OCTOBER TERM, 2000
Syllabus
ALEXANDER, DIRECTOR, ALABAMA DEPARTMENT OF PUBLIC SAFETY, ET AL.
v. SANDOVAL, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 99-1908. Argued January 16, 200l-Decided April 24, 2001
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 promulgated under Title VI. Pp.
279-293.
(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, 441 U. S. 677, 694, 696,
699, 703, 710-711. Second, §601 prohibits only intentional
discrimination. See,
e. g., Alexander v.
Choate,
469 U. S.
287,293. Third, it must be assumed for purposes of deciding
this case 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. Pp.
279-282.
(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 inten-
276
Syllabus
tionally discriminated against the petitioner, see 441 U. S., at
680. In
Guardians Assn. v.
Civil Servo Comm'n of New York
City, 463 U. S.
582, the Court
held that private individuals could not
recover compensatory damages under Title VI except for intentional
discrimination. Of the five Justices 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 645,
n. 18. Pp. 282-284.
(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., 511 U. S. 164, 173. That
right must come, if at all, from the independent force of § 602.
Pp. 284-286.
(d) Like substantive federal law itself, private rights of
action to enforce federal law must be created by Congress.
Touche Ross &
CO. V.
Redington, 442 U. S. 560, 578. This
Court will not revert to the understanding of private causes of
action, represented by J.
I. Case CO. V.
Borak,
377 U. S. 426,
433, that held sway when Title VI was enacted. That understanding
was abandoned in
Cort V.
Ash, 422 U. S. 66, 78. Nor does
the Court agree with the Government's contention that 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.
Merrill Lynch, Pierce, Fenner &
Smith, Inc. V.
Curran, 456 U.
S. 353, 378-379;
Cannon, supra, at 698-699; and
Thompson V.
Thompson, 484 U. S. 174,
distinguished. Pp. 286-288.
(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, 441 U. S.,
at 690, n. 13, is completely absent from § 602. Whereas § 601
decrees that "[n]o person ... shall ... be subjected to
discrimination," § 602 limits federal agencies to "effectuat[ing]"
rights created by § 601. And § 602 focuses neither on the
individuals protected nor even on the funding recipients being
regulated, but on the regulating agencies. Hence, there is far less
reason to infer a private remedy in favor of individual persons,
Cannon, supra, at 690-691. The methods § 602 expressly
provides for enforcing its regulations, which place elaborate
restrictions on agency enforcement, also suggest a congressional
intent not to create a private remedy through
277
§ 602. See,
e. g., Karahalios v.
Federal
Employees, 489 U.
S. 527, 533. Pp.288-291.
(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 of action must be inferred
under
Curran, supra, at 353, 381-382. Pp.291-293.
197 F.3d
484, reversed.
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,
post, p. 293.
Jeffrey S.
Sutton argued the cause for
petitioners. With him on the briefs were
Bill Pryor,
Attorney General of Alabama, and
John J.
Park, Jr.,
Assistant Attorney General.
Eric Schnapper argued the cause for private
respondents.
With him on the brief were J. Richard Cohen, Rhonda Brownstein,
Steven R. Shapiro, Edward Chen, and Christopher Ho.
Solicitor General Waxman argued the cause for the United States
as respondent under this Court's Rule 12.6. With him on the brief
were Assistant Attorney General Lee, Deputy Solicitor General
Underwood, Paul R. Q. Wolfson, Dennis J. Dimsey, and Seth M.
Galanter. *
*Briefs of
amici curiae urging reversal were filed for
Beauty Enterprises, Inc., by
Joseph E. Schmitz and
Richard C.
Robinson; for the Eagle Forum Education
& Legal Defense Fund by
Karen Tripp and
Phyllis
Schlafiy; for the National Association of Manufacturers by
Michael W Steinberg, Michael A. McCord, and
Jan
Amundson; for the National Collegiate Athletic Association by
David P. Bruton, Michael W McTigue, Jr., and
Elsa Kircher
Cole; for Pro-English et al. by
Barnaby W Zall; for U.
S. English by
Mr. Schmitz; for the Washington Legal
Foundation et al. by
Daniel J.
Popeo and
Richard
A. Samp; and for Robert
Briefs of
amici curiae urging affirmance were filed for
the NAACP Legal Defense & Educational Fund, Inc., et al. by
Elaine R. Jones,
278
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.
I
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) (2000). 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
Norman J. Chachkin, David T. Goldberg, Kenneth Kimerling,
Barbara J. Olshansky, Robert Garcia, John Payton, Norman Redlich,
Barbara R. Arnwine, and Thomas J. Henderson; and for the National
Women's Law Center et al. by George W Jones, Jr., Jacqueline G.
Cooper, Marcia D. Greenberger, Verna L. Williams, and Leslie T.
Annexstein.
Briefs of
amici curiae were filed for the Center on Race,
Poverty and the Environment et al. by
Luke W Cole and
Douglas Parker; for the Pacific Legal Foundation et al. by
John H. Findley; and for the Central Puget Sound Regional
Transit Authority by
Paul J.
Lawrence.
279
Alabama." Arndt. 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, 7 F. Supp. 2d 1234 (1998).
Petitioners appealed to the Court of Appeals for the Eleventh
Circuit, which affirmed.
Sandoval v.
Hagan, 197 F.3d
484 (1999). Both courts rejected petitioners' argument that
Title VI did not provide respondents a cause of action to enforce
the regulation.
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. 530 U. S. 1305 (2000).
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, 441
280
u. S. 677 (1979), the Court held that a private right of action
existed to enforce Title IX of the Education Amendments of 1972, 86
Stat. 373, as amended, 20 U. S. C. § 1681
et seq. The
reasoning of that decision embraced the existence of a private
right to enforce Title VI as well. "Title IX," the Court noted,
"was patterned after Title VI of the Civil Rights Act of 1964." 441
U. S., at 694. And, "[i]n 1972 when Title IX was enacted, the
[parallel] language in Title VI had already been construed as
creating a private remedy."
