Civil Rights Implications of the Allocation of Funds between Bus and Rail (2008)

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21 The sole remedy for a claim of disparate impact caused by a project is as provided under the above regulations. VIII. CLAIMS AGAINST GOVERNMENT TRANSIT AGENCIES FOR DISPARATE IMPACT UNDER 42 U.S.C. § 1983 A. Constitutional and Statutory Framework of § 1983 Section 1983 is based on the constitutional authority of Congress to enforce the Fourteenth Amendment. The Civil Rights Act of 1871, 42 U.S.C. § 1983, provides that: [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be sub- jected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitu- tion and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…. Section 1983 is a powerful attraction for potential plaintiffs because, in addition to injunctive and declara- tory relief, the courts may award money damages and attorney’s fees.182 As discussed in this section, states have immunity under the Eleventh Amendment; thus, states and their agencies are not amenable to suit un- der § 1983, with two well-recognized exceptions. The first exception is when a state consents to the suit, and the second exception is when Congress legislatively creates an exception.183 State personnel may be sued only when not acting in their official capacity.184 More- over, not all state personnel may be sued, because § 1983 only applies to persons acting under color of state law.185 An individual state defendant may be held “li- able” for injunctive relief.186 182 See discussion in § VIII.H and § VIII.I, infra. 183 Coger v. Connecticut, 309 F. Supp. 2d 274, 281 (D. Conn. 2004), aff’d, Coger v. State Dep’t of Pub. Safety, 2005 U.S. App. LEXIS 15802 (2d Cir. 2005); Cummings v. Vernon, 89 F.3d 844 (9th Cir. 1996); Fidtler v. Pa. Dep’t of Corr., 55 Fed. Appx. 33 (3d Cir. 2002). 184 Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989) (dismissing a suit where an action was brought against a state official in his official capacity); Printz v. United States, 521 U.S. 898, 930–31, 117 S. Ct. 2365, 2382, 138 L. Ed. 2d 914, 942 (1997) (stating that a suit against a state official in his or her official capacity is a suit against the state); Hafer v. Melo, 502 U.S. 21, 22, 112 S. Ct. 358, 360, 116 L. Ed. 2d 301 (1991) (stat- ing that a suit against an official in his or her official capacity is outside the class of persons subject to liability under § 1983). 185 See West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988) (holding that state employees act under color of state law when acting in their official capacities or when they exercise their responsibilities pursuant to state law). 186 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10, 109 S. Ct. 2304, 2312 n.10, 105 L. Ed. 2d 45, 58 n.10 (1989) (stating that a state official sued in his or her official Section 1983 is not itself a source of substantive rights but merely provides a method for vindicating federal rights conferred elsewhere;187 thus, § 1983 does not create a cause of action in and of itself.188 Rather, the plaintiff must prove that he or she was deprived of a right secured by the U.S. Constitution or the laws of the United States and that the deprivation of his or her right was caused by someone acting under color of state law.189 As discussed later, not all federal statutes, how- ever, may be enforced through § 1983 actions. One of the exceptions is that there must be an underlying pri- vate right.190 B. Section 1983 Claims for Disparate Impact As stated in Section VI, the Supreme Court held in Alexander v. Sandoval that “§ 601 only prohibits inten- tional discrimination”191 and that Section 602 and dispa- rate-impact regulations issued pursuant thereto do not create a private right of action to sue for disparate im- pact.192 Similarly, with respect to 42 U.S.C. § 1981,193 “[t]he Supreme Court has held that claims under 42 U.S.C. § 1981 require