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[Employment Discrimination Court Cases] (2)
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[Employment Discrimination Court Cases] (2)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Barr, William: Files
Folder Title: [Employment Discrimination Court
Cases] (2)
Box: 5
To see more digitized collections visit:
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To see all Ronald Reagan Presidential Library inventories visit:
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EILE COPY
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre-
pared by the Reporter of Decisions for the convenience of the reader. See
United States V. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GUARDIANS ASSN. ET AL. V. CIVIL SERVICE COM-
MISSION OF THE CITY OF NEW YORK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 81-431. Argued November 1, 1983-Decided July 1, 1983
Petitioner black and Hispanic police officers were appointed to the New
York City Police Department upon achieving passing scores on the
examinations administered to make entry-level appointments. Since
appointments were made in order of test scores, however, the examina-
tions caused blacks and Hispanics to be hired later than similarly situ-
ated whites, which lessened petitioner officers' seniority and related
benefits. Accordingly, when the Department subsequently laid off po-
lice officers on a "last-hired, first-fired" basis, those officers who had
achieved the lowest scores were laid off first, and petitioner officers
were disproportionately affected by the layoffs. Petitioner officers and
petitioner organizations then brought a class action in Federal District
Court against respondents (the Department and other New York City
officials and entities), alleging that the layoffs violated their rights
under, inter alia, Titles VI and VII of the Civil Rights Act of 1964. Cit-
ing administrative regulations promulgated under Title VI, the District
Court ultimately held that an implied private right of action existed
under Title VI and that proof of discriminatory effect was enough to es-
tablish a violation of Title VI, thereby rejecting respondents' contention
that only proof of discriminatory intent could suffice. The District
Court granted certain relief under Title VII, and also granted the follow-
ing relief under Title VI: (1) Each class member was awarded construc-
tive seniority, including the right to backpay and back medical and insur-
ance benefits which he would have received had he been appointed on his
constructive seniority date; (2) respondents were directed to give a ser-
geant's examination to those class members whose constructive seniority
would have entitled them to take the last such examination; and (3) re-
spondents were ordered to consult with petitioners on the preparation
I
II
GUARDIANS ASSN. v. CIVIL SERV. COMM'N, N. Y. C.
Syllabus
and use of future examinations to insure that future hiring practices
would be nondiscriminatory. The Court of Appeals affirmed the relief
under Title VII, but reversed as to Title VI, holding that the awards of
Title VI relief could not be sustained because proof of discriminatory in-
tent was required.
Held: The judgment is affirmed.
633 F. 2d 232, affirmed.
JUSTICE WHITE concluded that discriminatory intent is not an essential
element of a Title VI violation. JUSTICE WHITE, joined by JUSTICE REHN-
QUIST, also concluded that a private plaintiff should recover only injunctive,
noncompensatory relief for a defendant's unintentional violation of Title
VI, that such relief should not include an award of constructive seniority,
and that the Court of Appeals' judgment should be affirmed on this basis,
since the relief denied petitioners under that judgment is unavailable to
them under Title VI. Pp. 10-25.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, would affirm the
Court of Appeals' judgment on the ground that private suits to enforce
Title VI are not authorized or, joined by THE CHIEF JUSTICE and JUSTICE
REHNQUIST, would affirm the judgment on the alternative ground that the
Court of Appeals correctly held that a showing of intentional discrimination
is a prerequisite to a successful Title VI claim. Pp. 2-4.
JUSTICE O'CONNOR would affirm the Court of Appeals' judgment on the
ground that proof of purposeful discrimination is a necessary element of a
valid Title VI claim and that hence implementing regulations incorporating
an impact standard are not valid. Pp. 1-3.
WHITE, J., announced the judgment of the Court and delivered an opin-
ion, in Parts I, III, IV, and V of which REHNQUIST, J., joined. POWELL,
J., filed an opinion concurring in the judgment, in which BURGER, C. J.,
joined, and in Part II of which REHNQUIST, J., joined. REHNQUIST and
O'CONNOR, JJ., filed opinions concurring in the judgment. MARSHALL, J.,
filed a dissenting opinion. STEVENS, J., filed a dissenting opinion, in
which BRENNAN and BLACKMUN, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors. in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 81-431
GUARDIANS ASSOCIATION, ETC., ET AL., PETITION-
ERS v. CIVIL SERVICE COMMISSION OF
THE CITY OF NEW YORK ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 1, 1983]
JUSTICE WHITE announced the judgment of the Court and
delivered the following opinion, in Parts I, III, IV and V of
which JUSTICE REHNQUIST joins.
The threshold issue before the Court is whether the pri-
vate plaintiffs in this case need to prove discriminatory intent
to establish a violation of Title VI of the Civil Rights Act of
1964, 42 U. S. C. § 2000d, et seq.,¹ and administrative imple-
menting regulations promulgated thereunder. I conclude,
as do four other Justices, in separate opinions, that the Court
of Appeals erred in requiring proof of discriminatory intent.2
1 Section 601 of the Act, 42 U.S. C. § 2000d, provides:
"No person in the United States shall, on the ground of race, color, or na-
tional 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."
The five of us reach the conclusion that the Court of Appeals erred by
different routes. JUSTICE STEVENS, joined by JUSTICE BRENNAN and
JUSTICE BLACKMUN, reasons that, although Title VI itself requires proof
of discriminatory intent, the administrative regulations incorporating a dis-
parate impact standard are valid. Post, at JUSTICE MARSHALL
would hold that, under Title VI itself, proof of disparate impact discrimina-
tion is all that is necessary. Post, at I agree with JUSTICE MAR-
SHALL that discriminatory animus is not an essential element of a violation
of Title VI. I also believe that the regulations are valid, even assuming
81-431-OPINION
2
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
However, I conclude that the judgment below should be af-
firmed on other grounds, because, in the absence of proof of
discriminatory animus, compensatory relief should not be
awarded to private Title VI plaintiffs; unless discriminatory
intent is shown, declaratory and limited injunctive relief
should be the only available private remedies for Title VI vi-
olations. There being four other Justices who would affirm
the judgment of the Court of Appeals, that judgment is ac-
cordingly affirmed.
I
This class action involves a challenge by black and Hispanic
police officers, petitioners here,3 to several written examina-
tions administered by New York City between 1968 and 1970
that were used to make entry-level appointments to the
city's police department (the "Department") through October
1974.4 The District Court found that the challenged exami-
nations had a discriminatory impact on the scores and pass-
rates of blacks and Hispanics and were not job-related.
These findings were not disturbed in the Court of Appeals.
Each member of the plaintiff class seeking relief from dis-
crimination achieved a passing score on one of the challenged
examinations and was hired as a police officer. Since ap-
pointments were made in order of test score, however, the
examinations caused the class members to be hired later than
similarly-situated whites, which lessened the petitioners' se-
niority and related benefits. Accordingly, when the Depart-
ment laid off police officers in June 1975 on a "last-hired,
arguendo that Title VI, in and of itself, does not proscribe disparate impact
discrimination. Part II, infra.
"The class representatives are The Guardians Association of the New
York City Police Department, Inc., The Hispanic Society of the New York
City Police Department, Inc., Oswaldo Perez, and Felix E. Santos.
'Petitioners also alleged that the Department's 5' 7" minimum height
requirement discriminated against Hispanics. The disposition of this issue
in the lower courts is not now before us.
81-431-OPINION
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
3
first-fired" basis, those officers who had achieved the lowest
scores on the examinations were laid off first, and the plain-
tiff black and Hispanic officers were disproportionately af-
fected by the layoffs.
On April 30, 1976, petitioners filed the present suit⁵
against the Department and other New York City officials
and entities, the respondents here. Petitioners' amended
complaint alleged that the June 1975 layoffs violated their
rights under Titles VI and VII of the Civil Rights Act of
1964, 42 U. S. C. § 2000d, et seq., and 2000e, et seq., under
42 U. S. C. § 1983, and under various other state and federal
laws.6 The primary allegation of the complaint was that but
for the discriminatory impact of the challenged examinations
upon minorities, petitioners would have been hired earlier
and therefore would have accumulated sufficient seniority to
withstand the layoffs.
After a hearing, the District Court held that, although pe-
titioners had failed to prove that the respondents had acted
.
'This was petitioners' second judicial attack on the Department's use
of the examinations. Petitioners first filed suit in 1972, but the District
Court denied their motion for a preliminary injunction restraining the mak-
ing of appointments from the ranked eligibility lists generated by the chal-
lenged examinations, on the basis that the eligibility lists would soon be
fully exhausted. The Court of Appeals affirmed. Guardians Ass'n V.
Civil Service Comm'n, 490 F. 2d 400 (CA2 1973). Petitioners unsuccess-
fully sought to revive the earlier case before filing the present suit. See
633 F. 2d 232, 235 (CA2 1980).
'Among these was a claim under 42 U.S. C. § 1981, which the District
Court twice rejected because petitioners failed to prove discriminatory in-
tent, which the court found to be a necessary element of a § 1981 cause of
action. 431 F. Supp. 526, 534 (S. D. N. Y. 1977); 466 F. Supp.' 1273, 1276
n. 4 (S. D. N. Y. 1979). The Court of Appeals affirmed. 633 F. 2d 232,
263-268 (CA2 1980). Petitioners raised this § 1981 issue in their petition
for certiorari, but they abandoned it after our decision last Term in General
Building Contractors Ass'n, Inc. V. Pennsylvania, — U. S.— (1982),
decided the issue adversely to them. See Reply Brief for Petitioners
1, n. *.
81-431-OPINION
4
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
with discriminatory intent, the use of the exams violated
Title VII, because the tests had a disparate impact upon mi-
norities and were not proven by respondents to be job-re-
lated.⁷ The court therefore granted petitioners' motion for a
preliminary injunction restraining the Department from fir-
ing or recalling any police officers until seniority lists were
reordered to accord petitioners the seniority they would have
had but for respondents' discriminatory practices. 431 F.
Supp. 526 (S. D. N. Y. 1977). In light of its holding under
Title VII, the District Court deemed it unnecessary to decide
the merits of petitioners' claims under Title VI. Id., at 530,
n. 2.
On respondents' appeal, the Second Circuit vacated the
District Court's decision and remanded the case for reconsid-
eration in light of our holding in Teamsters V. United States,
431 U. S. 324 (1977), in which we ruled that a bona fide se-
niority system that merely perpetuates the effects of pre-
Title VII discrimination is protected by § 703(h) of that stat-
ute, 42 U. S. C. § 2000e-2(h). 562 F. 2d 38 (1977). On
remand, the District Court found that Teamsters had ren-
dered its previous holding untenable to the extent that it
granted relief with respect to discrimination occurring prior
to March 24, 1972, the date on which Title VII became appli-
cable to municipalities. See Pub. L. 92-261 § 2(1), 86 Stat.
103 (1972). This meant that, under Title VII, class members
hired prior to the effective date were not entitled to any re-
lief, and that the remaining members of the class were only
entitled to back seniority awards that did not take into ac-
count time periods prior to that date. 466 F. Supp. 1273,
1280 (S. D. N. Y. 1979).
The court then turned to Title VI, which has been appli-
cable to municipalities since its enactment in 1964, to see if
"The District Court correctly relied on Griggs V. Duke Power Co., 401
U.S. 424 (1971), and its progeny, as the framework for its Title VII dis-
parate impact analysis. 431 F. Supp., at 538-539.
81-431-OPINION
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
5
that provision would provide relief for the time periods prior
to March 24, 1972. After considering Cort V. Ash, 422 U. S.
66 (1975), and the various opinions in Regents of the Univer-
sity of California V. Bakke, 438 U. S. 265 (1978), the District
Court concluded that an implied private right of action ex-
isted under Title VI. 466 F. Supp., at 1281-1285. Then,
citing Lau V. Nichols, 414 U. S. 563 (1974), and Title VI ad-
ministrative interpretative regulations adopted by several
federal agencies, the court reasoned that proof of discrimina-
tory effect is enough to establish a violation of Title VI in a
private action, thereby rejecting respondents' contention
that only proof of discriminatory intent could suffice. Id., at
1285-1287. Finally, turning to the question of relief, the
court held that the same remedies available under Title VII
should be available under Title VI, unless they would conflict
with some purpose peculiar to Title VI. "In the instant case,
back seniority, approved as a Title VII remedy in Franks V.
Bowman Transportation Co., 424 U. S. 747, 96 S. Ct. 1251,
47 L. Ed. 2d 444 (1976), is just as necessary to make discrim-
inatees 'whole' under Title VI." 466 F. Supp., at 1287.
Accordingly, relief was granted to the entire class pursu-
ant to Title VI. In a subsequent order, the court set forth a
detailed plan for the determination of the constructive senior-
ity to which each individual member of the class would be en-
titled, and the corresponding monetary and nonmonetary en-
titlements that would be derived therefrom. The court also
ordered respondents to meet and consult with petitioners
on the preparation and use of future examinations. App.
A99-A107.
Respondents appealed once again to the Second Circuit,
which affirmed the relief under Title VII but reversed as to
Title VI. 633 F. 2d 232 (1980). All three members of the
panel agreed that the award of Title VI relief could not be
sustained, but the panel divided on the rationale for this con-
clusion. The majority held that the trial court erred by con-
cluding that Title VI does not require proof of discriminatory
81-431-OPINION
6
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
intent. They believed that this Court's decision in Lau V.
Nichols, supra, which held that proof of discriminatory im-
pact could suffice to establish a Title VI violation, had been
implicitly overruled by the judgment and supporting opinions
in Bakke, supra. 633 F. 2d, at 270 (Kelleher, J.); id., at
274-275 (Coffrin, J.).
The third member of the panel, Judge Meskill, declined to
reach the question whether Title VI requires proof of dis-
criminatory intent. Instead, he concluded that the "compen-
satory remedies sought by and awarded to plaintiffs in the
case at bar are not available to private litigants under Title
VI." Id., at 255. Nothing in the legislative history, Judge
Meskill observed, indicated that Title VI was intended to
compensate individuals excluded from the benefits of a pro-
gram receiving federal assistance, and in his view a compen-
satory private remedy would work at cross-purposes with the
administrative enforcement mechanism expressly provided
by § 602 of Title VI, 42 U. S. C. §§ 2000d-1, and with the ob-
jectives of the federal assistance statutes. 633 F. 2d, at
255-262.8
After the Second Circuit denied petitions for rehearing
from both sides,
F. 2d
(1981), we granted the plain-
tiffs' petition for certiorari,
U.S.
which claimed
The panel majority disagreed with Judge Meskill's views, reading our
decisions in Bakke and Cannon V. University of Chicago, 441 U.S. 677
(1979), as allowing a private right of action under Title VI irrespective of
the compensatory effect of the relief sought or granted. Also, fearing that
part of the noncompensatory relief in the District Court's order might not
be available to the entire class under Title VII, the court could not agree
with Judge Meskill's conclusion that his rationale made it unnecessary
to decide whether Title VI requires proof of discriminatory intent. 633
F. 2d, at 274.
Respondents also filed a petition for certiorari, in which they seek re-
view of the Court of Appeals' determination that the plaintiff class is enti-
tled to relief under Title VII. Civil Service Comm'n V. The Guardians
Ass'n, No. 81-432.
81-431-OPINION
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
7
error solely on the basis that proof of discriminatory intent is
not required to establish a Title VI violation.
II
The Court squarely held in Lau V. Nichols, supra, that
Title VI forbids the use of federal funds not only in programs
that intentionally discriminate on racial grounds but also in
those endeavors that have a disparate impact on racial minor-
ities. The Court of Appeals recognized this but was of the
view, as are respondents, that Regents of the University of
California V. Bakke, supra, had confined the reach of Title
VI to those programs that are operated in an intentionally
discriminatory manner. For two reasons, I disagree with
this reading of Bakke.
A
First, I recognize that in Bakke five Justices, including
myself, declared that Title VI on its own bottom reaches no
further than the Constitution,10 which suggests that, in light
of Washington V. Davis, 426 U.S. 229 (1976), Title VI does
not of its own force proscribe unintentional racial discrimina-
tion. The Court of Appeals thought these declarations were
inconsistent with Lau's holding that Title VI contains its own
prohibition of disparate-impact racial discrimination. The
issue in Bakke, however, was whether Title VI forbids inten-
tional discrimination in the form of affirmative action in-
tended to remedy past discrimination, even though such affir-
mative action is permitted by the Constitution. Holding
that Title VI does not bar such affirmative action if the Con-
stitution does not is plainly not determinative of whether
Title VI proscribes unintentional discrimination in addition to
the intentional discrimination that the Constitution forbids.
