Alexander v. Sandoval: Title VI Regulatory Authority and Private Rights of Action

In Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court held that a regulation promulgated by the Department of Justice did not create a private right of action for disparate impact discrimination under Title VI of the Civil Rights Act of 1964. 

Sandoval addressed the question of whether assumedly valid regulations under § 602 of Title VI  that forbid disparate impact practices are enforceable through an implied private right of action. Sandoval, 532 U.S. at 282. The Court held that they are not, because Congress must authorize causes of action. “Agencies may play the sorcerer’s apprentice,” specifying to some degree the content of rights conferred by statute, but may not act as “the sorcerer himself,” creating causes of action not established by Congress. Id. at 291. On the other hand, Sandoval held that “regulations applying § 601’s ban on intentional discrimination,” if valid and reasonable under the standard of Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), are enforceable in a private action. See also Peters v. Jenney, 327 F.3d 307, 315-16 (4th Cir. 2003) (discussing Sandoval).

The decision is important in part because it shows a limit on the generally broad powers of regulatory agencies: while they can clarify to some extent the rights conferred by a statute, they cannot create causes of action not established through the legislative process. 

Statutory and Regulatory Background

Section 601 of Title VI of the Civil Rights Act of 1964 provides that:

No person in the United States shall, on the ground of race, color or national origin, be excluded from participating 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.

Section 602 of Title VI provides that:

Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity … 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….

42 U.S.C. § 2000d–1.

In exercising this power, the Department of Justice promulgated a regulation, 28 CFR § 42.104(b)(2) (2000), forbidding funding recipients to “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin ….” See also 49 CFR § 21.5(b)(2) (2000) (similar DOT regulation). These regulations prohibited disparate-impact discrimination, that is, practices or policies that have the effect of discriminating against certain groups, even if discrimination is not intended. 

Facts

Alexander was the director of the Alabama Department of Public Safety. The Department was a recipient of federal funding, making it subject to Title VI. 

As noted above, Section 601 of Title VI prohibits discrimination based on race, color, or national origin in covered programs and activities and Section 602 authorizes federal agencies to effectuate § 601 by issuing regulations. In exercising that authority, the Department of Justice promulgated a regulation forbidding funding recipients to utilize criteria or administrative methods having the effect of subjecting individuals to discrimination based on the prohibited grounds, regardless of the intent. This regulation therefore prohibited disparate-impact discrimination. 

Sandoval brought a class action to enjoin the Department’s decision to administer state driver’s license examinations only in English. Sandoval argued this policy violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. 

The District Court agreed with Sandoval, enjoined the policy, and ordered the Department to accommodate non-English speakers. The Eleventh Circuit affirmed. Both courts rejected the Department’s argument that Title VI did not provide a cause of action to enforce the regulation.

532 U.S. at 278-79.

The Court’s Decision

The Court reversed, holding that no private right of action existed to enforce the disparate-impact regulations promulgated under Title VI. 

Title VI Private Right of Action for Intentional Discrimination 

As an initial matter, the Court observed that three aspects of Title VI must be taken as given. First, under Cannon v. University of Chicago, private individuals may sue to enforce § 601. 441 U.S. 677, 694, 696, 699, 703, 710-711 (1979). Second, under Alexander v. Choate, §601 prohibits only intentional discrimination. 469 U. S. 287, 293 (1985). Third, the Court assumed for purposes of deciding Sandoval that regulations promulgated under § 602 may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601. 532 U.S. at 279-82.

The Court then observed that it had not held that Title VI disparate-impact regulations may be enforced through a private right of action. For example, Cannon was decided on the assumption that the respondent there had intentionally discriminated against the petitioner. Id. at 282 (citing 441 U.S. at 680). And in Guardians Assn. v. Civil Servo Comm’n of New York City, 463 U.S. 582 (1983), the Court held that private individuals could not recover compensatory damages under Title VI except for intentional discrimination. The Court also observed that of the five Justices in Guardians who also voted to uphold disparate-impact regulations, three expressly reserved the question of a direct private right of action to enforce them. Id. at 282-84 (citing 463 U.S. 582, 645, n. 18.

