US Supreme Court Briefs

No. 99-1908
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IN THE
Supreme Court of the United States
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JAMES ALEXANDER, in his official capacity as the
Director of the Alabama Department of Public Safety,
and the ALABAMA DEPARTMENT OF PUBLIC SAFETY,
Petitioners,

v.

MARTHA SANDOVAL,
Individually and on Behalf of All Others Similarly Situated,
Respondents.
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On Writ of Certiorari To The
United States Court of Appeals
for the Eleventh Circuit
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BRIEF FOR PETITIONERS
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BILL PRYOR
Attorney General of
 Alabama
JOHN J. PARK, JR.
Assistant Attorney General
State House
11 South Union Street
Montgomery, AL 36130
(334) 242-7300
JEFFREY S. SUTTON
(Counsel of Record)
JONES, DAY, REAVIS & POGUE
1900 Huntington Center
41 South High Street
Columbus, OH 43215
(614) 469-3855

Counselfor Petitioners
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QUESTION PRESENTED

In enacting Title VI of the Civil Rights Act of 1964 under its Spending Clause powers, did Congress authorize individuals to bring private rights of action against States under disparateimpact regulations promulgated by federal agencies?


TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT

  1. The English-Proficiency Requirement

  2. The Federal Government's English-Proficiency Requirements

  3. State English-Language Requirements

  4. Alabama's Programs for Teaching English Proficiency

  5. The Federal Spending Program

  6. Title VI

  7. Proceedings Below

SUMMARY OF ARGUMENT

ARGUMENT

  1. TITLE VI DOES NOT CREATE A PRIVATE CAUSE OF ACTION AGAINST STATES FOR DISPARATE-IMPACT VIOLATIONS ARISING FROM GENERALLY-APPLICABLE ENGLISH PROFICIENCY REQUIREMENTS

    1. To Create A Private Cause of Action Against States in the Context of Spending-Clause Legislation, Congress's Intent Must Be "Unambiguously" Expressed in the Language of the Statute

    2. Title VI Does Not Meet These Clear-Statement Requirements

      1. Section 601 Does Not Create Any Such Cause of Action

      2. Section 602 Does Not Create Any Such Cause of Action

  2. RESPONDENTS' CONTRARY ARGUMENTS ARE MISTAKEN

    1. Chevron Deference Does Not Advance This Claim

    2. The Court's Implied Cause of Action Cases Do Not Support This Action

      1. Cort v. Ash Cannot Be Reconciled With The Court's Clear-Statement Requirements.

      2. This Regulatory Cause of Action Fails Even To Satisfy Cort v. Ash

    3. The Court's Title VI Decisions Are Not Inconsistent With, And Indeed Support, This Analysis

CONCLUSION


OPINIONS BELOW

The decision of the court of appeals is reported at 197 F.3d 484 (11th Cir. 1999), and the decision of the district court is reported at 7 F. Supp. 2d 1234 (M.D. Ala. 1998).

JURISDICTION

The court of appeals entered its judgment on February 29, 2000. Petitioners filed their petition for writ of certiorari on May 30, 2000. Jurisdiction in this Court exists under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

Article I, § 8 of the United States Constitution provides in part:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States."

U.S. Const. art. I, § 8.

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

"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.~~

42 U.S.C. § 2000d.

Section 602 of Title VI provides:

"Each Federal department and agency which is empowered to extend federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken 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. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall 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. No such action shall become effective until thirty days have elapsed after the filing of such report.

42 U.S.C. § 2000d-1.

The relevant regulation of the Department of Justice reads as follows:

"A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of persons to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of persons to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin."

28 C.F.R. § 42. 104(b)(2).

STATEMENT

Just as all litigants presume that they must present their arguments to the Court in English, so the state and federal governments have long presumed that they may impose an assortment of English-fluency requirements on the privilege of participating in other governmental and private functions. Be it the privilege of obtaining a driver's license, a pilot's license, or a boating license, or indeed the privilege of becoming a citizen of the United States at all, the state and federal governments traditionally have conditioned these benefits on proficiency in a common language. In claiming that adherence to this tradition in the context of an English-proficiency requirement for obtaining a driver's license violates a disparateimpact regulation promulgated by federal agencies under Title VI of the Civil Rights of 1964, the Eleventh Circuit mistook a pragmatic exercise of the local police power for an act of discrimination.

More fundamentally, the decision to imply a private cause of action against a State on the basis of an administrative regulation fails to respect the independent role of the States in the National Government. In establishing a system of "dual sovereignty" to divide and disperse governmental power, (Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)), the Constitution gives the state and federal governments broad latitude to supervise their own employees and to advance the police-power objectives of their own regulatory programs. The preservation of these dual lines of authority and accountability, however, precludes one sovereign from casually regulating the other. States for example may not regulate the sovereign activities of the federal government at all, whether by legislation or agency rules. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). And much as an uncabined state authority to regulate the national government would establish a "power to destroy" its independence in the federal scheme, id. at 431, the Constitution's structural safeguards place limitations on when and how Congress may regulate state functions, see Gregory, 501 U.S. at 459 ("'Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government."') (quoting The Federalist No. 28, at 180-81 (Clinton Rossiter ed., 1961)).

To preserve this delicate federal-state balance and to ensure that "power" remains always "the rival of power," the Constitution carefully circumscribes Congress's authority to bend state sovereignty to its will. Just three sources of constitutional power exist for regulating state functions -- the Commerce Clause, the Fourteenth Amendment, the Spending Clause -- and each invocation of power must adhere to carefully-prescribed limitations on its exercise. Here, for example, Congress invoked the Spending Clause, which generally allows it to condition federal funding on a State's waiver of constitutional immunity as well as on a State's willingness to implement a federal regulatory program that Congress could not otherwise directly command it to enforce. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. I (1981). In exercising this unique power, however, the National Legislature must adhere to its end of the procedural bargain. It must give an "unmistakably clear" textual warning of what these federal conditions are and of how they will be enforced. Id See South Dakota v. Dole, 483 U.S. 203 (1987).

In this instance, the Court faces an exercise of Spending-Clause authority that conspicuously fails to respect these protocols. The claim assumes that a federal agency may establish a disparate-effect test by regulation, even though Congress has not done so by statute. The claim assumes that an individual may enforce this regulation, even though neither the statute nor regulation offers any hint that this was intended. The claim assumes that this disparate-effect regulation may eliminate an English-proficiency requirement, even though this Court has never equated such laws with discrimination on the basis of national origin. And the claim assumes that Congress may silently ban this everyday exercise of the state police power, even though the Federal Government itself has many similar requirements, if not far more of them than the State of Alabama has.

This sweeping innovation proves not just the lack of merit to respondent's claim, but also illustrates the long- term risk of failing to adhere to the Court's political- process limitations on the exercise of federal power. States like the federal government are not ordinary civil defendants. When Congress wishes to regulate the States, it thus must respect an "etiquette of federalism," United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring, joined by O'Connor, J.), including the inter- branch imperative that Congress (not a federal agency) speak directly and clearly before it decides to upset the constitutional equilibrium between state and federal power. Yet the serial implications and inferences required tosustain this assumption of regulatory authority confirm the degree to which this claim fails to respect that etiquette and, with it, the States' sovereign status in the federal system.

A. The English-Proficiency Requirement.

In 1990, the people of Alabama ratified an amendment to their Constitution. Under Amendment 509, they declared English "the official language of the state of Alabama," and required the legislature and government officials to take all steps necessary to ensure that "the role of English as the common language of the state of Alabama is preserved and enhanced." No one, including respondent, has challenged the validity of this amendment.

In the aftermath of this amendment and in accordance with its terms, the Alabama Department of Public Safety determined that it would no longer administer state driving-license examinations in any language other than English. Not only did this change comply with the requirements of Amendment 509 and not only did it avoid the demeaning assumption that adult residents of the State were unable to learn English when they put their mind to it, but it also had the virtue of advancing public safety. As the State explained at trial and as State law attests, the overriding police-power objective of testing applicants before giving them permission to drive is to ensure that they are capable of driving safely. See Ala. Code § 32-4-2; Trial Transcript (2/17-18/98) ("Tr.") at 312; Alabama's Memorandum in Support of Motion for Summary Judgment (10/24/97) ("Ala. Memo."), Ex. C, ¶ 8 and Ex. D, ¶ 11. An ability to understand road signs, together with an ability to communicate with law enforcement and medical personnel, all support requiring Alabama drivers to be fluent in English. Joint Appendix ("J.A.") at 29-30. A contrary approach, it was also determined, was difficult to administer: An endless number of potential languages exist in which applicants may wish to be tested, and the State has finite resources when it comes to administering such a broad array of tests. Tr. 3 12-14; J.A. at 30; cf Tr. 253-54. Because none of the Department's employees is fluent in a foreign language, the Department itself also cannot monitor foreign language examinations and any translations of examinations accordingly must come from outside the Department, which is time consuming, potentially expensive and fraught with risks to the integrity of the examination. Tr. 276, 281, 3 12-14; see Ala. Memo. at Ex. D, ¶¶ 6 & 9; cf Tr. 252-54. The State, lastly, found it difficult to identify a principled way for offering examinations in some languages but not in others. J.A. at 30.

