THE LOWER COURTS WORK THROUGH A RECENT SUPREME COURT RULING DISTINGUISHING DISCRIMINATORY INTENTIONS FROM DISCRIMINATORY EFFECTS

By MICHAEL C. DORF

Wednesday, Jan. 09, 2002

Victims of intentional discrimination on the grounds of race, sex, religion, national origin, and disability can typically sue the perpetrators. What if a challenged policy has a discriminatory effect, but a plaintiff cannot prove that it was adopted for a discriminatory purpose?

In an important ruling last year in the case of Alexander v. Sandoval, the Supreme Court held that non-English speakers had no right to sue an Alabama agency for the discriminatory effect of the state's English-only driver exam policy. In the months since the Sandoval decision, lower courts have struggled to define the scope of the ruling, producing an odd pattern of results.

Recently, for example, a federal appeals court held that Sandoval precludes a right to sue to stop New Jersey from licensing a sand-blasting cement plant in a predominantly minority neighborhood. The plaintiffs argued that the neighborhood was already disproportionately burdened with environmental pollution, and thus that adding the cement plant would have a discriminatory effect.

Nearly simultaneously, however, a federal district court ruled that an Ohio city could be sued for discriminatory effects. This time, the effect was on the handicapped - who argued that they were harmed by the city's failure to make curb cuts in its sidewalks.

As I explain below, these two decisions are technically consistent with one another, but together they illustrate a flaw in our anti-discrimination law.

The Sandoval Decision

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of "race, color, or national origin" by any recipient of federal funds. No one denies that this statute gives victims of such discrimination a right to sue. What was at issue in Sandoval was whether that right is limited to victims of intentional discrimination.

Sandoval was a difficult case because the Supreme Court's precedents and the Justice Department's regulations appeared to point in opposite directions. On the one hand, a number of Supreme Court cases had held that Title VI prohibits only intentional discrimination. The fact that a policy had a discriminatory effect was not deemed a violation of Title VI itself.

On the other hand, another provision of Title VI authorizes federal agencies to issue regulations that implement the basic anti-discrimination norm. Pursuant to that authority, the Justice Department promulgated a rule barring recipients of federal funds from using "criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin." The rule, thus, reached policies with discriminatory effects, even if they were not intentionally discriminatory, and purported to do so pursuant to the authority of Title VI.

The fact that this regulation is broader than the statutory prohibition on intentional discrimination is, by itself, not unusual. Congress delegates rulemaking power to federal administrative agencies precisely because it expects those agencies to flesh out the details of framework statutes.

The Justice Department might have concluded that a prohibition on discriminatory effects was needed to overcome the difficulty of producing direct evidence of illicit purpose in any given case: officials rarely publicly admit to racial bias, after all. Although the regulation sweeps more broadly than the statute itself, on this view, the regulation nonetheless serves the core purpose of Title VI - preventing intentional discrimination. It simply identifies such discrimination by its symptoms, not its roots.

However, a majority of the Supreme Court thought that allowing a private right of action to enforce the Justice Department's discriminatory-effects regulation would go beyond the intent of Congress. Thus, the Justices split the difference. The Sandoval decision officially accepts the validity of the effects prohibition but forbids private parties from invoking it in lawsuits. Accordingly, the executive branch of the federal government can continue to take measures to ensure that recipients of federal funds do not carry out programs with discriminatory effects - but where such executive efforts fail, private lawsuits will not be permitted as an auxiliary enforcement measure.

Environmental Justice Claims After Sandoval

What is Sandoval's practical impact? To answer this question, it is useful to consider a particularly troublesome class of environmental problems: LULUs.

"Locally undesirable land uses" - known in the literature by the colorful acronym of "LULUs" - include sewage treatment plants, heavy industry, garbage dumps, and other facilities that are necessary for society as a whole but unpleasant and potentially unhealthy for their immediate neighbors.

There tend to be more LULUs in neighborhoods where racial minority groups live than elsewhere. The precise cause of this phenomenon is controversial. Some claim that it reflects environmental racism: political and business leaders choose to put the LULUs where the relatively powerless members of minority groups live. Others say that LULUs disproportionately end up in minority neighborhoods through simple economics: minorities tend to be disproportionately poor; therefore they tend to live where land is relatively cheap; and LULUs end up on cheap land because government and industry do not need to purchase prime real estate for what are, by definition, noxious activities.

Whichever side in this debate is right about causation, the environmental justice movement regards the disproportionate burdening of minorities with pollution as problematic, and the federal Environmental Protection Agency agrees. Accordingly, a federal regulation prohibits recipients of federal environmental funds - typically state environmental protection departments - from siting LULUs in a manner that has a discriminatory effect "on the grounds of race, color, or national origin or sex."

However, in the wake of Sandoval, this regulation cannot be enforced by private lawsuits - according to a ruling by the Third Circuit Court of Appeals in South Camden Citizens in Action v. New Jersey Dep't of Environmental Protection.

