Year

Later (Nov. 1971); USCCR, Federal Title VI Enforcement

supra, at 17. Evaluations by both the General Accounting

Office and the Coordination and Review Section of DOJ’s

Office of Civil Rights confirmed that federal agencies, on

the whole, were not living up to their Title VI enforce-

ment responsibilities. USCCR, Federal Title VI Enforcement,

supra, at 16-17 (citing U.S. General Accounting Office,

Agencies When Providing Federal Financial Assistance Should

Ensure Compliance with Title VI, Rept. No. 112,063 (Apr.

15, 1980); DOJ, Civil Rights Division, “Title VI - Fifteen

Years Later,” Title VI Forum, vol. 4, no. 2 (Fall 1979)).

Many federal agencies have developed a backlog of

Title VI complaints. USCCR, Federal Title VI Enforcement,

supra, at 646-58. For example, in 1998, the DOEd had a

backlog of 747 civil rights complaints, 139 of which were

likely to have been filed under Title VI. DOEd, Office of

Civil Rights, Annual Report to Congress: Guaranteeing Equal

Access to High-Standards Education, pp. 17-18 (1998) (1998

Annual Report). Despite this backlog, the USCCR lauded

aa DOEd for doing the best job of any federal agency to

pon | Title VI. USCCR, Federal Title VI Enforcement, pp.

The Department of Health and Human Services

(HHS) also has a backlog of cases, although the number

of complaints filed has decreased in recent years. USCCR,

14

The Health Care Challenge: Acknowledging Disparity, Con-

fronting Discrimination and Ensuring Equality, Vol. Il: The

Role of Federal Civil Rights Enforcement 172 (1999) (Health

Care Challenge, Vol. II). By fiscal year 1998, one-third of

the 134 complaints being actively investigated by HHS

had been carried over from a previous year. Id. at 181.

The agency was only able to close 71 of those cases

during 1998, leaving 63 cases to be carried over to 1999.

Id.

HHS’ ability to enforce Title VI has always been

limited. See, e.g., David Barton Smith, Health Care Divided:

Race and Healing a Nation 317-20 (Ann Arbor: Univ. of

Mich. Press 1999); Michael Meltsner, Equality and Health,

115 Penn. L. Rev. 22 (1966). An independent review con-

ducted in the 1960s found that “[e]ven when persistent

violations have been discovered . . . , sanctions have not

been imposed, and so violations of constitutional rights

often continue unabated.” Meltsner, supra, at 25-26. For

example, although Medicare required Title VI certifica-

tion of hospitals as a condition of participation, nursing

homes and other forms of health care were not subject to

field audits and remained substantially segregated. Bar-

ton Smith, supra, at 226, 318-19. During the 1970s, civil

rights enforcement at the Department of Health, Eduva-

tion and Welfare (HEW) fell prey to the concern that

compliance activities would impede federal health plan-

ning, a competing priority for the agency. David Barton

Smith, “Addressing Racial Inequalities in Health Care:

Civil Rights Monitoring and Report Cards,” 23 Health

Politics, Policy and Law 75, 87 (1998).

A 1987 report by the House Committee on Govern-

ment Operations found that HHS, which was then

15

providing in excess of $330 billion annually to nearly

230,000 health and social service agencies subject to Title

VI, unnecessarily delayed Title VI case processing, allow-

ing discrimination to continue; routinely conducted

superficial and inadequate investigations; and failed to

bring formal administrative or judicial enforcement in

cases in which it had been unable to negotiate voluntary

compliance. H. Comm. On Gov’t Operations, Investigation

of the Office for Civil Rights in the Department of Health and

Human Services 3, 5, 16, 20 (April 15, 1987). Only last year,

the USCCR found that HHS’ complaint investigations

continue to be “replete with problems,” including insuffi-

cient staff training on investigative procedures, and the

backlog has “resulted in considerable pressure to close

cases, increasing the likelihood of cases being closed pre-

maturely.” Health Care Challenge, Vol. II at 172. Clearly,

HHS does not have the resources or ability to enfesce

Title VI and its regulations fully on its own.