B. The Federal Government's English-Proficiency Requirements.

Alabama is not alone in promoting English fluency. The United States also has many laws, programs and jobs that require proficiency in English. These requirements start with the question of who may and who may not become a citizen of the United States, continue with the language of the United States Code, and extend to innumerable other areas as well. The federal government requires those seeking naturalization to have "an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language." 8 U.S.C. § 1423(a). The federal government also requires those wishing to sit as federal jurors to be able "to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form" and to be able "to speak the English language." 28 U.S.C. § 1865(b). This Court's rules also require any record "material written in a foreign language" to be translated into English. See Sup. Ct. R. 31.

When it comes to the types of transportation-safety issues presented in this case, the federal government has adopted several other like-minded requirements. Under its licensing requirements for commercial motor carrier vehicle drivers, the United States Department of Transportation provides that "[a] person is qualified to drive a motor vehicle if' he or she "[c]anread and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records." 49 C.F.R. § 391.11(b). To qualify as an "able seaman" on a United States vessel, the applicant must "[s]peak and understand the English language as would be required in performing the general duties of able seaman and during an emergency aboard ship." 46 C.F.R. § 12.05-3(a). And all pilots, whether recreational or commercial, must "[b]e able to read, speak, write and understand the English language." 14 C.F.R. § 61.83 (student pilot); 14 C.F.R. § 61.96(b) (recreational pilot); 14 C.F.R. § 61.103 (private pilot); 14 C.F.R. § 61.123 (commercial pilot), 14 C.F.R. § 61.153 (airline transport pilot); 14 C.F.R. § 61.183 (flight instructor). The same is true of flight engineers, 14 C.F.R. § 63.31, flight navigators, 14 C.F.R. § 63.51, and air traffic controllers, 14 C.F.R. § 65.33.

The national government also has several programs designed to promote English proficiency. It thus (1) provides funding for "adult education" "to help individuals of limited English proficiency achieve competence in the English language," including proficiency in "speaking, reading, writing, or understanding the English language," 20 U.S.C. §§ 9202(1), (6) & (10); (2) provides funding for "special alternative instructional programEs]" that "utilizell specially designed English language curricula and services but do[] not use the student's native language for instructional purposes," a program designed to "enableE] limited English proficient students to achieve English proficiency," 20 U.S.C. §§ 7601(15)(A) & (B); (3) provides vocational funding to States that "[p]rovide assurances" that they will "assist[] students . . . of limited English proficiency . . . to succeed through supportive services such as . . . English-language instruction," 34 C.F.R. § 403.190; (4) and provides funding to Indian Tribes "to coordinate the provision of any needed special services for conditions such as disabilities and English language skill deficiencies." 20 U.S.C. § 783 5(a)(4)(B).

C. State English-Language Requirements.

All States have joined Alabama and the United States in one way or another in establishing English-language requirements. See Appendix. Many States for example have constitutional and statutory provisions making English the official language of the State. See, e.g,, Alaska Stat. § 44-12.3 10; Ariz. Const. art. 28, § 1; Cal. Const. art. 3, § 6; Cob. Const. art. 2, § 30a. And the number of state laws requiring English proficiency or its use in official communications is anything but discrete. Product-labeling requirements, articles of incorporation, licensing requirements for veterinarians, pharmacists, physical therapists and professional counselors, official government communications and filings, loan terms, jury qualifications, eligibility for state office or the state legislature, the records of scrap-metal dealers and podiatry examinations, among countless others, all require the use of English or proficiency in the language. See Appendix.

D. Alabama's Programs for Teaching English Proficiency.

Individuals who live in Alabama have access to a host of private and public initiatives designed to teach proficiency in the English language. First and foremost, the State guarantees a free public education to all of its residents, whether they were born in this country or not, whether English is their first language or not. This primary and secondary education gives most residents of Alabama an equal opportunity to become proficient in English long before eligibility for a driving-license examination becomes a relevant issue in their lives. See Art. XIV, § 256, Alabama Constitution of 1901; Alabama Coalition for Equity v. Hunt, 1993 WL 204083 (Ala. Cir. Ct. 1993); see also, Opinion of the Justices, 624 So. 2d 107 (Ala. 1993). The State has several remedial programs, some inpartnership with the federal government and some not, that offer adults an opportunity to develop fluency in English. These include programs at public colleges and universities that offer courses in English as a second language. See http://www.usouthal.edu/usa/secondlang/index.html (University of South Alabama -- English Language Center); http://www.auburn.edu/esl (Auburn Univ -- English as Second Language, with community programs at /community.html); http://www.ua.edu/academic/intenational/eli (University of Alabama English Language Institute). And several privately-sponsored programs offer courses in English as a Second Language, and again do so at little to no cost to the student. Tr. 20, 33-34, 55-56, 133-34, 144. Access to these English-language programs is available to all Alabama residents, including those residents who live in Mobile where respondent has chosen to live. Id.

E. The Federal Spending Program.

Alabama participates in a host of cooperative spending programs with the federal government. Through these programs, Alabama receives millions of dollars each year in federal grant funds from a diverse group of federal agencies.

At issue here are several grants that Alabama receives from the United States Department of Transportation and Department of Justice. These federal monies support several specific public-safety objectives, from the eradication of marijuana to road-construction projects to highway beautification. J.A. at 31-32. None of these federal grants, however, is earmarked for the proper licensing of drivers in general or the licensing examinations that such drivers should receive in particular. Tr. 5. The most closely related grant to the issues raised here was made by the United States Department of Transportation, National Highway Traffic Safety Administration, for the purpose of helping Alabama make the "necessary data processing and procedure modifications to their driver licensing system" to permit Alabama to participate in the National Driver Register system. State's Memorandum in Support of Motion for Summary Judgment (10/24/97), Ex. I. That system links all state driver-licensing databanks to improve state procedures for identifying high-risk applicants who should be denied licenses. Id. While this grant does not address the testing of applicants for driving licenses, it does include an obligation to "comply with all Federal statutes relating to nondiscrimination," including "Title VI of the Civil Rights Act of 1964 (P. L. 88-352) which prohibits discrimination on the basis of race, color, or national origin." Id. This compliance provision does not make any reference to regulations promulgated under Title VI.

In contrast, a grant from the Federal Highway Administration to support a motor carrier assistance program included the condition that the Alabama Department of Public Safety not only comply with Title VI but also with

related nondiscrimination statutes, and applicable regulatory requirements to the end that no person in the United States shall, on the grounds of race, color, national origin, sex, handicap or age, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity for which the applicantlrecipient receives Federal financial assistance. The specific requirements of the United States Department of Transportation standard Civil Rights assurances with respect to the States' highway safety programs (required by 29 C.F.R. 21.7 and on file with the U.S. DOT) are incorporated in this grant agreement.

Plaintiffs' Opposition to Motion for Summary Judgment (11/25/97), Ex. 27. This grant in other words sought compliance both with Title VI and with "related nondiscrimination statutes and applicable regulatory requirements" and did so with respect to "any program or activity for which the applicant/recipient receives Federal financial assistance." Neither this grant nor the applicableregulations, however, say that the regulations may be enforced by private individuals against States in federal court.

To date, no agency of the federal government has sought to enforce Title VI, its regulations or any other federal "nondiscrimination" statute against the Alabama Department of Public Safety with regard to its practice of giving driving- license examinations in English. Whether it be the federal grant for the National Driver Register system, the grant for the motor carrier public system or any other grant, the federal government has yet to ask Alabama voluntarily to abandon this testing system or to do so as a condition of receiving future federal funds.

