NOTICE: This оpinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
JAMES ALEXANDER, DIRECTOR, ALABAMA DEPARTMENT OF PUBLIC SAFETY, et al., PETITIONERS
v.
MARTHA SANDOVAL, individually and on behalf of all others similarly situated
No. 99-1908.
SUPREME COURT OF THE UNITED STATES
Argued January 16, 2001
Decided April 24, 2001
Syllabus
As a recipient of federal financial assistance, the Alabama Department of Public Safety (Department), of which petitioner Alexander is the Director, is subject to Title VI of the Civil Rights Act of 1964. Section 601 of that Title prohibits discrimination based on race, color, or national origin in covered programs and activities. Section 602 authorizes federal agencies to effectuate 601 by issuing regulations, and the Department of Justice (DOJ) in an exercise of this authority 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. Respondent Sandoval brought this class action to enjoin the Department's decision to administer state driver's license examinations only in English, arguing that it violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. Agreeing, the District Court enjoined the policy and ordered the Department to accommodate non-English speakers. The Eleventh Circuit affirmed. Both courts rejected petitioners' argument that Title VI did not provide respondents a cause of action to enforce the regulation.
Held: There is no private right of action to enforce disparate-impact regulations promulgatеd under Title VI. Pp. 3-17.
(a) Three aspects of Title VI must be taken as given. First, private individuals may sue to enforce 601. See, e.g., Cannon v. University of Chicago,
(b) This Court has not, however, held that Title VI disparate-impact regulations may be enforced through a private right of action. Cannon was decided on the assumption that the respondent there had intentionally discriminated against the petitioner, see
(c) Nor does it follow from the three points taken as given that Congress must have intended such a private right of action. There is no doubt that regulations applying 601's ban on intentional discrimination are covered by the cause of action to enforce that section. But the disparate-impact regulations do not simply apply 601-since they forbid conduct that 601 permits-and thus the private right of action to enforce 601 does not include a private right to enforce these regulations. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A.,
(d) Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Touche Ross & Co. v. Redington,
(e) The search for Congress's intent in this case begins and ends with Title VI's text and structure. The "rights-creating" language so critical to Cannon's 601 analysis,
(f) The Court rejects arguments that the regulations at issue contain rights-creating language and so must be privately enforceable; that amendments to Title VI in 1003 of the Rehabilitation Act Amendments of 1986 and 6 of the Civil Rights Restoration Act of 1987 "ratified" decisions finding an implied private right of action to enforce the regulations; and that the congressional intent to create a right оf action must be inferred under Curran, supra, at 353, 381-382. Pp. 15-17.
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined.
Opinion of the Court
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Justice Scalia delivered the opinion of the Court.
This case presents the question whether private individuals may sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964.
* The Alabama Department of Public Safety (Department), of which petitioner James Alexander is the Director, accepted grants of financial assistance from the United States Department of Justice (DOJ) and Department of Transportation (DOT) and so subjected itself to the restrictions of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. 2000d et seq. Section 601 of that Title provides that no person 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" covered by Title VI. 42 U.S.C. 2000d. Section 602 authorizes federal agencies "to effectuate the provisions of [601] ... by issuing rules, regulations, or orders of general applicability," 42 U.S.C. 2000d-1, and the DOJ in an exercise of this authority promulgated a regulation 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 ... ." 28 CFR 42.104(b)(2) (1999). See also 49 CFR 21.5(b)(2) (2000) (similar DOT regulation).
The State of Alabama amended its Constitution in 1990 to declare English "the official language of the state of Alabama." Amdt. 509. Pursuant to this provision and, petitioners have argued, to advance public safety, the Department decided to administer state driver's license examinations only in English. Respondent Sandoval, as representative of a class, brought suit in the United States District Court for the Middle District of Alabama to enjoin the English-only policy, arguing that it 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. It enjoined the policy and ordered the Department to accommodate non-English speakers. Sandoval v. Hagan,
We do not inquire here whether the DOJ regulation was authorized by 602, or whether the courts below were correct to hold that the English-only policy had the effect of discriminating on the basis of national origin. The petition for writ of certiorari raised, and we agreed to review, only the question posed in the first paragraph of this opinion: whether there is a private cause of action to enforce the regulation.