The EPA’s enforcement record is similarly poor.

Between December 19923 and October 2000, the EPA

agreed to investigate 61 Title VI administrative com-

plaints. Status Summary Table of EPA Title VI Adminis-

trative Complaints (10/04/00) (“Status Summary Table”)

located at http://www.epa.gov/ocrpage1/docs/t6stoc2000. pdf.

. 3 The first Title VI disparate impact co i i

with the EPA in December 1992, “ery chan vagy th pe

procedures for handling such complaints, it was filed, and then

misplaced until the GLC filed a second complaint about the

same facility on behalf of FGUA on July 6, +994. The EPA

accepted the complaint for investigation in January 1995 and,

almost six years later, is still lyzi ;

decision in sight. i analyzing the claim with no

16

As of October 4, 2000, 57 of those complaints were still

pending. Id. Eleven had been pending for more than five

years. See Title VI Complaints Filed With EPA (10/04/00)

(“Complaints Filed”), located at http://www.epa.gov/

ocrpage1/docs/t6soct2000.pdf. In fact, during its entire

eight-year history of Title VI complaint investigation, the

EPA has decided only one case on the merits. Complaints

Filed, p. 10.

The failure to resolve these administrative com-

plaints harms individual complainants in concrete ways.

The USCCR recently found that “there remain{s] tremen-

dous racial and gender disparities in access to quality

health care services,” many of which are the result of

HHS’ failure “to enforce the crucial nondiscrimination

provisions of the Federal civil rights laws with which it is

entrusted.” Health Care Challenge, Vol. II, supra, at 274.4

4 Egregious examples can be found in the administrative

dockets of other federal agencies as well. For instance, six years

ago, the EPA agreed to investigate amicus FGUA’s Title VI

complaint, mentioned in fn. 2, supra, regarding the issuance ofa

permit to a wood waste incinerator located in a predominantly

African-American community. Because the facility would burn

construction and demolition debris, much of which could

contain lead paint, it threatened to emit lead at a level harmful

to a community already overburdened with environmental

hazards and, as in many African-American communities,

housing a disproportionately high percentage of children with

elevated blood lead levels. FGUA asserted that the cumulative

impact of these emissions and the other environmental hazards

on this vulnerable population resulted in an adverse disparate

impact in its community, in violation of EPA’s Title VI

regulations. The State agency refused to consider any of these

issues in its permitting decision, relying entirely on compliance

with generic federal and state emission limits. While this facility

— ee mm

17

The delay itself compromises the ability of these com-

plainants to enforce their rights in other fora as the

passage of time means that witnesses become unavail-

able, agency personnel changes and institutional memory

fades.

Given limited staff and funding and multiple goals,

federal agencies will always be forced to circumscribe

and prioritize their enforcement efforts under their Title

VI regulations. If individuals are limited to the adminis-

trative process to enforce their civil rights, many will

continue to suffer discrimination in federally-funded

programs, contrary to the direct mandate of Title VI.

emits lead at potentially harmful levels, the EPA continues to

“study” the matter.

Similarly, amicus RSC was faced with a government agency

that had permitted all three of California’s toxic waste dumps to

be located in farmworker communities that ranged from 65% to

95% people of color, and which permitted a toxic waste

treatment facility one block from the Sanborn Court housing

complex, in an 84% Latino neighborhood. In response, RSC filed

a Title VI complaint with the EPA in August 1995, alleging

disparate impact and disparate treatment by California’s

Department of Toxic Substances Control. RSC’s worst fears

about the nearby toxic waste facility were realized when the

facility dumped toxic chemicals down the drain, and when

repeated accidents at the facility sent one worker to the hospital,

sent clouds of toxic ammonia into the surrounding

neighborhood, and forced local regulatory agencies to shut the

plant down. While this facility has closed, RSC’s concerns about

the permitting process itself remain unaddressed. Over five

years after RSC’s complaint was filed, the EPA has still not made

the basic determination of whether to even accept the complaint

for investigation, despite the requirement within its regulations

that such a determination be made within 20 days, 40 C.FR.