F. Title VI.

Enacted as part of the Civil Rights Act of 1964, Title VI contains two relevant sections. Section 601 sets forth and defines the Title's anti-discrimination provision. It says that State recipients of federal funding may not "discriminat[e]" against persons "on the ground of race, color, or national origin" or "exclude[] from participation in" or "denly] the benefits of" any federally-funded program on these grounds.

Section 602 is an implementation provision, and contains three essential parts. The first section delegates to federal agencies rulemaking authority to "effectuate" Section 601. 42 U.S.C. § 2000d-l. The second provision sets forth agency guidelines for obtaining compliance with section 601. It says that "[c]ompliance" may be effected (1) by "termination" of funding or (2) "by any other means authorized by law." Id. The third section establishes a procedural rule for determining non-compliance, including notice to the state agency, a requirement that the federal agency seek compliance initially by voluntary means, a reporting mechanism for alerting Congress that a federal agency is considering the termination of federal funding, and a 30-day delay between the time notice is given to Congress of an agency-enforcement decision and the implementation of that decision. Id By their terms, neither Section 601 nor Section 602 provides for independent private- party enforcement actions against States for regulatory violations.

In implementing Title VI, the Departments of Justice and Transportation have promulgated a variety of rules under Title VI. The Department of Justice rule that respondents have invoked here says that a "recipient . . . may not . . . utilize criteria . . . which have the effect of subjecting persons to discrimination because of their race, color, or national origin." 28 C.F.R. § 42.104(b)(2); J.A. at 10. The Department of Transportation has a similar rule. 49 C.F R § 211. Neither of these disparate-impact rules nor any other empowers private individuals to enforce the regulations by suits against States in federal court.

G. Proceedings Below.

On December 31, 1996, Martha Sandoval filed a class action on behalf of herself and other similarly-situated individuals against the Alabama Department of Public Safety and its then-Director, L. N. Hagan, in his official capacity. She alleged that the Department's English- proficiency requirement for taking a driving-license examination violated her right to be free from discrimination on the basis of national origin, a right that she claimed was secured by 42 U.S.C. § 1981, 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, et seq, and one of Title VI's implementing regulations, 42 C.F.R. §§ 42.104(b)(1) and (2) (1996). In doing so, she sought a judgment declaring that the Department's practice was unlawful and an injunction prohibiting the Department from continuing to give drivinglicense examinations only in English. See J. A. at 10.

The district court certified a plaintiff class consisting of "all legal residents of the State of Alabama who are otherwisequalified to obtain a class D private vehicle driver's license but cannot do so because they are not sufficiently fluent in English." J. A. at 19. Following a trial, the district court granted the requested declaratory and injunctive relief "The following factors," the court indicated, "lead"

to the finding that a private right of action may be brought pursuant to regulations enacted pursuant to § 2000d- 1: (1) the implicit reasoning of the Supreme Court in Guardians, Alexander, and Lau; (2) the implicit reasoning of the Eleventh Circuit in Elston and Georgia State Conference; (3) the implicit reasoning of the Eleventh Circuit in Doe and Harris (Title VI in conjunction with the regulations); (4) the explicit reasoning of the Third Circuit in Self and the reasoning of other courts that have addressed the issue; and (5) the Department's contractual guarantees.

Pet. App. at I 17a. The district court also concluded that, "[a]lthough no court has explicitly held that language is a proxy for national origin," language could be equated with national origin through a disparate impact theory. Pet. App. at ISSa. The court rejected the Section 1981 claim and did not reach the equal-protection claim.

The Eleventh Circuit affirmed. Recognizing that the Supreme Court "has yet to squarely answer the question" whether Title VI creates an implied cause of action for disparate-impact claims, Pet. App. at 42a, the Court started by looking at Section 601. "To state a Section 601 claim," the appellate court observed, "just like a claim arising under the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must establish the funding recipient's discriminatory intent." Pet. App. at 34a. In addition, the court continued, Section 602 authorizes federal agencies to promulgate rules to "effectuate" Section 601. Id Noting that the respective agencies had promulgated disparate-impact regulations under Section 602, the court framed the "central issue presented" as whether private individuals "may enforce these agency regulations against [the State] absent any express statutory authorization." Pet. App. at 37a.

In holding that an "implied private cause of action" existed to enforce these regulations, the panel relied on four factors. First, it felt that circuit precedent supported this implied private right of action. Pet. App. at 37a-39a. Second, "the only other circuit to have addressed the issue in detail" -- the Third Circuit -- also found a private right of action based on "Title VI's legislative scheme and legislative history." Pet. App. at 4la.

Third, it thought that the Court's decisions in Lau, Guardians, and Alexander, though not "squarely" addressing the issue, "logically support[ed]" an "implied private cause of action" under Section 602 of Title VI. Id at 42a. Although "Lau rested its holding under Section 601 of Title VI," the court of appeals concluded that its "reasoning" applied with equal force to claims under Section 602 of Title VI. Id. at 43 a. Guardians, the court believed, was to the same effect: While it "did not explicitly address whether an implied private right of action existed under Section 602," the analysis of five of the Justices writing separately "strongly supports recognizing such a right." Id at 44a. The court acknowledged that Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) and United States v. Fordice, 505 U.S. 717 (1992), were inconsistent with the disparate- impact right of action that Lau seemed to permit. Nevertheless, it concluded that an aggregation of the "plurality members" of the Court in Guardians "strongly suggest[s] the existence of an implied private cause of action under Section 602," Pet. App. at 46a, and that Fordice would not have "overruled Guardians without any discussion of its precedent," id. at 47a n.24. Lastly, the court observed that "plaintiffs relied on Section 602 directly rather than basing their cause of action on Section 1983," and so were not in a positionto rely on that statute as a source of their cause of action. Id. at 45a n.21.

SUMMARY OF ARGUMENT

In holding that "Title VI creates a private implied cause of action" against States "to enforce the disparate impact regulations promulgated under Section 602," Pet. App. at 42a, the court of appeals committed reversible error. Language, context, bedrock Spending-Clause principles, and precedent all confirm that Congress at most empowered federal agencies, but not private individuals, to enforce these regulations against States in the context of generally-applicable English-proficiency requirements.

1. Title VI does not support this cause of action.

a. Two bookend principles frame the question presented, and go a long way toward answering it. In asking whether a private action exists, the "most important inquiry" is whether plaintiffs can meet their "burden" of demonstrating that "Congress intended to create the private remedy sought by" them in federal court. Suter v. ArtistM, 503 U.S. 347, 364 (1992). And in the context of an action against a State under Congress's Spending-Clause powers, this "most important inquiry" turns on whether Congress "unambiguously" created the private action, Pennhurst State Schoolv. Halderman, 451 U.S. 1, 17(1981), "in the language of the statute," Vermont Agency of Natural Resources v. United States ex rel. Stevens, 120 5. Ct.1858, 1870 (2000).

b. The terms of Title VI do not create a disparate- impact test enforceable by private parties in federal court, to say nothing of doing so unambiguously. Section 601 bars "discrimination" "on the ground of race, color, or national origin," 42 U.S.C. § 2000d, a standard that covers only intentional-discrimination, not disparate-impact, claims. See United States v. Fordice, 505 U.S. 717, 732 n.7 (1992); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). Nordoes Section 601 authorize private individuals, as opposed to the federal government, to enforce compliance with its requirements under agency regulations in the course of implementing cooperative Federal-State programs.

Section 602 is of no assistance either. It does not create any rights at all, but merely delegates rulemaking authority to federal agencies to "effectuate" the anti- discrimination provision of Section 601. This unremarkable grant of authority does not authorize executive-branch agencies to make impermissible by regulation what Congress has made permissible by statute. Nor does this grant of authority permit private enforcement of its terms. Section 602's carefully-prescribed rules for compelling "compliance" with Section 601 all mandate exactly the opposite conclusion. They compel initial notice to the State of non-compliance, an attempt to obtain voluntary compliance, an administrative hearing to establish non-compliance, notice to Congress of a desire to bring the State into compliance, and then and only then an agency termination of funding or an action by the Department of Justice to achieve compliance. A Congress so rigorous in its oversight of federal agencies would not silently empower private individuals to circumvent every one of these requirements through federal-court actions premised on rules passed by the very agencies Congress elsewhere was trying to monitor.