"See Regents of the University of California V. Bakke, 438 U.S. 265,
287 (POWELL, J.); id., at 328 (opinion of BRENNAN, WHITE, MARSHALL,
and BLACKMUN, JJ.).
81-431-OPINION
8
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
It is sensible to construe Title VI, a statute intended to
protect racial minorities, as not forbidding those intentional,
but benign, racial classifications that are permitted by the
Constitution, yet as proscribing burdensome, non-benign
discriminations of a kind not contrary to the Constitution.
Although some of the language in the Bakke opinions has a
broader sweep, the holdings in Bakke and Lau are entirely
consistent. Absent some more telling indication in the
Bakke opinions that Lau was being overruled, I would not so
hold."
B
Even if I am wrong in concluding that Bakke did not over-
rule Lau, as so many of my colleagues believe, there is an-
other reason for holding that disproportionate-impact dis-
crimination is subject to the Title VI regime. In Lau, the
Court was unanimous in affirming a holding that the school
district there involved was forbidden by Title VI from prac-
ticing unintentional as well as intentional discrimination
against racial minorities. Five Justices were of the view
that Title VI itself forbade impact discrimination. Lau,
supra, at 566-569. Justice Stewart, joined by THE CHIEF
JUSTICE and JUSTICE BLACKMUN, concurred in the result.
The concurring opinion stated that it was not at all clear that
Title VI, standing alone, would prohibit unintentional dis-
crimination, but that the Title VI implementing regulations,
"JUSTICE STEVENS correctly states that "when the Court unequivocally
rejects one reading of a statute, its action should be respected in future
litigation.
If a statute is to be amended after it has been authorita-
tively construed by this Court, that task should almost always be per-
formed by Congress." Post, at 7-8. However, JUSTICE STEVENS ap-
pears to ignore his own admonition by disregarding the square holding of
Lau V. Nichols, the only case that directly addressed the present issue.
In Lau, we "unequivocally reject[ed]" the notion that Title VI requires
proof of discriminatory intent. Since Congress has chosen not to modify
Title VI after it was "authoritatively construed" in Lau, we should be espe-
cially slow to adopt a new construction of the statute at this late date.
81-431-OPINION
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
9 :
which explicitly forbade impact discrimination, were valid be-
cause not inconsistent with the purposes of Title VI. Id., at
569-571." Even if Bakke must be taken as overruling Lau's
holding that the statute itself does not reach disparate im-
pact, none of the five Justices whose opinions arguably com-
pel this result considered whether the statute would permit
regulations that clearly reached such discrimination. And
no Justice in Bakke took issue with the view of the three con-
curring Justices in Lau, who concluded that even if Title VI
itself did not proscribe unintentional racial discrimination, it
nevertheless permitted federal agencies to promulgate valid
regulations with such effect. The upshot of Justice Stew-
art's opinion was that those charged with enforcing Title VI
had sufficient discretion to enforce the statute by forbidding
unintentional as well as intentional discrimination. Nothing
that was said in Bakke is to the contrary.
Of course, this leaves the question whether THE CHIEF
JUSTICE, Justice Stewart, and JUSTICE BLACKMUN were cor-
rect in their reading of the statute. I am convinced that they
were. The language of Title VI on its face is ambiguous; the
word "discrimination" is inherently so. It is surely subject
to the construction given the anti-discrimination proscription
of Title VII in Griggs V. Duke Power Co., 401 U.S. 424
(1971), at least to the extent of permitting, if not requiring,
regulations that reach disparate-impact discrimination. As
Justice Stewart pointed out, the federal agency given en-
12 Section 602 of Title VI, 42 U. S. C. § 2000d-1, empowers agencies pro-
viding federal financial assistance to issue "rules, regulations, or orders of
general applicability which shall be consistent with achievement of the ob-
jectives of the statute authorizing the financial assistance. Justice
Stewart explained that the regulations therefore should be upheld as valid,
because they were "reasonably related to the purposes of the enabling leg-
islation." Lau V. Nichols, 414 U. S. 563, 571 (1974) (opinion concurring in
the result) (quoting Mourning V. Family Publications Service, Inc., 411
U. S. 356, 369 (1973); Thorpe V. Housing Authority of the City of Durham,
393 U. S. 268, 280-281 (1969)).
81-431-OPINION
10
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
forcement authority had consistently construed Title VI in
that manner. Lau, supra, at 570 (opinion concurring in the
result). Moreover, soon after the passage of Title VI, the
Department of Justice, which had helped draft the legisla-
tion, assisted seven agencies in the preparation of regulations
incorporating the disparate impact standard of discrimina-
tion. 13 These regulations were early interpretations of the
statute by the agencies charged with its enforcement, and we
should not reject them absent clear inconsistency with the
face or structure of the statute, or with the unmistakable
mandate of the legislative history. Zenith Radio Corp. V.
United States, 437 U. S. 443, 450 (1978). I discern nothing
in the legislative history of Title VI, and nothing has been
presented by respondents, that is at odds with the adminis-
trative construction of the statutory terms. The Title, fur-
thermore, has been consistently administered in this manner
for almost two decades without interference by Congress.14
Under these circumstances, it must be concluded that Title
VI reaches unintentional, disparate-impact discrimination as
well as deliberate racial discrimination.
III
Although the Court of Appeals erred in construing Title
VI, it does not necessarily follow that its judgment should be
reversed. As an alternative ground for affirmance, respond-
"See 29 Fed. Reg. 16274-16305 (1964). As JUSTICE MARSHALL notes,
post, at 5, shortly long after these initial regulations were promulgated,
every Cabinet department and about 40 federal agencies adopted Title VI
regulations prohibiting disparate-impact discrimination.
"JUSTICE MARSHALL details, post, at 5-7, how Congress has rebuffed
efforts to overturn the Title VI disparate-impact regulations, and how
Congress, with full awareness of how the agencies were interpreting Title
VI, has modeled later statutes on § 601 of Title VI, thus indicating ap-
proval of the administrative definition. Cf. Bob Jones University V.
United States, U. S. (1983); Haig V. Agee, 453 U. S. 280, 291-300
(1981) (agency interpretation of a statute may be confirmed or ratified by
congressional inaction).
81-431-OPINION
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
11
ents defend the judgment on the basis that there is no private
right of action available under Title VI that will afford peti-
tioners the relief that they seek.¹⁵ I agree that the relief de-
nied petitioners under Title VII is unavailable to them under
Title VI, at least where no intentional discrimination has
been proved, as is the case here.
A
I deal first with the matter of a private cause of action
under Title VI. In Lau V. Nichols, supra, non-English
speaking Chinese students sought relief against the San
Francisco school district, claiming that they should be taught
the English language, that instruction should proceed in
Chinese, or that some other way should be provided to afford
them equal educational opportunity. This Court, reversing
the Court of Appeals, gave relief under Title VI. The exist-
ence of a private cause of action under that Title, however,
was not disputed in that case.
Four years later, the Court decided Regents of the Univer-
sity of California V. Bakke, supra, which also involved a pri-
vate suit seeking relief under Title VI against state educa-
tional authorities. Four Justices assumed, but did not
decide, that a private action was available under Title VI.16
A fifth Justice was of the view that no private cause of action
could be implied under the Title." The four remaining Jus-
tices concluded that a private action was available."
Still later, in Cannon V. University of Chicago, 441 U.S.
667 (1979), the Court, applying the factors specified in Cort V.
Ash, 422 U. S. 66 (1975), held that private parties could sue
15 See Brief for Respondents 8-9; Tr. of Oral Arg. 21-22.
"Bakke, supra, at 281-284 (POWELL, J.); id., at 328 (BRENNAN, MAR-
SHALL, and BLACKMUN, JJ.).
"Id., at 379 (WHITE, J.). This Justice, however, was of the view that
where the alleged discriminatory conduct constitutes state action, a cause
of action under 42 U. S. C. § 1983 is available.
'Id., at 265, 419-421, 420 n. 28 (STEVENS, J., joined by BURGER, C.J.,
Stewart, and REHNQUIST, JJ.).
81-431-OPINION
12
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
to enforce the prohibitions of Title IX of the Education
Amendments of 1972, 20 U. S. C. §§ 1681, et seq., against
gender-based discrimination in any educational program sup-
ported by federal funds. A major part of the analysis was
that Title IX had been derived from Title VI, that Congress
understood that private remedies were available under Title
VI, and that Congress intended similar remedies to be avail-
able under Title IX. 441 U. S., at 694-703. Furthermore,
it was the unmistakable thrust of the Cannon Court's opinion
that the congressional view was correct as to the availability
of private actions to enforce Title VI. Id., at 710-716. Two
Justices, in dissent, were of the view that private remedies
under Title VI itself were not available and that the same
was true under Title IX. Those Justices, however, asserted
that § 1983 was available to enforce the proscriptions of Title
VI and Title IX where the alleged discriminatory practices
were being carried on under the color of state law. Id., at
717-730 (WHITE, J., dissenting, joined by BLACKMUN, J.).
Thus at least eight Justices in Cannon were of the view that
Title VI and Title IX could be enforced in a private action
against a state or local agency receiving federal funds, such
as the respondent Department." See also Maine V. Thibou-
tot, 448 U. S. 1 (1980).
B
Petitioners, however, are not entitled to a "make whole"
remedy for respondent's Title VI violations. Whether a liti-
gant has a cause of action "is analytically distinct and prior to
the question of what relief, if any, a litigant may be entitled
to receive." Davis V. Passman, 442 U. S. 228, 239 (1979).
The usual rule is that where legal rights have been invaded
and a cause of action is available, a federal court may use any
19 One Justice disagreed with the Court's holding that a private right of
action could be implied under Title IX itself, without expressing a view as
to whether Title IX could be privately enforced via § 1983. 441 U. S., at
730-749 (POWELL, J., dissenting).
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13
available remedy to afford full relief. Bell V. Hood, 327
U. S. 678, 684 (1946). The general rule nevertheless yields
where necessary to carry out the intent of Congress or to
avoid frustrating the purposes of the statute involved.
For example, in Transamerica Mortgage Advisors, Inc. V.
Leuris, 444 U. S. 11 (1979), the Court found that a private
right of action for only limited relief could be implied under
the Investment Advisor's Act of 1940, 15 U. S. C. §§ 80b-1,
et seq., which prohibits certain practices in connection with
investment advisory contracts. Section 215 of the Act de-
clared that contracts whose formation or performance would
violate the Act were void, and the Court concluded that Con-
gress intended "that the customary legal incidence of void-
ance would follow, including the availability of a suit for reci-
sion or for an injunction against continued operation of the
contract." 444 U. S., at 19. But the Court refused to allow
recovery of monetary relief in a private suit alleging viola-
tions of the Act, stating that, in the absence of a contrary leg-
islative intent, "where a statute expressly provides a particu-
lar remedy or remedies, a court must be chary of reading
others into it." Ibid.
We have also indicated that "make whole" remedies are not
ordinarily appropriate in private actions seeking relief for
violations of statutes passed by Congress pursuant to its
"power under the Spending Clause to place conditions on the
grant of federal funds." Pennhurst State School v. Halder-
man, 451 U. S. 1, 15 (1981). This is because the receipt of
federal funds under typical Spending Clause legislation is a
consensual matter: the State or other grantee weighs the
benefits and burdens before accepting the funds and agreeing
to comply with the conditions attached to their receipt.
Typically, before funds are advanced, the appropriate federal
official will determine whether the grantee's plan, proposal or
program will satisfy the conditions of the grant or other ex-
tension of federal funds, and the grantee will have in mind
81-431-OPINION
14
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
what its obligations will be. When in a later private suit
brought by those for whose benefit the federal money was in-
tended to be used it is determined, contrary to the State's po-
sition, that the conditions attached to the funds are not being
complied with, it may be that the recipient would rather ter-
minate its receipt of federal money rather than assume the
unanticipated burdens.
Thus, the Court has more than once announced that in
fashioning remedies for violations of Spending Clause stat-
utes by recipients of federal funds, the courts must recog-
nize that the recipient has "alternative choices of assuming
the additional costs" of complying with what a court has an-
nounced is necessary to conform to federal law or "of not
using federal funds" and withdrawing from the federal pro-
gram entirely. Rosado V. Wyman, 397 U. S. 397, 420-421
(1970). Although a court may identify the violation and en-
join its continuance or order recipients of federal funds pro-
spectively to perform their duties incident to the receipt of
federal money, the recipient has the option of withdrawing
and hence terminating the prospective force of the injunction.
Pennhurst State School V. Halderman, supra, reiterated
the Rosado approach: Remedies to enforce spending power
statutes must respect the privilege of the recipient of federal
funds to withdraw and terminate its receipt of federal money
rather than assume the further obligations and duties that a
court has declared are necessary for compliance. 451 U. S.,
at 29-30, 30, n. 23; id., at 53-55 (WHITE, J., dissenting in
part). The Court noted that "in no [Spending Clause] case-
have we required a state to provide money to plaintiffs, much
less less required" a state to assume more burdensome ob-
ligations. Id., at 29.
IV
Since the private cause of action under Title VI is one im-
plied by the judiciary rather than expressly created by Con-
gress, we should respect the foregoing considerations appli-
81-431-OPINION
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15
cable in Spending Clause cases and take care in defining the
limits of this cause of action and the remedies available there-
under. Because it was found that there was no proof of in-
tentional discrimination by respondents, I put aside for
present purposes those situations involving a private plaintiff
who is entitled to the benefits of a federal program but who
has been intentionally discriminated against by the adminis-
trators of the program. In cases where intentional dis-
crimination has been shown, there can be no question as to
what the recipient's obligation under the program was and no
question that the recipient was aware of that obligation. In
such situations, it may be that the victim of the intentional
discrimination should be entitled to a compensatory award,
as well as to prospective relief in the event the state contin-
ues with the program.20
However that may be, the Court of Appeals in this case did
not disturb the District Court's finding that there was no in-
tentional discrimination on racial grounds. The discrimina-
tion was unintentional and resulted from the disproportionate
impact of the entry-level tests on racial minorities. In this
and similar situations, it is not immediately obvious what the
grantee's obligations under the federal program were and it
is surely not obvious that the grantee was aware that it was
administering the program in violation of the statute or regu-
20 It is not uncommon in the law for the extent of a defendant's liability to
turn on the extent of his knowledge or culpability. Thus, it has been said
that, under principles of contract law, a contracting party cannot be held
liable for extraordinary harm due to special circumstances unless, at the
time the contract was made, he knew or had reason to know the circum-
stances that made such extraordinary injury probable "so as to have the
opportunity of judging for himself as to the degree of this probability." 5
Corbin on Contracts § 1014 (1964). See also id. §§ 1006-1019; 11 W. Jae-
ger, Williston on Contracts § 1344A (3d ed. 1968). And in tort law, usually
only persons who have intentionally or recklessly violated another's rights
are liable for punitive damages. See Smith V. Wade, 1 U.S.
(1983); W. Prosser, Handbook of the Law of Torts 9-10 (4th ed. 1971).
81-431-OPINION
16
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
lations. In such cases, proof of discriminatory impact does
not end the matter. If the grantee can bear the burden of
proving some "business necessity" for practices that have dis-
criminatory impact, it has a complete affirmative defense to
claims of violation. Griggs V. Duke Power Co., supra, at
431. In the typical case where deliberate discrimination on
racial grounds is not shown, the recipient will have at least
colorable defenses to charges of illegal disparate-impact dis-
crimination, and it often will be the case that, prior to judg-
ment, the grantee will not have known or have had compel-
ling reason to know that it had been violating the federal
standards. Hence, absent clear congressional intent or guid-
ance to the contrary, the relief in private actions should be
limited to declaratory and injunctive relief ordering future
compliance with the declared statutory and regulatory ob-
ligations. Additional relief in the form of money or other-
wise based on past unintentional violations should be
withheld.
The foregoing considerations control decision in this case.
I note first that Title VI is spending-power legislation:
"It is not a regulatory measure, but an exercise of the
unquestioned power of the Federal Government to 'fix
the terms on which Federal funds shall be disbursed.'
Oklahoma V. Civil Service Commission, 330 U.S. 127,
143 (1947). No recipient is required to accept Federal
aid. If he does so voluntarily, he must take it on the
conditions on which it is offered." 110 Cong. Rec. 6546
(1964) (Sen. Humphrey).
