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15 tection,164 a federal district court in New Jersey held sumed for the purpose of its decision that Section 602 that "a party must allege that he or she was the target confers the authority to promulgate disparate-impact of purposeful, invidious discrimination" to state a claim regulations but held that Section 602 does not confer a under either Section 601 of Title VI or the Equal Pro- private right to enforce the regulations.171 The Court tection Clause of the Fourteenth Amendment and stated that Congress, as opposed to agencies of the ex- 1983.165 The Ninth Circuit also stated in a 2003 case ecutive branch, must create private rights of action to that Section 601 does not create a right "to be free from enforce federal law.172 racially discriminating effects."166 The Court emphasized that Section 602 authorizes In sum, Section 601 only targets intentional dis- agencies to enforce the regulations by terminating fund- crimination. In Section IV.A, infra, the digest discusses ing or by "any other means authorized by law,"173 au- how intentional discrimination, nevertheless, may be thority vested in the agencies that indicates that Con- proved in the absence of direct evidence of discrimina- gress did not intend to sanction an individual's right of 174 tory intent by the use of statistical and other evidence. action under the regulations. "Neither as originally enacted nor as later amended does Title VI display an B. No Private Right to Enforce Regulations intent to create a freestanding private right of action to 175 Promulgated Under Section 602 of Title VI to enforce regulations promulgated under 602." Effectuate Section 601 of Title VI Post-Sandoval, in 2003 in Save Our Valley v. Sound In Sandoval, the Court did not address whether the Transit (Central Puget Sound Regional Transit Author- courts below were correct to hold that Alabama's Eng- ity),176 a community advocacy group opposed a proposed lish-only policy had the effect of discriminating on the light-rail line through its community. The group argued basis of national origin...."167 Rather, the Court held that the project would have disproportionate adverse 177 that there simply is no private cause of action to enforce effects on minority residents in violation of disparate- the Section 602 regulations.168 impact regulations issued pursuant to Section 602 of Prior to the Sandoval decision, in 1998 in South Title VI.178 However, the Ninth Circuit held that a "dis- Bronx Coalition for Clean Air, Inc. v. Conroy,169 an envi- parate-impact regulation cannot create a new right; it ronmental group alleging disparate impact on minority can only `effectuate' a right already created by 601."179 residents had sought an injunction to compel the return of buses that had been transferred to other bus depots. IV. PROOF OF DISPARATE TREATMENT AND The court held, inter alia, that the civil rights claim was DISPARATE IMPACT vague and that it was unclear whether a private right of action existed under Section 602 of Title VI. A. Proof of Disparate Treatment: The Arlington The Sandoval Court explained, however, that "[i]t is Heights Factors clear now that the disparate-impact regulations do not simply apply 601--since they indeed forbid conduct As one article notes, "[t]he courts recognize two that 601 permits--and therefore clear that the private methods of proving intentional discrimination: the di- right of action to enforce 601 does not include a pri- rect method and the indirect method, with a mixed mo- vate right to enforce these regulations."170 Declaring tive defense available in some cases."180 The indirect that such a right must come, if at all, from the inde- method181 is used mostly in employment discrimination pendent force of Section 602, the Court held that it as- 171 164 Id. at 286. 254 F. Supp. 2d 486, 495 (D. N.J. 2003). 172 165 Id. at 289. Id. at 495. 173 166 Id. (quoting 42 U.S.C. 2000d-1). Save Our Valley v. Sound Transit (Central Puget Sound 174 Id. Reg. Transit Auth.), 335 F.3d 932, 944 (9th Cir. 2003). 175 167 Id. at 293 (footnote omitted). Id., Sandoval, 532 U.S. at 279. 176 168 335 F.3d 932 (9th Cir. 2003). Id. See also Julia B. Latham Worsham, Disparate Impact 177 Lawsuits Under Title VI, Section 602: Can A Legal Tool Build Id. at 934. 178 Environmental Justice?, 27 B.C. ENVTL. AFF. L. REV. 631 Id. at 935. 179 (2000), available at Id. at 944 (citation omitted). lwsch/journals/bcealr/27_4/02_TXT.htm (Last visited Sept. 9, 180 Ivan E. Bodensteiner, The Implications of Psychological 2010); Thomas A. Lambert, The Case Against Private Disparate Research Related to Unconscious Discrimination and Implicit Impact Suits, 34 GA. L. REV. 1155 (2000); and Bradford Bias in Proving Intentional Discrimination, 73 MO. L. REV. 83, C. Mank, Environmental Justice and Title VI: Making Recipi- 87-88 (2008) (footnote omitted), hereinafter cited as "Boden- ent Agencies Justify Their Siting Decisions, 73 TUL. L. REV. 787 steiner." (1999). 181 169 As summarized in the article, 20 F. Supp. 2d 565 (S.D.N.Y. 1998). 170 [T]he indirect method, referred to as the McDonnell-Douglas Sandoval, at 28586 (citation omitted). proof scheme, and used most often in employment discrimina-