Id., at 696. That meant, the
Court reasoned, that Congress had intended Title IX, like Title VI,
to provide a private cause of action.
Id., at 699, 703,
710-711. Congress has since ratified
Cannon's holding.
Section 1003 of the Rehabilitation Act Amendments of 1986, 100
Stat. 1845, 42 U. S. C. § 2000d-7, expressly abrogated States'
sovereign immunity against suits brought in federal court to
enforce Title VI and provided that in a suit against a State
"remedies (including remedies both at law and in equity) are
available ... to the same extent as such remedies are available ...
in the suit against any public or private entity other than a
State," § 2000d-7(a)(2). We recognized in
Franklin v.
Gwinnett County Public Schools, 503 U. S. 60 (1992), that
§ 2000d-7 "cannot be read except as a validation of
Cannon's
holding."
Id., at 72; see also
id., at 78 (SCALIA,
J., concurring in judgment) (same). It is thus beyond dispute that
private individuals may sue to enforce § 601.
Second, it is similarly beyond dispute-and no party
disagrees-that § 601 prohibits only intentional discrimination. In
Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265 (1978), the
Court reviewed a decision of the California Supreme Court that had
enjoined the University of California Medical School from
"according any consideration to race in its admissions process."
Id., at 272. Essential to the Court's holding reversing that
aspect of the California court's decision was the determination
that § 601 "proscribe[s] only those racial classifications that
would violate the Equal Pro-
281
tection Clause or the Fifth Amendment."
Id., at 287
(opinion of Powell, J.); see also id., at 325, 328, 352 (opinion of
Brennan, White, Marshall, and Blackmun, JJ.). In
Guardians
Assn. v.
Civil Servo Comm'n of New York City, 463 U. S.
582 (1983), the Court made clear that under
Bakke only
intentional discrimination was forbidden by § 601. 463 U. S., at
610-611 (Powell, J., joined by Burger, C. J., and REHNQUIST, J.,
concurring in judgment); id., at 612 (O'CONNOR, J., concurring in
judgment); id., at 642 (STEVENS, J., joined by Brennan and
Blackmun, JJ., dissenting). What we said in
Alexander v.
Choate, 469 U.
S. 287, 293 (1985), is true today:
"Title VI itself directly reach[es] only instances of
intentional discrimination." 1
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
1 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, 438 U. S. 265 (1978), and
Guardians Assn. V.
Civil Servo Comm'n of New York
City, 463 U. S.
582 (1983), as "somewhat haphazard,"
post, at 307
(dissenting opinion), particularly since he had already accorded
stare decisis effect to the former 18 years ago, see
Guardians, 463 U. S., at 639-642 (dissenting opinion), and
since he participated in creating the latter, see
ibid. Nor
does JUSTICE STEVENS'S reliance on
Chevron U. S.
A.
Inc. V.
Natural Resources Defense Council, Inc.,
467 U. S. 837
(1984), see
post, at 309-310, explain his about-face, since
he expressly reaffirms, see
post, at 309, n. 18, the settled
principle that decisions of this Court declaring the meaning of
statutes prior to
Chevron need not be reconsidered after
Chevron in light of agency regulations that were already in
force when our decisions were issued,
Lechmere, Inc. V.
NLRB, 502 U.
S. 527, 536-537 (1992);
Maislin Industries, U. S., Inc.
V.
Primary Steel, Inc., 497 U. S. 116, 131
(1990); see also
Sullivan V.
Everhart, 494 U. S. 83,
103-104, n. 6 (1990) (STEVENS, J., dissenting) ("It is, of course,
of no importance that [an opinion] predates
Chevron .... As
we made clear in
Chevron, the interpretive maxims summarized
therein were 'wellsettled principles' ").
282
least as alternative grounds for their decisions, see 463 U. S.,
at 591-592 (opinion of White, J.); id., at 623, n. 15 (Marshall,
J., dissenting); id., at 643-645 (STEVENS, J., joined by Brennan
and Blackmun, JJ., dissenting), and dictum in
Alexander v.
Choate is to the same effect, see 469 U. S., at 293, 295, n.
11. These statements are in considerable tension with the rule of
Bakke and
Guardians that § 601 forbids only
intentional discrimination, see,
e. g., Guardians Assn. v.
Civil Servo Comm'n of New York City, supra, at 612-613
(O'CONNOR, J., concurring in judgment), but petitioners have not
challenged the regulations here. We therefore assume for the
purposes of deciding this case that the DOJ and DOT regulations
proscribing activities that have a disparate impact on the basis of
race are valid.
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 disparateimpact 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 288-290. But in any event, this Court is bound
by holdings, not language.
Cannon was decided on the
assumption that the University of Chicago had intentionally
discriminated against petitioner. See 441 U. S., at 680 (noting
that respondents "admitted
arguendo" that petitioner's
"applications for admission to medical school were denied by the
respondents because she is a woman"). It therefore
held that
Title IX created a private right of action to enforce its ban on
intentional discrimination, but had no occasion to consider whether
the right reached regulations barring disparate-impact
discrimination.2 In
Guardians, the Court
held that
private individu-
2 Although the dissent acknowledges that "the breadth of
[Cannon's] precedent is a matter upon which reasonable
jurists may differ,"
post, at 313, it disagrees with our
reading of
Cannon's holding because it thinks
283
als could not recover compensatory damages under Title VI except
for intentional discrimination. Five Justices in addition voted to
uphold the disparate-impact regulations (four would have declared
them invalid, see 463 U. S., at 611, n. 5 (Powell, J., concurring
in judgment); id., at 612-614 (O'CONNOR, J., concurring in
judgment)), but of those five, three expressly reserved the
question of a direct private right of action to enforce the
regulations, saying that "[w]hether a cause of action against
private parties exists directly under the regulations ... [is a]
questio[n] that [is] not presented by this case."
Id., at
645, n. 18 (STEVENS, J., dissenting).3 Thus, only two Justices had
cause to reach the issue
the distinction we draw between disparate-impact and intentional
discrimination was "wholly foreign" to that opinion, see
post, at 297.