Accord, id., at 1527 (memorandum by Rep. Celler) (validity
of Title VI "rests on the power of Congress to fix the terms
on which Federal funds will be made available"); id., at 6562
(Sen. Kuchel); id., at 7063 (Sen. Pastore). Title VI rests on
the principle that "taxpayers' money, which is collected with-
out discrimination, shall be spent without discrimination."
Id., at 7064 (Sen. Ribicoff). Accord, id., at 7054-7055, 7062
81-431-OPINION
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17
(Sen. Pastore); id., at 7102 (Sen. Javits); id., at 6566 (memo-
randum by the Republican Members of the House Committee
on the Judiciary). The mandate of Title VI is "[v]ery simple.
Stop the discrimination, get the money; continue the dis-
crimination, do not get the money." Id., at 1542 (Rep. Lind-
say). Title VI imposes no obligations but simply "extends
an option" that potential recipients are free to accept or re-
ject. Id., at 1527 (memorandum by Rep. Celler) (quoting
Massachusetts V. Mellon, 262 U.S. 447, 480 (1923)). This
legislative history clearly shows that Congress intended Title
VI to be a typical "contractual" spending power provision.
Since Title VI is Spending Clause legislation, it is pre-
sumed that private litigants seeking to enforce compliance
with its terms are entitled to no more than the limited rem-
edy deemed available to the plaintiffs in Pennhurst. The in-
quiry is not at this point complete, however, because, like all
rules of statutory construction, the Pennhurst presumption
must "yield
to persuasive evidence of contrary legislative
intent." Transamerica, supra, 444 U.S., at 20. As in
Transamerica, however, the relevant legislative history of
Title VI reveals that "what evidence of intent exists in this
case, circumstantial though it may be, weighs against the im-
plication of a private right of action for a monetary award in a
case such as this," ibid., at least absent proof of intentional
discrimination.
Title VI does not explicitly allow for any form of a private
right of action. This fact did not go unnoticed by Senators
Keating and Ribicoff, who unsuccessfully proposed an
amendment adding to Title VI a provision expressly allowing
the institution of "a civil action or other proper proceeding for
preventive relief, including an application for a permanent or
temporary injunction, restraining order, or other order,
by the person aggrieved." 109 Cong. Rec. 15375 (1963).
Senator Keating explained that, under this proposal, if some-
one violated Title VI, funds could be denied or "a suit for spe-
81-431-OPINION
18
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
cific performance of the nondiscrimination requirement could
be
brought
by the victim of the discrimination." Id., at
15376. The relevant language of the proposed amendment
was identical to that of § 204(a) of the Civil Rights Act of
1964, 42 U. S. C. § 2000a-3(a), the provision creating a pri-
vate right of action to enforce Title II of the Act, which deals
with discrimination in public accommodations. Suits under
§ 204(a) are "private in form only. When a plaintiff brings an
action under that Title, he cannot recover damages. If he
obtains an injunction, he does so not for himself alone but also
as a 'private attorney general,' vindicating a policy that Con-
gress considered of the highest priority." Newman V. Pig-
gie Park Enterprises, 390 U.S. 400, 401-402 (1968). Sena-
tor Keating thought that elementary fairness required that
victims of Title VI-proscribed discrimination be accorded the
same private right of action as allowed in the "proposed edu-
cation and public accommodations titles of the [Civil Rights]
bill."21
The Keating-Ribicoff proposal was not included in Title VI,
but the important point for present purposes is that even the
most ardent advocates of private enforcement of Title VI
contemplated that private plaintiffs would only be awarded
"preventive relief." Like the drafters of Title II, they did
not intend to allow private plaintiffs to recover monetary
awards. Although the expressed intent of Senators Keating
and Ribicoff is alone not determinative of whether a compen-
satory remedy may be obtained in a private action to enforce
Title VI, "it is one more piece of evidence that Congress did
not intend to authorize a cause of action for anything beyond
limited equitable relief." Transamerica Mortgage Advisors,
Inc. V. Leuris, supra, at 22. Surely, it did not intend to do so
where intentional discrimination is not shown.
The remaining indications of congressional intent are also
circumstantial, but they all militate in favor of the conclusion
"Hearings before the Senate Committee on the Judiciary on S. 1731 and
S. 1750, 88th Cong., 1st Sess., at 335 (1963) (Sen. Keating).
81-431-OPINION
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19
that only prospective relief ordering compliance with the
terms of the grant is appropriate as a private remedy for
Title VI violations in cases such as this. The "greatest possi-
ble emphasis" was given to the fact that the "real objective"
of Title VI was "the elimination of discrimination in the use
and receipt of Federal funds." 110 Cong. Rec. 6544 (1964)
(Sen. Humphrey). See also id., at 7062 (Sen. Pastore). The
remedy of termination of assistance was regarded as "a last
resort, to be used only if all else fails," because "cutoffs of
Federal funds would defeat important objectives of Federal
legislation, without commensurate gains in eliminating racial
discrimination or segregation." Id., at 6544, 6546 (Sen.
Humphrey).
To ensure that this intent would be respected, Congress in-
cluded an explicit provision in § 602 of Title VI that requires
that any administrative enforcement action be "consistent
with the achievement of the objective of the statute authoriz-
ing the financial assistance in connection with which the ac-
tion is taken." 42 U. S. C. § 2000d-1. Although an award
of damages would not be as drastic a remedy as a cutoff of
funds, the possibility of large monetary liability for unin-
tended discrimination might well dissuade potential nondis-
criminating recipients from participating in federal pro-
grams, thereby hindering the objectives of the funding
statutes. See 633 F. 2d, at 261-262 (opinion of Meskill, J.).
In summary, there is no legislative history that in any way
rebuts the Pennhurst presumption that only limited injunc-
tive relief should be granted as a remedy for unintended vi-
olations of statutes passed pursuant to the spending power.
What little evidence there is evinces an intent not to allow
any greater relief." I conclude that compensatory relief, or
See also, e. g., 110 Cong. Rec. 1520 (1964) (Rep. Celler); id., at 7063
(Sen. Pastore); id., at 7075 (Sen. Ribicoff).
The lower courts are generally in agreement that it is not appropriate
to award monetary damages for Title VI violations. See Lieberman V.
University of Chicago, 660 F. 2d 1185 (CA7 1981) (Title IX case), cert. de-
81-431-OPINION
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GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
other relief based on past violations of the conditions at-
tached to the use of federal funds, is not available as a pri-
vate remedy for Title VI violations not involving intentional
discrimination."
nied, U.S. (1982); Drayden V. Needville Independent School
District, 642 F. 2d 129, 133 (CA5 1981); Nabke V. HUD, 520 F. Supp. 5,
10-11 (W. D. Mich. 1981); Concerned Tenants Ass'n V. Indian Trails
Apartments, 496 F. Supp. 522, 526-527 (N. D. Ill. 1980); Rendon V. Utah
State Dept. of Employment Security Job Service, 454 F. Supp. 534 (D.
Utah 1978). See also C. Antieau, Federal Civil Rights Acts § 317 (1980); 2
N. Dorsen, P. Bender, B. Neuborne & S. Law, Political and Civil Rights in
the United States 608 (4th ed. 1979). But cf. Miener v. Missouri, 673
F. 2d 969, 977-979 (CA8 1982) (holding that damages may be recovered
under § 504 of the Rehabilitation Act of 1973, which was considered to be
"closely analogous" to Title VI); Gilliam V. City of Omaha, 388 F. Supp.
842 (D. Neb.) (dicta), aff'd without mention of remedies, 524 F. 2d 1013
(CA8 1975); Quiroz V. City of Santa Ana, 18 FEP Cas. 1138 (C. D. Cal.
1978) (dicta); Flanagan V. President & Directors of Georgetown College,
417 F. Supp. 377 (D. D. C. 1976) (dicta).
JUSTICE STEVENS argues, post, at 4, that even if Title VI authorizes
only a limited remedy, full relief is available in this case because the peti-
tioners "sought relief under 42 U. S. C. § 1983," and § 1983 "provides a
damages remedy." Damages indeed are usually available in a § 1983 ac-
tion, but such is not the case when the plaintiff alleges only a deprivation of
rights secured by a Spending Clause statute. Thus, in Pennhurst State
School V. Halderman, 451 U. S. 1, 27-29 (1981), the Court indicated that,
even if the plaintiffs were entitled to relief under § 1983 for defendants'
alleged violations of certain Spending Clause legislation, the defendants
would not be required "to provide money to [the] plaintiffs."
"JUSTICE MARSHALL erroneously contends, post, at 18, that my view
"would allow recipients to violate the conditions of their contracts until a
court identifies the violation and either enjoins its continuance or orders
the recipient to begin performing its duties incident to the receipt of fed-
eral money." This is not so, because the Federal Government can always
sue any recipient who fails to comply with the terms of the grant agree-
ment and force the violator to repay misspent funds. See Bell V. New Jer-
sey, - U.S. (1983) (WHITE, J., concurring). But it is an
entirely different matter to subject the recipient to open-ended liability to
private plaintiffs. JUSTICE MARSHALL'S third-party beneficiary analogy,
post, at 18-19, is appealing, but he ignores the possibility that Congress
81-431-OPINION
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21
V
If the relief unavailable under Title VII and ordered under
Title VI is the kind of relief that should be withheld in enforc-
ing a Spending Clause statute, the Court should affirm the
judgment of the Court of Appeals without more. Only if all
or some of this relief is the kind of declaratory or prospective
relief that private enforcement of Title VI properly contem-
plates should the Court of Appeals be reversed in whole or in
part. To resolve this matter, I now consider the items of re-
lief ordered by the District Court to determine if any element
is a permissible injunctive remedy.
Although the Eleventh Amendment cases are not dispos-
itive here, in holding that only prospective relief is available
to remedy violations of federal law by state officials, the
Court in Edelman V. Jordan, 415 U. S. 651, 667 (1974), ob-
served that the difference between permissible and imper-
missible relief "will not in many instances be that between
night and day." It seems as patent here as in the Eleventh
Amendment context that the relief cannot include a monetary
award for past wrongs, even if the award is in the form of
"equitable restitution" instead of damages. See id., at
665-667. However, prospective relief need not be "totally
may have felt that the salutary deterrent effect of a compensatory remedy
was outweighed by the possibility that such a remedy would dissuade po-
tential recipients from participating in important federal programs. Of
course, not every contract that benefits third persons accords enforceable
rights in such persons; it is a question of intent. See 4 Corbin on Con-
tracts § 777 (1964). Section 313 of the Restatement (2d) of Contracts
(1981) states that a party who contracts with a government agency to do an
act or render a service to the public is generally not subject to contractual
liability to a member of the public for consequential damages resulting
from performance or failure to perform. The only exceptions to this rule
involve situations where the terms of the contract provide for such liabil-
ity, or where the governmental entity would be subject to liability to the
injured member of the public. Ibid. Neither of these exceptions is appli-
cable in the present context.
81-431-OPINION
22
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
without effect on the [defendant's] revenues"; injunctive re-
lief is permissible even if it means that the defendants, in
order to shape their conduct to the mandate of the court's de-
cree, will have to spend more money "than if they had been
left free to pursue their previous course of conduct." Id., at
667-668. The key question for present purposes is whether
the decree requires the payment of funds or grants other re-
lief, "not as a necessary consequence of compliance in the fu-
ture with a substantive federal question determination, but
as a form of compensation" or other relief based on or flowing
from violations at a prior time when the defendant "was
under no court-imposed obligation to conform to a different
standard." Id., at 668.
The District Court in the present case granted a number of
relatively discrete items of relief. First, each class member
was awarded constructive seniority, which included the right
to: 1) "all monetary entitlements which [the class members]
would have received had they been appointed on their con-
structive seniority date," including backpay and back medical
and insurance benefits; and 2) all other entitlements relative
to the award of constructive seniority, including salary, bene-
fits, and pension rights. Also, respondents were directed to
give a sergeant's examination to those class members whose
constructive seniority would have entitled them to take the
last such examination. Finally, in an effort to insure that fu-
ture hiring practices would be nondiscriminatory, respond-
ents were ordered to consult with petitioners on the prepara-
tion and use of future police officer examinations for the
next two years, and to provide petitioners with race and eth-
nicity information regarding the scores of the next scheduled
examination. App. 99-107.2
On the one hand, it is obvious that the award of back pay
and back benefits constitutes relief based upon past conduct
= As permitted by 42 U. S. C. § 2000e-5(k) and 42 U.S. C. § 1988, the
District Court also awarded attorney's fees to petitioners. App. 107.
81-431-OPINION
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
23
no longer permissible; it therefore should not stand. On the
other hand, it is without doubt that the portion of the order
requiring consultation to insure that future examinations will
not have discriminatory effects constitutes permissible in-
junctive relief aimed at conforming respondents' future con-
duct to the declared law.
This leaves the award of constructive seniority for pur-
poses of future entitlements: the right to take the special ser-
geant's examination ordered by the District Court and the
right to an increase of salary and benefits to the level war-
ranted by the constructive seniority. Because such an
award affects only the future conduct of a defendant, it argu-
ably could be categorized as permissible prospective relief.
I conclude, however, that an award of constructive seniority,
for any purpose whatsoever, must be deemed impermissible
retroactive relief.
In Franks V. Bowman Transportation Co., 424 U. S. 747,
766-767 (1976), we identified two types of seniority-"bene-
fit" and "competitive status." The first of these, "which de-
termines pension rights, length of vacations, size of insurance
coverage and unemployment benefits, and the like, is analo-
gous to backpay.
Benefit-type seniority, like backpay,
serves to work complete equity by penalizing the wrongdoer
economically at the same time that it tends to make whole the
one who was wronged." Id., at 786-787 (POWELL, J.). Its
constructive grant "reduces the restitution required of an
employer at such time as he is called upon to account for his
discriminatory actions perpetrated in violation of the law."
Id., at 767, n. 27 (opinion of the Court). Since constructive
benefit-type seniority in this case is obviously restitutionary
and remedial in nature, it is "a form of compensation" to
those whose rights were violated at a time when the respond-
ents were "under no court-imposed obligation to conform to a
different standard." Edelman V. Jordan, supra, at 668. It
is therefore not an appropriate remedy for the Title VI viola-
tions alleged here.
81-431-OPINION
24
GUARDIAN ASSN. v. CIVIL SERV. COMM'N N. Y. C.
An award of "competitive status" seniority, although pro-
spective in form, nevertheless constitutes a form of com-
pensation or relief based on past conduct now deemed vio-
lative of the Act. In no respect can such an award be said to
be "a necessary consequence," ibid., of future Title VI com-
pliance by the employer. It therefore must also be consid-
ered an inappropriate Title VI remedy. I also note that
competitive-type seniority "determines an employee's pref-
erential rights to various economic advantages at the expense
of other employees. These normally include the order of lay-
off and recall of employees, job and trip assignments, and
consideration for promotion." Franks, supra, at 787 (Pow-
ELL, J.). Although an award of constructive seniority of this
nature does not result in any increased costs to the wrongdo-
ing employer, it "directly implicate[s] the rights and expecta-
tions of perfectly innocent employees," id., at 788, and it can
only be viewed as compensation for a past wrong. Accord-
ingly, I conclude that neither an award of "benefit" nor "com-
petitive status" constructive seniority may be obtained as a
private remedy for Title VI violations, at least in the absence
of proof of intentional discrimination.
In view of the foregoing, it is apparent to me that the only
proper Title VI relief granted by the District Court is the
order directing the respondents to take actions and make dis-
closures intended to insure that future hiring practices will
be nondiscriminatory and valid. However, this relief is
wholly sustainable under the District Court's findings and
conclusions with respect to petitioners' Title VII claim, and
all members of the class will fully benefit from it.2s There is
thus no need to disturb the judgment of the Court of Appeals.
Under Title VII, this type of relief can be granted unconditionally.
Under Title VI, the defendants should be given the option of complying or
terminating participation in the federal program. See Parts IV and V,
supra.
81-431-OPINION
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25
VI
In conclusion, for the reasons expressed above, I am con-
vinced that discriminatory intent is not an essential element
of a Title VI violation, but that a private plaintiff should re-
cover only injunctive, noncompensatory relief for a defend-
ant's unintentional violations of Title VI. Such relief should
not include an award of constructive seniority. Albeit on dif-
ferent grounds, the judgment below is
Affirmed."
