Private Actions to Sue for Civil Rights Violations in Federally Assisted Programs After Alexander v. Sandoval
CRS Report for Congress
Private Actions to Sue
for Civil Rights Violations
in Federally Assisted Programs
After Alexander v. Sandoval
August 9, 2001
Charles V. Dale
American Law Division
Congressional Research Service ˜ The Library of Congress
Private Actions to Sue for Civil Rights Violations in
Federally Assisted Programs After Alexander v.
In Alexander v. Sandoval, a narrow 5 to 4 majority of the U.S. Supreme
Court ruled that private individuals may not sue state agencies under Title VI of the
discrimination. At issue in Sandoval was the State of Alabama’s “English-only
policy,” requiring all aspects of its driver’s license examination process, including the
written portion, to be exclusively in English. In rejecting a Mexican immigrant’s claim
that the state policy violated Title VI because of its “disparate impact” on ethnic
minorities, a five Justice majority ruled that Congress did not intend a private right of
action to enforce Title VI, except as a remedy for intentional discrimination. Federal
regulations prohibiting state practices that have a discriminatory impact, regardless
of intent, could not provide a basis for private lawsuits. Sandoval, however, did not
directly confront federal agency authority, previously acknowledged by the Court, to
enforce Title VI compliance administratively with rules condemning practices
discriminatory in their effect on protected minority groups. Thus, at least for now,
“disparate impact” rules – like those mandating language assistance for non-English
proficient clients of federally financed programs – may still be enforced by the
government, just not by private litigants. In addition, as Justice Stevens emphasized
in his Sandoval dissent, an alternative avenue of relief for Title VI disparate impact
claims may be available under another civil rights statute, 42 U.S.C. § 1983. But
given the lengths to which the Court went to address an issue on which the federal
appellate courts were substantially in agreement, Sandoval may augur future perils
for substantive agency rules condemning disparate impact under Title VI.
The Sandoval Decision.......................................3
Implications ................................................ 4
Private Actions to Sue for Civil Rights
Violations in Federally Assisted Programs
After Alexander v. Sandoval
In Alexander v. Sandoval,1 a narrow 5 to 4 majority of the U.S. Supreme Court
ruled that private individuals may not sue state agencies under Title VI of the 1964
Civil Rights Act over claims of unintentional or so-called “disparate impact”
discrimination. Briefly, § 601 of Title VI enacted a prohibition on discrimination
because of race, color, or national origin in any federally assisted “program or
activity.”2 Responsibility for effectuating this anti-discrimination principle was lodged
with federal departments and agencies that administer federal grant-in-aid programs.
Specifically, such agencies are directed by § 602 of the Act to issue regulations and
to undertake administrative enforcement proceedings potentially leading to
termination of federal funds to any noncomplying recipient, whether a state or local
government or private program sponsor. Section 602 regulations of most agencies
specify policies and practices of grantees that violate Title VI, require assurances of
compliance by public or private entities seeking federal funds, and provide formal
procedures for complaint investigations and compliance reviews. The regulations
mandate compliance with nondiscrimination requirements as a condition for continued
funding and provide for possible termination of federal assistance to recipients who
fail to comply. Pursuant to § 602, Title VI regulations of the Department of Justice
(DOJ) and other Title VI agencies prohibit not only intentionally discriminatory
practices, but also the use by recipients of “criteria or methods of administration
which have the effect of subjecting individuals to discrimination.”3
Nearly two decades ago, In Guardians Ass’n v. Civil Service Commission,4 a
splintered 5 to 4 majority of the Justices concluded that § 601 of Title VI demanded
proof of discriminatory intent, but upheld agency implementation regulations prohibiting
disparate impact discrimination under § 602. Justice White wrote for the majority that
compensatory damages could be awarded only for intentional Title VI violations and
that victims of disparate impact discrimination were limited to prospective relief. By