§ 7.120(d)(1)(i). :

18

Certainly, it was not the intent of Congress to leave an

aggrieved individual’s ability to seek redress subject to

the resources and priorities of an overburdened federal

agency.

2. The process for administrative enforcement

of Title VI regulations does not allow full

or effective participation by individual

complainants.

Our judicial system is premised on the notion that

directly affected individuals have the strongest incentive

to pursue their claims vigorously and participate in litiga-

tion in a way that ensures full and fair resolution of

complaints. See e.g., Sierra Club v. Morton, 405 U.S. 727,

732 (1972). Accordingly, even with a statutorily-provided

administrative process, a private right of action may be

necessary where the administrative process “does not

assure [the specially benefitted class] the ability to acti-

vate and participate in the administrative process con-

templated by the statute.” Cannon, 441 U.S. at 706, n.41.

As reflected in the amicus brief filed below by the

United States, federal agencies have long assumed that

individuals can enforce their rights under the Title VI

regulations in federal court. Brief for the United States as

Intervenor and as Amicus Curiae, at Section II.B. Accord-

ingly, most agencies have designed their Title VI enforce-

ment procedures to simplify the investigation for the

funding agency rather than to provide a forum for indi-

vidual complainants to be heard. The resulting adminis-

trative enforcement process thus often marginalizes the

19

affected individuals, even though individual complain-

ants have the greatest motivation to investigate thor-

oughly and persuasively present evidence demonstrating

civil rights violations affecting them.

Generally, a complainant files an initial complaint,

describing the alleged Title VI violation, but is not made a

party to the proceeding. See, e.g., 28 C.F.R.

§§ 42.107(b)-(d), 42.110(b) (DOJ); 29 C.F.R. §§ 31.7(b)-(d)

(Labor); 32 C.F.R. §§ 195.8(b)-(d) (Defense); 49 C.F.R.

§§ 21.11(b)-(d) (DOT); 34 C.F.R. §§ 100.7(b)-(d) (DOEd); 45

C.F.R. §§ 80.7(b)-(d) (HHS); 40 C.F.R. § 7.120 (EPA). For

example, under the EPA’s policies, the agency itself has

the only formal role in rebutting justification or mitiga-

tion defenses, EPA Draft Revised Guidance for Investigat-

ing Title VI Administrative Complaints Challenging

Permits, 65 Fed. Reg. 39650, 39683 (2000) (EPA Draft

Guidance), even though the complainant has the greatest

incentive and probably the best information to do so.

Many agencies do not give complainants the right to

participate in settlement negotiations, see, e.g., DOEd,

1998 Annual Report, p. 8; EPA Draft Guidance, 65 Fed Reg.

at 39673-674, although the agency may be most interested

in compliance plans that prevent future discrimination

rather than redressing the individual harm that generated

the complaint. Moreover, the complainant has no admin-

istrative appeal if his or her claim is denied. See, e.g., 28

C.F.R. §§ 42.108(c), 42.110(g)(2) (DOJ); 29 C.F.R. §§ 31.8(b),

31.10 (Labor); 32 C.R.R. §§ 195.9(c), 195.11 (Defense); 49

C.F.R. §§ 21.13(c), 21.17 (DOT); 34 C.R.R. §§ 100.8(c),

100.10 (DOEd); 45 C.F.R. §§ 80.8(c), 80.10 (HHS); 40 C.E.R.

§ 7.130(b) (EPA). See also DOEd, Office of Civil Rights,

20

Case Resolution Manual 12 (Feb. 1998); EPA Draft Guid-

ance, 65 Fed. Reg. at 39683-684.