"Despite the numerous opinions, the views of at least five Justices
on two issues are identifiable. The dissenters, JUSTICES BRENNAN, MAR-
SHALL, BLACKMUN, and STEVENS, join with me to form a majority for up-
holding the validity of the regulations incorporating a disparate-impact
standard. See n. 2, supra. A different majority, however, would not
allow compensatory relief in the absence of proof of discriminatory intent.
JUSTICE REHNQUIST and I reach this conclusion directly. See Parts III
and IV, supra; post, at 1 (REHNQUIST, J., concurring in the judgment).
JUSTICE POWELL, joined by THE CHIEF JUSTICE, post, at , believe
that no private relief should ever be granted under Title VI under any cir-
cumstances. JUSTICE O'CONNOR, post, at — , would hold that all relief
should be denied unless discriminatory intent is proven. It follows from
the views of these three latter Justices that no compensatory relief should
be awarded if discriminatory animus is not shown.
7
FILE COPY
SUPREME COURT OF THE UNITED STATES
No. 81-431
GUARDIANS ASSOCIATION. ETC., ET AL., PETITION-
ERS v. CIVIL SERVICE COMMISSION OF THE
CITY OF NEW YORK ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 1, 1983]
JUSTICE POWELL, with whom THE CHIEF JUSTICE joins,
and in Part II of which JUSTICE REHNQUIST joins, concurring
in the judgment.
With reluctance. I write separately. The many opinions
filed in this case draw lines that are not required by, and in-
deed in some instances seem incompatible with, our prior de-
cisions. Our opinions today will further confuse rather than
guide.¹
1 In particular, the Court is divided as to the standard of proof required
to prove violations of rights in cases involving Title VI. Seven members
of the Court agree that a violation of the statute itself requires proof of
discriminatory intent. See infra. at 45: post, at 1 (REHNQUIST, J., con-
curring in the judgment); post, at 1-2 (O'CONNOR, J., concurring in the
judgment): post, at 8 (STEVENS, J., dissenting. joined by BRENNAN and
BLACKMUN, JJ.) ("Today, proof of invidious purpose is a necessary compo-
nent of a valid Title VI claim"). Only JUSTICES WHITE and MARSHALL
believe that a violation of Title VI may be established by proof of discrimi-
natory effect, and JUSTICE WHITE would recognize only noncompensatory,
prospective relief for such a violation. See ante, at 20-21. JUSTICES
BRENNAN, BLACKMUN, and STEVENS, however, believe that a violation of
the regulations adopted pursuant to Title VI may be established by proof
of discriminatory impact. See post. at 12 (STEVENS, J., dissenting).
Thus, a majority of the Court would hold that proof of discriminatory ef-
fect suffices to establish liability only when the suit is brought to enforce
the regulations rather than the statute itself. And it would seem that the
81-431-CONCUR
2
GUARDIAN ASSN. l. CIVIL SERV. COMM'N N. Y. C.
I
In Cannon V. University of Chicago, 441 U.S. 677, 730
(1979) (POWELL, J., dissenting), I would have held that Con-
gress intended no implied private right of action under Title
IX of the Civil Rights Act. For the same general reasons, I
also would hold that petitioners may not maintain this action
under Title VI.
Congress, for reasons of its own. all too frequently elects to
remain silent on the private right-of-action question. The
result frequently is uncertainty and litigation as to available
remedies, leaving the courts to provide an answer without
clear legislative guidance. We have recognized repeatedly
that whether a private right of action may be implied re-
quires a determination of congressional intent. See, e. g.,
Jackson Transit Authority V. Transit Union, 457 U.S. 15,
20-23 (1982): Touche Ross & Co. V. Redington, 442 U. S. 560,
568 (1979). We look, of course, to the legislative history,
and in particular to what other remedies have been provided.
See Transamerica Mortgage Adrisors, Inc. V. Leuris, 444
U. S. 11, 19 (1979) ("it is an elemental canon of statutory con-
struction that where a statute expressly provides a particular
remedy or remedies, a court must be chary of reading others
into it").
The legislative history of Title VI is replete with refer-
ences to the Act's central purpose of ensuring that taxpayers'
money be spent nondiscriminatorily. See ante, at 17 (opin-
ion of WHITE, J.). In accord with this purpose, Congress ex-
pressly provided for perhaps the most effective of all reme-
regulations may be enforced only in a suit pursuant to 42 U. S. C. § 1983;
anyone invoking the implied right of action under Title VI would be limited
by the discriminatory-intent standard required to prove violations of Title
VI. Thus, the apparent result is that a suit against governmental recipi-
ents of federal funds-who may be sued under § 1983-will be governed by
a different standard of liability than a suit against private recipients of fed-
eral funds. One would have difficulty explaining this result in terms of the
legislative history of Title VI.
81-431-CONCUR
GUARDIAN ASSN. l'. CIVIL SERV. COMM'N N. Y. C.
3
dies in a federal funding statute: the cutting off of funds.² 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. See also Regents
of the University of California V. Bakke, 438 U. S. 265, 381
(1978) (opinion of WHITE. J.) ("[T]here is no express provi-
sion for private actions to enforce Title VI, and it would be
quite incredible if Congress, after so carefully attending to
the matter of private actions in other Titles of the Act, in-
tended silently to create a private cause of action to enforce
Title VI").³ I would affirm the judgment below solely on
this issue.
:JUSTICE MARSHALL argues that private relief must be available be-
cause the statutory remedy of a fund cut-off is "impractical" and "too Dra-
conian to be widely used." Post. at 12-13 (dissenting opinion). See post,
at 5. n. 7 (STEVENS, J., dissenting). In my view, such reasoning evinces a
departure from the principle that legislative intent is the guide to implying
a right of action. The judiciary is not free to decide that remedies affirma-
tively and expressly adopted by Congress are so "impractical" or "Draco-
nian" that judicially-created remedies are necessary. See Touche Ross &
Co. v. Redington, 442 U. S. 560. 578 (1979) ("The ultimate question is one
of congressional intent, not one of whether this Court thinks that it can im-
prove upon the statutory scheme that Congress enacted into law").
Rather. Congress' express adoption of one remedy-and one only-should
be viewed as a congressional choice that should be obeyed. See Cannon v.
University of Chicago. 441 U.S. 677. 749 (1979) (POWELL, J., dissenting)
("Where a statutory scheme expressly provides for an alternative mecha-
nism for enforcing the rights and duties created, I would be especially re-
luctant ever to permit a federal court to volunteer its services for enforce-
ment purposes.").
31 also would hold that private actions asserting violations of Title VI
may not be brought under 42 U. S. C. § 1983. Congress' creation of an
express administrative procedure for remedying violations strongly sug-
gests that it did not intend that Title VI rights be enforced privately either
under the statute itself or under § 1983. See Middlesex County Sewerage
Authority V. National Sea Clammers Assn., 453 U.S. 1, 20-21 (1981); cf.
Maine V. Thiboutot, 448 U. S. 1, 22, n. 11 (1980) (POWELL, J., dissenting)
81-131-CONCUR
4
GUARDIAN ASSN. l'. CIVIL SERV. COMM'N N. Y. C.
II
There is, however, an alternative ground for affirmance.
Both the District Court and the Court of Appeals agreed that
petitioners had failed to show any intentional discrimination.
The Court of Appeals. relying on the opinions in Bakke, held
that such a showing-one that must be made to establish an
equal protection claim-is a prerequisite to a successful Title
VI claim. I agree with JUSTICE STEVENS. post, at 5-8, that
the Court of Appeals was correct in its reading of our opin-
ions in Bakke.
My conclusion in Bakke was that "[i]n view of the clear leg-
islative intent. Title VI must be held to proscribe only those
racial classifications that would violate the Equal Protection
Clause or the Fifth Amendment." 438 U.S., at 287. JUS-
TICES BRENNAN, WHITE, MARSHALL, and BLACKMUN un-
dertook a thorough analysis of the legislative history in
reaching the same conclusion. See id., at 328-340. They
concluded "that Title VI's definition of racial discrimination is
absolutely coextensive with the Constitution's." Id., at 352.
This construction necessarily requires rejection of the prior
decision in Lau V. Nichols, 414 U.S. 563 (1974), that dis-
criminatory impact suffices to establish liability under Title
VI.⁴ In my view, the Court of Appeals therefore was fully
justified in holding that petitioners failed to establish their
Title VI claims.³
(an exception to § 1983 liability is "where the governing statute provides an
exclusive remedy for violations of its terms").
The Lau Court did not undertake any analysis of the legislative history
of Title VI, reaching its conclusion essentially without supporting reason-
ing. I have no occasion here to consider whether the result in Lau may
stand despite rejection of its assumed premise.
'For the reasons stated by JUSTICE O'CONNOR, post, at 2-4, I reject
JUSTICE STEVENS' novel argument that an administrative agency is free to
adopt any regulation that may be said to further the purposes of an en-
abling statute. Administrative agencies do not have-and should not
have-such lawmaking power.
81-131-CONCUR
GUARDIAN ASSN. l. CIVIL SERV. COMM'N N. Y.C.
5
For these reasons, I concur in the Court's judgment.
JUSTICES WHITE and MARSHALL would avoid the explicit reasoning of
Bakke by deferring to a prior administrative construction of Title VI. See
ante. at 9-10 (opinion of WHITE. J.): post. at 3-9 (MARSHALL, J., dissent-
ing). I do not question the view that the Court should "sustai[n] a reason-
able administrative interpretation even if we would have reached a differ-
ent result had the question initially arisen in a judicial proceeding." Post,
at 7 (MARSHALL, J., dissenting). But I know of no precedent whatever for
asserting that this deference to administrative interpretation is proper
after this Court already has issued a definitive-and contrary-construc-
tion of its own. Moreover, in Bakke JUSTICES WHITE and MARSHALL
agreed that "[n]owhere is there any suggestion that Title VI was intended
to terminate federal funding for any reason other than consideration of race
or national origin by the recipient institution in a manner inconsistent with
the standards incorporated in the Constitution." 438 U.S., at 332 (opin-
ion of BRENNAN, WHITE. MARSHALL, and BLACKMUN, JJ.). If "nowhere"
is there any evidence that Congress intended the Title VI standard to dif-
fer from the constitutional standard. clearly an agency interpretation to
the contrary is entitled to no deference.
SUPREME COURT OF THE UNITED STATES
No. 81-431
GUARDIANS ASSOCIATION, ETC., ET AL., PETITION-
ERS l'. CIVIL SERVICE COMMISSION OF THE
CITY OF NEW YORK ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 1. 1983]
JUSTICE REHNQUIST, concurring in the judgment.
I join in Parts I, III, IV, and V of JUSTICE WHITE'S opin-
ion and join in Part II of JUSTICE POWELL's opinion. I
therefore would affirm the judgment of the Court of Appeals.
SUPREME COURT OF THE UNITED STATES
No. 81-431
GUARDIANS ASSOCIATION. ETC., ET AL., PETITION-
ERS l'. CIVIL SERVICE COMMISSION OF THE
CITY OF NEW YORK ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 1. 1983]
JUSTICE O'CONNOR, concurring in the judgment.
For reasons given in Part I of the dissent by JUSTICE STE-
VENS, post, at 2-4. I cannot agree with the limitations that
JUSTICE WHITE'S opinion would place on the scope of equita-
ble relief available to private litigants suing under Title VI.¹
Therefore, like the dissent, I would address two further
questions: (1) whether proof of purposeful discrimination is a
necessary element of a valid Title VI claim, and (2) if so,
whether administrative regulations incorporating an impact
standard may be upheld as within the agency's statutory au-
thority. My affirmative answer to the first question leads
me to conclude that regulations imposing an impact standard
are not valid. On that basis, I would affirm the judgment
below.
Were we construing Title VI without the benefit of any
prior interpretation from this Court, one might well conclude
that the statute was designed to redress more than purpose-
ful discrimination. Cf. Regents of the University of Califor-
1 Because I conclude that the decision below should be affirmed on the
ground that petitioners have failed to prove intentional discrimination, I
have no occasion to address the question whether there is a private cause
of action under Title VI for damages relief.
81-431-CONCUR
2
GUARDIANS ASSN. l'. CIVIL SERV. COMM'N N. Y. C.
nia V. Bakke. 438 U. S. 265, 412-418 (1978) (opinion of STE-
VENS, J.). In Bakke, however, a majority of the Court
concluded otherwise. Id., at 287 (opinion of POWELL, J.);
id., at 328 (opinion of BRENNAN, J., joined by WHITE, MAR-
SHALL. and BLACKMUN, JJ.). Like JUSTICE STEVENS, post,
at 8, I feel constrained by stare decisis to follow that inter-
pretation of the statute.
I part company with JUSTICE STEVENS' dissent, however.
when it concludes that administrative regulations incorporat-
ing an "effects" standard may be upheld notwithstanding the
statute's proscription of intentional discrimination only. See
post, at 8-11. Administrative regulations having the force of
law may be set aside only if they exceed the statutory author-
ity of the agency or are arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law. Batterton
V. Francis. 432 U.S. 416, 426 (1977). JUSTICE STEVENS'
dissent argues that agency regulations incorporating an "ef-
fects" standard reflect a reasonable method of "further[ing]
the purposes of Title VI." Post, at 10. If, as five members
of the Court concluded in Bakke, the purpose of Title VI is to
proscribe only purposeful discrimination in a program receiv-
ing federal financial assistance, it is difficult to fathom how
the Court could uphold administrative regulations that would
proscribe conduct by the recipient having only a discrimina-
tory effect. Such regulations do not simply "further" the
purpose of Title VI; they go well beyond that purpose.
The Court's decision in City of Rome V. United States, 446
U. S. 156 (1980), does not persuade me to the contrary. The
challenge there was to the constitutionality of a federal stat-
ute that imposed a stricter standard of nondiscrimination
than that required by the constitutional provision pursuant to
which the statute was enacted. Specifically, the Court held
that, under the enabling authority in §2 of the Fifteenth
Amendment, Congress may enact a statute banning voting
practices having a discriminatory effect, even if §1 of the
Amendment prohibits only intentional discrimination in vot-
81-131-CONCUR
GUARDIANS ASSN. l'. CIVIL SERV. COMM'N N. Y. C.
3:
ing. Id., at 178. The Court reasoned that Congress' power
under § 2 of the Amendment is "no less broad than its author-
ity under the Necessary and Proper Clause." Id., at 175.
Therefore, as long as the statute was an appropriate means of
enforcing the Fifteenth Amendment's prohibition. the stat-
ute was valid.
The breadth of authority granted to Congress under the
enabling provision of the Fifteenth Amendment is not equiva-
lent to the amount of discretion that an administrative
agency possesses in implementing the provisions of a federal
statute.² An administrative agency is itself a creature of
JUSTICE STEVENS relies upon a 1900 decision by this Court for the
proposition that "an administrative regulation's conformity to statutory au-
thority [is] to be measured by the same standard as a statute's conformity
to constitutional authority." Post. at 10 (citing Boske V. Comingore. 177
C. S. 459. 470 (1900)). Boske. however, is distinguishable in that the stat-
utory authority for the regulation at issue there conferred the general ad-
ministrative power to adopt rules to carry out the functions of the office.
177 U. S., at 467. With respect to this same statute, the Court observed
in a subsequent case that it conferred "administrative power only.
[C]ertainly under the guise of regulation legislation cannot be exercised."
United States V. George. 228 U. S. 14. 20 (1913). In George the Court dis-
approved a regulation by the Interior Department which had the effect of
enlarging the statute. emphasizing the fundamental "distinction between
the legislative and administrative function." Id., at 22.
Moreover, cases since Boske articulating the limitations applicable to
agency rulemaking power indicate that the scope of agency discretion is in-
deed narrower than the language of Boske would suggest. For example.
in Ernst & Ernst V. Hochfelder, 425 U. S. 185 (1976). the Court declined to
endorse an interpretation of Rule 10b-5. 17 CFR § 240.10b-5, as proscrib-
ing mere negligent conduct. The Court observed:
"More importantly, Rule 10b-5 was adopted pursuant to authority granted
the Commission under § 10(b). The rulemaking power granted to an ad-
ministrative agency charged with the administration of a federal statute is
not the power to make law. Rather. it is 'the power to adopt regulations
to carry into effect the will of Congress as expressed by the statute.''