2. Neither Chevron deference, the implied right of action doctrine, Lau, nor Guardians leads to a contrary result.

a. Having failed to show that Sections 601 and 602 of Title VI establish a disparate-impact cause of action enforceable against States by private individuals, respondents may not rely on principles of Chevron deference to permit executive-branch agencies to create this cause of action on their own. The statutory ambiguity that triggers Chevron deference comes after, not before, the application of all pertinent rules of statutory construction, including the interpretive presumptionagainst the creation of private causes of action against States and including of course this Court's decisions that Section 601 does not cover disparate-impact claims. At any rate, the unambiguous statutory directive that Pennhurst requires precludes private enforcement of the ambiguity-prompted regulation that the Department of Justice claims authority to innovate. Otherwise, every clear-statement case the Court has ever decided stands just one ambiguity-clarifying regulation away from irrelevance. Lastly, even on its own terms, the disparate-impact regulation does not suffice to support this claim the State. It nowhere mentions and nowhere creates such a private right of action.

b. For many of the same common-sense reasons that Chevron regulations may not themselves satisfy the clear-statement rule, neither does the "implied" cause of action test announced in Cort v. Ash, 422 U.S. 66 (1975), satisfy this requirement. What Cort allows federal courts to do with statutory implications and inferences in actions against private entities, Pennhurst positively proscribes in actions against States under federal regulations.

Nor in any event can respondents shoulder the burden of meeting the four-part Cort test under this administration regulation. Far from creating a right in favor of individuals who do not speak English, Title VI merely bars the kind of intentional discrimination barred by the Fourteenth Amendment, which has never included the notion that English-language requirements represent a proxy for discrimination on the basis of national origin. Even then, moreover, the statute just imposes a "generalized duty on the State, to be enforced not by private individuals, but by the Secretary in the manner" laid out by the statute. Suter, 503 U.S. at 363-64. No part of the legislative history indicates, or even hints, that Title VI was designed to bar generally-applicable English-fluency requirements, including those that the National Government itself has long embraced. Cort, 422 U.S. at 78. And if the sovereign choice to use a common language in providing government services and to decide when and how to administer driving-license examinations do not represent the types of policy issues that are "traditionally relegated to state law," it is difficult to imagine what would meet this test. Id.

c. The Court's Title VI decisions do not support a contrary analysis. Lau v. Nichols, 414 U.S. 563, 566 (1974), relied "solely" on Section 601 and assumed that it barred disparate-effect, as well as intentional- discrimination, claims. Since then, the Court has made clear that Section 601 proscribes only what the Fourteenth Amendment proscribes, see Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), United States v. Fordice, 505 U.S. 717, 732 n.7 (1992), a standard that does not cover disparate-impact claims. In Guardians Ass 'n v. Civil Service Commission of the City of New York, 463 U.S. 582 (1983), six members of the Court wrote separately, and agreed only on announcing a judgment that a lower-court decision refusing to implicate a Title VI private cause of action should be affirmed.

ARGUMENT

While the structural guarantees of the United States Constitution inform the resolution of this dispute, the case ultimately turns on a matter of statutory interpretation, not constitutional power. Alabama does not challenge Congress's authority to attach conditions to the receipt of federal funds. And it acknowledges that one of those conditions generally may be the requirement that States subject themselves to causes of action by private individuals for violations of germane federal requirements developed in connection with the spending program. The question here is whether the Federal Government established any such condition and whether it did so with respect to disparate-impact claims brought by third parties in federal court arising from generally-applicable English-language requirements. As the court of appeals 'recognized, this "Court has yet to squarely answer thequestion." Pet. App. at 42a. And while that observation is accurate, the straightforward terms of the pertinent statutes and regulations, together with first principles of this Court's spending-power jurisprudence, all confirm that the court of appeals erred in further finding that an implied cause of action exists in this instance and under these regulations.

I. TITLE VI DOES NOT CREATE A PRiVATE CAUSE OF ACTION AGAINST STATES FOR DISPARATE-IMPACT VIOLATIONS ARISING FROM GENERALLY-APPLICABLE ENGLISH- PROFICIENCY REQUIREMENTS.

In determining whether Congress has created a private right of action against public or private litigants, the Court has consistently held that the "most important inquiry" is one of congressional will. Suter v. Artist M, 503 U.S. 347, 364 (1992). Have plaintiffs satisfied their "burden" of proving that "Congress intended to create the private remedy sought by" them in federal court? ld. Absent this showing, it is clear, the Court "will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide." California v. Sierra Club, 451 U.S. 287, 297 (1981). See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979) ("what must ultimately be determined is whether Congress intended to create the private remedy asserted").

In keeping "the focal point" on "Congress' intent in enacting the statute," Thompson v. Thompson, 484 U.S. 174, 179 (1988), the Court applies customary rules of statutory interpretation to ascertain congressional meaning. Here, the most pertinent of those rules stems from the nature of the action (an individual claim against a State) and the source of congressional power (the Spending Clause). In this setting, the Court has made clear that Congress must "unambiguously" create the cause of action, Pennhurst State School v. Halderman, 451 U.S. 1, 17 (1981), "in the language of the statute," Vermont Agency of Natural Resources v. United States ex rel. Stevens, 120 5. Ct. 1858, 1870 (2000). Congress, however, has done neither in this instance.

A. To Create A Private Cause of Action Against States in the Context of Spending-Clause Legislation, Congress's Intent Must Re "Unambiguously" Expressed in the Language of the Statute.

In enacting Title VI, Congress invoked its Spending Clause power. Under this authority "to... provide for the.. general Welfare," U.S. Const. Art. I, § 8, "Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." South Dakota v. Dole, 483 U.S. 203, 206 (1987) (internal quotation omitted). In exercising this power, neither Article s "enumerated legislative fields," id at 207 (internal quotation omitted), nor the "Tenth Amendment limitation on congressional regulation of state affairs," id at 210, generally cabins the National Legislature's authority. Because "Congress may fix the terms on which it shall disburse federal money to the States," Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981), it may deploy this authority to induce States to establish programs that it could not otherwise compel them to enact. Cf, e.g., Printz v. United States, 521 U.S. 898, 935 (1997) ("Congress cannot compel the States to enact or enforce a federal regulatory program."); New York v. United States, 505 U.S. 144, 178 (1992) ("No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate.").

Yet the constitutional explanation for this sweeping grant of power defines its outer limits. Compliance with Spending- Clause legislation remains a matter of choice: "[TIhe States are given the choice of complying with the conditions set forth inthe [legislation] or forgoing the benefits of federal funding." Pennhurst, 451 U.S. at 11. For this reason, the Court has recognized that "legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions." Id at 17. The Court's description of Spending-Clause legislation as a contract establishes a useful metaphor for characterizing this lawmaking power and captures precisely the constitutional basis upon which Congress may use this authority to induce States indirectly to act in a manner that it could not require directly.

Because "[t]he legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract,"' Pennhurst, 451 U.S. at 17, the Supreme Court has repeatedly held that "if Congress desires to condition the States' receipt of federal funds, it 'must do so unambiguously. . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation,"' Dole, 483 U.S. at 207 (quoting Pennhurst, 451 U.S. at 17). See also Gebser v. Lago Vista Indep. Sch. Dist. 118 5. Ct. 1989, 1997 (1998) (requiring "actual notice" of failure to adhere to spending-contract obligations). "[S]tringent" adherence to these rules (Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)) eliminates the possibility that the States will be treated as constructively (rather than explicitly) waiving their sovereign powers whenever they accept federal funds. See College Say. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd, 527 U.S. 666 (1999) (overruling the "constructive-waiver" doctrine). In the final analysis, the rule that "Congress must express clearly its intent to impose conditions on the grant of federal funds," id at 24, ultimately limits the reach of Congress's power under the Spending Clause and ultimately serves to preserve the "' constitutional balance between the States and the Federal Government."' Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (quoting Atascadero, 473 U.S. at 242).

B. Title VI Does Not Meet These Clear-Statement Requirements.

Measured against this test, respondents' effort to imply a right of action under a federal regulation fails. The language of Title VI simply does not support this right of action, and that alone suffices to reject this contention under the Court's clear-statement requirements.

1. Section 601 Does Not Create Any Such Cause of Action.

"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."

Civil Rights Act of 1964, § 601, 42 U.S.C. § 2000d.

By any recognizable standard of meaning, Section 601 does not empower private individuals to bring disparate- impact claims against State governments. Still less does it do so with regard to generally-applicable laws requiring proficiency in English. In barring State recipients of federal funding from "discriminati[ng]" against persons "on the ground of race, color, or national origin," the provision merely proscribes what the Equal Protection Clause proscribes. It thus bars intentional-discrimination, not disparate-impact, claims. See United States v. Fordice, 505 U.S. 717, 732 n.7 (1992); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (opinion of Powell, J.); id. at 328 (Brennan, J., concurring in the judgment in part and dissenting in part, joined by White, J., Marshall, J., Blackmun, I.). See also Washington v. Davis, 426 U.S. 229 (1976). By its terms, the core provision of Title VI neither expressly establishes a private cause ofaction against States nor establishes a disparate-impact standard of care.