1121 S. Ct 1511 (2001).
242 U.S.C. § 2000d. That section provides: “No person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in, be denied the
benefits of , or be subjected to discrimination under any program or activity receiving Federal
328 C.F.R. § 42.104(b)(2). See also 49 C.F.R. § 21.5(b)(2) and Guardians Ass’n v. Civil
Service Comm’s, 463 U.S. 582, 592 n.13 (White J.)(observing “every Cabinet department and
about 40 federal agencies adopted Title VI regulations prohibiting disparate-impact
4463 U.S. 582 (1983).
way of dicta in Alexander v. Choate,5 a case involving § 504 of the Rehabilitation Act
of 1973,6 the Court reiterated the Guardians finding that “actions having an
unjustifiable disparate impact on minorities could be redressed through agency
regulations designed to implement the purposes of Title VI,” explaining that Congress
had “delegated to the agencies in the first instance the complex determination of what
sorts of disparate impact upon minorities constituted significant social problems, and
were readily enough remediable, to warrant altering the practices of the federal grantees7
that had produced those impacts.” Thus, prior to Sandoval, an implied private right
of action to enforce § 601 of Title VI in intentional discrimination cases had been plainly
recognized by the Supreme Court. Similarly, it seemed, Title VI agencies could take
formal administrative actions to prevent practices by federal grantees that had a
discriminatory effect on protected minorities. Less certain, however, was whether
private litigants could sue for disparate impact discrimination since the Court had never
explicitly held that such a remedy exists under the § 602 regulations.8 Nonetheless,
most federal appeals courts had allowed private rights of action to enforce Title VI9
regulations, including disparate impact.
5469 U.S. 287 (1985).
629 U.S.C. § 794.
7469 U.S. at 293-94.
8The divide among the Justices on the question when Guardians Ass’n was decided was
considerable. Two Justices ( Marshall and White) each argued that showing disparate
impact was sufficient to prove a violation of § 601, without showing discriminatory intent.
Although seven Justices rejected this conclusion, three of them (Brennan, Blackmun, and
Stevens) joined Justices Marshall and White to form a majority concluding that § 602 permits
federal agencies to promulgate regulations that prohibit disparate impact discrimination:
The threshold question before the Court is whether the private plaintiffs in this
case need to prove discriminatory intent to establish a violation of Title VI . . . and
[the] administrative regulations promulgated thereunder. I conclude, as do four
other Justices, in separate opinions, that the Court of Appeals erred in requiring
proof of discriminatory intent. Guardians, 463 U.S. at 584 (Steven J. dissenting,
joined by Brennan and Blackmun, JJ.).
Two Justices (Rehnquist and White) were persuaded that although a violation might be
established, only equitable relief (i.e. no monetary damages) is available for “unintentional”
violations of Title VI. Two others (Powell and Burger) believed that no private remedy should
be given. At least four Justices believed that both compensatory and prospective relief were
9See e.g. Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999)(holding that Title VI regulations
prohibiting discriminatory effects in federally funded education programs gave rise to ath
private right of action); Villanueva v. Carere, 85 F.3d 481, 486 (10 Cir. 1996)(finding that
Hispanic parents had a private cause of action under Title VI to challenge school district’s
decision to close neighborhood elementary schools and to open a new charter school; however,
because parents failed to show a disparate impact, their claims were denied); New York Urban
League, Inc. v. State of New York, 71 F. 3d 1031 (2d Cir. 1995)(noting that riders of the New
York City Transit Authority subway and bus system, the majority of whom are protected
minority group members, had a private cause of action under Title VI).