Dixon V. United States, 381 U. S. 68, 74 (1965), quoting Manhattan Gen-
eral Equipment Co. v. Commissioner, 297 U. S. 129, 134 (1936). Thus,
[the Rule] cannot exceed the power granted the Commission by Con-
81-131-CONCUR
4
GUARDIANS ASSN. l'. CIVIL SERV. COMM'N N. Y. C.
statute. Although the Court has stated that an agency's leg-
islative regulations will be upheld if they are "reasonably re-
lated" to the purposes of the enabling statute. Mourning V.
Family Publications Service. Inc., 411 U. S. 356, 369 (1973),
we would expand considerably the discretion and power of
agencies were we to interpret "reasonably related" to permit
agencies to proscribe conduct that Congress did not intend to
prohibit. "Reasonably related to" simply cannot mean "in-
consistent with." Yet that would be the effect of upholding
the administrative regulations at issue in this case if, as five
Justices concluded in Bakke, the expressed will of Congress
is that federal funds recipients are prohibited only from pur-
posefully discriminating on the grounds on race, color, or na-
tional origin in the administration of funded programs.
I acknowledge that in Lau V. Nichols, 414 U. S. 563 (1973),
the Court approved liability under Title VI for conduct hav-
ing only a discriminatory impact. Nevertheless, I believe
that JUSTICE BRENNAN accurately observed in Bakke. 438
U.S.. at 352, that Bakke's interpretation of "Title VI's defi-
nition of racial discrimination to be absolutely coextensive
with the Constitution's" casts serious doubt on the correct-
ness of the Lau decision. In my view, the logical implica-
tions of that interpretation require that Lau be overruled.
Accordingly, I would conclude that the Title VI regulations
at issue here cannot validly serve as the basis for liability.
Because petitioners have failed to prove intentional dis-
crimination, I would affirm the judgment of the Court of
Appeals.
gress under § 10(b)." 425 U.S., at 212-214.
See also Manhattan General Equipment Co. V. Commissioner, 297 U.S.,
129. 134 (1936) ("A regulation which does not [carry into effect the will of
Congress as expressed by the statute]. but operates to create a rule out of
harmony with the statute, is a mere nullity"). Cf. FCC V. American
Broadcasting Co., 347 U. S. 284, 296 (1954) (agency cannot make illegal by
regulation what is legal under the statute).
EILE GOPY
SUPREME COURT OF THE UNITED STATES
No. 81-431
GUARDIANS ASSOCIATION, ETC., ET AL., PETITION-
ERS v. CIVIL SERVICE COMMISSION OF THE
CITY OF NEW YORK ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 1, 1983]
JUSTICE MARSHALL, dissenting.
We granted certiorari in this case to consider whether
proof of discriminatory intent is required to establish a viola-
tion of Title VI of the Civil Rights Act of 1964, 42 U. S. C.
§§ 2000d, et seq. For the reasons outlined below, I agree
with JUSTICE WHITE that proof of discriminatory animus
should not be required. Unlike JUSTICE WHITE, however, I
believe that compensatory relief may be awarded to private
Title VI plaintiffs in the absence of proof of discriminatory
animus. I would therefore reverse the judgment of the
Court of Appeals.
I
The question presented by the petition for certiorari is
whether a Title VI plaintiff can obtain relief upon proof that a
non-job-related employment requirement has a discrimina-
tory effect on minority applicants, or must also prove dis-
criminatory intent. Pet. for Cert. i. This issue has divided
the Courts of Appeals.¹ To resolve it we must decide
1 Compare Castaneda V. Richard, 648 F. 2d 989, 1000 (CA5 1981) (intent
standard): Cannon V. University of Chicago, 648 F. 2d 1104, 1108 (CA7
1981) (same): Lora V. Board of Educ., 623 F. 2d 248, 250 (CA2 1980)
(same), with NAACP V. Medical Center, Inc., 657 F. 2d 1322, 1328 (CA3
81-431-DISSENT
2
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
whether our decision in Lau V. Nichols, 414 U. S. 563 (1974),
which held that proof of discriminatory impact is sufficient to
establish a violation of Title VI, must be overruled in light of
the views subsequently expressed by five Justices in Regents
of the University of California V. Bakke, 438 U.S. 265
(1978).
In Lau V. Nichols, this Court held that the San Francisco
school system had violated Title VI by failing to provide sup-
plemental language instruction to children of Chinese ances-
try who did not speak English. The plaintiffs in Lau did not
show that the officials in charge of the school system had in-
tended to discriminate against students of Chinese ancestry.
See Fullilove V. Klutznick, 448 U.S. 448, 479 (1980) (opin-
ion of BURGER, C. J., joined by WHITE and POWELL, JJ.).
Because the failure to provide supplemental instruction had a
discriminatory impact, this Court nevertheless concluded
that the school system had violated Title VI. Looking to de-
partmental regulations for guidance, the Court emphasized
that Title VI bars programs that have a discriminatory "ef-
fect even though no purposeful design is present." 414
U.S., at 568 (emphasis in original).
In Regents of the University of California V. Bakke, 438
U. S. 265 (1978), five Justices concluded that Title VI does
not prohibit a recipient of federal aid from taking race into
account in an affirmative action program designed to eradi-
cate the vestiges of past discrimination. Since the special
admissions program challenged in Bakke deliberately used
racial criteria, that case did not require consideration of
whether proof of discriminatory intent is necessary to estab-
lish a violation of Title VI. The only question posed was
whether a conceded resort to race was permissible as a
1981) (en banc) (impact standard); Board of Educ. V. Califano, 584 F. 2d
576, 589 (CA2 1978) (same), aff'd on other grounds, Board of Educ. V. Har-
ris, 444 U. S. 130 (1979); Guadalupe Organization, Inc. v. Tempe Elemen-
tary School Dist. No. 3, 587 F. 2d 1022, 1029, and n. 6 (CA9 1978) (same).
81-431-DISSENT
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
3
means of eliminating the effects of past discrimination.
However, in reaching the conclusion that the consideration of
race in an affirmative action program does not violate Title
VI, we relied in part on our view that Title VI's proscription
of racial discrimination is coextensive with that of the Equal
Protection Clause. Id., at 287 (opinion of POWELL, J.); id.,
at 328 (opinion of BRENNAN, WHITE, MARSHALL, and
BLACKMUN, JJ.). Because the Equal Protection Clause has
been held to prohibit only intentional discrimination, Wash-
ington V. Davis, 426 U.S. 229, 238-248 (1976), the view we
expressed in Bakke calls into question the holding in Lau V.
Nichols that proof of discriminatory impact is sufficient to es-
tablish a violation of Title VI.2
If we were required to decide the issue presented by this
case in the absence of a persuasive administrative interpreta-
tion of the statute, I would hold, in accordance with the view
expressed in Bakke, that Title VI requires proof of discrimi-
natory intent, even though this holding would entail overrul-
ing Lau V. Nichols. But the case comes to us against the
background of administrative regulations that have uni-
formly and consistently interpreted the statute to prohibit
programs that have a discriminatory impact and that cannot
be justified on nondiscriminatory grounds. As Justice
Frankfurter once observed, the doctrine of stare decisis is
not "an imprisonment of reason." United States V. Interna-
tional Boxing Club of New York, 348 U. S. 236, 249 (1955)
(dissenting opinion). The broad view expressed in Bakke,
which was not necessary to the decision in that case, does not
foreclose consideration of whether this long-standing admin-
istrative interpretation of the statute is a reasonable one
We have not resolved the inconsistency between the two decisions in
any of our subsequent cases. See, e. g., Board of Educ. V. Harris, 444
U.S. 130, 149 (1979) ("There is thus no need here for the Court to be con-
cerned with the issue whether Title VI of the Civil Rights Act of 1964 in-
corporates the constitutional standard").
81-431-DISSENT
4
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
which should be followed by this Court.
Shortly after the enactment of Title VI, a presidential task
force produced model Title VI enforcement regulations speci-
fying that recipients of federal funds not use "criteria or
methods of administration which have the effect of subjecting
individuals to discrimination." 45 CFR § 80.3(b)(2) (1964)
(emphasis added).3 The Justice Department, which had
helped draft the language of Title VI,⁴ participated heavily in
preparing the regulations. Seven federal agencies and de-
partments carrying out the mandate of Title VI soon promul-
gated regulations that applied a disparate impact or "effects"
test. See 29 Fed. Reg. 16274-16305 (1964). As a contempo-
raneous construction of a statute by those charged with set-
ting the law in motion, these regulations deserve substantial
respect in determining the meaning of Title VI. Zenith Ra-
dio Corp. v. United States, 437 U.S. 443, 450 (1978); Power
Reactor Development Co. V. International Union of Electri-
cians, 367 U. S. 396, 408 (1961); Norwegian Nitrogen Prods.
Co. V. United States, 288 U.S. 294, 315 (1933). See also
Zuber V. Allen, 396 U. S. 168, 192 (1969) (interpretation of a
statute by administrators who participated in drafting it car-
ries "most weight"). When an administrative agency has ex-
ercised its judgment with respect to an issue that is not
clearly resolved by the language and purposes of the statute
it is statutorily mandated to enforce, this Court will accord
due consideration to the views of the agency. Indeed, in
Bakke itself, the opinion of four Justices which I co-authored
stressed that agency regulations authorizing and in some
cases requiring affirmative action programs were "entitled
'See Comment, 36 Geo. Wash. L. Rev. 824, 845-846 (1968).
Civil Rights: Hearings before Subcomm. No. 5 of the House Comm. on
the Judiciary, 88th Cong., 1st Sess. 2703 (1963) (testimony of Atty. Gen.
Kennedy).
'See Comment, 36 Geo. Wash. L. Rev., at 845-846.
'See, e. g., 34 CFR $ 100.3(b)(6) (1982) (Dept. of Education); 24 CFR
$ 1.4(b)(6) (1982) (Dept. of Housing and Urban Development); 45 CFR
81-431-DISSENT
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
5
to considerable deference in construing Title VI." 438
U.S., at 342 (BRENNAN, WHITE, MARSHALL, and BLACK-
MUN, JJ.).
Following the initial promulgation of regulations adopting
an impact standard, every Cabinet department and about
forty federal agencies adopted standards interpreting Title
VI to bar programs with a discriminatory impact. The
statute has been uniformly and consistently so construed by
the agencies responsible for its enforcement for nearly two
decades. Our cases make clear that a long-standing and con-
sistent administrative interpretation of a statute is entitled to
special weight. NLRB V. Bell Aerospace, 416 U.S. 267,
274-275 (1974); Trafficante V. Metropolitan Life Insurance
Co., 409 U.S. 205, 210 (1972); United States V. Bergh, 352
U.S. 40, 46-47 (1956).
It is also significant that this administrative interpretation
of Title VI has never been altered by Congress, despite its
awareness of the interpretation. In 1966, the House of Rep-
resentatives defeated a proposal to alter Title VI to prohibit
only intentional discrimination, and the proposal never
§ 80.3(b)(6) (1982) (Dept. of Health and Human Services); 28 CFR
§ 42.104(b)(6) (1982) (Dept. of Justice); 29 CFR $31.3(b)(6) (1982) (Dept. of
Labor). However, these regulations were not prepared contemporane-
ously with enactment of Title VI and, for that reason alone, are less
weighty than the "impact" regulations.
Regulations of the Cabinet departments are as follows. Dept. of Ag-
riculture, 7 CFR § 15.3(b)(2) (1982); Dept. of Commerce, 15 CFR § 8.4(b)(2)
(1982); Dept. of Defense, 32 CFR $300.4(b)(2) (1982); Dept. of Education,
34 CFR § 100.3(b)(2) (1982); Dept. of Energy, 10 CFR § 1040.13(c),(d)
(1982); Dept. of Health and Human Services, 45 CFR § 80.3(b)(2),(3)
(1982); Dept. of Housing and Urban Development, 24 CFR 1.4(2)(i),(3)
(1982); Dept. of the Interior, 43 CFR $ 17.3(b)(2),(3) (1982); Dept. of Jus-
tice, 28 CFR 42.104(b)(2),(3) (1982); Dept. of Labor, 29 CFR
$31.3(b)(2),(3) (1982): Dept. of State, 22 CFR § 141.3(b)(2) (1982); Dept. of
Transportation, 49 CFR § 21.5(b)(2),(3) (1982); Dept. of Treasury, 31 CFR
§ 51.52(b)(4) (1982). For a listing of the federal agencies with such stand-
ards, see CFR Index (1982).
81-431-DISSENT
6
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
emerged from committee in the Senate.8 In the Elementary
and Secondary Amendments of 1969, Congress directed that
guidelines and criteria established under Title VI dealing
with de jure and de facto school segregation be applied uni-
formly across the country regardless of the origin or cause of
such segregation. Pub. L. No. 91-230, § 2, Apr. 13, 1970, 84
Stat. 121, 42 U. S. C. § 2000d-6. Since the passage of the
1964 Act, Congress has also enacted 10 additional statutes
modeled on § 601 of Title VI, none of which define discrimina-
tion to require proof of intent.' Although caution must be
exercised when dealing with congressional inaction, we have
recognized that it is appropriate to attribute significance to
"See 112 Cong. Rec. 18715 (1966) (House vote). The identical amend-
ment was introduced by Senator Ervin and Representative Whitener, both
strong critics of the 1964 Act. The amendment would have conditioned
fund termination on a constitutional violation and would have defined "dis-
crimination" under Title VI to require a showing of "affirmative intent to
exclude." Id., at 10062; id., at 18701. Both sponsors stated that one pur-
pose of their proposals was "to negate the application of purely mechanistic
and statistical criteria in the determination of discrimination." Id., at
10061 (Sen. Ervin); id., at 18701 (Rep. Whitener). Proponents of the
measure criticized the administrative guidelines that had been issued
under the 1964 Act. E. g., id., at 18703 (Rep. Landrum). Opponents of
the measure asserted that it would constitute "a complete repealer of title
VI," ibid. (Rep. Rodino), and that it "would gut title VI of the 1964 law."
Id., at 18705 (Rep. Kastenmeier).
*See 20 U. S. C. § 1681(a) (Title IX of the Educational Amendments of
1972); 29 U. S. C. § 794 (Rehabilitation Act of 1973); 31 U. S. C. § 1242
(Revenue Sharing Act); 42 U. S. C. § 3766(c)(1) (Crime Control Act of
1973); 42 U. S. C. § 5309 (Housing & Community Development Act of
1976); 42 U.S. C. § 5672(b) (Juvenile Justice Act of 1974); 42 U.S. C.
§ 6102 (Age Discrimination Act); 42 U. S. C. § 6709 (Public Works Employ-
ment Act); 42 U.S. C. 6870(a) (Energy Conservation & Resources Re-
newal Act of 1976); 45 U. S. C. § 803 (Railroad Revitalization and Regula-
tory Reform Act). Congress directed its attention to the Title VI
regulations in enacting the Public Works Employment Act of 1976, which
provides for enforcement "through agency provisions and rules similar to
those already established, with respect to racial and other discrimination
under title VI of the Civil Rights Act of 1964." 42 U. S. C. § 6709.
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7
such inaction where an administrative interpretation "in-
volves issues of considerable public controversy," United
States V. Rutherford, 442 U. S. 544, 554 (1979), and Congress
has not acted to correct any misinterpretation of its objec-
tives despite its continuing concern with the subject matter,
ibid.
A contemporaneous and consistent construction of a stat-
ute by those charged with its enforcement combined with
congressional acquiescence "creates a presumption in favor of
the administrative interpretation, to which we should give
great weight, even if we doubted the correctness of the ruling
of the Department Costanzo V. Tillinghast, 287 U.S.
341, 345 (1932) (emphasis added). Thus, in construing stat-
utes, this Court has repeatedly sustained a reasonable admin-
istrative interpretation even if we would have reached a dif-
ferent result had the question initially arisen in a judicial
proceeding. FEC V. Democractic Senatorial Campaign
Comm., - U. S. — (1981); Red Lion Broadcasting
Co. V. FCC, 395 U. S. 367, 381 (1969); Udall V. Tallman, 380
U. S. 1, 16 (1965); Unemployment Compensation Comm'n V.
Aragon, 329 U. S. 143, 153 (1946); United States, V. Alexan-
der, 12 Wall. 177, 179-181 (1870).
While not the only reasonable construction of the statute,
the uniform administrative construction of Title VI is "far
from unreasonable." Zenith Radio Corp. V. United States,
437 U. S., at 451. The Civil Rights Act was aimed at "eradi-
cating significant areas of discrimination on a nationwide
basis." H. R. Rep. 914, 88th Cong., 1st Sess. 18 (1963).