2. Section 602 Does Not Create Any Such Cause of Action.

Section 602 is equally unavailing. It does not create a cause of action, and indeed does not create any rights at all. One component of the section, moreover, implies (if not directs) that private-enforcement actions against funding recipients may not be prosecuted under agency regulations.

The Section 602 Framework. The first component of Section 602 delegates rulemaking authority to applicable federal agencies to "effectuate" Section 601. In doing so, it gives them authority to implement Title VI spending- power programs through administrative regulations.

"Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of Section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President."

Civil Rights Act of 1964 § 602, 42 U.S.C. § 2000d-1.

The second section sets forth guidelines to the relevant federal agencies for obtaining compliance with Section 601.

"Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law."

Id.

And the third section contains procedural rules for establishing compliance under any of these options, including notice to the state agency, a requirement that the federal agency seek compliance initially by voluntary means, and a reporting mechanism for alerting Congress that a federal agency is considering the termination of federal funding.

"Provided, however, That no such action shall be taken 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. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall 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. No such action shall become effective until thirty days have elapsed after the filing of such report."

Id. The next provision of Title VI -- Section 603 -- permits judicial review of these agency decisions, both through actions by private individuals and by funding recipients. 42 U.S.C. § 2000d-2.

Section 602 Does Not Permit This Cause of Action. Whether looked at together or singly, all three components of Section 602 fail to authorize the challenge to Alabama's driving-license examination that Ms. Sandoval has filed here. Instead of establishing a different standard of care from Section 601, the provision merely allows federal agencies to "effectuate" section 601 by promulgating regulations. But it does not authorize federal agencies to create rules barring disparate effects arising from generally-applicable state programs that occur "merely in spite of" rather than "because of" an individual's national origin. See Personnel Adm 'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (internal quotation omitted).

An effort to bar disparate effects arising from such generally-applicable laws would not "effectuate" the objectives of Title VI, but would rewrite them. "Such regulations do not simply 'further' the purpose of Title VI; they go well beyond that purpose." Guardians Ass 'n v. Civil Serv. Comm 'n of the City of New York, 463 U.S. 582, 613 (1983) (O'Connor, J., concurring in the judgment); id at 611 n.5 (Powell, J., concurring in the judgment) ("Administrative agencies do not have -- and should not have -- such lawmaking power"). It suspends reality to infer that Congress would statutorily authorize State action that disproportionately affects an identifiable group on the basis of national origin, then permit an executive-branch agency to ban such conduct through a private right of action under an administrative regulation. To our knowledge, the Court has never credited Congress with such an awkward state of mind. And, in many cases, the Court has refused to embrace any such view of congressional will. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284 (1998) ("we generally examine the relevant statute to ensure that we do not fashion the parameters of an implied right in a manner at odds with the statutory structure and purpose"); id at 292 ("the failure to [comply with the rule] does not itself constitute 'discrimination' under Title IX"); id ("[w]e have never held . . . that the implied private right of action under Title IX allows recovery in damages for violation of those sorts of administrative requirements"); Central Bank, NA. v. First Interstate Bank, NA., 511 U.S. 164, 173 (1994) ("the private plaintiff may not bring a 10b-5 suit against a defendant for acts not prohibited by the text of section 10(b)"); FCC v. Am. Broad Co., 347 U.S. 284, 296 (1954).

Making matters worse for respondents' claim, Congress elsewhere has specifically created disparate-effect standards of liability in other statutory settings. See, e.g., 12 U.S.C. § 4545(1) (mortgage lending); 20 U.S.C. § 1703(c) (school desegregation); 42 U.S.C. §§ 1973a, 1973a(b) (voting rights); 42 U.S.C. § 2000e-2(k) (Title VII); 42 U.S.C. §§ 121 12(b)(3)(A) &12182(b)(1)(D)(i) (Americans with Disabilities Act); 12 U.S.C. §§ 183 lu(a)(3)(B)(i) & 183 lx(h) (banking); 15 U.S.C. § 6701(c)(2) (insurance); 42 U.S.C. § 1396b(m)(5)(A)(iii) (Medicaid). These enactments and others prove not just the ease with which such tests may specifically be established, but also demonstrate that the legislature knows how directly to mandate these far-reaching requirements when it wishes.

Even aside from the implausibility of making impermissible by regulation what is permissible by statute, Section 602 does not offer the slightest indication that Congress meant private parties to carry out the enforcement of such regulations. Quite the opposite is true. All efforts to bring States into "compliance" with Section 601 must follow a detailed procedure established by Section 602. First, the state entity must be "advised" by the federal agency of its failure to follow Title VI. Second, the federal agency must "determinefl" whether "compliance can[] be secured by voluntary means." Third, in the event the federal agency opts to "terminat[e], or refus[e] to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section,~~ the agency "shall file with the committees of the House andSenate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." Fourth, no termination action may go into effect until at least 30 days after this formal report has been filed. Fifth, Section 603 specifically authorizes judicial review of the agency's implementation decisions, whether by grant recipients or alleged third-party beneficiaries of the grant. 42 U.S.C. §2000d-2.

As these oversight rules suggest, the Congress that enacted Title VI did not contemplate adherence to its requirements through private enforcement actions premised exclusively on agency regulations, as opposed to suspension of funding after a "hearing" or some other means implemented by the pertinent federal agency. It makes little sense to credit Congress with imposing strict requirements on federal agencies for bringing States into compliance, then to assume that all of these requirements evaporate if private individuals try to establish that compliance through enforcement of a rule that one of these same agencies promulgated. A Congress concerned with the former would not lightly allow the latter.

Nor does the alternative compliance provision -- that the agency may obtain compliance "by any other means authorized by law" -- change things. Congress, to be sure, permitted compliance to be accomplished either (1) by termination of funding after a "hearing," or (2) by "any other means authorized by law." Read in context, however, the "any other means" option is just that: Authorization to the federal government itself to use "any other means" to obtain compliance, not a delegation to any private individual to obtain compliance through an agency rule. The "any other means" option thus allows other federal-government actions against fund recipients, most frequently actions initiated by the Department of Justice on behalf of an agency.

Any doubt on this score is removed by the placement of the "any other means" option in Section 602. The statute requires both compliance mechanisms established by Congress -- funding termination or "any other means" -- to follow the procedural prerequisites established by the all- encompassing proviso to Section 602. After listing these two compliance options, Congress gave this unequivocal mandate: "Provided, however, That no such action shall be taken 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." (Emphasis added). Both types of compliance actions in other words must follow the oversight obligations placed on the pertinent agency -- something that never happened here. The Justice Department rules reflect this very interpretation. They say that an "action to effect compliance by any other means authorized by law shall" not be taken "until" (1) the "responsible Department official has determined that compliance cannot be secured by voluntary means," (2) the action has been "approved by the Attorney General," and (3) the recipient of federal funds has been "notified of its failure to comply and of the action to be taken to effect compliance." 28 C.F.R. § 42.108(d). Under these circumstances, it is difficult to apprehend how the "any other means" option could support this independent right of action.

The legislative history also fails to advance respondents' claim. As the Court has held in comparable clear-statement settings, "legislative history has no bearing" here because the ''unequivocal expression'' must be ''an expression in statutory text." United States v. Nordic Village, 503 U.S. 30, 37 (1992). "If clarity does not exist there, it cannot be supplied by a committee report." Id At all events, the 1964 legislative history is utterly silent about disparate-impact standards of care, about English-proficiency requirements, and about a delegation of authority to federal agencies to create private rights of action that the Congress has not.

At the end of the day, a Congress that spoke with such care about what an agency of its own government could do in "effectuat[ing]" the objectives of Section 601 surely would not silently authorize private third parties to challenge State actions with no guidance whatsoever. Section 602's careful elaboration of a framework for obtaining compliance together with its ear-splitting silence authorizing private-enforcement actions against States under agency rules defeats respondent's claim. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) ("it is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it").

