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Enforcement of Title VI of the Civil Rights Act of 1964

Many low-income communities and people of color suffer a disproportionate burden of environmental pollution and the myriad of health problems associated with poor air and water quality and toxic exposure. Established in 1991, the Environmental Justice Project of the Lawyers' Committee for Civil Rights Under Law works with the private bar to provide free legal representation to and to advocate on behalf of communities of color in environmental and civil rights matters.

On July 2, 1964, Congress enacted the Civil Rights Act of 1964, the most comprehensive civil rights legislation since Reconstruction. 42 U.S.C. § 2000 et seq. Congress charged Federal agencies with the duty to "demolish ... segregation and discrimination"which "experience has shown, can be dismantled only with the leadership and assistance of the Federal Government."Title VI prohibits discrimination based on race, color, or national origin in any program or activity that receives Federal funds and is specifically directed at eliminating the financial participation of the Federal government in any programs involving racial or ethnic discrimination. Title VI required Federal agencies to not only promulgate regulations to prevent Federal aid recipients from discriminating, but also enforce that obligation. Title VI is one of the tools environmental justice legal advocates have been using in their work to secure protections from racial discrimination in the environmental context.

Section 601 of Title VI prohibits intentional discrimination. Evidence of discriminatory intent may be either direct or circumstantial. Because direct evidence of discriminatory motive is generally unlikely, more cases rely on circumstantial evidence for proof of the defendant's discriminatory motive. In evaluating these cases based on circumstantial evidence, courts generally use criteria outlined in the Supreme Court decision in Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977)

Section 602 of Title VI authorizes Federal agencies to adopt regulations and guidance to implement Title VI and to effectuate the purpose of Section 601. All Federal agencies have adopted regulations under § 602 that prohibit both intentional discrimination and discriminatory effects - or disparate impacts. Disparate impact claims basically seek to show that a facially neutral policy has a discriminatory impact by weighing more heavily one segment of the population defined by race, color, or national origin than another. Under a disparate impact analysis, "[t]he relevant question.... is whether a policy, procedure, or practice specifically identified by the plaintiff has a significantly greater discriminatory impact on members of a protected class." Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir.), cert. denied, 519 U.S. 1041 (1996). Once a plaintiff has established a prima facie case of disparate impact, the burden shifts to the defendant to justify the challenged practice on non-discriminatory grounds.

Despite decades of judicial decisions and Congressional actions demonstrating the prevailing consensus that a private right of action exists to enforce disparate impact regulations under § 602 of Title VI, the Supreme Court issued its decision denying that right on April 24, 2001. Alexander v. Sandoval, 532 U.S. 275 (2001). The Court's decision undercut the settled expectations of nearly every Court of Appeals, which have either explicitly or implicitly held that the right exists. This potentially requires communities suffering from disproportionate environmental harms to prove discriminatory intent - a much higher burden of proof. Contrary to some reports, the Sandoval decision did not invalidate the Federal agency Title VI regulations themselves. Federal agencies are still required to enforce their Title VI regulations.

Immediately following the Sandoval decision, a Federal district court ruled that Title VI disparate impact regulations can be enforced under 42 U.S.C. § 1983, despite the Supreme Court’s decision precluding enforcement directly under § 602 of Title VI. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F.Supp.2d 505 (D.N.J. May 10, 2001). However, this enforcement avenue was precluded in the Third Circuit on December 17, 2001, when the Third Circuit Court of Appeals ruled that § 1983 did not provide plaintiffs with an enforceable right to enforce Title VI disparate impact regulations. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 2001 WL 1602144, Nos. 01-2224, 01-2296 (3d Cir. Dec. 17, 2001). The South Camden case was an environmental justice case where the plaintiffs were seeking to enforce EPA's Title VI regulations.

The Title VI disparate impact regulations, according to the Third Circuit, do not create a right that is enforceable under § 1983 because the statute authorizing the regulations does not. Title VI creates a right to be free from intentional discrimination, not disparate impact discrimination. Therefore, the Third Circuit held that plaintiffs cannot use § 1983 to enforce a right that goes beyond what the statute creates. This ruling further burdens certain communities suffering from disproportionate environmental harms with the more stringent evidentiary standard for intentional discrimination to prove a Title VI violation in litigation. While the private right of action to enforce the disparate impact standard using § 1983 is unavailable in the Third Circuit and a few other Circuits, not all Circuits have adopted this position. So, in some jurisdictions, § 1983 may still be available to enforce the disparate impact standard.

In light of these rulings, for some communities Federal agencies may be the only avenue to secure the protections from discrimination provided by the Title VI regulations. The closing of the courts to the private right of action under the Title VI regulations makes the work of the Federal agencies, including EPA, to enforce the disparate impact standard all the more important.

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