Congress has recognized the inherent problems in

relying exclusively on administrative enforcement under

Title VI. In 1976, Congress passed the Civil Rights Attor-

ney’s Fees Award Act, P.L. 94-559, 90 Stat. 2641 (1976)

which allows individual Title VI litigants to be awarded

attorney’s fees under 42 U.S.C. § 1988. In so doing, Con-

gress acknowledged individual lawsuits under the civil

rights laws, including Title VI, as an integral part of its

enforcement strategy and that such actions should be

encouraged. Sen. Rep. No. 94-1011, 94th Cong., 2d Sess.

4-5, reprinted in 1976 USSCAN 5908, 5912, citing Newman

v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968);

Richardson v. Hotel Corporation of America, 332 F. Supp. 519

(E.D. La. 1971), aff’d, 468 F.2d 591 (Sth Cir. 1972); United

States Steel Corp. v. United States, 385 F. Supp. 346 (W.D.

Pa. 1974).

B. Allowing a Private Right of Action Is Consis-

tent with the Goals and Structure of Title VI.

Although Congress intended Title VI to prevent

future discrimination and provide a remedy for present

discrimination, it preferred to accomplish this goal with-

out punishing recipients of federal funds through with-

drawal of their funding. 110 Cong. Rec. 1520 (Rep.

Cellar), 1538 (Rep. Rodino), 13333 (Sen. Ribicoff); see also

Cannon, 441 U.S. at 704. Because individual litigants are

primarily “interested in obtaining a benefit for [them-

selves],” Cannon, 441 U.S. at 705, they are likely to request

21

personal, narrowly tailored relief that falls within Con-

gress’ intended result. Moreover, under existing case law,

individuals acting as private attorneys general under the

Title VI regulations are limited to prospective equitable

remedies. See, e.g., Guardians, 592 U.S. at 601; Gebser v.

Lago Vista Independent School District, 524 U.S. 274; 285-87

(1998). As the court below properly opined, the distinc-

tion between equitable and monetary relief is significant,

especially as it applies to the enforcement of disparate

impact regu’ ati_.is. Sandoval v. Hagan, 197 F.3d 484, 500,

n.14 (11th Cir. 1999). Thus, individuals filing a private

enforcement action under Title VI regulations are only

able to invoke a limited subset of the remedies available

to the funding agency, and thus to which federally-

funded entities are already subject, and could not impose

potentially punitive damages remedies.

Petitioner argues that private actions are inappropri-

ate because they would circumvent the notice and settle-

ment negotiation requirements imposed on funding

agencies. Brief for Petitioners at 27-28. However, there is

“a significant difference between a lawsuit filed by an

individual to compel compliance with Title VI and a Title

VI investigation by a federal agency. If, upon investiga-

tion, a federal agency finds a Title VI violation, the

agency has the discretion to choose the drastic remedy of

administratively withdrawing federal funds, rather than

asking the DOJ to file a federal lawsuit to compel compli-

ance, with its attendant protections for the funded entity.

Because a recipient of federal funds risks losing federal

funds as soon as an investigation is begun, the pre-

investigation notice and negotiation requirements

imposed by Congress are necessary. With an individual

22

lawsuit, however, a recipient has by definition significant

procedural protections, including notice of the nature of

the claim and time to settle before any adverse action is

taken, and is never at risk of losing its funding. Thus, the

notice and settlement requirements are not aimed at pri-

vate litigants and, in practical terms, an individual law-

suit provides comparable protections.

III. ALLOWING A PRIVATE RIGHT OF ACTION

DOES NOT CREATE LEGAL UNCERTAINTY,

IMPOSE ADDITIONAL BURDENS ON RECIP-

IENTS OF FEDERAL FUNDS OR OPEN THE

“FLOODGATES OF LITIGATION.”