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
280-281, 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, 441 U. S. 677, 748, n. 19
(1979). The dissent's additional claim that
Cannon provided
a private right of action for "all the discrimination prohibited by
the
regulatory scheme contained in Title IX,"
post,
at 297-298, n. 4 (emphasis added), simply begs the question at the
heart of this case, which is whether a right of action to enforce
disparate-impact regulations must be independently identified, see
infra, at 284-286.
3 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 301, n. 6. But we
have the better interpretation 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."
463 U. S., at 645. The passage omits any mention of a direct
private right of action to enforce the regulations, and the
footnote we have quoted in text-which appears immedi-
284
that respondents say the "actual language" of
Guardians
resolves. Neither that case,4 nor any other in this Court, has held
that the private right of action exists.
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
NationsBank of N. c., N.
A. v.
Variable Annuity Life Ins. Co., 513 U. S. 251, 257
(1995);
Chevron U. S.
A. Inc. v.
Natural Resources
Defense Council, Inc., 467 U. S. 837, 843-844
(1984), and it is therefore meaningless to talk about a separate
cause of action to enforce the regulations apart from the statute.
A Congress that intends the statute to be enforced through a
private cause of action intends the authoritative interpretation of
the statute to be so enforced as well. The many cases that
respondents say have "assumed" that a cause of action to enforce a
statute includes one to enforce its regulations illustrate (to the
extent that cases in which an issue was not presented can
illustrate anything) only this point; each involved regulations of
the type we have just described, as respondents conceded at oral
argument, Tr. of Oral Arg. 33. See
National Collegiate Athletic
Assn. v.
Smith, 525 U. S. 459, 468 (1999)
(regulation defining who is a "recipient" under Title IX);
School Bd. of Nassau Cty. v.
Arline, 480 U. S. 273, 279-281
(1987) (regulations defining the terms "physical impairment" and
"major life activities" in § 504 of the Rehabilitation Act of
1973);
Bazemore v.
Friday, 478 U. S. 385, 408-409
(1986) (White, J., joined by four other
ately after this concluding sentence, see id., at 645, n.
I8-makes clear that the omission was not accidental.
4 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 301.
285
Justices, concurring) (regulation interpreting Title VI to
require "affirmative action" remedying effects of intentional
discrimination);
Alexander v.
Choate, 469 U. S., at
299, 309 (regulations clarifying what sorts of disparate impacts
upon the handicapped were covered by § 504 of the Rehabilitation
Act of 1973, which the Court assumed included some such impacts).
Our decision in
Lau v.
Nichols, 414 U. S. 563 (1974),
falls within the same category. The Title VI regulations at issue
in
Lau, similar to the ones at issue here, forbade funding
recipients to take actions which had the effect of discriminating
on the basis of race, color, or national origin.
Id., at
568. Unlike our later cases, however, the Court in
Lau
interpreted § 601 itself to proscribe disparate-impact
discrimination, saying that it "rel[ied] solely on § 601 ... to
reverse the Court of Appeals," id., at 566, and that the
disparate-impact regulations simply "[made] sure that recipients of
federal aid ... conduct[ed] any federally financed projects
consistently with § 601," id., at 567.5
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
280281. 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,
5 It is true, as the dissent points out, see
post, at
296, that three Justices who concurred in the result in
Lau
relied on regulations promulgated under § 602 to support their
position, see 414 U. S., at 570-571 (Stewart, J., concurring in
result). But the five Justices who made up the majority did not,
and their holding is not made coextensive with the concurrence
because their opinion does not expressly preclude (is "consistent
with," see
post, at 296) the concurrence's approach. The
Court would be in an odd predicament if a concurring minority of
the Justices could force the majority to address a point they found
it unnecessary (and did not wish) to address, under compulsion of
JUSTICE STEVENS'S new principle that silence implies agreement.
286
N.
A. v.
First Interstate Bank of Denver, N.
A., 511 U. S.
164, 173 (1994) (a "private plaintiff may not bring a [suit
based on a regulation] against a defendant for acts not prohibited
by the text of [the statute]"). That right must come, if at all,
from the independent force of § 602. As stated earlier, we assume
for purposes of this decision that § 602 confers the authority to
promulgate disparate-impact regulations; 6 the question remains
whether it confers a private right of action to enforce them. If
not, we must conclude that a failure to comply with regulations
promulgated under § 602 that is not also a failure to comply with §
601 is not actionable.
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, 442 U. S. 560, 578 (1979)
(remedies available are those "that Congress enacted into law").
The judicial task is to interpret the statute Congress has passed
to determine whether it displays an intent to create not just a
private right but also a private remedy.
Transamerica Mortgage
Advisors, Inc. v.
Lewis, 444 U. S. 11, 15 (1979).
Statutory intent on this latter point is determinative. See,
e.
g., Virginia Bankshares, Inc. v.
Sandberg, 501 U. S. 1083, 1102
(1991);
Merrell Dow Pharmaceuticals Inc. v.
Thompson,
478 U. S. 804,
812, n.9 (1986) (collecting cases). Without it, a cause of action
does not exist and courts may not
6 For this reason, the dissent's extended discussion of the
scope of agencies' regulatory authority under § 602, see
post, at 305-307, is beside the point. We cannot help
observing, however, how strange it is to say that disparate-impact
regulations are "inspired by, at the service of, and inseparably
intertwined with" § 601,
post, at 307, when § 601 permits
the very behavior that the regulations forbid. See
Guardians, 463 U. S., at 613 (O'CONNOR, J., concurring in
judgment) ("If, as five Members of the Court concluded in
Bakke, the purpose of Title VI is to proscribe
only
purposeful discrimination ... , regulations that would proscribe
conduct by the recipient having only a discriminatory
effect
... do not simply 'further' the purpose of Title VI; they go
well
beyond that purpose").
287
create one, no matter how desirable that might be as a policy
matter, or how compatible with the statute. See,
e. g.,
Massachusetts Mut. Life Ins. Co. v.
Russell, 473 U. S. 134, 145, 148
(1985);
Transamerica Mortgage Advisors, Inc. v.