a showing of intent rather than capacity for injunctive relief is a person under § 1983 because such actions for prospective relief are not treated as actions against the state) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099, 3106 n.14, 87 L. Ed. 2d 114, 1985); Ex parte Young, 209 U.S. 123, 159–60 (1908) [superseded by statute as stated in Presbyterian (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989)]); but see Nat’l Private Truck Council v. Okla. Tax Comm’n, 515 U.S. 582, 588 n.5, 115 S. Ct. 2351, 2355 n.5, 132 L. Ed. 2d 509, 517 n.5 (1995) (noting that injunc- tive or declaratory relief is not authorized under a § 1983 claim dealing with taxes where there is an adequate remedy at law). 187 Mosely v. Yaletsko, 275 F. Supp. 2d 608, 612 (E.D. Pa. 2003) (§ 1983 itself does not create a cause of action but rather provides redress for violations of constitutional provisions and federal laws.) 188 See Comm. Concerning Cmty. Improvement, 2007 U.S. Dist. LEXIS 57551 (E.D. Cal., July 30, 2007) (stating that “Section 1983 ‘creates a private right of action against indi- viduals who, acting under color of state law, violate federal constitutional or statutory rights’”) (citing Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 943 (9th Cir. 2004)). 189 Hale v. Vance, 267 F. Supp.2d 725 (S.D. Ohio 2003); Davis v. Olin, 886 F. Supp. 804 (D. Kan. 1995). See also Maine v. Thiboutot, 448 U.S. 1, 5, 100 S. Ct. 2502, 2503, 65 L. Ed. 2d 555, 559 (1980). 190 Gonzaga v. Doe, 536 U.S. 273 (2002). 191 532 U.S. at 280, 121 S. Ct. at 1516, 149 L. Ed. 2d at 524. 192 532 U.S. at 286, 121 S. Ct. at 1519, 149 L. Ed. 2d at 528. 193 42 U.S.C. 1981(a) provides: Statement of equal rights (a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the se- curity of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

22 disparate impact.”194 The Court in Gratz v. Bollinger195 stated that “purposeful discrimination that violates the Equal Protection Clause of the Fourteenth Amendment will also violate § 1981.” With respect to the disparate-impact regulations and § 1983, there has been no Supreme Court decision di- rectly deciding this issue. As stated, § 1983 is not an independent basis for a claim, and, under the Sandoval decision, the private right to enforce Section 601 does not include a private right to enforce Section 602 regu- lations. The Third Circuit, however, has held explicitly that disparate-impact regulations “cannot create a fed- eral right enforceable through section 1983.”196 In 2002, in Gonzaga University v. Doe,197 a case involving the improper or unauthorized release of personal informa- tion under the Family Educational Rights and Privacy Act of 1974 (FERPA),198 the Supreme Court held that “the relevant provisions of FERPA create no personal rights to enforce under 42 U.S.C. § 1983.”199 Under FERPA, federal funds to a university “may be termi- nated only if the Secretary determines that a recipient institution ‘is failing to comply substantially with any requirement of [FERPA]….’”200 According to the Court, however, the statutory regime does not “confer[] upon any student enrolled at a covered school or institution a federal right, enforceable in suits for damages under § 1983, not to have ‘education records’ disclosed to unau- 194 Elaine W. Shoben, Disparate Impact Theory in Employ- ment Discrimination: What’s Griggs Still Good For? What Not?, 42 BRANDEIS L.J. 597, 622 n.43 (2004) (citing Gen. Bldg. Con- tractors Ass’n v. Pennsylvania, 458 U.S. 375, 391, 102 S. Ct. 3141, 3150, 73 L. Ed. 2d 835, 849 (1982)). As the Court ex- plained in Gen. Bldg. Contractors Ass’n, 458 U.S. at 389–90, 102 S. Ct. 3141, 3149–50, 73 L. Ed. 2d 835, 849–50, [t]he 1870 Act, which contained the language that now ap- pears in § 1981, was enacted as a means of enforcing the re- cently ratified Fourteenth Amendment. In light of the close con- nection between these Acts and the Amendment, it would be incongruous to construe the principal object of their successor, § 1981, in a manner markedly different from that of the Amend- ment itself…. With respect to the latter, official action will not be held un- constitutional solely because it results in a racially dispropor- tionate impact, …”[Even] if a neutral law has a disproportion- ately adverse impact upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose….” See Wash- ington v. Davis, 426 U.S. 229 (1976)…. We conclude, therefore, that § 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination. (some citations omitted). 