The various amici supporting Petitioner argue that

providing for a private right of action under the Title VI

regulations would disrupt the settled state of the law,

impose unreasonable burdens on recipients of federal

funds and open the “floodgates of litigation” under these

regulations. See, e.g., WLF Brief at 23-25; Brief of Amicus

Curiae National Association of Manufacturers (NAM

Brief). These arguments miss the point and mischaracter-

ize the state of the law. Title VI and its disparate impact

regulations have been the law for three decades and suits

have been filed under these regulations for more than 25

years. See, e.g., Larry P. v. Riles, 793 F.2d 969, 981-82 (9th

Cir. 1984). Allowing this long-standing practice to con-

tinue will not “disrupt the settled state of the law,” as it is

the settled state of the law; nor will it create overwhelm-

ing amounts of private litigation.

tne Al. ray ata ay a iit

23

A. Allowing a Private Right of Action Under Title

= Regulations Will Not Overly Burden the

ourts.

Petitioners and their supporting amici devote signifi-

cant time and effort raising the specter of unlimited and

unmanageable litigation under a private right of action to

enforce Title VI regulations. However, they provide no

evidence to support this claim. It is noteworthy that the

same claim was raised in an effort to prevent passage of

the Civil Rights Act of 1964, and to prevent private rights

of action under Title VI itself and under Title IX. See

Cannon, 441 U.S. at 709. Such doomsday predictions have

yet to be realized. On the contrary, the available evidence

suggests that the number of private actions likely to be

filed under Title VI’s regulations is easily manageable by

the courts.

Almost from the moment that Title VI and its imple-

menting regulations were created, individuals have

sought to enforce these provisions through private law-

suits. Nine federal circuit courts have assumed the exis-

tence of an implied private right of action under the Title

VI regulations. See, e.g., Latinos Unidos de Chelsea v. Secre-

tary of Hous. & Dev., 799 F. 2d 774, 785 n.20 (1st Cir. 1986);

New York Urban League, Inc. v. New York, 71 F.3d 1031, 1036

(2nd Cir. 1995); Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999);

Castaneda by Castaneda v. Pickard, 781 F.2d 456, 465 n.11

(Sth Cir. 1986); Buchanan v. City of Bolivar, Tenn., 99 F.3d

1352, 1356 n.5 (6th Cir. 1996); David K. v. Lane, 839 F.2d

1265, 1274 (7th Cir. 1988); Larry P., 793 F.2d at 981-82 (9th

Cir.); Villanueva v. Carere, 85 F.3d 481, 486 (10th Cir. 1996);

Sandoval, 197 F.3d 484 (11th Cir.). Despiie this broad and

long-standing recognition by almost every federal

24

appeals court of the right to sue under the disparate

impact regulations, there has been no flood of lawsuits.

Many of the amici point to environmental justice

claims as being one of the fastest growing types of dispa-

rate impact claims and potentially causing the greatest

disruption in the judicial system. See, e.g., NAM Brief at

15-19; WLF Brief at 24. The reality is otherwise. The EPA

reports that during the last five years, local, state and

federal agencies have granted more than 250,000 permits

in the environmental context. During that time, there

have been only two reported cases alleging violations of

Title VI disparate impact regulations in permitting deci-

sions. Chester Residents Concerned for Quality Living v. Seif,

132 F.3d 925 (3d Cir. 1997), vacated as moot, 525 U.S. 974

(1998); Rozar v. Mullis, 85 F.3d 556 (11th Cir. 1996). Even if

administrative complaints are considered, there is no rea-

son for alarm. In the past eight years, the EPA has

received 103 complaints, or roughly 13 annually. Status

Summary Table.

In addition, the ease of filing an administrative claim

compared to the difficulty of filing a lawsuit strongly

suggests that fewer lawsuits than administrative claims

will be filed. For example, to file a complaint with DOEd,

an individual must simply send a letter including his

name and address, a description of the person or class of

person being discriminated against, the name and loca-

tion of the agency that discriminated and a description of

the discriminatory act. DOEd, Office of Civil Rights, How

to File a Discrimination Claim with the Office of Civil Rights,

located at http://www.ed.gov/offices/OCR/howto.html (Nov.