Lewis,
supra, at 23;
Touche Ross &
Co. v.
Redington, supra, at 575-576. "Raising up causes of action
where a statute has not created them may be a proper function for
commonlaw courts, but not for federal tribunals."
Lampf, Pleva,
Lipkind, Prupis &
Petigrow v.
Gilbertson,
501 U. S. 350,
365 (1991) (SCALIA, J., concurring in part and concurring in
judgment).
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. 1.
Case Co. v.
Borak,
377 U. S. 426,
433 (1964), that "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. We abandoned that
understanding in
Cort v.
Ash, 422 U. S. 66, 78
(1975)-which itself interpreted a statute enacted under the
ancien regime-and have not returned to it since. Not even
when interpreting the same Securities Exchange Act of 1934 that was
at issue in
Borak have we applied
Borak's method for
discerning and defining causes of action. See
Central Bank of
Denver, N.
A. v.
First Interstate Bank of Denver,
N.
A., supra, at 188;
Musick, Peeler & Garrett v.
Employers Ins. of Wausau, 508 U. S. 286, 291-293
(1993); Virginia Bankshares, Inc. v.
Sandberg, supra,
at
1102-1103; Touche Ross &
Co. v.
Redington,
supra, at 576578. Having sworn off the habit of venturing
beyond Congress's intent, we will not accept respondents'
invitation to have one last drink.
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
288
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, 456 U. S. 353, 378379
(1982);
Cannon v.
University of Chicago, 441 U. S.,
at 698-699. In the third case, this sort of "contemporary legal
context" simply buttressed a conclusion independently supported by
the text of the statute. See
Thompson v.
Thompson,
484 U. S. 174
(1988). We have never accorded dispositive weight to context shorn
of text. In determining whether statutes create private rights of
action, as in interpreting statutes generally, see
Blatchford v.
Native Village of Noatak, 501 U. S. 775, 784
(1991), legal context matters only to the extent it clarifies
text.
We therefore begin (and find that we can end) our search for
Congress's intent with the text and structure of Title VP 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 441 U. S., at 690, n. 13, is
completely absent from § 602. Whereas § 601 decrees that "[n]o
person ... shall ... be subjected to discrimination," 42 U. S. C. §
2000d, the text of § 602 provides that "[e]ach Federal department
and
7 Although the dissent claims that we "adop[t] a methodology
that blinds itself to important evidence of congressional intent,"
see
post, at 313, our methodology is not novel, but well
established in earlier decisions (including one authored by JUSTICE
STEVENS, see
Northwest Airlines, Inc. v.
Transport
Workers, 451 U. S.
77, 94, n. 31 (1981)), which explain that the interpretive
inquiry begins with the text and structure of the statute, see id.,
at 91, and ends once it has become clear that Congress did not
provide a cause of action.
289
agency ... is authorized and directed to effectuate the
provisions of [§ 601]," 42 U. S. C. § 2000d-1. Far from displaying
congressional intent to create new rights, § 602 limits agencies to
"effectuat[ing]" rights already created by § 601. And the focus of
§ 602 is twice removed from the individuals who will ultimately
benefit from Title VI's protection. Statutes that focus on the
person regulated rather than the individuals protected create "no
implication of an intent to confer rights on a particular class of
persons."
California v.
Sierra Club, 451 U. S. 287, 294
(1981). Section 602 is yet a step further removed: It focuses
neither on the individuals protected nor even on the funding
recipients being regulated, but on the agencies that will do the
regulating. Like the statute found not to create a right of action
in
Universities Research Assn., Inc. v.
Coutu,
450 U. S. 754
(1981), § 602 is "phrased as a directive to federal agencies
engaged in the distribution of public funds," id., at 772. When
this is true, "[t]here [is] far less reason to infer a private
remedy in favor of individual persons,"
Cannon v.
University of Chicago, supra, at 690-691. So far as we can
tell, this authorizing portion of § 602 reveals no congressional
intent to create a private right of action.
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 action
is subject to judicial review. § 2000d-2. If an agency attempts to
terminate program funding, still
290
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, 438 U. S., at 419, n. 26 (STEVENS, J.,
concurring in judgment in part and dissenting in part), with
Guardians Assn. v.
Civil Servo Comm'n of New York
City, 463 U. S., at 609-610 (Powell, J., concurring in
judgment);
Regents of Univ. of Cal. v.
Bakke, supra,
at 382-383 (opinion of White, J.), they tend to contradict a
congressional intent to create privately enforceable rights through
§ 602 itself. The express provision of one method of enforcing a
substantive rule suggests that Congress intended to preclude
others. See,
e. g., Karahalios v.
Federal Employees,
489 U. S. 527,
533 (1989);
Northwest Airlines, Inc. v.
Transport
Workers, 451 U. S.
77, 93-94 (1981);
Transamerica Mortgage Advisors, Inc.
v.
Lewis, 444 U. S., at 19-20. Sometimes the suggestion is
so strong that it precludes a finding of congressional intent to
create a private right of action, even though other aspects of the
statute (such as language making the would-be plaintiff "a member
of the class for whose benefit the statute was enacted") suggest
the contrary.
Massachusetts Mut. Life Ins. Co. v.
Russell, 473 U. S., at 145; see
id., at 146-147. And
as our Rev. Stat. § 1979, 42 U. S. C. § 1983, cases show, some
remedial schemes foreclose a private cause of action to enforce
even those statutes that admittedly create substantive private
rights. See,
e. g., Middlesex County Sewerage Authority v.
National Sea Clammers Assn., 453 U. S. 1, 19-20 (1981).
In the present case, the claim of exclusivity for the
291
express remedial scheme does not even have to overcome such
obstacles. The question whether § 602's remedial scheme can
overbear other evidence of congressional intent is simply not
presented, since we have found no evidence anywhere in the text to
suggest that Congress intended to create a private right to enforce
regulations promulgated under §602.