At issue in Sandoval was the State of Alabama’s “English-only policy,” requiring
all aspects of its driver’s license examination process, including the written portion, to
be exclusively in English. In rejecting a Mexican immigrant’s claim that the state policy
violated Title VI because of its “disparate impact” on ethnic minorities, a five Justice
majority ruled that Congress did not intend a private right of action to enforce Title VI,
except as a remedy for intentional discrimination. Federal regulations prohibiting state
practices that have a discriminatory impact, regardless of intent, could not provide a
basis for private lawsuits. Sandoval, however, did not directly confront federal agency
authority, previously acknowledged by the Court, to enforce Title VI compliance
administratively with rules condemning practices discriminatory in their effect on
protected minority groups. Thus, at least for now, “disparate impact” rules – like those
mandating language assistance for non-English proficient clients of federally financed
programs – may still be enforced by the government, just not by private litigants. In
addition, as Justice Stevens emphasized in his Sandoval dissent, an alternative avenue
of relief for Title VI disparate impact claims may be available under another civil rights
statute, 42 U.S.C. § 1983, discussed infra. But given the lengths to which the Court
went to address an issue on which the federal appellate courts were substantially in
agreement, Sandoval may augur future perils for substantive agency rules condemning
disparate impact under Title VI.
The Sandoval Decision
In 1990, the State of Alabama amended its Constitution, declaring that English is
the official language of the state. Thereafter, the Alabama Department of Public Safety
implemented a policy of administering driver’s license examinations only in English.
Martha Sandoval, representing a class of non-English speakers, filed suit arguing that
the policy “had the effect” of discriminating against individuals because of their national
origin in violation of DOJ’s “disparate impact” regulations. As noted, those regulations,
promulgated under § 602, bar recipients of federal grantees from utilizing “criteria or
methods of administration that have the effect of subjecting individuals to discrimination10
because of their race, color, or national origin.” Both a federal district court and the
Eleventh Circuit agreed that Congress created a private cause of action under Title VI
to enforce disparate impact regulations. The U.S. Supreme Court in a five to four
decision reversed. Justice Scalia, joined by Chief Justice Rehnquist, and Justice
O’Connor, Kennedy, and Thomas spoke for the majority. Justice Stevens, joined by
Justices Souter, Ginsburg, and Breyer, filed a dissent.
Justice Scalia’s opinion noted that private rights of action to enforce a federal law
must be created by Congress. In examining the Act, the Court found that the private
“rights creating” language in § 601 of the Act – “no person shall be subject to
discrimination” – is absent from § 602. The text and structure of § 602 focused on the
regulatory role of federal agencies, not the rights of persons protected or conduct of
funding recipients, and placed “elaborate restrictions” on agency enforcement and fund
termination proceedings. Such factors militated against finding any congressional intent
to create a “freestanding private right of action” to enforce the disparate impact
regulations. “The express provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others.” Justice Scalia rejected arguments
1028 C.F.R. § 42.104(b)(2)(2000).
that courts had a “duty” to effectuate the statute’s purpose by providing a private
remedy, or that § 602 must be interpreted “in light of the contemporary legal context”
of the 1964 Act, when implied rights of action routinely found judicial favor. “We have
never accorded dispositive weight to context shorn of text . . .legal context matters only
to the extent that it clarifies text.”
In essence, the majority opinion embraced three basic propositions. First, private
individuals may sue to enforce § 601 and obtain both injunctive relief and monetary
damages. Secondly, the § 601 remedy applies only to claims of intentional
discrimination. Third, Justice Scalia “assum[ed],” but did not decide, that although
outside the scope of § 601, agency regulations under § 602 could validly proscribe
activities that have a disparate impact on racial groups. But because the Title VI
precedents were equivocal on the point, and because of “considerable tension” with the
rule of Regents of the University of California v. Bakke11 and Guardians Ass’n that
§ 601 forbids only intentional discrimination, the Court was unwilling to permit a
private right of action to enforce the disparate impact regulations. “It is now clear that
the disparate impact regulations do not simply apply §601 – since they indeed forbid
conduct that § 601 permits – and therefore clear that the private right of action to
enforce § 601 does not include a private right to enforce those regulations.” Nor could
language of the regulation create a right of action that Congress did not since
“[a]gencies may play the sorcerer’s apprentice but not the sorcerer himself.”
Accordingly, Sandoval leaves undisturbed, at least for the present, federal agency
enforcement of Title VI regulations for federal programs incorporating a disparate
impact or discriminatory effects standard. However, private actions to enforce
disparate impact claims are precluded. And the ultimate question of “whether the
DOJ regulation was authorized by § 602" – that is, of the validity of disparate impact
analysis in the Title VI context – remains open for some future review by the Court.