14, 2000). In comparison, to file a lawsuit, a complainant

must conduct his own investigation, produce sufficient

25

evidence to prove his claim, obtain representation or

represent himself, pay a filing fee and other significant

costs, file formal pleadings, meet standing requirements

and engage in extensive discovery. These additional bur-

dens have already and continue to convince a substantial

number of potential litigants to rely on the administrative

process, whatever its limitations.

In fact, some of the administrative complaints that

have actually been filed could support a private inten-

tional discrimination lawsuit directly under the statute.

For example, DOEd received complaints about a school

district that segregated Latino students from the rest of

the student population during both academic and non-

academic classes without consideration of the Latino stu-

dents’ proficiency in English, as well as another school

system that used different placement criteria for white

and black students who had received similar scores on a

test for learning disorders. DOEd, 1998 Annual Report at

26-27. Either of these complaints could have supported an

intentional discrimination claim in federal court, yet the

complainants in each case chose to use the administrative

process instead. Given the burdens of litigation and the

relative ease of filing administrative complaints, many

individuals will continue to select the administrative pro-

cess over litigation.

26

B. Allowing A Private Right of Action Under Title

VI Regulations Does Not Impose New or

Unworkable Burdens on Recipients of Federal

Funds.

Title VI regulations are presently binding on all recip-

ients of federal funds. As Justice Marshall noted in his

dissent in Guardians, every applicant for federal funds is

clearly notified that it must comply with Title VI and its

implementing regulations and, in fact, signs a contract in

which it agrees to do so. 463 U.S. at 629-30. Despite this

fact, amicus NAM argues that allowing individuals to

enforce Title VI regulations in the issuance of Clean Air

Act permits would disrupt a settled area of law and

impose additional obligations on state environmental

protection agencies and on regulated industries. NAM

Brief at 7-9. NAM ignores the fact that Title VI has, for 30

years, imposed a non-discrimination obligation on recip-

ients of federal funds that is independent of other legal

duties. Compliance with the Clean Air Act does not

exempt recipients of federal funds from their obligations

under Title VI. While a credible threat of enforcement

may compe! state agencies to develop procedures for

ensuring compliance with the applicable Title VI regula-

tions, it does not change or expand their existing legal

duties. State environmental agencies can easily avoid dis-

ruption to their permitting process by including Title VI

considerations in initial permitting decisions, as required,

and taking active measures to address the health and

environmental harms currently afflicting communities of

color within their jurisdiction. See Draft Title VI Guidance

cai wal |

: 27

for EPA Assistance Recipients Administering Environ-

mental Permitting Programs, 65 Fed Reg. 39650 (2000).

NAM also characterizes claims under the Title VI

regulations in the environmental context as a “collateral

attack on permits.” NAM Brief at 19. Again, NAM fails to

recognize that state environmental agencies that receive

federal funds are presently required to comply with these

regulations in issuing permits. A lawsuit challenging an

agency’s failure to comply with its existing legal obliga-

tions in issuing a permit is not a “collateral attack” on the

permit.

Moreover, contrary to the assertions of Petitioner and

their supporting amici, the judicial resolution of claims

filed under Title VI regulations would not impose stan-

dardless and unknown burdens on recipients of federal

funds. It is already well-established that disparate

impacts are not per se a violation of Title VI. Rather, only

“actions having an unjustifiable disparate impact on

minorities” constitute a violation of Title VI disparate

impact regulations. Alexander, 469 U.S. at 293 (emphasis

added). See also Title VII, Civil Rights Act (CRA) of 1964

as amended by CRA of 1991, Pub. L. No. 102-166, 105

Stat. 1071 (1991), codified at 42 U.S.C. §§ 2000e, et seq.