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, 442 U. S., at 577, n. 18 ("[T]he language of the
statute and not the rules must control"). Thus, when a statute has
provided a general authorization for private enforcement of
regulations, it may perhaps be correct that the intent displayed in
each regulation can determine whether or not it is privately
enforceable. But it is most certainly incorrect to say that
language in a regulation can conjure up a private cause of action
that has not been authorized by Congress. Agencies may play the
sorcerer's apprentice but not the sorcerer himself.
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 282-285, which is why in
Guardians three Justices were able expressly to reserve the
question. See 463 U. S., at 645, n. 18 (STEVENS, J., dissenting).
Incorporating
292
our cases in the amendments would thus not help respondents.
Another problem is that the incorporation claim itself is flawed.
Section 1003 of the Rehabilitation Act Amendments of 1986, on which
only respondents rely, by its terms applies only to suits "for a
violation of a
statute," 42 U. S. C. § 2000d-7(a)(2)
(emphasis added). It therefore does not speak to suits for
violations of regulations that go beyond the statutory proscription
of § 601. Section 6 of the Civil Rights Restoration Act of 1987 is
even less on point. That provision amends Title VI to make the term
"program or activity" cover larger portions of the institutions
receiving federal financial aid than it had previously covered, see
Grove City College v.
Bell, 465 U. S. 555 (1984). It
is impossible to understand what this has to do with implied causes
of action-which is why we declared in
Franklin v.
Gwinnett County Public Schools, 503 U. S., at 73, that § 6
did not "in any way alte[r] the existing rights of action and the
corresponding remedies permissible under ... Title VI." Respondents
point to
Merrill Lynch, Pierce, Fenner &
Smith,
Inc. v.
Curran, 456 U. S., at 381-382, which inferred
congressional intent to ratify lower court decisions regarding a
particular statutory provision when Congress comprehensively
revised the statutory scheme but did not amend that provision. But
we recently criticized
Curran's reliance on congressional
inaction, saying that "[a]s a general matter ... [the] argumen[t]
deserve[s] little weight in the interpretive process."
Central
Bank of Denver, N.
A. v.
First Interstate Bank of
Denver, N.
A., 511 U. S., at 187. And when, as here,
Congress has not comprehensively revised a statutory scheme but has
made only isolated amendments, we have spoken more bluntly: "It is
'impossible to assert with any degree of assurance that
congressional failure to act represents' affirmative congressional
approval of the Court's statutory interpretation."
Patterson
v.
McLean Credit Union, 491 U. S. 164, 175, n. 1
(1989) (quoting
Johnson
293
v.
Transportation Agency, Santa Clara Cty., 480 U. S. 616, 671-672
(1987) (SCALIA, J., dissenting)).
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,
451 U. S. 1 (1981).
See
Davis v.
Monroe County Bd. of Ed., 526 U. S. 629,656-657,
684-685 (1999) (KENNEDY, J., dissenting).
The judgment of the Court of Appeals is reversed.
It is so ordered.
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 pow-
8 The dissent complains that we "offe[r] little affirmative
support" for this conclusion.
Post, at 315. 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., 451 U. S.,
at 94. The dissent's assertion that "respondents
have
marshaled substantial affirmative evidence that a private right of
action exists to enforce Title VI
and the regulations validly
promulgated thereunder," post, at 316, n.26 (second emphasis
added), once again begs the question whether authorization of a
private right of action to enforce a statute constitutes
authorization of a private right of action to enforce regulations
that go beyond what the statute itself requires.
294
ers 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, 414 U. S. 563 (1974);
demonstrated that Congress intended a private right of action to
protect the rights guaranteed by Title VI, see
Cannon v.
University of Chicago, 441 U. S. 677 (1979); and
concluded that private individuals may seek declaratory and
injunctive relief against state officials for violations of
regulations promulgated pursuant to Title VI, see
Guardians
Assn. v.
Civil Servo Comm'n of New York City, 463 U. S. 582 (1983).
Giving fair import to our language and our holdings, every Court of
Appeals to address the question has concluded that a private right
of action exists to enforce the rights guaranteed both by the text
of Title VI and by any regulations validly promulgated pursuant to
that Title, and Congress has adopted several statutes that appear
to ratify the status quo.
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
295
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, 441 U. S. 677 (1979),
mistaking that decision's careful contextual analysis for judicial
fiat.
I
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 the
Courts of Appeals: This Court has already considered the question
presented today and concluded that a private right of action
exists.1
IJust 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, 189 F.3d
387, 400
(CA3 1999);
Chester Residents Concerned for
Quality Living v.
Seif, 132 F.3d
925, 936-937
(CA3 1997), summarily vacated and remanded,
524 U. S. 974 (1998);
David K. v.
Lane, 839 F.2d
1265, 1274
(CA7 1988); Sandoval v.
Hagan,
197 F.3d
484 (CAll 1999) (case below). See also
Latinos Unidos De
Chelsea v.
Secretary of Housing and Urban Development,
799 F.2d
774,785, n. 20
(CA11986); New York Urban League, Inc. v.
New York, 71 F.3d
1031, 1036
(CA2 1995);
Ferguson v.
Charleston,
186 F. 3d 469
(CA4 1999), rev'd on other grounds,
ante, p. 67;
Castaneda v.
Pickard, 781 F.2d
456, 465, n. 11
(CA5 1986);
Buchanan v.
Bolivar, 99
296
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, 414 U. S. 563 (1974).
While five Justices saw no need to go beyond the command of § 601,
Chief Justice Burger, Justice Stewart, and Justice Blackmun relied
specifically and exclusively on the regulations to support the
private action, see id., at 569 (Stewart, J., concurring in result)
(citing
Mourning v.
Family Publications Service,
Inc., 411 U. S.
356, 369 (1973);
Thorpe v.
Housing Authority of
Durham, 393 U. S.
268, 280-281 (1969)). There is nothing in the majority's
opinion in
Lau, or in earlier opinions of the Court, that is
not fully consistent with the analysis of the concurring Justices
or that would have differentiated between private actions to
enforce the text of § 601 and private actions to enforce the
regulations promulgated pursuant to § 602. See
Guardians,
463 U. S., at 591 (principal opinion of White, J.) (describing this
history and noting that, up to that point, no Justice had ever
expressed disagreement with Justice Stewart's analysis in
Lau).2
F. 3d 1352, 1356, n. 5
(CA6 1996);
Larry P. v.