II
Although Title VI has often come to this Court, it is fair to say (indeed, perhaps an understatement) that our opinions have not eliminated all uncertainty regarding its commands. For purposes of the present case, however, it is clear from our decisions, from Congress's amendments of Title VI, and from the parties' concessions that three aspects of Title VI must be taken as given. First, private individuals may sue to enforce 601 of Title VI and obtain both injunctive relief and damages. In Cannon v. University of Chicago,
Second, it is similarly beyond dispute-and no party disagrees-that 601 prohibits only intentional discrimination. In Regents of Univ. of Cal. v. Bakke,
Third, we must assume for purposes of deciding this case that regulations promulgated under 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under 601. Though no opinion of this Court has held that, five Justices in Guardians voiced that view of the law at least as alternative grounds for their decisions, see
Respondents assert that the issue in this case, like the first two described above, has been resolved by our cases. To reject a private cause of action to enforce the disparate-impact regulations, they say, we would "[have] to ignore the actual language of Guardians and Cannon." Brief for Respondents 13. The language in Cannon to which respondents refer does not in fact support their position, as we shall discuss at length below, see infra, at 12-13. But in any event, this Court is bound by holdings, not language. Cannon was decided on the assumptiоn that the University of Chicago had intentionally discriminated against petitioner. See
Nor does it follow straightaway from the three points we have taken as given that Congress must have intended a private right of action to enforce disparate-impact regulations. We do not doubt that regulations applying 601's ban on intentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, see NаtionsBank of N. C., N. A. v. Variable Annuity Life Ins. Co.,
We must face now the question avoided by Lau, because we have since rejected Lau's interpretation of 601 as reaching beyond intentional discrimination. See supra, at 4. It is clear now 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 these regulations. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A.,
Implicit in our discussion thus far has been a particular understanding of the genesis of private causes of action. Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Touche Ross & Co. v. Redington,
Respondents would have us revert in this case to the understanding of private causes of action that held sway 40 years ago when Title VI was enacted. That understanding is captured by the Court's statement in J. I. Case Co. v. Borak,
Nor do we agree with the Government that our cases interpreting statutes enacted prior to Cort v. Ash have given "dispositive weight" to the "expectations" that the enacting Congress had formed "in light of the 'contemporary legal context.' " Brief for United States 14. Only three of our legion implied-right-of-action cases have found this sort of "contemporary legal context" relevant, and two of those involved Congress's enactment (or reenactment) of the verbatim statutory text that courts had previously interpreted to create a private right of action. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,
We therefore begin (and find that we can end) our search for Congress's intent with the text and structure of Title VI.7 Section 602 authorizes federal agencies "to effectuate the provisions of [601] ... by issuing rules, regulations, or orders of general applicability." 42 U.S.C. 2000d-1. It is immediately clear that the "rights-creating" language so critical to the Court's analysis in Cannon of 601, see
Nor do the methods that 602 goes on to provide for enforcing its authorized regulations manifest an intent to create a private remedy; if anything, they suggest the opposite. Section 602 empowers agencies to enforce their regulations either by terminating funding to the "particular program, or part thereof," that has violated the regulation or "by any other means authorized by law," 42 U.S.C. 2000d-1. No enforcement action may be taken, however, "until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." Ibid. And every agency enforcement aсtion is subject to judicial review. 2000d-2. If an agency attempts to terminate program funding, still more restrictions apply. The agency head must "file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." 2000d-1. And the termination of funding does not "become effective until thirty days have elapsed after the filing of such report." Ibid. Whatever these elaborate restrictions on agency enforcement may imply for the private enforcement of rights created outside of 602, compare Cannon v. University of Chicago, supra, at 706, n. 41, 712, n. 49; Regents of Univ. of Cal. v. Bakke,
Both the Government and respondents argue that the regulations contain rights-creating language and so must be privately enforceable, see Brief for United States 19-20; Brief for Respondents 31, but that argument skips an analytical step. Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Touche Ross & Co. v. Redington,
The last string to respondents' and the Government's bow is their argument that two amendments to Title VI "ratified" this Court's decisions finding an implied private right of action to enforce the disparate-impact regulations. See Rehabilitation Act Amendments of 1986, 1003, 42 U.S.C. 2000d-7; Civil Rights Restoration Act of 1987, 6, 102 Stat. 31, 42 U.S.C. 2000d-4a. One problem with this argument is that, as explained above, none of our decisions establishes (or even assumes) the private right of action at issue here, see supra, at 5-8, which is why in Guardians three Justices were able expressly to reserve the question. See
Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under 602.8 We therefore hold that no such right of action exists. Since we reach this conclusion applying our standard test for discerning private causes of action, we do not address petitioners' additional argument that implied causes of action against States (and perhaps nonfederal state actors generally) are inconsistent with the clear statement rule of Pennhurst State School and Hospital v. Halderman,
The judgment of the Court of Appeals is reversed.
It is so ordered.