Justice Stevens, in a dissenting opinion joined by Justices Souter, Ginsburg, and
Breyer, argued that Cannon v. University of Chicago12 had upheld disparate impact
private causes of action under both Title VI and Title IX of the 1972 Education
Amendments. Describing as “unorthodox” and “haphazard” the cases limiting § 601
to intentional discrimination, the dissent felt the Court had disregarded the principle of
deference to the construction of a statute by the agency charged with administering it.
In addition, the majority opinion was criticized for ignoring the “contemporary context”
of Title VI’s adoption, which supported recognition of private rights of action.
Civil rights advocates argue that many supposedly unintentional practices – like
the English language requirements in Sandoval – have a discriminatory impact on racial
and ethnic minorities, as well as women, the disabled, and other protected classes.
Other examples, which have been the target of private lawsuits, include racial profiling
by police, placing waste treatment plants or other environmentally toxic and undesired
facilities in predominantly minority neighborhoods, height and weight hiring standards,
11438 U.S. 265 (1978).
1241 U.S. 677 (1979).
or the use of written tests and other selection procedures in employment or education.
Requiring plaintiffs in such cases to uncover the “smoking gun” of discriminatory
intent, these groups argue, imposes an undue burden, unlikely to be met, on private
parties seeking to enforce federal nondiscrimination standards. In this respect, Sandoval
may have broader consequences than the Court’s recent sovereign immunity
jurisprudence because the restriction on private disparate impact enforcement actions
applies with regard to all potential Title VI defendants, whether public or private federal
grantees, and not just the states. In addition, the decision may have significance
beyond Title VI, applying to private suits to enforce the disparate impact regulations
under other statutes, such as § 504 of the Rehabilitation Act of 1974,13 Title II of the
Americans with Disabilities (ADA),14 and the prohibition on gender discrimination in15
education under the Education Amendments of 1972, all of which have remedial
provisions that refer to Title VI or are comparable to it. The Supreme Court, for
example, has assumed without deciding that § 504 covers disparate impact
discrimination,16 and ADA’s Title II expressly requires that regulations be interpreted17
consistently with § 504. Any earlier conclusions as to a private right of action may
now be ripe for separate reconsideration in light of each statute’s peculiar legal and
Moreover, beyond limiting private actions to enforce Title VI disparate impact
regulations, Sandoval could be read as legally undermining the validity of the disparate
impact standard itself. Although the Court assumed for purposes of deciding the case
that the regulations were valid, that supposition is weakened by the majority’s rationale
for finding the agency rules insufficient to support a private right of action. The opinion
states that § 601, which prohibits only intentional discrimination, creates a private right
of action for claims based on that provision, alone, and its implementing regulations.
Section 602, in its view, is the statutory predicate for the disparate impact regulations,
but may not provide authority for a private right of action challenging any activity not
unlawful under § 601. Query, however, if the § 602 disparate impact regulations are
not closely enough related to § 601 to support a private right of action, are they
sufficiently linked to the latter to be valid at all, since § 602 only authorizes agencies
to issue rules “to effectuate the provisions” of § 601? Moreover, were the Court in
some future case to transpose its recent § 5 of the Fourteenth Amendment
jurisprudence, the implications may be foreseeable. That is, while Congress is
constitutionally empowered to prohibit acts that are not themselves a violation of the
equal protection clause – e.g. unintentional acts with racially discriminatory effects –
any such “prophylactic” congressional legislation (or agency rules under Title VI) must
be “congruent” and “proportional” to actual violations found to exist.18 This standard
could put most agency disparate impact regulations in some constitutional jeopardy.
1328 U.S.C. § 794.
1442 U.S.C. § 12131.
1520 U.S.C. §§ 1681 et seq.
16 469 U.S. 287 (1985).