Riles, 793 F.2d
969, 981-982
(CA9 1986);
Villanueva v.
Carere, 85 F.3d
481, 486 (CAlO 1996). No Court of Appeals has ever reached a
contrary conclusion. But cf.
New York City Environmental
Justice Alliance v.
Giuliani, 214 F.3d
65, 72 (CA2 2000) (suggesting that the question may be
open).
2 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-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., 411 U. S. 356, 369
(1973);
id., at 378 (Douglas, J., joined by Stewart and
REHNQUIST, JJ., concurring in part and dissenting in part)
(agreeing with the majority's analysis of the regulation in
question); but see id., at 383, n. 1 (Powell, J., dissenting)
(reserving analysis of the regulation's validity). The other
decision the concurring Justices cited for this well-established
principle was unanimous and only
297
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, 441 U. S. 677 (1979). In
that case, we examined the text of the statutes, analyzed the
purpose of the laws, and canvassed the relevant legislative
history. Our conclusion was unequivocal: "We have no doubt that
Congress intended to create Title IX remedies comparable to those
available under Title VI and that it understood Title VI as
authorizing an implied private cause of action for victims of the
prohibited discrimination."
Id., at 703.
The majority acknowledges that
Cannon is binding
precedent with regard to both Title VI and Title IX,
ante,
at 279-280, 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." 441 U. S., at 703 (emphasis
added). Not some of the prohibited discrimination, but all of
it.4
five years old. See
Thorpe v.
Housing Authority of
Durham, 393 U. S.
268 (1969).
3 See
Cannon, 441 U. S., at 687, 699, 702, n. 33, 703,
706, n. 40, 709.
4 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
cannot 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
298
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 even 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
Servo Comm'n of New York City, 463 U. S. 582 (1983),
reinforces the conclusion that this issue is effectively settled.
While
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
279-280, and assumes that the regulations promulgated pursuant to §
602 are validly promulgated antidiscrimination measures,
ante, at 281-282, it is clear that today's opinion is in
substantial tension with
Cannon's reasoning and holding.
299
the various opinions in that case took different views as to the
spectrum of relief available to plaintiffs in Title VI cases, a
clear majority of the Court expressly stated that private parties
may seek injunctive relief against governmental practices that have
the effect of discriminating against racial and ethnic minorities.
Id., at 594-595, 607 (White, J.);
id., at 634
(Marshall, J., dissenting); id., at 638 (STEVENS, J., joined by
Brennan and Blackmun, JJ., dissenting). As this case involves just
such an action, its result ought to follow naturally from
Guardians.
As I read to day'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 because they neglected to
mention 42 U. S. C. § 1983
5 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, 463 U. S., at 594-595.
Given that fact and the added consideration that his opinion
appears to have equally contemplated suits against private and
public parties, it is clear that he envisioned the availability of
injunctive relief directly under the statute. Justice Marshall's
opinion never mentions § 1983 and refers simply to "Title VI
actions."
Id., at 625. In addition, his opinion can only be
read as contemplating suits on equal terms against both public and
private grantees, thus also suggesting that he assumed such suits
could be brought directly under the statute. That leaves my
opinion. Like Justice White, I made it quite clear that I believed
the right to sue to enforce the disparate-impact regulations
followed directly from
Cannon and, hence, was built directly
into the statute. 463 U. S., at 635-636, and n. 1. However, I did
also note that, in the alternative, relief would be available in
that particular case under § 1983.
300
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 rechallenging Alabama's English-only policy in a
complaint that invokes § 1983 even after today's decision.
More importantly, 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 463
U. S., at 638 (STEVENS, J.) ("Even if it were not settled by now
that Title VI authorizes appropriate relief, both prospective and
retroactive, to victims of racial discrimination at the hands of
recipients of federal funds, the same result would follow in this
case because the petitioners have sought relief under 42 U. S. C. §
1983" (emphasis deleted)). However, the analysis in each of the
relevant opinions did not do SO.6 Rather than focusing on
considerations
6 The Court today cites one sentence in my final footnote in
Guardians that it suggests is to the contrary.
Ante,
at 283 (citing 463 U. S., at 645, n. 18). However, the Court
misreads that sentence. In his opinion in
Guardians, Justice
Powell had stated that he would affirm the judgment for the reasons
stated in his dissent in
Cannon, see 463 U. S., at 609-610
(opinion concurring in judgment), and that he would also hold that
private actions asserting violations of Title VI could not be
brought under § 1983, id., at 610, and n. 3. One reason that he
advanced in support of these conclusions was his view that the
standard of proof in a § 1983 action against public officials would
differ from the standard in an action against private defendants.
Id., at 608, n. 1. In a footnote at the end of my opinion,
id., at 645, n. 18, I responded (perhaps inartfully) to Justice
301
specific to § 1983, each of these opinions looked instead to our
opinion in
Cannon, to the intent of the Congress that
adopted Title VI and the contemporaneous executive decisionmakers
who crafted the disparate-impact regulations, and to general
principles of remediation.7
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
Powell. I noted that the fact that § 1983 authorizes a lawsuit
against the police department based on its violation of the
governing administrative regulations did not mean, as Justice
Powell had suggested, "that a similar action would be unavailable
against a similarly situated private party."
Ibid. I added
the sentence that the Court quotes today,
ante, at 283, not
to reserve a question, but rather to explain that the record did
not support Justice Powell's hypothesis regarding the standard of
proof. I thought then, as I do now, that a violation of regulations
adopted pursuant to Title VI may be established by proof of
discriminatory impact in a § 1983 action against state actors and
also in an implied action against private parties. See n. 5,
supra. Contrary to the Court's partial quotation of my
opinion, see
ante, at 283-284, n. 3, what I wrote amply
reflected what I thought. See 463 U. S., at 635 ("a private action
against recipients offederal funds");
id., at 636 ("implied
caus[e] of action");
id., at 638 ("Title VI authorizes
appropriate relief").