The "[m]ost glaring" problem was "the discrimination against
Negroes which exists throughout our Nation." Ibid. Given
that Title VI was meant to remedy past discrimination
against minorities, 438 U. S., at 285 (POWELL, J.); id., at 328
(BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.), an
"effects" test is a reasonable means of effectuating this goal.
See City of Rome V. United States, 446 U.S. 156, 177 (1980)
(ban on electoral changes having a discriminatory impact is
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8
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
an appropriate method of enforcing prohibition against inten-
tional discrimination). In addition, when the agencies first
interpreted the statute in 1964, 12 years before Washington
V. Davis, supra, the Equal Protection standard could easily
have been viewed as one of discriminatory impact. See,
e. g., Arnold V. North Carolina, 376 U.S. 773 (1964) (per
curiam); Anderson V. Martin, 375 U. S. 399 (1964). 10 More-
over, given the need for an objective and administrable
standard applicable to thousands of federal grants under Title
VI, the "effects" test is far more practical than a test that fo-
cuses on the motive of the recipient, which is typically very
difficult to determine."
The legislative history of Title VI fully confirms that Con-
gress intended to delegate to the Executive Branch substan-
tial leeway in interpreting the meaning of discrimination
under Title VI. See Abernathy, Title VI and the Constitu-
tion: A Regulatory Model for Defining "Discrimination," 70
Geo. L. J. 1, 20-39 (1981). The word "discrimination" was
nowhere defined in Title VI. ² Instead, Congress authorized
executive departments and agencies to adopt regulations
with the antidiscrimination principle of § 601 of the Act "as a
general criterion to follow." Civil Rights: Hearings on H. R.
7152 Before the House Comm. on the Judiciary, 88th Cong.,
10 See also Gomillion V. Lightfoot, 364 U. S. 339 (1960); Perry, The Dis-
proportionate Impact Theory of Racial Discrimination, 125 U. Pa. L. Rev.
540, 544 (1977) ("Considerable uncertainty existed prior to Washington in
regard to whether the principal element of a constitutional claim of racial
discrimination was discriminatory purpose or simply discriminatory ef-
fect"). Of course, even in Washington V. Davis, 426 U. S. 229 (1976), the
Court made clear that evidence of discriminatory impact may be highly
probative of discriminatory intent, id., at 242.
"See Metropolitan Housing Development Corp. V. Village of Arlington
Heights, 558 F. 2d 1283, 1290 (CA7 1977), cert. denied, 434 U.S. 1025
(1978) (discussing Title VIII).
"See 110 Cong. Rec. 5612 (1964) (Sen. Ervin); id., at 1619 (Rep.
Abernethy); id., at 1632 (Rep. Dowdy); id., at 5251 (Sen. Talmadge); Id.,
at 6052 (Sen. Sparkman).
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9
1st Sess. 2740 (1963) (testimony of Attorney General Ken-
nedy). Congress willingly conceded "[g]reat powers" to the
executive branch in defining the reach of the statute. Id., at
1520 (statement of Rep. Cellar, Chairman of the House Judi-
ciary Committee).¹³ Indeed, the significance of the adminis-
trative role in the statutory scheme is underscored by the
fact that Congress required the President to approve all Title
VI regulations.14
In the face of a reasonable and contemporaneous adminis-
trative construction that has been consistently adhered to for
nearly 20 years, originally permitted and subsequently acqui-
esced in by Congress, and expressly adopted by this Court in
Lau, I would hold that Title VI bars practices that have a dis-
criminatory impact and cannot be justified on legitimate
grounds." I frankly concede that our reasoning in Bakke
was broader than it should have been. The statement that
Title VI was "absolutely coextensive" with the Equal Protec-
tion Clause, 438 U. S., at 352, was clearly superfluous to the
'See Civil Rights-the President's Program, 1963: Hearings before the
Senate Comm. on the Judiciary, 88th Cong., 1st Sess. 400 (1963) (colloquy
between Sen. Ervin and Attorney General Kennedy); Civil Rights: Hear-
ings on H. R. 7152 Before the House Comm. on the Judiciary, 88th Cong.,
1st Sess. 2765-2766 (1963) (colloquy between Rep. Mathias and Attorney
General Kennedy); id., at 1890 (remarks of Rep. Cellar); 110 Cong. Rec.
2498 (1964) (remarks of Rep. Selden); id., at 12,320 (remarks of Sen. Byrd).
"42 U.S. C. § 2000d-1. See 110 Cong. Rec. 2499 (1964) (quoting
amendment of Rep. Lindsay).
15 Proof of the disproportionate racial impact of a program or activity is,
of course, not the end of the case. Rather a prima facie showing of dis-
criminatory impact shifts the burden to the recipient of federal funds to
demonstrate a sufficient nondiscriminatory justification for the program or
activity. See Bryan V. Koch, 627 F. 2d 612, 623 (CA2 1980) (Kearse, J.,
concurring in part and dissenting in part). In this case, respondents failed
to provide an adequate justification.
I also agree with JUSTICE WHITE, ante, at 1-2 n. 2, that the adminis-
trative regulations are valid even assuming arguendo that Title VI itself
does not proscribe disparate impact discrimination.
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decision in that case. Whatever the precise relationship be-
tween Title VI and the Equal Protection Clause may be, it
would have been perverse to construe a statute designed to
ameliorate the plight of the victims of racial discrimination to
prohibit recipients of federal funds from voluntarily employ-
ing race-conscious measures to eliminate the effects of past
societal discrimination. 438 U.S., at 336-350, 353-355
(opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN,
JJ.).¹⁶
II
While agreeing that the Court of Appeals erred in requir-
ing proof of discriminatory intent, JUSTICE WHITE has ad-
dressed an alternative ground for affirming the Court of Ap-
peals judgment. He concludes that compensatory relief
should not be awarded to private Title VI plaintiffs in the ab-
sence of proof of discriminatory animus. I cannot agree.
A
It is "well settled" that where legal rights have been in-
vaded, "federal courts may use any available remedy to make
good the wrong done." Bell V. Hood, 327 U.S. 678, 684
(1946). See, e. g., Sullivan V. Little Hunting Park, 396
U.S. 229, 238-240 (1969); Steele V. Louisville & Nashville
Railroad Co., 323 U. S. 192, 207 (1944) (courts have a "duty"
to provide injunctive and damage remedies for violation of
"Although we recognized in Bakke that our reasoning cast serious
doubts on Lau, we took pains to explain that our decision was fully consist-
ent with Lau. See 438 U. S., at 353. Indeed, we noted that the exist-
ence of an impact standard "strongly supports the view that voluntary
race-conscious remedial action is permissible under Title VI." Ibid. As
we explained, "[i]f discriminatory racial impact alone is enough to demon-
strate at least a prima facie Title VI violation, it is difficult to believe that
the Title would forbid the Medical School from attempting to correct the
racially exclusionary effects of its initial admissions policy during the first
two years of the School's operation." Ibid.
81-431-DISSENT
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11
Railway Labor Act's command to represent union members
without racial discrimination); Deckert V. Independence
Shares Corp., 311 U. S. 282, 288 (1940); Texas & N. O. R.
Co. V. Railway Clerks, 281 U. S. 548, 569-570 (1930). In ac-
cord with Bell V. Hood, the Court has previously found no
merit in "the contention that such remedies are limited to
prospective relief." J.I. Case Co. V. Borak, 377 U.S. 426,
434 (1964). Cf. Schine Theatres V. United States, 334 U. S.
110, 128 (1948) (Court "start[s] from the premise" that an in-
junction against future violations of a statute is inadequate).
The use of all available judicial remedies, including compen-
satory relief, is no less appropriate to redress discrimination
in violation of Title VI. "Congress has legislated and made
its purpose clear; it has provided enough federal law
from which appropriate remedies may be fashioned even
though they rest on inferences. Otherwise we impute to
Congress a futility inconsistent with the great design of this
legislation." United States V. Republic Steel Corp., 362
U. S. 482, 492 (1960). In Title VI actions, as in other private
suits for violations of federal statutes, the federal judiciary
may employ remedies "according to reasons related to the
substantive social policy embodied in an act of positive law."
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U. S. 388, 403, n. 4 (1971) (Harlan, J., concur-
ring in judgment). See, e. g., Sullivan V. Little Hunting
Park, 396 U. S., at 239; Wyandotte Co. V. United States, 389
U. S. 191, 202 (1967); Sola Electric Co. V. Jefferson Electric
Co., 317 U. S. 173, 176 (1942); Deitrick V. Greaney, 309 U.S.
190, 200-201 (1940).
Denying private plaintiffs the right to recover compensa-
tory relief for all violations involving programs with a dis-
criminatory effect would frustrate the fundamental purpose
of Title VI. Section 601 unequivocally creates victims'
rights. But a right without an effective remedy has little
meaning. See Sullivan V. Little Park, 396 U.S., at 238.
As President Kennedy stated in his 1963 message to Con-
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GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
gress on Civil Rights, "[t]he venerable code of equity law
commands 'for every wrong, a remedy.' " Doc. 124, 88th
Cong., 1st Sess. 2 (1963). Non-compensatory relief by its
very nature cannot "remedy" an injustice that has already oc-
curred. A failure to correct adequately for individual viola-
tions depreciates the law, which was specifically intended to
deal with "the injustices and humiliations of racial and other
discrimination." H. R. Rep. No. 914, 88th Cong., 1st Sess.
18 (1963).
Indeed, the unavailability of a retrospective remedy may
often result in the deprivation of any relief whatsoever.
Many programs and activities receiving Federal financial as-
sistance, such as construction projects, are necessarily short
in duration. By the time that a private plaintiff had success-
fully brought suit challenging discrimination in such a pro-
gram, prospective relief could be a nullity. Cf., e. g., Nor-
walk CORE V. Norwalk Redevelop. Agency, 395 F. 2d 920
(CA2 1968) (urban renewal project completed by the time the
court recognized plaintiff's standing to sue).
Private retrospective relief also constitutes a "necessary
supplement" to the administrative enforcement mechanism
contained in Title VI. See J.I. Case Co. V. Borak, 377
U.S., at 432. The statutory sanction of a fund cut-off can-
not sufficiently ensure general compliance with the command
of Title VI, because the sheer quantity of Federal financial
assistance programs makes government enforcement alone
impractical" and because a fund cut-off is too Draconian to be
17 See Newman V. Piggie Park Enterprises, Inc., 390 U.S. 400, 401
(1968) ("When the Civil Rights Act of 1964 was passed, it was evident that
enforcement would prove difficult and that the Nation would have to rely in
part upon private litigation as a means of securing broad compliance with
the law"). The federal government's actual performance under Title VI
has been very inadequate. See Brown V. Weinberger, 417 F. Supp. 1215
(D DC 1976); Adams V. Weinberger, 319 F. Supp. 269 (D DC 1975); U.S.
Comm'n on Civil Rights, The State of Civil Rights: 1977 (1978); U.S.
Comm'n on Civil Rights, The State of Civil Rights: 1976 (1977); U.S.
Comm'n on Civil Rights, The Federal Civil Rights Enforcement Effort
81-431-DISSENT
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13
widely used.18 Retrospective liability for Title VI violations
complements administrative enforcement by providing a
more realistic deterrent against unlawful behavior. More-
over, the fund cut-off is no "remedy" at all for victims of past
acts of discrimination because it merely assures that other in-
nocent individuals will also be denied the benefits of Federal
assistance.¹⁹ Regardless of the alternative administrative
sanction, individual acts of discrimination still violate the law
and can be remedied only by compensatory relief. Restrict-
ing relief to prospective remedies can only encourage recipi-
ents acting in bad faith to make no effort to comply with the
statute and to stall private litigants in the knowledge that
justice delayed will be justice denied.
B
"Unless a statute in so many words, or by a necessary and
inescapable inference, restricts the court's jurisdiction in
equity, the full scope of that jurisdiction is to be recognized
and applied." Porter V. Warner Co., 328 U.S. 395, 398
(1946). See Mitchell V. DeMario Jewelry, 361 U.S. 288,
291-292 (1960). In enacting Title VI, Congress clearly did
not choose to restrict relief to prospective or non-compensa-
tory remedies.
(1970); Comptroller General, "Agencies When Providing Federal Financial
Assistance Should Ensure Compliance with Title VI" (B-197815, April 15,
1980); Wing, Title VI and Health Facilities: Forms Without Substance, 30
Hasting L. J. 137 (1978); Note, 65 Cornell L. Rev. 689, 692-695 (1980);
Note, 85 Yale L. J. 721, 727-728 (1978); Comment, 36 Geo. Wash. L. Rev.
824 (1968).
"See, e. g., Lamber, Private Causes of Action Under Federal Agency
Nondiscrimination Statutes, 10 Conn. L. Rev. 859, 888, and n. 150 (1978)
(because of "extreme and harsh" nature of the sanction, HEW had termi-
nated funding for only three educational institutions in 14 years).
19 Congress itself noted that a cutoff was only to be a last resort after
other devices, including lawsuits, failed. See, e. g., 110 Cong. Rec. 7067
(1964) (Sen. Ribicoff); id., at 5090, 6544 (Sen. Humphrey); id., at 7103 (Sen.
Javits).
20 By contrast, in Transmerica Mortgage Advisors, Inc. V. Lewis, 444
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When Congress has intended to place restrictions on pri-
vate rights of action in the Civil Rights Act of 1964, it has
proved capable of saying so explicitly. For example, Title II
provides that a court may defer action on a private suit by
referring the case to the Community Relations Services. 42
U. S. C. § 2000a-3(d). Similarly, Title VII conditions a pri-
vate action on the plaintiff's having first brought a claim be-
fore the Equal Employment Opportunity Commission. Id.
§ 2000e et seq. But nothing in Title VI or in its history sup-
ports a restriction on a federal court's ability to remedy a
statutory violation.
C
JUSTICE WHITE attempts to justify the departure from
well-established remedial principles by relying in large part
on Pennhurst State School V. Halderman, 451 U. S. 1 (1981).
See ante, at 9-12, 14. Pennhurst involved the Developmen-
tally Disabled Assistance and Bill of Rights Act, 42 U.S. C.
§ 6000 et seq., a grant program through which the federal
government provides funding to the states. The Court fo-
cused on § 6010 of the Act, which states various rights of per-
sons with developmental disabilities. "Noticeably absent"
from the provision was "any language suggesting that § 6010
is a 'condition' for the receipt of federal funding." 451 U. S.,
at 13. This omission stood in stark contrast to other sections
of the Act. Because receipt of federal funds was not condi-
tioned on compliance with § 6010, the Court held that § 6010
imposed no enforceable rights or obligations. The Court
analogized spending power legislation to a contract, stating
U. S. 11 (1979), see ante, at 13, the Investment Advisors Act had created
an explicit remedy in one section, which precluded the implicit creation of a
damage remedy. Title VI, by contrast, contains no explicit private rem-
edy and the administrative remedy is clearly not exclusive. Similarly, in
Cannon V. University of Chicago, 441 U. S. 677, 705-706 (1979), this Court
rejected the notion that an administrative mechanism was the exclusive
remedy under Title IX of the Education Amendments of 1972.
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15
that "if Congress intends to impose a condition on the grant
of federal moneys, it must do so unambiguously." Id., at
17.21
In contrast to the statutory provision in Pennhurst, Title
VI of the Civil Rights Act unambiguously imposes a condition
on the grant of federal moneys. Section 601 of Title VI
states that "[n]o person shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits, or be subjected to discrimination under
any program or activity receiving Federal financial assist-
ance." 42 U. S. C. 2000d. Recipients of Federal financial
assistance are automatically subject to the nondiscrimination
obligation imposed by the statute.
The statutory mandate can hardly escape notice. Every
application for Federal financial assistance must, "as a condi-
tion to its approval and the extension of any Federal financial
assistance," contain assurances that the program will comply
with Title VI and with all requirements imposed pursuant to
the executive regulations issued under Title VI.2 In fact,
21 Only in dicta did the Court also discuss the question of the appropriate
remedy for violation of conditions contained in an act. Id., at 29. Be-
cause the Court of Appeals had not even addressed the issue, this Court
did not purport to resolve the remedial question but merely remanded the
matter for further consideration. Id., at 30. Similarly, in Rosado V.
Wyman, 397 U.S. 397 (1970), the Court never addressed the propriety of
retrospective relief because the plaintiffs had requested only declaratory
and injunctive relief against enforcement of a state law. See id., at 421.