II. RESPONDENTS' CONTRARY ARGUMENTS ARE MISTAKEN.

A. Chevron Deference Does Not Advance This Claim.

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), does not shore up these deficiencies in respondents' claim. Under Chevron, it is true, a federal agency charged with implementing a statutory program is given deference in promulgating regulations that clarify ambiguities in a statute And the Department of Justice, it is also true, was given authority in Title VI to establish rules that "effectuate" Section 601. But, as shown above, the Court has already clarified that Title VI covers only intentional-discrimination, not disparate-impact, claims. Bakke and Fordice in short leave no ambiguity for the agencies to clarify. Even on a clean slate, moreover, ambiguity on this issue would be lacking here. As Chevron itself recognized, the statutory ambiguity that triggers administrative deference comes at the end, not at the beginning, of the search for statutory meaning -- which is to say, after application of the clear-statement rule and other applicable interpretive principles. Chevron, 467 U.S. at 843 n.9. Applied here, those interpretive rules eliminate the discretion-giving ambiguity that lends Chevron force.

But even if one somehow assumes that the Justice Department's disparate-impact regulation permissibly fills an interstitial gap in the statutory scheme, still another problem exists. Namely, an administrative regulation may never by itself supply the kind of clear statement that the Court's spending-power cases require. The clear statutory language that the Pennhurst canon of construction requires precludes the ambiguity-prompted regulation that the Department of Justice has claimed authority to innovate. The doctrine of Chevron deference simply has no tenable application to the setting of statutes that themselves do not clearly identify a standard of care applicable to state governments (or, worse, actually contradict that standard). Otherwise, every clear-statement case the Court has ever decided was simply an administrative regulation away from establishing the clarity that precedent demands.

This extension of Chevron would mean that the statutory ambiguity in the Fair Labor Standards Act in Employees of the Department of Public Health and Welfare v. Missouri Department of Public Health and Welfare, 411 U.S. 279 (1973), would have allowed the applicable federal agency to clarify that the FLSA applies to all state employees. It would mean that the statutory ambiguity in the Developmentally Disabled Assistance Act in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), would have allowed the applicable federal agency to promulgate a regulation requiring least- restrictive treatment. It would mean that the statutory ambiguity in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), would have allowed the applicable agency to pass a regulation clarifying that States could be exposed to money damages. It would mean that the statutory ambiguity in Will v. Michigan Department of State Police, 491 U.S. 58 (1989), would have allowed an executive-branch agency to determinethat States were "persons" under Section 1983. It would mean that the statutory ambiguity in Gregory v. Ashcroft, 501 U.S. 452 (1991), would have allowed an executive-branch agency to make the federal age discrimination laws applicable to state judges. And it would mean that the statutory ambiguity just last Term in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 120 5. Ct. 1858 (2000), would have allowed an executive-branch agency to determine that States were "persons" under the qui tam provisions of federal law.

Nor may the United States insulate itself from the consequences of this analysis. This extension of Chevron thus would mean that the statutory ambiguity in Lane v. Pena, 518 U.S. 187 (1996), would have allowed an executive- branch agency to determine that the United States was subject to money-damages claims under Title II of the Americans with Disabilities Act. The same is true of other statutes. See, e.g., United States v. Nordic Village, 503 U.S. 30 (1992).

To state the problem this way, it seems to us, is to answer it. Chevron does not trump this time-respected canon, which is applicable to the Federal Government and States alike, converting a requirement of clear statement into one of clear silence.

This interpretation of Chevron also cannot be squared with one of the central justifications for allowing regulation of the States in the first instance. The principal explanation for Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528(1 985) -- that States protect their self- interest through their representatives in Congress -- is of no help to the National Government here. If the States must be held accountable for exercising their political muscle in the Halls of Congress, surely Congress must be precluded from seizing such power beneath the radar of textually-mandated requirements or, worse, silently leaving it to the whim of an executive-branch agency to make these decisions. The Constitution nowhere permits Congress to delegate authority to the Executive Branch to decide when, where, and whether to divest the States of authority, and to do so in such an indeterminate and unguided way. It should not be permitted to do so here.

Lastly the agency regulations, even on their own terms, do not supply the requisite clarity that the text of Title VI is so conspicuously missing. The disparate-effect rule adopted by the Department of Justice just says the following:

"A recipient, in determining the type of disposition, services, financial aid, benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin."

28 C.F.R. § 42.104(b)(2).

Doubtless this regulation purports to impose a disparate-effect test on state recipients of federal funding. It says that a "recipient . . . may not . . . utilize criteria . . . which have the effect of subjecting persons to discrimination because of their race, color, or national origin." Yet even assuming that the agency has authority to promulgate this regulation, it nowhere empowers private individuals -- unambiguously or otherwise -- to enforce the regulation by suits in federal court. This theory, too, must fail.

B. The Court's Implied Cause Of Action Cases Do Not Support This Action.

1. Cort v. Ash Cannot Be Reconciled With The Court's Clear-Statement Requirements.

Just as Chevron deference has no application to a regulatory standard that the text of a statute does not clearly establish, neither does Cort v. Ash, 422 U.S. 66 (1975), permit Congress to "imply" a cause of action against States that the National Legislature did not unambiguously establish. The invocation of Cort v. Ash thus does not support respondents' position.

Cort v. Ash did not involve a State defendant and it did not involve an agency regulation. It instead arose in the context of a claim that federal securities laws implicitly created a cause of action in favor of one private citizen (a disgruntled shareholder) against another private citizen (the chairman of the company's board of directors). In rejecting the claim, Cort established a four-factor balancing test for discerning when Congress (not federal agencies) meant to create a cause of action that it did not specifically provide for in the underlying statute. These factors are:

"First, is the plaintiff one of the class for whose especial benefit the statute was enacted, that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, isit consistent with the underlying purposes of the leglslative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?"

Id at 78.

Neither the concept of a Cort v. Ash claim in general nor the four-part balancing test for establishing the action in particular tenably apply to States in the context of Spending- Clause legislation. The very title of the Cort v. Ash test -- an "implied" private right -- fails to respect the interpretive principles that the Court has identified in this area of Federal-State sensitivity. And the four-part inquiry does not improve matters. It variously asks whether Congress "implicit[ly] . create[d] such a remedy," whether it is consistent with the statute and legislative history "to imply such a remedy" and whether state-law considerations make it inappropriate "to infer" such a cause of action. The implications and inferences that Cort v. Ash allows are anathema to the "unambiguous" expression that Pennhurst requires. In the context of a claim by an individual against a State in federal court, the Cort v. Ash inquiry thus must give way to the Pennhurst clear-statement requirement.

Nor has the Court ever held to the contrary. To our knowledge, the Court has never ruled that the rigorous Pennhurst clear-statement imperative may be satisfied through the casual Cort v. Ash inquiry in the context of a regulatory claim against a State. In point of fact, one Spending-Clause decision involving an action filed by an individual against a State, Suter v. Artist M, 503 U.S. 347 (1992), appears to reconcile the Pennhurst and Cort lines of authority in much the way advocated here. In Suter individuals sought declaratory and injunctive relief against state officials in federal court, claiming violations of the "reasonable efforts" mandate of the Adoption Assistance and Child Welfare Act. In bringing the action, claimants argued that the Act created enforceable rights under section 1983 and alternatively that the Act created an implied right of action against the officials under Cort v. Ash. The Court applied a virtually identical analysis in rejecting each claim.

Starting with section 1983, the Court recognized that, in the context of Spending-Clause legislation, Pennhurst precludes a cognizable right from arising under section 1983 unless "Congress . . . do[es] so unambiguously" in the underlying statute. 503 U.S. at 356 (quoting Pennhurst, 451 U.S. at 17). See id at 357 (framing the question presented as whether "Congress, in enacting the Adoption Act, unambiguously confer[red] upon the child beneficiaries of the Act a right to enforce the requirement" of the statute). Ultimately, the Court concluded that the Act "does not unambiguously confer an enforceable right upon the Act's beneficiaries": Rather, "[t]he term 'reasonable efforts' in this context is at least as plausibly read to impose only a rather generalized duty on the State, to be enforced not by private individuals, but by the Secretary in the manner" laid out in the statute. Id at 363.

After addressing the section 1983 claim in this fashion, the Court reasoned that the claim the "Act contains an implied right of action for private enforcement may be disposed of quickly." Id at 363. Briefly, the Court observed that "[t]he most important inquiry here as well is whether Congress intended to create the private remedy," then reasoned that "[a]s discussed above, we think that Congress did not intend to create a private remedy for enforcement of the 'reasonable efforts' clause." Id. at 364. In applying the same analysis to both claims, id ("here as well," "[a]s discussed above"), Suter confirms that the Pennhurst clear-statement requirement does not evaporate simply by the expediency of invoking Cort v. Ash.