NOTES:
Notes
Since the parties do not dispute this point, it is puzzling to see Justice Stevens go out of his way to disparage the decisions in Regents of Univ. of Cal. v. Bakke,
Although the dissent acknowledges that "the breadth of [Cannon's] precedent is a matter upon which reasonable jurists may differ," post, at 21, it disagrees with our reading of Cannon's holding because it thinks the distinction we draw between disparate-impact and intentional discrimination was "wholly foreign" to that opinion, see post, at 5. Cannon, however, was decided less than one year after the Court in Bakke had drawn precisely that distinction with respect to Title VI, see supra, at 4, and it is absurd to think that Cannon meant, without discussion, to ban under Title IX the very disparate-impact discrimination that Bakke said Title VI permitted. The only discussion in Cannon of Title IX's scope is found in Justice Powell's dissenting opinion, which simply assumed that the conclusion that Title IX would be limited to intentional discrimination was "forgone in light of our holding" in Bakke. Cannon v. University of Chicago,
We of course accept the statement by the author of the dissent that he "thought" at the time of Guardians that disparate-impact regulations could be enforced "in an implied action against private parties," post, at 9, n. 6. But we have the better interpretаtion of what our colleague wrote in Guardians. In the closing section of his opinion, Justice Stevens concluded that because respondents in that case had "violated the petitioners' rights under [the] regulations ... [t]he petitioners were therefore entitled to the compensation they sought under 42 U.S.C. 1983 and were awarded by the District Court."
Ultimately, the dissent agrees that "the holding in Guardians does not compel the conclusion that a private right of action exists to enforce the Title VI regulations against private parties ... ." Post, at 9.
It is true, as the dissent points out, see post, at 3-4, that three Justices who concurred in the result in Lau relied on regulations promulgated under 602 to support their position, see Lau v. Nichols,
For this reason, the dissent's extended discussion of the scope of agencies' regulatory authority under 602, see post, at 13-15, is beside the point. We cannot help observing, however, how strange it is to say thаt disparate-impact regulations are "inspired by, at the service of, and inseparably intertwined with" 601, post, at 15, when 601 permits the very behavior that the regulations forbid. See Guardians,
Although the dissent claims that we "adop[t] a methodology that blinds itself to important evidence of congressional intent," see post, at 21, our methodology is not novel, but well established in earlier decisions (including one authored by Justice Stevens, see Northwest Airlines, Inc. v. Transport Workers,
The dissent complains that we "offe[r] little affirmative support" for this conclusion. Post, at 24. But as Justice Stevens has previously recognized in an opinion for the Court, "affirmative" evidence of congressional intent must be provided for an implied remedy, not against it, for without such intent "the essential predicate for implication of a private remedy simply does not exist," Northwest Airlines, Inc.,
Stevens, J., dissenting
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
In 1964, as part of a groundbreaking and comprehensive civil rights Act, Congress prohibited recipients of federal funds from discriminating on the basis of race, ethnicity, or national origin. Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-7. Pursuant to powers expressly delegated by that Act, the federal agencies and departments responsible for awarding and administering federal contracts immediately adopted regulations prohibiting federal contractees from adopting policies that have the "effect" of discriminating on those bases. At the time of the promulgation of these regulations, prevailing principles of statutory construction assumed that Congress intended a private right of action whenever such a cause of action was necessary to protect individual rights granted by valid federal law. Relying both on this presumption and on independent analysis of Title VI, this Court has repeatedly and consistently affirmed the right of private individuals to bring civil suits to enforce rights guaranteed by Title VI. A fair reading of those cases, and coherent implementation of the statutory scheme, requires the same result under Title VI's implementing regulations.
In separate lawsuits spanning several decades, we have endorsed an action identical in substance to the one brought in this case, see Lau v. Nichols,
Today, in a decision unfounded in our precedent and hostile to decades of settled expectations, a majority of this Court carves out an important exception to the right of private action long recognized under Title VI. In so doing, the Court makes three distinct, albeit interrelated, errors. First, the Court provides a muddled account of both the reasoning and the breadth of our prior decisions endorsing a private right of action under Title VI, thereby obscuring the conflict between those opinions and today's decision. Second, the Court offers a flawed and unconvincing analysis of the relationship between 601 and 602 of the Civil Rights Act of 1964, ignoring more plausible and persuasive explanations detailed in our prior opinions. Finally, the Court badly misconstrues the theoretical linchpin of our decision in Cannon v. University of Chicago,
* The majority is undoubtedly correct that this Court has never said in so many words that a private right of action exists to enforce the disparate-impact regulations promulgated under 602. However, the failure of our cases to state this conclusion explicitly does not absolve the Court of the responsibility to canvass our prior opinions for guidance. Reviewing these opinions with the care they deserve, I reach the same conclusion as thе Courts of Appeals: This Court has already considered the question presented today and concluded that a private right of action exists.1
When this Court faced an identical case 27 years ago, all the Justices believed that private parties could bring lawsuits under Title VI and its implementing regulations to enjoin the provision of governmental services in a manner that discriminated against non-English speakers. See Lau v. Nichols,
Five years later, we more explicitly considered whether a private right of action exists to enforce the guarantees of Title VI and its gender-based twin, Title IX. See Cannon v. University of Chicago,
The majority acknowledges that Cannon is binding precedent with regard to both Title VI and Title IX, ante, at 3-4, but seeks to limit the scope of its holding to cases involving allegations of intentional discrimination. The distinction the majority attempts to impose is wholly foreign to Cannon's text and reasoning. The opinion in Cannon consistently treats the question presented in that case as whether a private right of action exists to enforce "Title IX" (and by extension "Title VI"),3 and does not draw any distinctions between the various types of discrimination outlawed by the operation of those statutes. Though the opinion did not reach out to affirmatively preclude the drawing of every conceivable distinction, it could hardly have been more clear as to the scope of its holding: A private right of action exists for "victims of the prohibited discrimination."