JUSTICE WHITE finds solace in Rosado, see ante, at 14, even though that
decision emphasized the authority of a federal court to oversee use of fed-
eral funds in a private suit even though Congress had lodged in an execu-
tive department the power to cut off federal funds for noncompliance with
statutory requirements. 397 U. S., at 420.
= See 7 CFR § 15.4 (1982) (Dept. of Agriculture); 15 CFR § 8.5 (1982)
(Dept. of Commerce); 32 CFR § 300.6 (1982) (Dept. of Defense); 34 CFR
§ 100.4 (1982) (Dept. of Education); 10 CFR § 1040.4 (1982) (Dept. of En-
ergy); 45 CFR § 80.4 (1982) (Dept. of Health and Human Services); 24 CFR
§ 1.5 (1982) (Dept. of Housing and Urban Development) (1982); 43 CFR
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GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
applicants for federal assistance literally sign contracts in
which they agree to comply with Title VI and to "immedi-
ately take any measures necessary" to do so. This assurance
is given "in consideration of" federal aid, and the federal gov-
ernment extends assistance "in reliance on" the assurance of
compliance. See 3 R. Cappalli, Federal Grants § 19:20, at
57, and n. 12 (1982) (written assurances are merely a formal-
ity because the statutory mandate applies and is enforceable
apart from the text of any agreement).
The obligation to comply with § 601 does not place upon a
recipient unanticipated burdens because any recipient must
anticipate having to comply with the law. Certainly no ap-
plicant has a legitimate expectation that he can evade the
statutory obligation and the expense that compliance may en-
tail. Indeed, in extending grants the United States has al-
ways retained an inherent right to sue for enforcement of the
recipient's obligation. All traditional judicial remedies can
be applied in such situations. This right to sue is equally
applicable to Title VI. See 42 U. S. C. § 2000h-3. For ex-
§ 17.4 (1982) (Dept. of Interior); 28 CFR § 42.105 (1982) (Dept. of Justice);
29 CFR § 31.6 (1982) (Dept. of Labor); 22 CFR § 141.4 (1982) (Dept. of
State); 49 CFR § 21.7 (1982) (Dept. of Transportation); 31 CFR § 51.59
(1982) (Dept. of Treasury).
"See, e. g., Assurance of Compliance with the Department of Health,
Education, and Welfare Regulation under Title VI of the Civil Rights Act
of 1964, reprinted in 3 R. Cappalli, Federal Grants at App. 19-G (1982).
"E. g., Rex Trailer Co. V. United States, 350 U. S. 148, 151 (1956);
United States V. San Francisco, 310 U. S. 16, 31 (1940); Cotton V. United
States, 11 How. 229, 231 (1850); Dugan v. United States, 3 Wheat. 172, 181
(1818). As this Court once said with respect to a grant of lands by the
federal government to a state:
"It is not doubted that the grant by the United States to the State upon
conditions, and the acceptance of the grant by the State, constituted a con-
tract. All the elements of a contract met in the transaction-competent
parties, proper subject-matter, sufficient consideration, and consent of
minds. This contract was binding upon the State."
McGee V. Mathis, 4 Wall. 143, 155 (1866).
25 See, e. g., Rex Trailer Co. V. United States, 350 U. S., at 151; United
81-431-DISSENT
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17
ample, in United States V. Marion County School Dist., 625
F. 2d 607 (CA5 1980), the court concluded "that the United
States is entitled to sue to enforce contractual assurances of
compliance with Title VI's prohibition against discrimination
in the operation of federally-funded schools, and that the
United States is entitled to whatever relief is necessary to
enforce such assurances, including 'transportation relief."
Id., at 617.26
When respondents requested, received, and expended fed-
eral funds to pay the salaries of policemen and trainees and to
finance recruitment programs, 466 F. Supp. 1287, 1281, their
States V. Stevenson, 215 U. S. 190, 197 (1909); Cotton V. United States, 11
How., at 231; Dugan V. United States, 3 Wheat., at 181.
"Accord, e. g.: Brown V. Califano, 627 F. 2d 1221, 1232 (CADC 1980);
United States V. Tatum Independent School Dist., 306 F. Supp. 285, 288
(ED Tex 1969); United States V. Frazer, 297 F. Supp. 319 (MD Ala. 1968),
317 F. Supp. 1079 (MD Ala. 1970) (broad remedial order); United States V.
Board of Education, 295 F. Supp. 1041 (SD Ga. 1969). See also, e. g.,
United States V. Harrison County, Miss., 399 F. 2d 485 (CA5 1968), cert.
denied, 397 U. S. 918 (1970); United States V. County School Bd., 221 F.
Supp. 93 (ED Va. 1963). The Civil Rights Act of 1964 itself provides for
compliance by any other lawful means and for suits by the government.
§ 602, 42 U. S. C. § 2000d-1; § 1103, 42 U. S. C. § 2000h-3. See 110 Cong.
Rec. 7060 (1964) (Sen. Pastore) (agency may sue to enforce contractual
nondiscrimination requirement); id., at 7060 (Sen. Ribicoff) (calling such a
suit "the most effective way for an agency to proceed"). Shortly after the
Act was passed, agencies charged with its execution confirmed the avail-
ability of governmental suits to enforce Title VI. E. g., 29 Fed. Reg.
16,301 (1964) (HEW). See 31 Fed. Reg. 5292 (1966) (Department of Jus-
tice Guidelines for Enforcement of Title VI) ("Possibilities of judicial en-
forcement include (1) a suit to obtain specific performance of assurances.
"). Indeed, even before enactment of the Civil Rights Act of 1964, the
President had asserted authority to impose nondiscrimination obligations
on the extension of certain forms of federal financial assistance. See 26
Fed. Reg. 1977 (1961) (Executive Order 10925); 28 Fed. Reg. 6485 (1963)
(Executive Order 11114). Title VI resolved any questions about the Pres-
ident's authority to enforce such obligations since it was undisputed that
Congress had the constitutional power to attach reasonable conditions
under the Spending Clause. See 3 R. Cappalli, supra, $ 19:14, at 38.
81-431-DISSENT
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GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
duty not to discriminate was manifest. The obligation to
comply with the law attached at the time respondents agreed
to take federal money, not when the District Court concluded
that respondents had violated the law. Thus, the District
Court properly provided a remedy for past failure to carry
out the statutory obligation. The relief fashioned by the
District Court requires respondents to remedy their failure
to shoulder the burden that existed from the moment they re-
ceived federal funding.
The analogy drawn in Pennhurst between the acceptance
of funds under spending legislation and the formation of a
contract only reinforces the propriety of awarding retrospec-
tive relief. Having benefitted from federal financial assist-
ance conditioned on an obligation not to discriminate, recipi-
ents of federal aid must be held to their part of the bargain.
Yet, JUSTICE WHITE would allow recipients to violate the
conditions of their contracts until a court identifies the viola-
tion and either enjoins its continuance or orders the recipient
to begin performing its duties incident to the receipt of fed-
eral money. See ante, at 20. This is surely a bizarre view
of contract law.
Only by providing retrospective relief to private litigants
can the courts fulfill the terms of the "contract" between the
federal government and recipients of federal financial assist-
ance. In exchange for federal moneys, recipients have
promised not to discriminate. Because Title VI is intended
to ensure that "no person" is subject to discrimination in fed-
"JUSTICE WHITE notes that the Federal Government can sue recipients
who fail to comply with grant agreements and force the violators to repay
funds. See ante, at 21 n. 24. But this merely demonstrates that recipi-
ents do not have any legitimate expectations that only limited injunctive
relief is available as a remedy for violations of the statute. Moreover, the
grant agreements under Title VI specifically mention compliance with the
executive regulations, which unambiguously incorporate an effects
standard.
81-431-DISSENT
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
19
erally assisted programs, private parties function as third-
party beneficiaries to these contracts. Lau V. Nichols, 414
U. S., 563, 571, n. 2 (1974) (Stewart, J., concurring in result).
See Restatement (Second) of Contracts § 304 (1981). When
a court concludes that a recipient has breached its contract, it
should enforce the broken promise by protecting the expecta-
tion that the recipient would not discriminate. See id. § 344,
Comment a. The obvious way to do this is to put private
parties in as good a position as they would have been had the
contract been performed. This requires precisely the kind of
make whole remedy that JUSTICE WHITE rejects, see ante,
at 20-21, despite his accurate characterization of Title VI as a
"contractual" spending power provision," id., at 17.28
"JUSTICE WHITE'S approach is also fraught with the serious difficulties
inherent in attempting to classify relief as either retrospective or prospec-
tive. For example, Judge Meskill thought that the order that a new ser-
geant's examination be given was prospective and non-compensatory, 633
F. 2d, at 255-256, n. 43, but JUSTICE WHITE adopts the contrary position,
ante, at 23-24. Judge Coffrin thought that constructive seniority was
noncompensatory. "This court should not view such a remedy as retro-
spective compensation for past harm simply because the judicial process
takes time." 633 F. 2d, at 274, n. 2 (concurring). JUSTICE WHITE obvi-
ously disagrees, ante, at 24.
JUSTICE WHITE rests his analysis on Edelman V. Jordan, 415 U. S. 651,
667 (1974), see ante, at 22. But Eleventh Amendment considerations have
absolutely no relevance to this case because respondents are not state but
rather municipal entities. See Mt. Healthy City School Dist. Bd. of Educ.
V. Doyle, 429 U. S. 274, 280 (1977) (1977) (local governments have no im-
munity against retroactive liability). Even accepting the relevance of
Edelman, the resulting characterizations of the relief in this case are ques-
tionable. For instance, the order placing the police officers who were vic-
tims of discrimination in the position on the seniority roster that they
would have occupied but for the discriminatory examinations certainly al-
ters their employment status for the future. Just because a program is
also "compensatory" in nature is clearly not controlling under the Eleventh
Amendment. In considering compensatory and remedial educational pro-
grams in Milliken V. Bradley, 433 U.S. 267 (1977), we stated:
"That the programs are also 'compensatory' in nature does not change the
81-431-DISSENT
20
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
D
For the foregoing reasons, I would hold that a court has
broad discretion to remedy violations of Title VI in actions
brought by private parties. Of course, in determining ap-
propriate relief, a court must exercise its discretion equita-
bly. This requires consideration of a myriad of factors in-
cluding the potential for unreasonable hardship to the party
in breach, the extent of mitigation, and the like. The details
of the relief would normally be best left to the sound judg-
ment of the District Court. As the District Court noted,
remedies adopted in Title VII suits provide a useful guide-
post. 466 F. Supp., at 1287; see also Ass'n Against Dis-
crimination V. City of Bridgeport, 479 F. Supp. 101, 112 (D
Conn. 1979). In my view, the relief ordered by the District
Court in this case was entirely appropriate.
III
Because the relief petitioners received was available to
them under Title VI, and because that relief was justified
without proof of discriminatory intent, I would reverse the
judgment of the Court of Appeals. Accordingly, I dissent.
fact that they are part of a plan that operates prospectively to bring about
the delayed benefits of a unitary school system. We therefore hold that
such prospective relief is not barred by the Eleventh Amendment."
Id., at 290 (emphasis in original) (footnote omitted).
Finally, even if the Eleventh Amendment applied, the relief would not
necessarily be inappropriate. In Parden V. Terminal R. Co., 377 U.S.
184 (1964), we held that by choosing to operate a railroad, Alabama became
subject to duties imposed by the Federal Employers' Liability Act, and
could be held liable in an action for damages for violations of these duties.
A similar analysis could be applied with respect to the receipt of federal
funds.
EYE.COPY
SUPREME COURT OF THE UNITED STATES
No. 81-431
GUARDIANS ASSOCIATION, ETC., ET AL., PETITION-
ERS v. CIVIL SERVICE COMMISSION OF THE
CITY OF NEW YORK ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 1, 1983]
JUSTICE STEVENS, with whom JUSTICE BRENNAN and
JUSTICE BLACKMUN join, dissenting.
It is not an easy task to harmonize the Court's cases under
Title VI of the Civil Rights Act of 1964 (Title VI), 78 Stat.
252, 42 U. S. C. § 2000d et seq. Unless the Court is to re-
pudiate what it has already written, however, I believe the
judgment of the Court of Appeals must be reversed. I reach
this conclusion by answering three separate questions: (1)
whether federal law authorizes private individuals to recover
damages for injuries caused by violations of Title VI and the
regulations promulgated thereunder; (2) if so, whether Title
VI requires recipients of federal funds to do any more than
refrain from engaging in conduct that would, if performed by
a state, violate the Fourteenth Amendment; and (3) if not,
whether an administrative agency may validly impose addi-
tional requirements on recipients of funds from that agency.
I shall discuss each question in turn.
I
In the last five years at least eight Members of this Court
have endorsed the view that Title VI, as well as the compara-
ble provisions of Title IX of the Education Amendments of
1972, may be enforced in a private action against recipients of
81-431-DISSENT
2
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
federal funds, such as the respondent in this case.¹ This
Court has authorized relief in at least four such cases. Lau
V. Nichols, 414 U.S. 563 (1974); Hills V. Gautreaux, 425
U.S. 284 (1976); Regents of the University of California V.
Bakke, 438 U.S. 265 (1978); Cannon V. University of Chi-
cago, 441 U. S. 677 (1979).
JUSTICE WHITE suggests that some plaintiffs who prevail
in suits under Title VI are entitled only to a limited form of
prospective relief.2 That suggestion is somewhat surpris-
ing, since no Member of the Court in Lau, Bakke, or Cannon
mentioned such a limitation on remedies. Presumably, it
rests on a belief that Congress, in enacting Title VI, intended
to distinguish between prospective and retroactive relief.
Yet it seems to me most improbable that Congress contem-
plated so significant and unusual a limitation on the forms of
relief available to a victim of racial discrimination, but said
absolutely nothing about it in the text of the statute. It is
one thing to conclude, as the Court did in Cannon, that the
1964 Congress, legislating when implied causes of action
were the rule rather than the exception, reasonably assumed
that the intended beneficiaries of Title VI would be able to
vindicate their rights in court. It is quite another thing to
believe that the 1964 Congress substantially qualified that as-
sumption but thought it unnecessary to tell the Judiciary
about the qualification.
'Six Members of the Court-CHIEF JUSTICE BURGER, JUSTICE BREN-
NAN, Justice Stewart, JUSTICE MARSHALL, JUSTICE REHNQUIST, and JUS-
TICE STEVENS-endorsed the view that a private right of action exists di-
rectly under Title VI and Title IX. Cannon V. University of Chicago, 441
U.S. 677 (1977); Regents of the University of California V. Bakke, 438
U. S. 265, 418-421 (1978) (STEVENS, J., dissenting). Two Members of the
Court-JUSTICE WHITE and JUSTICE BLACKMUN-endorsed the view that
private individuals may enforce Title VI and Title IX against appropriate
defendants under 42 U.S. C. § 1983. Cannon, supra, at 722-724 (WHITE,
J., dissenting).
He limits his analysis to situations where no discriminatory intent is
shown. Ante, at 15.
81-431-DISSENT
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
3
In reaching his novel conclusion about the scope of avail-
able relief under Title VI, JUSTICE WHITE relies heavily on
the proposition that Pennhurst State School V. Halderman,
451 U. S. 1 (1981), establishes a "presumption that only lim-
ited injunctive relief should be granted as a remedy for viola-
tions of statutes passed pursuant to the spending power."
Ante, at 20. That characterization seriously distorts the
opinion of the Court in Pennhurst, which concerned the ex-
istence or nonexistence of statutory rights, not remedies.³
We held that Congress will not be presumed to have created
substantive legal obligations under the Spending Power by
legislation so ambiguous that "a State is unaware of the con-
ditions or is unable to ascertain what is expected of it." Id.,
at 17.4 In dictum,5 we went on to speculate that an injunc-
tion requiring a State to provide "appropriate" treatment in
'We framed our opinion as follows:
"Petitioners first contend that 42 U. S. C. § 6010 does not create in favor of
the mentally retarded any substantive rights to 'appropriate treatment' in
the 'least restrictive' environment. Assuming that Congress did intend to
create such a right, petitioners question the authority of Congress to im-
pose these affirmative obligations on the States under either its spending
power or § 5 of the Fourteenth Amendment. Petitioners next assert that
any rights created by the Act are enforceable in federal court only by the
Federal Government, not by private parties. Finally, petitioners argue
that the court below read the scope of any rights created by the Act too
broadly and far exceeded its remedial powers in requiring the Common-
wealth to move its residents to less restrictive environments and create in-
dividual habilitation plans for the mentally retarded. Because we agree
with petitioners' first contention-that § 6010 simply does not create sub-
stantive rights-we find it unnecessary to address the remaining issues."