In the final analysis, the clear-statement that Pennhurst requires applies with equal force to Spending- Clause claims prosecuted under Cort v. Ash -- particularly with regard to claims brought solely under agency rules. Accordingly, in the absence of an "unambiguously" mandated statutory standard of care and an "unambiguously" created statutory cause of action, no private enforcement is permitted. Respondent cannot meet this test.

2. This Regulatory Cause of Action Fails Even To Satisfy Cort v. Ash.

Nor at any rate does respondents' claim satisfy the requirements of Cort v. Ash. Respondents do not meet one of its four requirements.

"First, is the plaintiff one of the class for whose especial benefit the statute was enacted, that is, does the statute create a federal right in favor of the plaintiff?" Cort, 422 U.S. at 78. Far from creating a federal right in favor of non-English speaking individuals, the statute is coterminous with the Fourteenth Amendment and bars only disparate-treatment claims stemming from "discrimination~~ "on the ground of.. national origin." This Court has never held that discrimination on the basis of language fluency represents a proxy for discrimination on the basis of national origin. "[T]he statute" simply does not create any such "federal right."

"Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?" Id The extensive administrative enforcement scheme laid out in the statute, together with the notice and voluntary-compliance options required under it, evidence a design to deny such a private remedy, particularly a regulatory one. And the absence of statutory evidence establishing a remedy for non-English-speaking individuals presented with English-speaking requirements cements this conclusion.

"Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" Id No. Not one piece of legislative evidence, whether in the statute itself or in its legislative history, offers any indication that generally-applicable English- proficiency rules would violate the statute. And the existence then, as well as the existence now, of federal English-proficiency requirementsmakes any such design exceedingly implausible. Congress deserves more credit than to have silently banned a practice at the state level that it has long embraced at the federal level.

"And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" Id. Case law makes clear that the answer is yes. Driving licenses are state-law privileges, not rights, and the Court has long recognized that States have a "paramount interest ... in preserving the safety of its public highways" and that they have "great leeway in ... protect[ing] public health and safety." Mackey v. Montrym, 443 U.S. 1, 17 (1979). See also Dixon v. Love, 431 U.S. 105, 114 (1977) (recognizing the "important public interest in safety on the roads and highways").

Even beyond these four Cort inquiries, the disparate-effect regulation contains a separate implied-right-of-action flaw. The agency rule starts by saying that State grantees "may not ... utilize criteria or other methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin." 28 C.F.R. §42.1 04(b)(2). A Department of Justice regulation then elaborates that whether a state practice has an impermissible disparate effect is ultimately a matter of reasonableness. In the agency's words:

Where a significant number or proportion of the population eligible to be served or likely to be directly affected by a federally assisted program (e.g., affected by relocation) needs service or information in a language other than English in order effectively to be informed of or to participate in the program, the recipient shall take reasonable steps, considering the scope of the program and the size and concentration of such population, to provide information in appropriate languages to such persons. 42 C.F.R. § 42.405(d)(l) (emphasis added).

This regulatory requirement is insufficiently specific to create a private cause of action, as opposed to a ground for (at best) agency enforcement. See Sitter, 503 U.S. at 360 (concluding that the requirement of "reasonable efforts" was unenforceable where there was "[n]o further statutory guidance as to how 'reasonable efforts' are to be measured"); cf Blessing v. Freestone, 520 U.S. 329, 345 (1997) ("Enforcement of such an undefined standard" -- a right to "substantial compliance" with the federal standard -- "would certainly 'strain judicial competence"') (quoting Livadas v. Bradshaw 512 U.S. 107, 132 (1994)).

The problem is, every law has a disparate impact on someone. No method of running government "has yet been devised which is free of all discriminatory impact." San Antonio lndep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 41(1973). And across-the-board efforts to regulate disproportionate impacts wherever federal dollars appear would "be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes," Washington v. Davis, 426 U.S. 229, 248 (1976) -- many of which have their own salutary purposes and effects. The wide range of disparate-impact challenges brought so far under the Title VI regulations, to say nothing of those that will be filed if this claim is recognized, bear out this risk. Private citizens have brought challenges under these regulations to the validity of entire school-funding systems of the States, Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999), cert. denied, 120 5. Ct. 579 (1999), to the validity of student proficiency and graduation requirements, Cureton v. National Collegiate Athletic Ass 'ii, 198 F.3d 107 (3d Cir. 1999), to the validity of the relocation of businesses and government services, Bryant v. New Jersey Department of Transportation, 987 F. Supp. 343 (D.N.J.), vacated in part, 998 F. Supp. 438 (D.N.J. 1998), to the validity of bus and subway fare increases, New York UrbanLeague, Inc. v. Metropolitan Transportation Authority, 905 F. Supp. 1266 (S.D.N.Y.), vacated and remanded, 71 F.3d 1031 (2d Cir. 1995), and to the validity of real property tax assessments, Coleman v. Seldin, 687 N.Y.S.2d 240 (NY. Sup. Ct. 1999). Against the backdrop of these lawsuits and numerous others, it provides cold comfort to governmental officials to know that the expense of defending these lawsuits can be ended once they take "reasonable steps" to eliminate all disparate impacts arising from generally- applicable laws. The absence of guidance regarding this far- reaching standard not only will "strain judicial competence," but it also proves that Cort v. Ash, even on its own terms, does not support this cause of action.

C. The Court's Title VI Decisions Are Not Inconsistent With, And Indeed Support, This Analysis.

Continuity and change, it is true, have marked the Court's decisions interpreting Title VI and other statutes modeled after it. But at no point has the Court held that federal agencies may innovate private rights of action that Congress itself did not create. Through 26 years of decisions, whether in the context of Title VI or other federal- spending statutes, the Court has never held that agencies may assume this unique authority and has never held that this assumption of authority may be squared with the Pennhurst clear-statement requirement. The Court should not do so now.

Claimants argued below, and will presumably argue here, that Lau and Guardians authorize these private causes of action. Yet, as both the court of appeals and district court appeared to recognize, that is not case. See Pet. App. at 42a (appellate court recognized that this Court "has yet to squarely answer the question"); Pet. App. at 11 7a (district court relied only on this Court's "implicit reasoning").

Start with Lau v. Nichols, 414 U.S. 563 (1974). In 1973, the San Francisco public school system compelled all children between the ages of six and 16 to attend public school while at the same time providing "special English instruction" to "no more than 1,707 of the 3,457 Chinese students" who "spoke little or no English." Id. at 564 n. I & 566. In the face of a program that "foreclosed.., any meaningful education," id at 566, claimants challenged the school district's failure to rectify the situation" under the Equal Protection Clause and Title 601 of the Civil Rights Act of 1964, which the Court characterized as barring "discriminat[ion] against racial groups." Id at 565.

In granting relief to claimants because the "school system ... denies them a meaningful opportunity to participate in the educational program," Id at 568, Lau engaged in a truncated analysis. Instead of addressing the constitutional claim, the decision "rel[ied] solely on section 601" in analyzing the program. Id at 566. Then, in construing Section 601, Lau did not ask whether the statutory standard paralleled the constitutional standard or even whether the statute created a cause of action in favor of plaintiffs. It did not ask whether the creation of a statutory cause of action and the standard of care under it needed to be expressly stated or could be implied. It did not clarify whether the disparate-effect regulation or several other education-specific regulations controlled the analysis. And it did not ask whether regulations may impose a standard that the statute expressly does not.

Time has not been kind to the Lau analysis. While an instinct of invalidity may well surround the dilemma that the school children faced and while the result in Lau may well be justified on other grounds, see The Bilingual Education Act, 20 U.S.C. §§ 7402(b), 7403, 7421, 7422-25, Lau's interpretation of section 601 no longer remains good law. Two years after Lau, the Court held that the Equal Protection Clause bans only intentional discrimination, not disparate-effect discrimination.Washington v. Davis, 426 U.S. 229 (1976). And two years after that, the Court squarely rejected the contention that Section 601 -- the "sole[]" statutory basis for Lau, 414 U.S. at 566 -- proscribes disparate-effect claims. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). In his opinion, Justice Powell concluded that "Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause." 438 U.S. at 287. And Justices Brennan, White, Marshall, and Blackmun likewise concluded that "Title VI's definition of racial discrimination is absolutely coextensive with the Constitution' s." Id at 352. These observations were far from casual. A conclusion in Bakke that Title VI barred more than the Constitution would have doomed any form of affirmative action. Even the use of race as one of a number of factors that an admissions department may consider and that five Justices separately approved would still deny federally- funded benefits on "the ground" of race.

