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24 Notwithstanding the Sandoval and other decisions for the purposes of 1983....'"337 The New York court discussed herein, in one case located for the digest, the observed that in South Camden Citizens in Action v. Tenth Circuit held that the Sandoval decision does not New Jersey Department of Environmental Protection,338 necessarily preclude the possibility of a judicial remedy the Third Circuit had declined to follow the Tenth Cir- for disparate-impact claims. In Robinson v. Kansas,329 cuit and had disallowed 1983 claims based on Section 339 the plaintiffs argued that the Kansas state school fi- 602 of Title VI. nancing system, through a provision for "low enroll- Second, in Gulino, the district court pointed out that ment weighting" and "local option budgets,"330 resulted the Second Circuit had decided that Title IX claims may in less funding per pupil in schools in which minority not be brought pursuant to 1983.340 Because the Su- students, students who are not of United States origin, preme Court "analyzes Title VI and Title IX claims in- and students with disabilities were disproportionately follows that Title VI claims cannot be 341 enrolled. The plaintiffs' original complaint sought a brought under 1983 in this jurisdiction." court order requiring the defendants to revise the Kan- In an analogous situation in Gonzaga University v. sas school finance law so that it complied with the law. Doe,342 a case involving the improper or unauthorized The appellate court noted that the plaintiffs, however, release of personal information under the Family Edu- 343 were willing to amend their complaint, as the district cational Rights and Privacy Act of 1974 (FERPA), the court suggested, to request injunctive relief prohibiting Supreme Court held that "the relevant provisions of the defendants from enforcing the state law.331 After the FERPA create no personal rights to enforce under 42 district court denied the defendants' motion to dismiss, U.S.C. 1983."344 The Court rejected any "notion that the defendants filed an interlocutory appeal. our cases permit anything short of an unambiguously According to plaintiffs, there was a disparate impact conferred right to support a cause of action brought 345 on such students in violation of the implementing regu- under 1983." The Court emphasized that under lations of the Rehabilitation Act of 1973332 and Section FERPA the Congress authorized the Secretary of Edu- 333 602 of Title VI. Consistent with Sandoval, the court in cation to handle violations of the Act.346 Robinson held that a private right of action exists under In 2003, in Save Our Valley, supra, the plaintiff, a Section 601 only in cases involving intentional dis- community advocacy group, argued that the Regional crimination. However, the Robinson court held that Transit Authority's plan to build a light-rail line Sandoval does not bar all claims to enforce such regula- through the community violated USDOT's disparate- tions but only disparate-impact claims brought by pri- impact regulations in that it would "cause dispropor- vate parties directly under Title VI. Furthermore, ac- tionate adverse impacts to minority residents."347 The cording to the court, the Sandoval decision did not court held that a "disparate-impact regulation cannot foreclose disparate-impact claims brought against state create a new right; it can only `effectuate' a right al- officials for prospective injunctive relief through a ready created by 601. And 601 does not create the 1983 action to enforce Section 602 regulations.334 right that SOV seeks to enforce, the right to be free Other courts have not followed the Robinson deci- from racially discriminating effects."348 sion. For example, in Gulino v. Board of Education of the City School District of the City of New York,335 a fed- B. Sovereign Immunity and Section 1983 eral district court in New York stated that it disagreed Assuming arguendo that a disparate-impact claim with the Tenth Circuit and several district courts that could be brought under 1983 unless the immunity is had allowed Section 602 disparate-impact claims to pro- deemed to have been waived, a state or state agency, ceed under 1983.336 The court held that "`the regula- such as a transportation department, has immunity tion at issue in this case does not create federal rights 337 Id. at 33839 (citing Ceasar v. Pataki, 2002 U.S. Dist. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. LEXIS 5098 at *11 (S.D.N.Y. 2002). 1905, 60 L. Ed. 2d 508 (1979)). 338 329 274 F.3d 771 (3d Cir. 2001). 295 F.3d 1183 (10th Cir. 2002) (interlocutory appeal af- 339 firming district court's denial of defendants' motion to dismiss). Gulino, 236 F. Supp. 2d at 338. 340 330 Id. at 1186. Id. at 339 N 30 (citing Bruneau v. S. Kortright Cent. Sch. 331 Dist., 163 F.3d 749 (2d Cir. 1998)). Id. N 2. 341 332 Id. (citing Sandoval, 532 U.S. at 280, 121 S. Ct. at 1516, 29 U.S.C. 701 et seq. 333 149 L. Ed. 2d at 524; Gebser v. Lago Vista, 524 U.S. 274, 286, 42 U.S.C. 2000d. 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998)). 334 Thus, the plaintiffs were allowed to amend their com- 342 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002). plaint to bring their Title VI disparate-impact claims against 343 20 U.S.C. 1232(g). the named state officials under 1983. 344 335 Gonzaga Univ., 536 U.S. at 276. 236 F. Supp. 2d 314 (S.D.N.Y. 2002). 345 336 Id. at 283. 236 F. Supp. 2d at 338 (citing Robinson v. State of Kan- 346 sas, 295 F.3d 1183 (10th Cir. 2002) (allowing disparate-impact Id. at 289. 347 claims to be brought under 1983)); Lucero v. Detroit Pub. Save Our Valley, 335 F.3d at 934, 935. 348 Schs., 160 F. Supp. 2d 767 (E.D. Mich. 2001). Id. at 944.