Moreover, Cannon was itself a disparate-impact case. In that case, the plaintiff brought suit against two private universities challenging medical school admissions policies that set age limits for applicants. Plaintiff, a 39-year-old woman, alleged that these rules had the effect of discriminating against women because the incidence of interrupted higher education is higher among women than among men. In providing a shorthand description of her claim in the text of the opinion, we ambiguously stated that she had alleged that she was denied admission "because she is a woman," but we appended a lengthy footnote setting forth the details of her disparate-impact claim. Other than the shorthand description of her claim, there is not a word in the text of the opinion evеn suggesting that she had made the improbable allegation that the University of Chicago and Northwestern University had intentionally discriminated against women. In the context of the entire opinion (including both its analysis and its uncontested description of the facts of the case), that single ambiguous phrase provides no basis for limiting the case's holding to incidents of intentional discrimination. If anything, the fact that the phrase "because she is a woman" encompasses both intentional and disparate-impact claims should have made it clear that the reasoning in the opinion was equally applicable to both types of claims. In any event, the holding of the case certainly applied to the disparate-impact claim that was described in detail in footnote 1 of the opinion, id., at 680.
Our fractured decision in Guardians Assn. v. Civil Serv. Comm'n of New York City,
As I read today's opinion, the majority declines to accord precedential value to Guardians because the five Justices in the majority were arguably divided over the mechanism through which private parties might seek such injunctive relief.5 This argument inspires two responses. First, to the extent that the majority denies relief to the respondents merely bеcause they neglected to mention 42 U.S.C. 1983 in framing their Title VI claim, this case is something of a sport. Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference 1983 to obtain relief; indeed, the plaintiffs in this case (or other similarly situated individuals) presumably retain the option of re-challenging Alabama's English-only policy in a complaint that invokes 1983 even after today's decision.
More important, the majority's reading of Guardians is strained even in reference to the broader question whether injunctive relief is available to remedy violations of the Title VI regulations by nongovernmental grantees. As Guardians involved an action against a governmental entity, making 1983 relief available, the Court might have discussed the availability of judicial relief without addressing the scope of the implied private right of action available directly under Title VI. See
In summary, there is clear precedent of this Court for the proposition that the plaintiffs in this case can seek injunctive relief either through an implied right of action or through 1983. Though the holding in Guardians does not compel the conclusion that a private right of action exists to enforce the Title VI regulations against private parties, the rationales of the relevant opinions strongly imply that result. When that fact is coupled with our holding in Cannon and our unanimous decision in Lau, the answer to the question presented in this case is overdetermined.8 Even absent my continued belief that Congress intended a private right of action to enforce both Title VI and its implementing regulations, I would answer the question presented in the affirmative and affirm the decision of the Court of Appeals as a matter of stare decisis.9
II
Underlying the majority's dismissive treatment of our prior cases is a flawed understanding of the structure of Title VI and, more particularly, of the relationship between 601 and 602. To some extent, confusion as to the relationship between the provisions is understandable, as Title VI is a deceptively simple statute. Section 601 of the Act lays out its straightforward commitment: "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 financial assistance." 42 U.S.C. 2000d. Section 602 "authorize[s] and direct[s]" all federal departments and agencies empowered to extend federal financial assistance to issue "rules, regulations, or orders of general applicability" in order to "effectuate" 601's antidiscrimination mandate. 42 U.S.C. 2000d-1.10
On the surface, the relationship between 601 and 602 is unproblematic-601 states a basic principle, 602 authorizes agencies to develop detailed plans for defining the contours of the principle and ensuring its enforcement. In the context of federal civil rights law, however, nothing is ever so simple. As actions to enforce 601's antidiscrimination principle have worked their way through the courts, we have developed a body of law giving content to 601's broadly worded commitment. E.g., United States v. Fordice,
Given that seeming peculiarity, it is necessary to examine closely the relationship between 601 and 602, in order to understand the purpose and import of the regulations at issue in this case. For the most part, however, the majority ignores this task, assuming that the judicial decisions interpreting 601 provide an authoritative interpretation of its true meaning and treating the regulations promulgated by the agencies charged with administering the statute as poor step-cousins-either parroting the text of 601 (in the case of regulations that prohibit intentional discrimination) or forwarding an agenda untethered to 601's mandate (in the case of disparate-impact regulations).