In Guardians Ass'n v. Civil Service Commission of the City of New York, 463 U.S. 582 (1983), "[s]even Members of the Court agree[d] that a violation of the statute itself requires proof of discriminatory intent." 463 U.S. at 608 ni. And other members of the Court indicated that Lau no longer was good law. See id at 611 & n.4 (Powell, J., concurring) in the judgment (Lau "reach[ed] its conclusion essentially without supporting reasoning," and the Bakke "construction" of Title VI "necessarily requires rejection of the prior decision in Lau"); id at 615 (O'Connor, J., concurring in the judgment) ("In my view, the logical implications of [the Bakke] interpretation require that Lait be overruled"). By 1992, to the extent doubt still remained on this score, the Court eliminated it in United States v. Fordice, 505 U.S. 717, 732 n.7. "Our cases make clear, and the parties do not disagree," the Court held, "that the reach of Title VI's protection extends no further than the Fourteenth Amendment."

More than just a misapprehension about the scope of Section 601, however, undercuts Lau's precedential value. Perhaps because many of these points were not argued in Lau, the decision fails to consider a host of relevant statutory- interpretation questions that later decisions require. It does not consider whether Congress meant to create a private right of action under Title VI; it does not consider what the appropriate standard for establishing such a cause of action would be; it does not consider the degree of statutory clarity needed to establish such a cause of action; and it does not consider whether an agency may create a cause of action and right that the Congress did not. When all is said and done, the Lau framework no longer states the correct law in this area.

Nor do the six opinions in Guardians Ass'n v. Civil Service Commission of City of New York, 463 U.S. 582 (1983), present a controlling theory for addressing this issue or again address many of the arguments raised here. At issue in Guardians was not an English~proficiency requirement but a race-discrimination claim. Black and Hispanic police officers claimed that the New York City police department's entry-level written examinations had a discriminatory impact on them, and filed a suit on that basis under Title VI and its implementing regulations. The court of appeals rejected the claim on the theory that Title VI required proof of discriminatory intent. Five Justices of the Court, in separate opinions, ultimately affirmed that judgment, though they did so on a variety of different grounds." Id. at 584.

Justice White, joined by Justice Rehnquist, expressed the view that there was only a limited cause of action to enforce Title VI regulations. They reasoned that "relief in private [disparate impact] actions should be limited to declaratory and injunctive relief ordering future compliance with the declared statutory and regulatory obligations." Id. at 598. Justice Powell, joined by Chief Justice Burger, concurred in thejudgment, concluding that no private right of action to enforce the regulations could be implied. They explained:

The legislative history of Title VI is replete with references to the Act's central purpose of ensuring that taxpayers' money be spent nondiscriminatorily. In accord with this purpose, Congress expressly provided for perhaps the most effective of all remedies in a federal funding statute: the cutting off of funds. In addition, it created a carefully constructed administrative procedure to ensure that such withholding of funds is ordered only where appropriate. In light of these factors, I do not believe that Congress intended to authorize private suits but failed to do so through some inadvertence.

Id., 463 U.S. at 609-10 (Powell, J., concurring in the judgment) (internal citations and footnote omitted). Justice Powell also believed that the regulations could not create a right not contained in the statute. Id. at 611 n.5 ("Administrative agencies do not have -- and should not have -- such lawmaking power"). Justice O'Connor concurred in the judgment on the ground that the agency could not create a disparate-effect cause of action. Because Title VI requires a showing of intentional discrimination, she concluded, the agencies exceeded their authority in promulgating disparate-impact regulations. Id. at 612-15 (O'Connor, J., concurring in the judgment).

Instead of looking to the opinions of these five Justices who concurred in the judgment dismissing plaintiffs' disparate- impact claim, the Eleventh Circuit aggregated Justice White's opinion with the separate dissenting opinions. Together, the court of appeals concluded, these writings produce a majority of Justices for the proposition that private plaintiffs may bring causes of action under the Title VI regulations. Pet. App. at 44a. This method of opinion reading, however, is a discredited one. See United States v. Morrison, 120 5. Ct. 1740, 1757 (2000); Agostini v. Felton, 521 U.S. 203, 217 (1997). The only holding in the case is that private plaintiffs were not permitted to bring their claims against a city government. Far from supporting the court of appeals' analysis, the Guardians judgment is consistent with the analysis urged by Alabama here. The same is true of the Court's more recent Title VI decision in Fordice:

Private petitioners reiterate in this Court their assertion that the state system also violates Title VI, citing a regulation to that statute which requires States to "take affirmative action to overcome the effects of prior discrimination." 34 C.F.R. § 100.3(b)(6)(i) (1991). Our cases make clear, and the parties do not disagree, that the reach of Title VI's protection extends no further than the Fourteenth Amendment. [Citing Bakke and Guardians] We thus treat the issues in these cases as they are implicated under the Constitution.

Id. at 732 n.7.

While neither Lau nor Guardians answers the question presented today, that is not to say that the Court necessarily must invalidate these disparate-impact regulations in order to reject respondents' claim. The central issue here is whether private citizens may enforce these regulations against States in federal court. No doubt the inquiry into congressional intent that animates the private-right-of-action question shares similarities with, if not parallels, the inquiry into the validity of an administrative regulation. Yet it remains possible that the regulations may be enforced by executive-branch agencies. After all, the extensive procedural protections that Congress put in place to guard against over-zealous enforcement of Title VI by federal agencies may suffice to show that Congress meant to allow the agencies to create disparate-impact rules for their own enforcement, just not for enforcement by private citizens.

Like Lau and Guardians, other decisions interpreting other statutes do not foreclose the analysis we have advanced either. No doubt decisions interpreting Title IX and Section 504 of the Rehabilitation Act of 1973, both partly modeled after Title VI, have implied (or seemed to imply) private rights of action. See, e.g., Alexander v. Choate, 469 U.S. 287 (1985) (Rehabilitation Act); Cannon v. University of Chicago, 441 U.S. 677 (1979) (Title IX). And no doubt Cannon suggested, without deciding the issue, that Section 601 of Title VI permits an implied right of action for intentional- discrimination claims. See Cannon, 441 U.S. at 702 n.33; see also Gebser, 118 5. Ct. at 1994. The Cannon suggestion also may have been codified in the Rehabilitation Act Amendments of 1986, which were designed to abrogate the States' immunity from suit in Title IX, the Age Discrimination Act of 1975, Section 504 of the Rehabilitation Act, Title VI and "any other Federal statute prohibiting discrimination by recipients of Federal financial assistance." P.L. 99-506, Title X § 1003, 100 Stat. 1845, 42 U.S.C. § 2000d-7. But these developments in no way extend to implied private rights of action premised on agency regulations. Cannon, for example, did not apply a clear-statement rule, did not involve a disparate-impact claim, and above all did not enforce a regulatory right but a statutory one. The Rehabilitation Act Amendments of 1986 specifically refer only to "suit[s]" under "Federal statute[s]," 42 U.S.C. § 2000d-7(a)(1), and "suit[s] against a State for a violation of a statute," id at 2000d-7(a)(2). They say nothing at all about private rights of action under regulations.

Alexander v. Choate is no more helpful. It concluded that the Rehabilitation Act, unlike Title VI, reached "action that discriminated by effect as well as by design." Id at 297. It then "resisted" "too facile an assimilation of Title VI law to Section 504." Id at 293 n.7. And it ultimately concluded that "the regulations do not in fact support respondents' action.~~ Id at 294 n. 10. In the end, neither Cannon, Alexander nor any other precedent supports the creation of an implied right ofaction brought by individuals against States on the basis of an administrative regulation. No such action should be implied here.

CONCLUSION

The lower-court decision should be reversed.

Respectfully submitted,

JEFFREY S. SUTTON
 Counsel of Record
JONES, DAY, REAVIS &
 POGUE
1900 Huntington Center
41 South High Street
Columbus, OH 43215
(614) 469-3855

November 2000BILL PRYOR
Attorney General of Alabama

JOHN J. PARK, JR.
ASSISTANT ATTORNEY
 GENERAL
Office of the Attorney
 General
11 South Union Street
Montgomery, AL 36130
(334) 242-7300

Counsel for Petitioners

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