Congressional Intent and the Disparate-Impact Regulations

Next, the Court noted that it did not follow from the three points taken as given that Congress intended a private right of action to enforce disparate-impact regulations. There was no doubt that the regulations applying § 601’s ban on intentional discrimination were covered by the cause of action to enforce that section. But the Court reasoned that the disparate-impact regulations did not simply apply § 601, since they forbade conduct that § 601 permitted (unintentional disparate-impact discrimination). Thus, the Court concluded, the private right of action to enforce § 601 did not include a private right to enforce the disparate-impact regulations. The Court decided that right must come, if at all, from the independent force of § 602. 532 U.S. at 284-86 (citing Central Bank of Denver, N A. v. First Interstate Bank of Denver, N A., 511 U. S. 164, 173 (1994)). 

Congress Creates Private Rights of Action to Enforce Federal Law

The Court then observed that like substantive federal law, private rights of action to enforce federal law must be created by Congress. 532 U.S. 286-87 (citing Touche Ross & CO. v. Redington, 442 U.S. 560, 578 (1979)). The Court declined to “revert” to the understanding of private causes of action, represented by J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964) (“it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose” expressed by a statute), that held sway when Title VI was enacted. The Court reasoned that it abandoned Borak’s “make effective the congressional purpose” understanding in Cort v. Ash, 422 U.S. 66, 78 (1975)

The Court disagreed with DOJ’s contention that cases interpreting statutes enacted prior to Cort v. Ash gave dispositive weight to the expectations that the enacting Congress had formed in light of the contemporary legal context. 532 U.S. at 286-88 (citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378-379 (1982); Cannon at 698-699; and Thompson v. Thompson, 484 U.S. 174 (1988), which the Court distinguished on the grounds that “legal context matters only to the extent it clarifies text.” 532 U.S. at 288.

Congressional Intent Through Title VI’s Text and Structure

The Court then held that the search for Congress’s intent in Sandoval’s case began and ended with Title VI’s text and structure. The Court observed that the “rights-creating” language that was critical to Cannon‘s § 601 analysis, 441 U.S. at 690, n. 13, was absent from § 602. While § 601 stated that “[n]o person … shall … be subjected to discrimination,” § 602 limited federal agencies to “effectuat[ing]” rights created by § 601. And § 602 did not focus on the individuals protected nor on the funding recipients being regulated. Rather, § 602 focused on the regulating agencies, like DOJ, charged with implementing the statutory text. Therefore, the Court found there was less reason to infer a private remedy for disparate-impact discrimination through § 602, compared to the situation in Cannon at 690-691 (inferring a private remedy for intentional discrimination through § 601). The Court also found that the methods § 602 expressly provided for enforcing its regulations, which placed elaborate restrictions on agency enforcement, also suggest a congressional intent not to create a private remedy through § 602. 532 U.S. at 288-91 (citing Karahalios v. Federal Employees, 489 U.S. 527, 533 (1989) and others for the proposition that the “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.”).

Arguments Regarding Regulatory Intent, Ratification, and Inferring Congressional Intent Under Caselaw

Finally, the Court rejected arguments from Sandoval and DOJ that (1) the regulations at issue contained rights-creating language and so must be privately enforceable; that (2) amendments to Title VI in § 1003 of the Rehabilitation Act Amendments of 1986, 42 U.S.C. § 2000d–7, and § 6 of the Civil Rights Restoration Act of 1987, 42 U.S.C. § 2000d–4a, “ratified” decisions finding an implied private right of action to enforce the regulations; and (3) that the congressional intent to create a right of action must be inferred under Curran at 381-382. 532 U.S. at 291-93.

Analysis

In short, Sandoval held that an assumedly valid regulation promulgated by the DOJ did not create a private right of action for disparate-impact discrimination under Title VI. The Court’s reasoning was that the text of Title VI did not create a right of action for disparate-impact discrimination, and Congress did not authorize regulatory agencies to create such a cause of action. 

On the other hand, Sandoval held that regulations applying § 601’s ban on intentional discrimination, if valid and reasonable under the standard of Chevron, are enforceable in a private action. 

The decision is important in part because it shows a limit on the generally broad powers of regulatory agencies: while they can clarify to some extent the rights conferred by a statute, they cannot create causes of action not established or authorized through the legislative process. 

This article was also published to TimCoffieldAttorney.com.

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