451 U.S., at 10-11 (emphasis added).
'Obviously, there can be no argument that the respondent in this case
was unaware of its obligations. Both the statute and the regulations
clearly prohibit racial discrimination, and they did so at the time the re-
spondent accepted the federal money.
'After the sentence fragment quoted ante, at 10-11, the Court con-
cluded, "These are all difficult questions. Because the Court of Appeals
has not addressed these issues, however, we remand the issues for consid-
eration in light of our decision here." Id., at 30.
81-431-DISSENT
4
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
the 'least restrictive' environment" might be improper, not-
ing that the Eleventh Amendment prohibits federal courts
from requiring states to pay money damages. Id., at 29-30.
Without explaining why, JUSTICE WHITE divines a general
principle of statutory interpretation from this discussion of
the Eleventh Amendment. The Eleventh Amendment obvi-
ously has no relevance in most Title VI litigation; it certainly
is not implicated in this suit against the City of New York. I
cannot fathom the supposition that Congress regularly analo-
gizes to the Eleventh Amendment when it drafts Spending
Power legislation. There is certainly nothing in the text or
the legislative history of Title VI to suggest that the 1964
Congress did so.
Even if it were not settled by now that Title VI authorizes
appropriate relief, both prospective and retroactive, to vic-
tims of racial discrimination at the hands of recipients of fed-
eral funds, the same result would follow in this case because
the petitioners have sought relief under 42 U. S. C. § 1983.
While Title VI applies to all recipients of federal funds, § 1983
governs a different class of persons: those who act "under
color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory." Our past decisions establish that
the respondent in this case, the Civil Service Commission of
the City of New York, is bound by § 1983 as well as by Title
VI. Monell V. Department of Social Services, 436 U. S. 658
(1978). Our past decisions also establish that § 1983 provides
a damages remedy. Ibid. And finally, it is clear that the
§ 1983 remedy is intended to redress the deprivation of rights
secured by all valid federal laws, including statutes and regu-
lations having the force of law. See Maine V. Thiboutot,
448 U. S. 1 (1980).6 See also Cannon, supra, at 722-724
(WHITE, J., dissenting); ante, at 8.
The policy arguments JUSTICE WHITE advances in support
"Thiboutot itself involved only federal statutes, not regulations. Its
analysis of § 1983, however, applies equally to administrative regulations
having the force of law. See Chrysler Corp. V. Brown, 441 U.S. 281,
81-431-DISSENT
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
5
of his position may be perfectly sound. There may well be
situations in which one would fear that strict retroactive en-
forcement of a federal grant condition would discourage grant
applications that are a high federal priority.⁷ These are,
however, arguments that should be addressed to Congress
rather than to a court, cf. Cannon, supra, at 709-710, since
Congress has already implicitly authorized the Federal Judi-
ciary to award appropriate relief to private parties injured by
violations of Title VI. Whether these petitioners are within
that special class is, of course, another question to which I
now turn.
II
In Regents of the University of California V. Bakke, 438
U. S. 265, 412-418 (1978), four Justices expressed the opinion
that Title VI's prohibition against racial discrimination is sig-
nificantly broader than the protection provided by the Equal
Protection Clause of the Fourteenth Amendment. That po-
sition was a dissenting one, however; five Members of the
Court unequivocally rejected it.
In his opinion announcing the judgment of the Court, JUS-
TICE POWELL reviewed the legislative history of Title VI and
concluded:
"In view of the clear legislative intent, Title VI must
be held to proscribe only those racial classifications that
would violate the Equal Protection Clause or the Fifth
Amendment." 438 U.S., at 287.
JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE MARSHALL,
301-303 (1979) (discussing what types of administrative regulations have
"the force and effect of law").
'I must point out, however, that the record in this case gives no basis
for thinking that the cost of an appropriate award of damages to the peti-
tioners would exceed the total amount of respondent's federal subsidy.
And, as a general proposition, it is usually assumed that a cutoff of federal
funds would be significantly more drastic than an individualized remedy for
the victim of a Title VI violation. See Cannon, supra, at 705, and n. 38.
81-431-DISSENT
6
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
and JUSTICE BLACKMUN reached the same conclusion. They
wrote:
"In our view, Title VI prohibits only those uses of ra-
cial criteria that would violate the Fourteenth Amend-
ment if employed by a State or its agencies. Id.,
at 328.8
Later in their opinion, they summarized the reasoning that
led them to that conclusion:
"Congress' equating of Title VI's prohibition with the
commands of the Fifth and Fourteenth Amendments, its
refusal precisely to define that racial discrimination
which it intended to prohibit, and its expectation that
the statute would be administered in a flexible manner,
compel the conclusion that Congress intended the mean-
ing of the statute's prohibition to evolve with the inter-
pretation of the commands of the Constitution." Id., at
340.9
The interpretation of Title VI adopted by a majority in
Bakke was confirmed in two subsequent opinions of the
Court. In Steelworkers V. Weber, 443 U.S. 193, 206, n. 6
(1979), the Court distinguished Title VII from Title VI on the
basis that the former provision "was not intended to incorpo-
rate and particularize the commands of the Fifth and Four-
teenth Amendments." And in Board of Education, New
'Accord, id., at 332, 333, 334, n. 11, 336, 338. Towards the end of their
opinion, JUSTICES BRENNAN, WHITE, MARSHALL, and BLACKMUN ex-
pressly considered and rejected the argument that the Court's earlier deci-
sion in Lau V. Nichols, 414 U. S. 563 (1974), foreclosed their reading of
Title VI. See 438 U. S., at 352-353.
Of course, in Washington v. Davis, 426 U. S. 229 (1976), the Court held
that the Fourteenth Amendment is violated only by purposeful state racial
discrimination.
The Court explained:
"Title VI of the Civil Rights Act of 1964, considered in University of
California Regents V. Bakke, 438 U. S. 265 (1978), contains no provision
81-431-DISSENT
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
7
York City V. Harris, 444 U. S. 130 (1979), the Court first
concluded that the 1972 Emergency School Aid Act (ESAA),
86 Stat. 354, contemplates funding cutoffs in response to
forms of discrimination that are not "discrimination in the
Fourteenth Amendment sense." Id., at 149. The Court
then went on, in considered dictum, to distinguish the ESAA
from Title VI:
"A violation of Title VI may result in a cutoff of all fed-
eral funds, and it is likely that Congress would wish this
drastic result only when discrimination is intentional.
In contrast, only ESAA funds are rendered unavailable
when an ESAA violation is found." Id., at 150."
The question to be decided today is not whether the Court
has misread the actual intent of the Congress that enacted
the Civil Rights Act of 1964. For when the Court unequivo-
cally rejects one reading of a statute, its action should be re-
spected in future litigation. Compare United States V.
Board of Commissioners of Sheffield, Ala., 435 U.S. 110,
140-150 (1978) (STEVENS, J., dissenting), with Dougherty
County Board of Education V. White, 439 U. S. 32, 47 (1978)
((STEVENS, J., concurring) and City of Rome V. United
comparable to § 703(j) [of Title VII]. This is because Title VI was an exer-
cise of federal power over a matter in which the Federal Government was
already directly involved: the prohibitions against race-based conduct con-
tained in Title VI governed 'program[s] or activit[ies] receiving Federal fi-
nancial assistance.' 42 U. S. C. § 2000d. Congress was legislating to as-
sure federal funds would not be used in an improper manner. Title VII,
by contrast, was enacted pursuant to the commerce power to regulate
purely private decisionmaking and was not intended to incorporate and
particularize the commands of the Fifth and Fourteenth Amendments.
Title VII and Title VI, therefore, cannot be read in pari materia." 443
U.S., at 206, n. 6.
11 In his dissenting opinion, Justice Stewart, joined by JUSTICES POWELL
and REHNQUIST, also noted that Title VI "has been construed to contain
not a mere disparate impact standard, but a standard of intentional dis-
crimination." 444 U. S., at 159-160.
81-431-DISSENT
8
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
States, 446 U. S. 156, 191 (1980) ((STEVENS, J., concurring).
See also Runyon V. McCrary, 427 U.S. 160, 189-192 (1976)
((STEVENS, J., concurring). If a statute is to be amended
after it has been authoritatively construed by this Court, that
task should almost always be performed by Congress."
Title VI must therefore mean what this Court has said
it means, regardless of what some of us may have thought
it meant before this Court spoke. Today, proof of invid-
ious purpose is a necessary component of a valid Title VI
claim.
III
The respondent in this case sought, received, and ex-
pended federal grants to pay the salaries of policemen and to
finance its recruitment programs. In order to obtain funds
from the Department of Labor, the Department of Justice,
and the Department of Housing and Urban Development, see
App. to Pet. for Cert. A123, it was required to promise not
only that it would comply with Title VI, but also that it would
abide by departmental regulations implementing that stat-
ute.¹³ Ever since 1964, all three Departments have had vir-
"Like most, this proposition of law is not wholly without exceptions.
Congress phrased some older statutes in sweeping, general terms, expect-
ing the federal courts to interpret them by developing legal rules on a case-
by-case basis in the common law tradition. One clear example of such a
statute is the Sherman Act, 26 Stat. 209. See National Society of Profes-
sional Engineers V. United States, 435 U. S. 679, 687-688 (1978); Associ-
ated General Contractors of California, Inc. V. California State Council of
Carpenters, / U.S. - (1983). For that reason, in Continental
T.V., Inc. V. GTE Sylvania, 433 U.S. 36 (1977), the doctrine of stare deci-
sis did not preclude the Court from overruling its prior decision in United
States V. Arnold, Schwinn & Co., 388 U.S. 365 (1967), even though Con-
gress had not acted during the intervening decade. Cf. Monnell V. De-
partment of Social Services, 436 U. S. 658, 695-701 (1978) (overruling an
erroneous interpretation of § 1983 in Monroe V. Pape, 365 U. S. 167 (1961),
despite the absence of congressional action). Title VI is different from
those statutes, because Congress expected most interstitial lawmaking to
be performed by administrative agencies, not courts.
"One standard application form requires the following certification:
81-431-DISSENT
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y.C.
9
tually identical implementing regulations. Significantly,
those regulations do more than merely prohibit grant recipi-
ents from administering the funds with a discriminatory pur-
pose; they require recipients to administer the grants in a
manner that has no racially discriminatory effects."
This Court has repeatedly upheld the validity of those
regulations and their "effects" standard. Lau V. Nichols,
414 U.S., at 568; id., at 571 (Stewart, J., concurring);
Fullilove V. Klutznick, 448 U. S. 448, 479 (1980) (Opinion of
BURGER, C. J.). The reason is that Title VI explicitly au-
thorizes "[e]ach Federal department and agency which is em-
powered to extend Federal financial assistance
to effec-
tuate the provisions of section 601
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
78 Stat. 252, 42
U. S. C. § 2000d-1. Nothing in the regulations is inconsis-
tent with any of the statutes authorizing the disbursement of
the grants that the respondent received."
"The grantee hereby assures and certifies that it will comply with the regu-
lations, policies, guidelines and requirements with respect to the accept-
ance and use of Federal funds for this federally-assisted program. Also,
the grantee gives assurances and certifies with respect to the grant that:
(6) The grant will be conducted and administered in compliance with:
(a) Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352) and imple-
menting regulations
Form HUD 4124 (emphasis added).
"For example, the regulations provide:
"A recipient, in determining the
benefits
which will be provided
under any such program,
may not, directly or through contractual or
other arrangements, utilize criteria which
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." 24
CFR $ 1.4(b)(2) (1982); 28 CFR § 42.104(b)(2) (1982); 29 CFR § 31.3(b)(2)
(1982).
15 Indeed, even in the absence of Title VI, one would expect the adminis-
trative agencies to distribute the grants in a way that will benefit all seg-
ments of the communities they seek to serve.
81-431-DISSENT
10
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
It is well settled that when Congress explicitly authorizes
an administrative agency to promulgate regulations imple-
menting a federal statute that governs completely private
conduct, those regulations have the force of law so long as
they are "reasonably related to the purposes of the enabling
legislation." Mourning V. Family Publications Service,
Inc., 411 U. S. 356, 369 (1973). See also Chrysler Corp. V.
Brown, 441 U. S. 281, 301-306 (1979); Batterton V. Francis,
432 U. S. 416, 425, n. 9 (1977). See generally K. Davis, Ad-
ministrative Law Treatise § 7.8 (2d ed. 1980 and Supp. 1982).
The presumption of validity must be at least as strong when a
regulation does not seek to control the conduct of independ-
ent private parties, but merely defines the terms on which
someone may seek federal money. By prohibiting grant re-
cipients from adopting procedures that deny program bene-
fits to members of any racial group, the administrative agen-
cies have acted in a reasonable manner to further the
purposes of Title VI.¹⁶
The reasonableness of the agencies' method of implementa-
tion is apparent from the Court's opinion in City of Rome V.
United States, 446 U. S. 156, 173-178 (1980), which held that
even if § of the Fifteenth Amendment only prohibits pur-
poseful racial discrimination in voting, Congress may imple-
ment that prohibition by banning voting practices that are
discriminatory in effect. At the dawn of this century, this
Court unanimously held that an administrative regulation's
conformity to statutory authority was to be measured by the
same standard as a statute's conformity to constitutional au-
thority. In Boske V. Comingore, 177 U.S. 459, 470 (1900),
we wrote:
"Those purposes are evident from the statutory language:
"No person in the United States shall, on the ground of race, color, or na-
tional origin, be excluded from participation in [or] be denied the benefits
of any program or activity receiving Federal financial assistance." 78
Stat. 252, 42 U. S. C. 2000d.
81-431-DISSENT
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
11
"In determining whether the regulations promulgated
by [the Secretary of the Treasury] are consistent with
law, we must apply the rule of decision which controls
when an act of Congress is assailed as not being withn
the powers conferred upon it by the Constitution; that is
to say, a regulation adopted under section 161 of the Re-
vised Statutes should not be disregarded or annulled un-
less, in the judgment of the court, it is plainly and palpa-
bly inconsistent with law. Those who insist that such a
regulation is invalid must make its invalidity so manifest
that the court has no choice except to hold that the Sec-
retary has exceeded his authority and employed means
that are not at all appropriate to the end specified in the
act of Congress."
Since an "effects" standard is an appropriate means for Con-
gress to implement a Constitutional prohibition against dis-
crimination, an "effects" regulation is an equally appropriate
means for an administrative agency to implement a compara-
ble statutory prohibition."
Thus, although the petitioners had to prove that the re-
spondents' actions were motivated by an invidious intent in
order to prove a violation of the statute, they only had to
show that the respondents' actions were producing discrimi-
natory effects in order to prove a violation of valid federal
law.
17 Earlier in the Boske opinion the Court had noted that there was "cer-
tainly no statute which expressly or by necessary implication forbade the
adoption of such a regulation." 177 U. S., at 469. The same may be said
of the regulations at issue in this case. For although the Court has deter-
mined that Title VI does not compel the application of an effects standard,
see supra, at 5-8, I do not believe that Congress should be understood to
have prohibited regulations adopting such a standard, especially given the
passages from the legislative history of Title VI identified in Bakke, 438
U.S., at 413-418, nn. 11, 13, 15, 16, 19, 23 (STEVENS, J., dissenting), and
Congress's acquiescence in those regulations since 1964.
81-431-DISSENT
12
GUARDIANS ASSN. v. CIVIL SERV. COMM'N N. Y. C.
IV
The District Court found that the respondent in this case
was making entry-level appointments to the police depart-
ment in a manner that had a discriminatory impact on blacks
and Hispanics. That conduct violated the petitioners' rights
under regulations promulgated by the Department of Labor,
the Department of Justice, and the Department of Housing
and Urban Development. The petitioners were therefore
entitled to the compensation they sought under 42 U.S. C.
§ 1983 and were awarded by the District Court.18 I would re-
verse the judgment of the Court of Appeals.
18 Because respondents acted under color of state law in making appoint-
ments, § 1983 authorizes a lawsuit against them, based on their violation of
the governing administrative regulations. This does not mean, as JUS-
TICE POWELL suggests, ante, at 1-2, n. 1, that a similar action would be
unavailable against a similarly situated private party. Whether a cause of
action against private parties exists directly under the regulations and, if
so, what the standard of liability in such an action would be, are questions
that are not presented by this case.