Courts analyzing claims under the Title VI regula-

tions have historically borrowed from the burden shifting

scheme for disparate impact claims under Title VII. 42

U.S.C. § 2000e-2(k)(1)). See, e.g., Sandoval, 197 F.3d at 507;

Elsion v. Talladega County Bd. of Ed., 997 F.2d 1394, 1407 &

m.14 (11th Cir. 1993); United States v. LULAC, 793 F.2d 636,

648 & n.35 (Sth Cir. 1986); City of Chicago v. Lindley, 66

F.3d 819, 828-29 & n.12 (7th Cir. 1995); Larry P., 793 F.2d at

28

982 & n.9; cf. Bd. of Ed. v. Harris, 444 U.S. 130, 151 (1979)

(borrowing from Title VII burden scheme to formulate

defendant’s burden in disparate impact case under Emer-

gency School Aid Act). Under this analysis, if the plaintiff

can make a prima facie showing that a particular policy or

practice causes a disparate impact, the defendant must

rebut by demonstrating that the challenged practice is

“consistent with business necessity.” 42 U.S.C.

§ 2000e-2(k)(1)(A)(i).

In the context of the Title VI regulations, courts have

required that the policy or practice have a “substantial

legitimate justification,” which has been further defined

as having a “manifest relationship” to, or being “neces-

sary to meeting a goal that was legitimate, important, and

integral” to, the recipient's “institutional mission.” See,

e.g., Elston, 997 F.2d at 1412-13; New York Urban League,

Inc., 71 F.3d at 1036; Ferguson v. City of Charleston, 186 F.3d

469, 480 (4th Cir. 1999); Larry P., 793 F.2d at 982 & n9

(requiring “educational necessity” in special education

case under Title VI regulations); cf. Harris, 444 U.S. at 151

(suggesting “educational necessity” standard in Emer-

gency School Aid Act case); LULAC, 793 F.2d at 648-49

(requiring “bona fide educational requirement” in educa-

tional testing case under Title VI regulations). If the

defendant meets this standard, the burden then shifts

back to the plaintiff to show that there is a “less discrimi-

natory alternative” that would serve the defendant's mis-

sion. 42 U.S.C. §§ 2000e-2(k)(1)(A)(ii), (k)(1)(C). See, e.g.,

Sandoval, 197 F.3d at 507; New York Urban League, Inc., 71

F.3d at 1036; Elston, 997 F.2d at 1407. Thus, the Title VI

regulations do not direct recipients to eschew any policy

choice which will result in a disparate impact but only to

29

avoid causing a disparate impact without a substantial

reason or when their goals could be reached through less

discriminatory means.

Given this developed system of evaluating Title VI

disparate impact claims, recipients of federal funds are

well positioned to defend themselves against individual

lawsuits. The threat of private lawsuits, while more likely

to provide incentive for compliance than administrative

enforcement alone, will not subject recipients to unlim-

ited liability for their justifiable administrative decisions.

Requiring recipients of federal funds to consider and

attempt to address the racial disparities created by their

policies and actions is neither unreasonable nor undesir-

able.

CONCLUSION

Both the history and purpose of Title VI support an

implied private right of action to enforce the disparate

impact regulations that Congress required federal agen-

cies to issue. Because administrative enforcement efforts

alone have proven incapable of effectively protecting

individuals from prohibited discrimination in federally-

funded programs, private enforcement of Title VI regula-

tions is necessary to meet the statutory goal of providing

individuals effective protection from discrimination in

federally-funded programs. Individuals have used the

courts to enforce Title VI and its regulations for more

than 25 years. This experience has shown that individual

enforcement of Title VI and its regulations, while crucial

to meeting the goals of the statute, has not and will not

30

overwhelm the courts or subject recipients to unlimited

liability.

Luxe W. Coe

(Counsel of Record)

CENTER ON RACE,

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MARIANNE L. ENGELMAN

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FOR THE Pustic INTEREST

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Respectfully submitted,

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ALMA L. Lowry

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