The Third Circuit reached its conclusion because the statutory authority for the EPA regulation governing LULUs was Title VI - the same as the statutory authority for the Justice Department regulation in Sandoval. Thus the Third Circuit followed Sandoval in deciding that Title VI's prohibition on intentional discrimination cannot support private suits to enforce a discriminatory effects rule - here, the LULUs rule.

Sandoval and Discriminatory Effects on the Handicappped

Meanwhile, in Ability Center of Greater Toledo v. City of Sandusky, a federal judge ruled that notwithstanding Sandoval, private parties could sue an Ohio city for the discriminatory impact of its failure to create curb cuts in its sidewalks.

Because it arose in Ohio, which is part of the Sixth rather than the Third Circuit, the Ability Center case was not governed by the Third Circuit's ruling in South Camden Citizens. Nonetheless, it is worth asking whether the two rulings are consistent.

Put another way, what is the distinction - if any - between, on the one hand, LULU sitings that have a discriminatory impact on racial minorities, and, on the other hand, sidewalk construction and maintenance that has a discriminatory impact on the handicapped?

Is it that disability discrimination is more invidious than race discrimination? That hardly seems consistent with our national experience. After all, our fundamental guarantees of equality, from the Fourteenth Amendment through the 1964 Civil Rights Act, were enacted in response to the egregious injustice of slavery and racial apartheid.

And yet federal law is, in one important respect, more protective of persons with disabilities than of racial minorities. As mentioned above, Title VI does not itself bar discriminatory effects. But in contrast, the Americans With Disabilities Act ("ADA") itself expressly forbids discriminatory effects on the disabled.

The federal district judge who wrote the Ability Center opinion, Judge Carr, noted this contrast between the two statutes. And based on this distinction, he concluded that Sandoval does not apply to discriminatory effects lawsuits where disability discrimination is concerned. Thus, disability discrimination plaintiffs can challenge policies with discriminatory effects in suits under the ADA - whereas race discrimination plaintiffs cannot bring suits to challenge policies with discriminatory effects under Title VI.

Amending the Civil Rights Act of 1964 To Prohibit Discriminatory Effects

How did this difference between the law's treatment of race discrimination and disability discrimination arise? The difference is especially puzzling because the Civil Rights Act of 1964, which contains Title VI, was a model for the Americans With Disabilities Act (and for its predecessor, the Rehabilitation Act).

The answer is that the ADA improved on the Civil Rights Act of 1964 by recognizing that even unintended discriminatory effects can dramatically curtail the opportunity for equal participation in civic life. For that reason, the ADA could serve as an excellent model for amendments to the latter.

Experience under the Americans With Disabilities Act teaches that the line between intentional discrimination and discriminatory effects is not always clear. For instance, suppose curb cuts are left out of a city plan to save money or even out of simple carelessness. Suppose further that later, it is called to the attention of city planners that standard curbs create obstacles for persons in wheelchairs - yet nothing is done. At that point, does the failure to install curb cuts really amount to "unintentional" discrimination?

Similarly, suppose that the original selection of a LULU site was based in economics: the cheapest land possible was purchased. However, once the selection becomes public, there is a protest by an environmental justice organization, which points out that an area with a large population of racial minorities has been disproportionately burdened. The area already has several LULUs, and does not want or deserve another, the protesters argue. At that point, the decision to stay with that site, rather than respond to the organization's and the residents' concerns, takes on an additional dimension. (By way of comparison, note that the criminal law frequently treats a defendant who commits an act knowing its likely effects no differently from one who commits the act intending those effects.)

There is, to be sure, a reason to be cautious in granting a right to sue to block programs with discriminatory effects: such effects are nearly ubiquitous. Given conditions of diversity and the unfortunate correlation of poverty and race, nearly any decision will have a discriminatory effect on some protected group.

However, even though this is a legitimate objection, it argues only for circumscribing rather than eliminating a right to sue for discriminatory effects. The fact that a broad but valuable right to sue might create a "floodgates" problem of thousands of suits, only means the right should be narrowed, not that it should be eliminated entirely.

Here, employment discrimination law is instructive. In 1989, in the context of employment discrimination, the Supreme Court issued a decision - in the case of Wards Cove Packing Co. v. Atonio - that, like the decision in Sandoval, curtailed the right to sue for discriminatory effects. However, following the ruling, Congress in 1991 amended Title VII of the Civil Rights Act of 1964 so as to enshrine such a right, but made the right subject to an important defense.

The defense requires the employer to prove that the challenged practice, notwithstanding its discriminatory effect, "is job related . . . and consistent with business necessity"; if so, the employer wins the suit. In other words, if the employer has a good reason for the policy, it will be upheld.

After some initial hesitation, the first President Bush signed the 1991 amendment, and fears of a flood of lawsuits have not materialized.

Sandoval may well continue to have the sort of impact we have seen in the Third Circuit's South Camden Citizens case - preventing legitimate challenges to policies with discriminatory effects from being brought. If so, it may be necessary for Congress and the second President Bush to "overrule" Sandoval just as the first President Bush "overruled" Ward's Cove. That will mean amending Title VI, just as Title VII was amended, to make explicit its applicability to discriminatory effects.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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