The majority's statutory analysis does violence to both the text and the structure of Title VI. Section 601 does not stand in isolation, but rather as part of an integrated remedial scheme. Section 602 exists for the sole purpose of forwarding the antidiscrimination ideals laid out in 601.11 The majority's persistent belief that the two sections somehow forward different agendas finds no support in the statute. Nor does Title VI anywhere suggest, let alone state, that for the purpose of detеrmining their legal effect, the "rules, regulations, [and] orders of general applicability" adopted by the agencies are to be bifurcated by the judiciary into two categories based on how closely the courts believe the regulations track the text of 601.
What makes the Court's analysis even more troubling is that our cases have already adopted a simpler and more sensible model for understanding the relationship between the two sections. For three decades, we have treated 602 as granting the responsible agencies the power to issue broad prophylactic rules aimed at realizing the vision laid out in 601, even if the conduct captured by these rules is at times broader than that which would otherwise be prohibited.
In Lau, our first Title VI case, the only three Justices whose understanding of 601 required them to reach the question explicitly endorsed the power of the agencies to adopt broad prophylactic rules to enforce the aims of the statute. As Justice Stewart explained, regulations promulgated pursuant to 602 may "go beyond . . . 601" as long as they are "reasonably related" to its antidiscrimination mandate.
This understanding is firmly rooted in the text of Title VI. As 602 explicitly states, the agencies are authorized to adopt regulations to "effectuate" 601's antidiscrimination mandate. 42 U.S.C. 2000d-1. The plain meaning of the text reveals Congress' intent to provide the relevant agencies with sufficient authority to transform the statute's broad aspiration into social reality. So too does a lengthy, consistent, and impassioned legislative history.12
This legislative design reflects a reasonable-indeed inspired-model for attacking the often-intractable problem of racial and ethnic discrimination. On its own terms, the statute supports an action challenging policies of federal grantees that explicitly or unambiguously violate antidiscrimination norms (such as policies that on their face limit benefits or services to certain races). With regard to more subtle forms of discrimination (such as schemes that limit benefits or services on ostensibly race-neutral grounds but have the predictable and perhaps intended consequence of materially benefiting some races at the expense of others), the statute does not establish a static approach but instead empowers the relevant agencies to evaluate social circumstances to determine whether there is a need for stronger measures.13 Such an approach builds into the law flexibility, an ability to make nuanced assessments of complex social realities, and an admirable willingness to credit the possibility of progress.
The "effects" regulations at issue in this case represent the considered judgment of the relevant agencies that discrimination on the basis of race, ethnicity, and national origin by federal contractees are significant social problems that might be remedied, or at least ameliorated, by the application of a broad prophylactic rule. Given the judgment underlying them, the regulations are inspired by, at the service of, and inseparably intertwined with 601's antidiscrimination mandate. Contrary to the majority's suggestion, they "appl[y]" 601's prohibition on discrimination just as surely as the intentional discrimination regulations the majority concedes are privately enforceable. Ante, at 7.
To the extent that our prior cases mischaracterize the relationship between 601 and 602, they err on the side of underestimating, not overestimating, the connection between the two provisions. While our cases have explicitly adopted an understanding of 601's scope that is somewhat narrower than the reach of the regulations,14 they have done so in an unorthodox and somewhat haphazard fashion.
Our conclusion that the legislation only encompasses intentional discrimination was never the subject of thorough consideration by a Court focused on that question. In Bakke, five Members of this Court concluded that 601 only prohibits race-based affirmative action programs in situations where the Equal Protection Clause would impose a similar ban.
In addition, these Title VI cases seemingly ignore the well-established principle of administrative law that is now most often described as the "Chevron doctrine." See Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc.,
If we were writing on a blank slate, we might very well conclude that Chevron and similar cases decided both before and after Guardians provide the proper framework for understanding the structure of Title VI. Under such a reading there would be no incongruity between 601 and 602. Instead, we would read 602 as granting the federal agencies responsible for distributing federal funds the authority to issue regulations interpreting 601 on the assumption that their construction will-if reasonable-be incorporated into our understanding of 601's meaning.19
To resolve this case, however, it is unnecessary to answer the question whether our cases interpreting the reach of 601 should be reinterpreted in light of Chevron. If one understands the relationship between 601 and 602 through the prism of either Chevron or our prior Title VI cases, the question presented all but answers itself. If the regulations promulgated pursuant to 602 are either an authoritative construction of 601's meaning or prophylactic rules necessary to actualize the goals enunciated in 601, then it makes no sense to differentiate between private actions to enforce 601 and private actions to enforce 602. There is but one private action to enforce Title VI, and we already know that such an action exists.20 See Cannon,
III
The majority couples its flawed analysis of the structure of Title VI with an uncharitable understanding of the substance of the divide between those on this Court who are reluctant to interpret statutes to allow for private rights of action and those who are willing to do so if the claim of right survives a rigorous application of the criteria set forth in Cort v. Ash,