Justice Powell was quite correct in noting that it would be
anomalous to assume that Congress would have intended to make it
easier to recover from public officials than from private parties.
That anomaly, however, does not seem to trouble the majority
today.
7 See n. 5,
supra.
8 See also
Bazemore v.
Friday, 478 U. S. 385 (1986)
(per curiam) (adjudicating on the merits a claim brought
under Title VI regulations).
302
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
9 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 a clear understanding of the existence of a
private right of 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 decisions 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
Congo 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"); see 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
303
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, 505 U. S. 717, 732, n. 7 (1992);
Guardians Assn. v.
Civil Servo
a private cause of action."
Merrill Lynch, Pierce, Fenner
&
Smith, Inc. V.
Curran, 456 U. S. 353, 381-382
(1982). Here, there is no need to rest on presumptions of knowledge
and ratification, because the direct evidence of Congress'
understanding is plentiful.
10 The remainder of Title VI provides for judicial and
administrative review of agency actions taken pursuant to the
statute, 42 U. S. C. § 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, § 2000d-4a.
304
Comm'n of New York City, 463 U. S. 582 (1983);
Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265 (1978). As
the majority emphasizes today, the Judiciary's understanding of
what conduct may be remedied in actions brought directly under §
601 is, in certain ways, more circumscribed than the conduct
prohibited by the regulations. See,
e. g., ante, at
280-281.
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 stepcousins-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 determining 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.
USee 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").
305
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. 414 U. S., at 571 (Stewart, J.,
joined by Burger, C. J., and Blackmun, J., concurring in result).
In
Guardians, at least three Members of the Court adopted a
similar understanding of the statute. See 463 U. S., at 643
(STEVENS, J., joined by Brennan and Blackmun, JJ., dissenting).
Finally, just 16 years ago, our unanimous opinion in
Alexander v.
Choate, 469 U. S. 287 (1985),
treated this understanding of Title VI's structure as settled law.
Writing for the Court, Justice Marshall aptly explained the
interpretation of § 602's grant of regulatory power that
necessarily underlies our prior case law: "In essence, then, we
[have] held that Title VI [has] delegated to the agencies in the
first instance the complex determination of what sorts of disparate
impacts upon minorities constituted sufficiently significant social
problems, and [are] readily enough remediable, to warrant altering
the practices of the federal grantees that [have] produced those
impacts."
Id., at 293-294.
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
306
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
12 See,
e. g., 110 Congo 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").
13 It is important, in this context, to note that regulations
prohibiting policies that have a disparate impact are not
necessarily aimed onlyor even primarily-at unintentional
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-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, 426 U. S. 229, 253 (1976)
(concurring opinion). On this reading, Title VI
307
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
284.
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. 438 U. S., at 287
(principal opinion of Powell, J.); id., at
simply accords the agencies the power to decide whether or not
to credit such evidence.
14 See,
e. g.,
Alexander v.
Choate,
469 U. S. 287,
293 (1985) (stating, in dicta, "Title VI itself directly reach[es]
only instances of intentional discrimination");
Guardians
Assn. v.
Civil Servo Comm'n of New York City, 463 U. S. 582 (1983) (in
separate opinions, seven Justices indicate that § 601 on its face
bars only intentional discrimination).
308
325, 328, 352 (Brennan, J., joined by White, Marshall, and
Blackmun, JJ., concurring in judgment in part and dissenting in
part).15 In
Guardians, the majority of the Court held that
the analysis of those five Justices in
Bakke compelled
as
a matter of stare decisis the conclusion that § 601 does not on
its own terms reach disparate-impact cases. 463 U. S., at 610-611
(Powell, J., concurring in judgment); id., at 612 (O'CONNOR, J.,
concurring in judgment); id., at 642 (STEVENS, J., joined by
Brennan and Blackmun, JJ., dissenting). However, the opinions
adopting that conclusion did not engage in any independent analysis
of the reach of § 601. Indeed, the only writing on this subject
came from two of the five Members of the
Bakke "majority,"
each of whom wrote separately to reject the remaining Justices'
understanding of their opinions in
Bakke and to insist that
§ 601 does in fact reach some instances of unintentional
discrimination. 463 U. S., at 589-590 (White, J.); id., at 623-624
(Marshall, J., dissenting).16 The Court's occasional rote
invocation of this
Guardians majority in later cases ought
not obscure the fact that the question whether § 601 applies to
disparate-impact claims has never been analyzed by this Court on
the merits.17
15 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.
16 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 283, n. 2, much less
its implication that it would have been "absurd" to think
otherwise,
ibid.
17 In this context, it is worth noting that in a variety of
other settings the Court has 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., 401 U. S. 424, 432 (1971)
(Title VII);
City of Rome v.
United States, 446 U. S. 156, 172-173
(1980) (§ 5 of the Voting Rights Act); cf.
Alexander v.
Choate, 469 U. S., at 292-296
309
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., 467 U. S.
837 (1984). In most other contexts, when the agencies charged
with administering a broadly worded statute offer regulations
interpreting that statute or giving concrete guidance as to its
implementation, we treat their interpretation of the statute's
breadth as controlling unless it presents an unreasonable
construction of the statutory text. See
ibid. While there
may be some dispute as to the boundaries of
Chevron
deference, see,
e. g.,
Christensen v.
Harris
County, 529 U. S.
576 (2000), it is paradigmatically appropriate when Congress
has clearly delegated agencies the power to issue regulations with
the force of law and established formal procedures for the
promulgation of such regulations.18
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
(explaining why the Rehabilitation Act of 1973, which was
modeled after § 601, might be considered to reach some instances of
disparate impact and then assuming that it does for purposes of
deciding the case).
18 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, 494 U. S. 83, 103-104, n.
6 (1990) (stating that
Chevron merely summarized
"wellsettled principles"). In suggesting that, with regard to Title
VI, we might reconsider whether our prior decisions gave sufficient
deference to the agencies' interpretation of the statute, I do no
more than question whether in this particular instance we paid
sufficient consideration to those "well-settled principles."