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16 cases,182 and the mixed motive approach in both Title Although the Supreme Court held in Sandoval that VII employment cases and in some Age Discrimination Section 601 proscribes only intentional discrimination, in Employment Act (ADEA) cases.183 However, although such discriminatory animus may be difficult if not im- the "`direct method' describes the usual or conventional possible to prove by direct evidence. Proof of discrimina- way of proving a case,"184 the Supreme Court has "ex- tory impact is insufficient to prove discriminatory in- plicitly approved the use of circumstantial evidence tent. "[O]fficial action will not be held unconstitutional under the direct method of proving intentional dis- solely because it results in a racially disproportionate crimination"185 and, furthermore, has held that a "plain- impact. `Disproportionate impact is not irrelevant, but tiff need only show that a `discriminatory purpose was a it is not the sole touchstone of an invidious racial dis- motivating factor,' not the sole factor."186 Thus, just as crimination.'"193 Nevertheless, as the Supreme Court there is "burden-shifting" with the indirect method, held in Village of Arlington Heights v. Metropolitan 194 likewise there is burden-shifting with the direct Housing Development Corp., in the absence of direct 187 method. proof, indirect, circumstantial proof, if sufficient, may If a plaintiff utilizing the direct method of proof provides establish discriminatory intent. evidence sufficient to support a finding that a prohibited In Arlington Heights, the Supreme Court explained factor was a motivating factor in the challenged decision, that the application of a variety of factors may prove this shifts the burden to the defendant to establish "that discriminatory intent. The Arlington Heights case con- the same decision would have resulted even had the im- cerned the review of a denial of a petition by the Metro- permissible purpose not been considered."...In short, this politan Housing Development Corp. (MHDC) for a re- defense recognizes that a decisionmaker may be moti- zoning of a 15-acre parcel in the Village of Arlington vated by both legitimate and illegitimate factors in mak- 188 Heights from a single-family zoning classification to a ing a challenged decision. multiple-housing classification to permit MHDC to The matter of burden-shifting is relevant to other 195 build low- to moderate-income housing. After Arling- federal statutes that "require the plaintiff to prove dis- ton Heights denied the request, the MHDC alleged that parate treatment,"189 such as the ADA prohibiting dis- the denial was racially discriminatory and violated, crimination based on a disability in employment as well inter alia, the Fourteenth Amendment and the Fair as in public accommodations and government ser- Housing Act of 1968. vices,190 the Rehabilitation Act's Section 504,191 and the The Supreme Court held that, although the Arling- ADEA.192 ton Heights decision "does arguably bear more heavily on racial minorities,"196 the MHDC and individual re- tion cases, establishes a three-step burden-shifting framework. spondents "simply failed to carry their burden of prov- First, the plaintiff must establish a prima facie case. For exam- ple, an applicant for a position claiming her application was re- ing that discriminatory purpose was a motivating factor jected because of sex can establish a prima facie case by showing in the Village's decision."197 The Court held that the re- (i) she is a member of a protected group, (ii) applied for an open spondents had failed to prove discrimination based on position, (iii) she was qualified for the position, and (iv) her ap- what courts would refer to later as the Arlington plication was rejected and the employer hired a male, or the po- Heights factors. sition remained open and the employer continued to seek appli- cations from persons with qualifications similar to the In Arlington Heights, the Court held that when a plaintiff's. This creates a presumption of discrimination. Second, discriminatory policy or action is alleged in a Section the burden of production then shifts to the employer to articu- 601 case, the courts must conduct an inquiry into the late a legitimate, nondiscriminatory reason for the challenged circumstances to ascertain whether discrimination was action. Third, assuming the employer meets this minimal bur- den, the plaintiff, who retains the ultimate burden of persua- the purpose of an official action or decision. sion, can establish intentional discrimination either directly by Determining whether invidious discriminatory purpose showing "that a discriminatory reason more likely motivated the was a motivating factor demands a sensitive inquiry into employer or indirectly by showing that the proffered explanation such circumstantial and direct evidence of intent as may is unworthy of credence [pretext]." be available. The impact of the official action--whether it Id. at 88 (footnotes omitted). "bears more heavily on one race than another"...--may 182 Id. provide an important starting point. Sometimes a clear 183 Id. at 9596. pattern, unexplainable on grounds other than race, 184 emerges from the effect of the state action even when the Id. at 91. 185 governing legislation appears neutral on its face. ...The Id. at 9293 (citing Village of Arlington Heights v. Metro. evidentiary inquiry is then relatively easy. ...[I]mpact Housing Dev. Corp., 429 U.S. 252 (1977)). 186 Id. at 94 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 24445 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 10266, 105 Stat. 1074). 187 Id. at 88. See text in note 181, supra. 193 Village of Arlington Heights, 429 U.S. at 26465, 97 S. 188 Id. at 94 (footnotes omitted). Ct. at 563, 50 L. Ed. 2d at 464 (citation omitted). 189 194 Id. at 83 n.1. Id. at 252. 190 195 42 U.S.C. 1210112213. Id. at 254. 191 196 29 U.S.C. 794. Id. at 269. 192 197 Id. 62134. Id. at 270.