Overwrought imagery aside, it is the majority's approach that blinds itself to congressional intent. While it remains true that, if Congress intends a private right of action to support statutory rights, "the far better course is for it to specify as much when it creates those rights," Cannon,
The very existence of these rules and strategies assumes that we will sometimes find manifestations of an implicit intent to create such a right. Our decision in Cannon represents one such occasion. As the Cannon opinion iterated and reiterated, the question whether the plaintiff had a right of action that could be asserted in federal court was a "question of statutory construction," 441 U. S, at 688, see also id., at 717 (Rehnquist, J., concurring), not a question of policy for the Court to decide. Applying the Cort v. Ash factors, we examined the nature of the rights at issue, the text and structure of the statute, and the relevant legislative history.21 Our conclusion was that Congress unmistakably intended a private right of action to enforce both Title IX and Title VI. Our reasoning-and, as I have demonstrated, our holding-was equally applicable to intentional discrimination and disparate impact claims.22
Underlying today's opinion is the conviction that Cannon must be cabined because it exemplifies an "expansive rights-creating approach." Franklin v. Gwinnett County Public Schools,
In order to impose its own preferences as to the availability of judicial remedies, the Court today adopts a methodology that blinds itself to important evidence of congressional intent. It is one thing for the Court to ignore the import of our holding in Cannon, as the breadth of that precedent is a matter upon which reasonable jurists may differ. It is entirely another thing for the majority to ignore the reasoning of that opinion and the evidence contained therein, as those arguments and that evidence speak directly to the question at issue today. As I stated above, see n. 21, supra, Cannon carefully explained that both Title VI and Title IX were intended to benefit a particular class of individuals, that the purposes of the statutes would be furthered rather than frustrated by the implication of a private right of action, and that the legislative histories of the statutes support the conclusion that Congress intended such a right. See also Part IV, infra. Those conclusions and the evidence supporting them continue to have force today.
Similarly, if the majority is genuinely committed to deciphering congressional intent, its unwillingness to even consider evidence as to the context in which Congress legislated is perplexing. Congress does not legislate in a vacuum. As the respondent and the Government suggest, and as we have held several times, the objeсtive manifestations of congressional intent to create a private right of action must be measured in light of the enacting Congress' expectations as to how the judiciary might evaluate the question. See Thompson v. Thompson,
At the time Congress was considering Title VI, it was normal practice for the courts to infer that Congress intended a private right of action whenever it passed a statute designed to protect a particular class that did not contain enforcement mechanisms which would be thwarted by a private remedy. See Merrill Lynch,
Ultimately, respect for Congress' prerogatives is measured in deeds, not words. Today, the Court coins a new rule, holding that a private cause of action to enforce a statute does not encompass a substantive regulation issued to effectuate that statute unless the regulation does nothing more than "authoritatively construe the statute itself." Ante, at 7.24 This rule might be proper if we were the kind of "common-law court" the majority decries, ante, at 10, inventing private rights of action never intended by Congress. For if we are not construing a statute, we certainly may refuse to create a remedy for violations of federal regulations. But if we are faithful to the commitment to discerning congressional intent that all Membеrs of this Court profess, the distinction is untenable. There is simply no reason to assume that Congress contemplated, desired, or adopted a distinction between regulations that merely parrot statutory text and broader regulations that are authorized by statutory text.25
IV
Beyond its flawed structural analysis of Title VI and an evident antipathy toward implied rights of action, the majority offers little affirmative support for its conclusion that Congress did not intend to create a private remedy for violations of the Title VI regulations.26 The Court offers essentially two reasons for its position. First, it attaches significance to the fact that the "rights-creating" language in 601 that defines the classes protected by the statute is not repeated in 602. Ante, at 13-14. But, of course, there was no reason to put that language in 602 because it is perfectly obvious that the regulations authorized by 602 must be designed to protect precisely the same people protected by 601. Moreover, it is self-evident that, linguistic niceties notwithstanding, any statutory provision whose stated purpose is to "effectuate" the eradication of racial and ethnic discrimination has as its "focus" those individuals who, absent such legislation, would be subject to discrimination.
Second, the Court repeats the argument advanced and rejected in Cannon that the express provision of a fund cut-off remedy "suggests that Congress intended to preclude others." Ante, at 14. In Cannon,
Like much else in its opinion, the present majority's unwillingness to explain its refusal to find the reasoning in Cannon persuasive suggests that today's decision is the unconscious product of the majority's profound distaste for implied causes of action rather than an attempt to discern the intent of the Congress that enacted Title VI of the Civil Rights Act of 1964. Its colorful disclaimer of any interest in "venturing beyond Congress's intent," ante, at 11, has a hollow ring.
V
The question the Court answers today was only an open question in the most technical sense. Given the prevailing consensus in the Courts of Appeals, the Court should have declined to take this case. Having granted certiorari, the Court should have answered the question differently by simply according respect to our prior decisions. But most importantly, even if it were to ignore all of our post-1964 writing, the Court should have answered the question differently on the merits.