310
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, 441 U. S., at
703.
19 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
President's 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 Congo
Rec. 2499 (1964) (remarks of Rep. Lindsay introducing the
amendment). For further discussion of this legislative history, see
Guardians, 463 U. S., at 615-624 (Marshall, J., dissenting);
Abernathy, Title VI and the Constitution: A Regulatory Model for
Defining "Discrimination," 70 Geo. L. J. 1 (1981).
20 The majority twice suggests that I "be[g] the question"
whether a private right of action to enforce Title VI necessarily
encompasses a right
311
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,
422 U. S. 66
(1975). As the majority narrates our implied right of action
jurisprudence,
ante, at 286-287, the Court's shift to a more
skeptical approach represents the rejection of a common-law
judicial activism in favor of a principled recognition of the
limited role of a contemporary "federal tribuna[l]."
Ante,
at 287. According to its analysis, the recognition of an implied
right of action when the text and structure of the statute do not
absolutely compel such a conclusion is an act of judicial
self-indulgence. As much as we would like to help those
disadvantaged by discrimination, we must resist the temptation to
pour ourselves "one last drink."
Ibid. To do otherwise would
be to "ventur[e] beyond Congress's intent."
Ibid.
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, 441
of action to enforce the regulations validly promulgated
pursuant to the statute.
Ante, at 283, n. 2, 293, 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."
312
u. S., at 717, its failure to do so does not absolve us of the
responsibility to endeavor to discern its intent. In a series of
cases since
Cort v.
Ash, we have laid out rules and
developed strategies for this task.
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 historyP 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-
21 The text of the statute contained "an unmistakable focus on
the benefited class," 441 U. S., at 691; its legislative history
"rather plainly indicates that Congress intended to create such a
remedy," id., at 694; the legislators' repeated references to
private enforcement of Title VI reflected "their intent with
respect to Title IX," id., at 696-698; and the absence of
legislative action to change the prevailing view with respect to
Title VI left us with "no doubt that Congress intended to create
Title IX remedies comparable to those available under Title VI and
that it understood Title VI as authorizing an implied private cause
of action for victims of prohibited discrimination," id., at
703.
22We should not overlook the fact that
Cannon was decided
after the
Bakke majority had concluded that the coverage of
Title VI was coextensive with the coverage of the Equal Protection
Clause.
313
creating approach."
Franklin v.
Gwinnett County Public
Schools, 503 U. S.
60, 77 (1992) (SCALIA, J., concurring in judgment). But, as I
have taken pains to explain, it was Congress, not the Court, that
created the cause of action, and it was the Congress that later
ratified the
Cannon holding in 1986 and again in 1988. See
503 U. S., at 72-73.
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 respondents and the
Government suggest, and as we have held several times, the
objective 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, 484 U. S. 174 (1988);
Merrill Lynch,
314
Pierce, Fenner &
Smith, Inc. v.
Curran,
456 U. S. 353,
378379 (1982);
Cannon, 441 U. S., at 698-699.23
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,
456 U. S., at 374-375 (discussing this history). Indeed, the very
year Congress adopted Title VI, this Court specifically stated that
"it is the duty of the courts to be alert to provide such remedies
as are necessary to make effective the congressional purpose." J.
1.
Case Co. v.
Borak, 377 U. S. 426, 433
(1964). Assuming, as we must, that Congress was fully informed as
to the state of the law, the contemporary context presents
important evidence as to Congress' intent-evidence the majority
declines to consider.
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 284.24 This rule might be proper
if we were the kind of
23 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 287-288.
24 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., 511 U. S. 164, 173
(1994). Even that decision, however, does not fully support the
majority's position for two important reasons. First, it is not at
all clear that the majority opinion in that case simply held that
the regulation in question could not be enforced by private action;
the opinion also permits the reading, assumed by the dissent, that
the majority was in effect invalidating the regulation in question.
Id., at 200 (STEVENS, J., dissenting) ("The majority leaves
little doubt that the Exchange Act does not even permit the SEC to
pursue aiders and
315
"common-law court" the majority decries,
ante, at 287,
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 Members 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 essen-
abettors in civil enforcement actions under § lO(b) and Rule
10b-5"). Second, that case involved a right of action that the
Court has forthrightly acknowledged was judicially created in
exactly the way the majority now condemns. See,
e. g., Blue Chip
Stamps v.
Manor Drug Stores, 421 U. S. 723, 737 (1975)
(describing private actions under Rule 10b-5 as "a judicial oak
which has grown from little more than a legislative acorn"). As the
action in question was in effect a common-law right, the Court was
more within its rights to limit that remedy than it would be in a
case, such as this one, where we have held that Congress clearly
intended such a right.
25 See
Guardians, 463 U. S., at 636 (STEVENS, J.,
dissenting) ("It is one thing to conclude, as the Court did in
Cannon, that the 1964 Congress, legislating when implied
causes of action were the rule rather than the exception,
reasonably assumed that the intended beneficiaries of Title VI
would be able to vindicate their rights in court. It is quite
another thing to believe that the 1964 Congress substantially
qualified that assumption but thought it unnecessary to tell the
Judiciary about the qualification").
26 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 293, 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
316
tially 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 288-289. 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 cutoff remedy
"suggests that Congress intended to preclude others."
Ante,
at 290. In
Cannon, 441 U. S., at 704-708, we carefully
explained why the presence of an explicit mechanism to achieve one
of the statute's objectives (ensuring that federal funds are not
used "to support discriminatory practices") does not preclude a
conclusion that a private right of action was intended to achieve
the statute's other principal objective ("to provide individual
citizens effective protection against those practices"). In support
of our analysis, we offered policy arguments, cited evidence from
the legislative history, and noted the active support of the
relevant agencies.
Ibid. In today's decision, the Court does
not grapple
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 respondents
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
313. 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, 441 U. S., at 691-703.
317
with-indeed, barely acknowledges-our rejection of this argument
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 to day'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 287, 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.
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