1742 U.S.C. § 12134(b).
18See City of Boerne v. Flores, 521 U.S. 507 (1997); Kimel v. Florida Board of Regents, 528
U.S. 62 (2000).
A question left unanswered by Sandoval is whether there may be an alternative
statutory route for redressing claims of disparate impact discrimination in federally
assisted programs. Justice Stevens’ dissent indicated that plaintiffs in the case had a
separate cause of action under 42 U.S.C. § 1983, a Reconstruction-era civil rights law,
permitting private individuals to sue governmental officials – or others acting “under
color of law” – for violation of any “right, privilege, or immunity” secured by the federal
Constitution or “laws.” It remains unsettled, however, whether § 1983 reaches
violations of agency regulations, and the Sandoval majority did not address the issue.
Moreover, § 1983 claims require a showing that any alleged deprivation of federal right
was perpetrated by “state actors,” so that discrimination by private organizations
receiving federal funds, though subject to Title VI, would not be covered. Allowing a
§ 1983 action, therefore, could lead to the arguable anomaly of making Title VI disparate
impact regulations enforceable against governmental defendants, but not private
recipients of federal largesse. Another approach, perhaps, is suggested by the dissent’s
assertion that facially neutral actions having a disparate impact may be evidence of19
intentional discrimination, which remains actionable even in the majority’s view.
Justice Scalia, on the other hand, appears to invite a “clear statement rule” as the test
for private causes of action against states “and “perhaps nonfederal state actors
generally,”20 which could pose an added limitation on both Title VI and § 1983 actions.
And the majority opinion foreshadows another argument, that by providing for
administrative termination of funds for disparate impact violations, § 602 may evidence
congressional intent to preclude any private right of action.21
Nonetheless, since Sandoval, a U.S. district court in New Jersey has determined
that a § 1983 action is appropriate for private individuals to enforce “environmental
justice” claims pursuant to Title VI regulations of the Environmental Protection Agency.
In South Camden Citizens in Action v. New Jersey Department of Environmental22
Protection, a citizens’ group sued the state environmental agency for issuing an air
permit to a cement facility in a predominantly minority community. Less than a week
before the Supreme Court decided Sandoval, the district court granted the plaintiffs’
request for a preliminary injunction, ruling that the agency failed to consider the totality
of the circumstances surrounding the operation of the proposed facility, and that
plaintiffs established a prima facie case of disparate impact discrimination based on race
and national origin in violation of EPA regulations under § 602. South Camden did not
involve any claims of intentional discrimination.
In light of Sandoval, the South Camden court reconsidered its prior ruling, but
found that private citizens may still enforce the § 602 disparate impact regulations
through a § 1983 action. In so holding, the court noted that Justice Scalia acknowledged
that the validity of the § 602 regulations themselves were not contested in Alexander,
but were instead presumed to be valid. Furthermore, the court observed that there was
a “critical distinction” between Congress’ intent to create a private right of action under
§ 602 of the Act, which the Sandoval Court found did not exist, and the “very different
19121 S. Ct. at 1530, n. 13 (Stevens J., dissenting).
20Id. at 1520-21.
21Id. at 1523.
22145 F. Supp.2d 505 (D.N.J. 2001).
question” of whether Congress intended to create such a remedy under § 1983.
Therefore, the South Camden court concluded that the Sandoval ruling was limited to
foreclosing private rights of action under § 602.
The approach taken by the South Camden court necessarily depends on the validity
of the § 602 disparate impact regulations – an issue explicitly questioned, but not decided
by the Supreme Court in Sandoval. Until the High Court revisits the question, and
determines whether or not these regulations exceed statutory authority provided by Title
VI, the future of disparate impact claims based on unintentional discrimination – whether
in the context of English-only rules, environmental justice, or otherwise – remains
uncertain. Of course, because the issue is one of statutory rather than constitutional
interpretation, Congress may address it, as it did when it responded to a series of Court
decisions narrowing the scope of federal equal employment opportunity law with passage
of the Civil Rights Act of 1991.23
23P.L. 102-166, 105 Stat. 1071 (1991).