I respectfully dissent.
NOTES:
Just about every Court of Appeals has either explicitly or implicitly held that a private right of action exists to enforce all of the regulations issued pursuant to Title VI, including the disparate-impact regulations. For decisions holding so most explicitly, see, e.g. Powell v. Ridge,
Indeed, it would have been remarkable if the majority had offered any disagreement with the concurring analysis as the concurring Justices grounded their argument in well&nbhyph;established principles for determining the availability of remedies under regulations, principles that all but one Member of the Court had endorsed the previous Term. See Mourning v. Family Publications Service, Inc.,
See Cannon,
The majority is undoubtedly correct that Cannon was not a case about the substance of Title IX but rather about the remedies available under that statute. Therefore, Cannon can not stand as a precedent for the proposition either that Title IX and its implementing regulations reach intentional discrimination or that they do not do so. What Cannon did hold is that all the discrimination prohibited by the regulatory scheme contained in Title IX may be the subject of a private lawsuit. As the Court today concedes that Cannon's holding applies to Title VI claims as well as Title IX claims, ante, at 3-4, and assumes that the regulations promulgated pursuant to 602 are validly promulgated antidiscrimination measures, ante, at 5, it is clear that today's opinion is in substantial tension with Cannon's reasoning and holding.
None of the relevant opinions was absolutely clear as to whether it envisioned such suits as being brought directly under the statute or under 42 U.S.C. 1983. However, a close reading of the opinions leaves little doubt that all of the Justices making up the Guardians majority contemplated the availability of private actions brought directly under the statute. Justice White fairly explicitly rested his conclusion on Cannon's holding that an implied right of action exists to enforce the terms of both Title VI and Title IX. Guardians,
The Court today cites one sentence in my final footnote in Guardians that it suggests is to the contrary. Ante, at 7 (citing
See n. 5, supra.
See also Bazemore v. Friday,
The settled expectations the Court undercuts today derive not only from judicial decisions, but also from the consistent statements and actions of Congress. Congress' actions over the last two decades reflect а clear understanding of the existence of a private right action to enforce Title VI and its implementing regulations. In addition to numerous other small-scale amendments, Congress has twice adopted legislation expanding the reach of Title VI. See Civil Rights Restoration Act of 1987, 6, 102 Stat. 31 (codified at 42 U.S.C. 2000d-4a) (expanding definition of "program"); Rehabilitation Act Amendments of 1986, 1003, 100 Stat. 1845 (codified at 42 U.S.C. 2000d-7) (explicitly abrogating States' Eleventh Amendment immunity in suits under Title VI). Both of these bills were adopted after this Court's decision in Lau, Cannon, and Guardians, and after most of the Courts of Appeals had affirmatively acknowledged an implied private right of action to enforce the disparate impact regulations. Their legislative histories explicitly reflect the fact that both proponents and opponents of the bills assumed that the full breadth of Title VI (including the disparate impact regulations promulgated pursuant to it) would be enforceable in private actions. See, e.g., Civil Rights Act of 1984: Hearings on S. 2658 before the Subcommittee. on the Constitution of the Senate Committee on the Judiciary, 98th Cong., 2d Sess., 530 (1984) (memo from the Office of Management and Budget objecting to the Civil Rights Restoration Act of 1987 because it would bring more entities within the scope of Title VI thereby subjecting them to "private lawsuits" to enforce the disparate impact regulations); id. at 532 (same memo warning of a proliferation of "discriminatory effects" suits by "members of the bar" acting as "private Attorneys General"); 134 Cong. Rec. 4257 (1988) (statement of Sen. Hatch) (arguing that the disparate impact regulations go too far and noting that that is a particular problem because "[o]f course, advocacy groups will be able to bring private lawsuits making the same allegations before federal judges"); seе also Brief for United States 24, n. 16 (collecting testimony of academics advising Congress that private lawsuits were available to enforce the disparate impact regulations under existing precedent). Thus, this case goes well beyond the normal situation in which "after a comprehensive reeaxmination and significant amendment" Congress "left intact the statutory provisions under which the federal courts had implied a private cause of action." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,
The remainder of Title VI provides for judicial and administrative review of agency actions taken pursuant to the statute, 2000d-2; imposes certain limitations not at issue in this case, 2000d-3 to 2000d-4; and defines some of the terms found in the other provisions of the statute, 200d-4a.
See 42 U.S.C. 2000d-1 (602) ("Each Federal department and agency which is empowered to extend Federal financial assistance ... is authorized and directed to effectuate the provisions of [601] ... by issuing rules, regulations, or orders of general applicability").
See, e.g., 110 Cong. Rec. 6543 (1964) (statement of Sen. Humphrey) ("Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination"); id., at 1520 (statement of Rep. Celler) (describing 602 as requiring federal agencies to "reexamine" their programs "to make sure that adequate action has been taken to preclude ... discrimination") .