195 539 U.S. 244, 276, n.23, 123 S. Ct. 2411, 2431 n.23, 156 L. Ed. 2d 257, 285 n.23 (2003) (emphasis supplied). 196 South Camden Citizens in Action, 274 F.3d 771, 788. 197 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002). 198 20 U.S.C. § 1232(g). 199 Gonzaga Univ., 536 U.S. at 276, 122 S. Ct. at 2271–72, 153 L. Ed. 2d at 316–17. 200 536 U.S. at 279, 122 S. Ct. at 2273, 153 L. Ed. 2d at 319 (quoting 20 U.S.C. §§ 1234c(a), 1232g(f)). thorized persons without the student’s express written consent.”201 The Court stated it had “never” held “that spending legislation drafted in terms resembling those of FERPA can confer enforceable rights.”202 The Court continued and stated emphatically that it “now reject[ed] the notion that our cases permit any- thing short of an unambiguously conferred right to sup- port a cause of action brought under § 1983.”203 The statute, not the regulations, must have “rights-creating language” before a claim may be pursued under § 1983, which “‘by itself does not protect anyone against any- thing.’”204 The Court emphasized that under FERPA, the Congress authorized the Secretary of Education to han- dle violations of the Act.205 In South Camden Citizens in Action, supra, the Third Circuit held that “a federal regulation alone may not create a right enforceable through section 1983 not already found in the enforcing statute.”206 The court rejected the contrary view of the Sixth Circuit in Lo- schiavo v. City of Dearborn207 and held that “the EPA’s disparate impact regulations cannot create a federal right enforceable through section 1983.”208 It may be noted that Justice O’Connor, on behalf of four Justices in Wright v. City of Roanoke Redevelop- ment and Housing Authority, had stated that the ques- tion of “whether administrative regulations alone could create such a right” is “a troubling issue.”209 Thus, § 1983 does not itself create any substantive rights but provides a civil remedy for the deprivation of federal statutory or constitutional rights found elsewhere. Ad- mittedly, “[t]here is virtually no limit on the types of 201 536 U.S. at 279, 122 S. Ct. at 2273, 153 L. Ed. 2d at 319. 202 536 U.S. at 279, 122 S. Ct. at 2273, 153 L. Ed. 2d at 319. 203 536 U.S. at 283, 121 S. Ct. at 2275, 153 L. Ed. 2d at 321. 204 536 U.S. at 285, 121 S. Ct. at 2276, 153 L. Ed. 2d at 322 (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979)). 205 Gonzaga Univ., 536 U.S. at 289, 121 S. Ct. at 2278, 153 L. Ed. 2d at 325. 206 274 F.3d 771, 790 (2001). 207 33 F.3d 548, 551 (6th Cir. 1994). 208 South Camden Citizens in Action, 274 F.3d at 788. 209 Id. at 781 (quoting Wright v. City of Roanoke Redevelop- ment and Hous. Auth., 479 U.S. 418, 437–38, 107 S. Ct. 766, 777–78, 93 L. Ed. 2d 781, 797 (1987) (O’Connor, J., dissenting) (emphasis in original) [Wright superseded by statute as stated in McDowell v. Philadelphia Hous. Auth., 2005 U.S. App. LEXIS 19711 (3d Cir. 2005)]). See also Bonano v. East Carib- bean Airline Corp., 365 F.3d 81, 83–84 (1st Cir. 2004) (holding that the Federal Aviation Act and regulations thereunder (14 C.F.R. §§ 380.12, 380.32(f) & (k), 380.34), in particular 14 C.F.R. § 380.4) conferred no private right of action as the Act was regulatory in nature and that private rights of action are rarely implied if a statute’s core function is to furnish direc- tives to a federal agency).