It is important, in this context, to note that regulations prohibiting policies that have a disparate impact are not necessarily aimed only-or even primarily-at unintentiоnal discrimination. Many policies whose very intent is to discriminate are framed in a race-neutral manner. It is often difficult to obtain direct evidence of this motivating animus. Therefore, an agency decision to adopt disparate&nbhyph;impact regulations may very well reflect a determination by that agency that substantial intentional discrimination pervades the industry it is charged with regulating but that such discrimination is difficult to prove directly. As I have stated before: "Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor." Washington v. Davis,
See, e.g., Alexander v. Choate,
Of course, those five Justices divided over the application of the Equal Protection Clause-and by extension Title VI-to affirmative action cases. Therefore, it is somewhat strange to treat the opinions of those five Justices in Bakke as constituting a majority for any particular substantive interpretation of Title VI.
The fact that Justices Marshall and White both felt that the opinion they coauthored in Bakke did not resolve the question whether Title VI on its face reaches disparate-impact claims belies the majority's assertion that Bakke "had drawn precisely that distinction," ante, at 6, n. 2, much less its implication that it would have been "absurd" to think otherwise, ibid.
In this context, it is worth noting that in a variety of other settings the Court hаs interpreted similarly ambiguous civil rights provisions to prohibit some policies based on their disparate impact on a protected group. See, e.g., Griggs v. Duke Power Co.,
In relying on the Chevron doctrine, I do not mean to suggest that our decision in Chevron stated a new rule that requires the wholesale reconsideration of our statutory interpretation precedents. Instead, I continue to adhere to my position in Sullivan v. Everhart,
The legislative history strongly indicates that the Congress that adopted Title VI and the administration that proposed the statute intended that the agencies and departments would utilize the authority granted under 602 to shape the substantive contours of 601. For example, during the hearings that preceded the passage of the statute, Attorney General Kennedy agreed that the administrators of the various agencies would have the power to define "what constitutes discrimination" under Title VI and "what acts or omissions are to be forbidden." Civil Rights-The Presidents Program, 1963: Hearings before the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 399-400 (1963); see also Civil Rights: Hearings before the House Committee on the Judiciary, 88th Cong., 1st Sess., pt. 4, p. 2740 (1963) (remarks of Attorney General Kennedy) (only after the agencies "establish the rules" will recipients "understand what they can and cannot do"). It was, in fact, concern for this broad delegation that inspired Congress to amend the pending bill to ensure that all regulations issued pursuant to Title VI would have to be approved by the President. See 42 U.S.C. 2000d-1 (laying out the requirement); 110 Cong. Rec. 2499 (1964) (remarks of Rep. Lindsay introducing the amendment). For further discussion of this legislative history, see Guardians,
The majority twice suggests that I "be[g] the question" whether a private right of action to enforce Title VI necessarily encompasses a right of action to enforce the regulations validly promulgated pursuant to the statute. Ante, at 6, n. 2, 17, n. 8. As the above analysis demonstrates, I do no such thing. On the contrary, I demonstrate that the disparate-impact regulations promulgated pursuant to 602 are-and have always been considered to be-an important part of an integrated remedial scheme intended to promote the statute's antidiscrimination goals. Given that fact, there is simply no logical or legal justification for differentiating between actions to enforce the regulations and actions to enforce the statutory text. Furthermore, as my integrated approach reflects the longstanding practice of this Court, see n. 2, supra, it is the majority's largely unexplained assumption that a private right of action to enforce the disparate-impact regulations must be independently established that "begs the question."
The text of the statute contained "an unmistakable focus on the benefited class,"
We should not overlook the fact that Cannon was decided after the Bakke majority had concluded that the coverage of Title VI was co-extensive with the coverage of the Equal Protection Clause.
Like any other type of evidence, contextual evidence may be trumped by other more persuasive evidence. Thus, the fact that, when evaluating older statutes, we have at times reached the conclusion that Congress did not imply a private right of action does not have the significance the majority suggests. Ante, at 13-14.
Only one of this Court's myriad private right of action cases even hints at such a rule. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A.,
See Guardians,
The majority suggests that its failure to offer such support is irrelevant, because the burden is on the party seeking to establish the existence of an implied right of action. Ante, at 17, n. 8. That response confuses apples and oranges. Undoubtedly, anyone seeking to bring a lawsuit has the burden of establishing that private individuals have the right to bring such a suit. However, once the courts have examined the statutory scheme under which the individual seeks to bring a suit and determined that a private right of action does exist, judges who seek to impose heretofore unrecognized limits on that right have a responsibility to offer reasoned arguments drawn from the text, structure, or history of that statute in order to justify such limitations. Moreover, in this case, the petitioners have marshaled substantial affirmative evidence that a private right of action exists to enforce Title VI and the regulations validly promulgated thereunder. See supra, at 21-22. It strikes me that it aids rather than hinders their case that this evidence is already summarized in an opinion of this Court. See Cannon,