Lawyering that has no name: Title VI and the meaning of private enforcement.

• Author: Johnson, Olatunde C.A.
• Position: The Civil Rights Act at Fifty

INTRODUCTION I. POSSIBILITIES AND CONSTRAINTS OF PRIVATE COURT ENFORCEMENT A. Bakke and the Judicial Limits of Title VI "Itself" B. Adams and the Limits of Judicial Oversight C. Sandoval and the Limits of Private Enforcement II. SHAPING REGULATION A. Expanding Rules 1. School desegregation 2. Transportation equality directives 3. School discipline reform B. Oversight C. Mobilization D. Possibilities III. NAMING TITLE VI'S FUTURE CONCLUSION INTRODUCTION

Title VI of the Civil Rights Act of 1964 might just be the most powerful civil rights statute. The provision prohibits discrimination in federal, state, local, and private programs that receive federal financial assistance. (1) It extends across various types of practices and domains, addressing discrimination in a range of areas including education, housing, employment, health care, transportation, agricultural programs, and the environment. Yet "sleeping giant" is the term often invoked to describe Title VI. (2) Each anniversary of Title VI provokes concern that the full power of the statute has gone untapped. (3) Federal agency officials charged with administrative enforcement of the Civil Rights Act of 1964 announce new efforts to unleash the power of Title VI. (4) Nongovernmental actors, litigants, and advocates plot strategies to enhance private enforcement and implementation of the provision. (5) Yet to the general public and even to most lawyers, Title VI is largely unknown. Title VI is not a prominent feature of academic commentary on civil rights law and is often absent from civil rights casebooks. When Title VI was already three decades old, a prominent civil rights lawyer urged more use of the statute, deeming Title VI "powerful, but largely unused." (6)

For those familiar with the provision, Title VI's potential has been easy to map. Because of the broad reach of federal financial assistance into state, local, and private institutions, Title VI provides a potentially powerful tool for addressing wide-ranging problems of racial and ethnic discrimination. (7) The statute not only prohibits intentional discrimination, but its regulations provide that funding recipients cannot "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin." (8) During the time when these regulations were deemed privately enforceable, the statute provided an opportunity to address discriminatory practices that might evade remedy if required to satisfy the constitutional intent standard. (9) Because of Title VI's breadth of coverage, advocates urged its use beyond the traditional civil rights areas of education, employment, and housing to address the problems of environmental justice and racial disparities in health care that began to be identified in the 1980s and 1990s. (10)

Title VI's relative lack of prominence is nevertheless also easy to explain. Few people, if any, describe themselves as Title VI lawyers. Only a handful of Title VI cases have ever made it to the Supreme Court, and the number of Title VI cases litigated each year has always paled in comparison to most other civil rights statutes, particularly in comparison to the fair employment provisions of the Civil Rights Act of 1964. Indeed, the key problem with Title VI has been the question of private court enforcement. The statute contains no explicit private right of action, and until the court effectively implied one in its sister statute, Title IX, (11) would-be litigants were uncertain whether the statute was pri- vately enforceable. (12) Outside of the school desegregation context, for much of its history, it has been unclear what exactly to do with Title VI's great substantive reach. And when private court enforcement activity began to pick up in the late 1990s, the Court's 2001 decision in Alexander v. Sandoval held that, in fact, no private right of action existed to enforce the statute's disparate impact regulations, shutting down much of the statute's litigation promise. (13) Title VI's struggles with private enforcement render it quite unlike any other major civil rights statute: its story, such as it is, cannot be told primarily through court enforcement.

This Essay examines the question of private enforcement of Title VI. My argument is that to focus primarily on private court enforcement of Title VI will continue to relegate the provision to the margins of civil rights discourse, to make the provision appear largely asleep. The practice of Title VI lawyering entails not just efforts to seek compliance through courts and administrative agencies, but a practice of implementation, expansion, and elaboration of the provision that is not easily described, but through which Title VI gains meaning. This Essay proceeds in three Parts. Part I shows how crucial decisions of the Supreme Court served to render precarious the court enforcement regime of Title VI. Part II argues that court enforcement has never told the full story of how Title VI's regulatory regime is implemented. This Part provides accounts of the role of private lawyers in shaping the rules and guidance under Title VI, overseeing agency implementation of the provision, and using Title VI as a starting point for more expansive forms of problem solving and advocacy. Part III considers the future of these forms of private implementation. This Part argues that enriching our account of private implementation of Title VI serves to reshape standard narratives of how civil rights norms are created and of what constitutes civil rights lawyering.

1. POSSIBILITIES AND CONSTRAINTS OF PRIVATE COURT ENFORCEMENT

   Private court enforcement of Title VI has always presented something of a puzzle. Contrast Title VI with its better-known sister provision, Title VII, which prohibits discrimination in employment. (14) Title VII contains a private right of action, allowing individuals to file a claim in court after first filing with the Equal Employment Opportunity Commission (EEOC). (15) We also know that drafters conceived of private enforcement as the central way of enforcing Title VII after Congress abandoned earlier plans of a strong federal enforcement agency. (16) The Civil Rights Act of 1991 further strengthened Title VII's private enforcement regime, providing compensatory and punitive damages to increase incentives for litigation. (17) Today, more litigation occurs under Title VII than under any other federal civil rights statute, and the Supreme Court frequently issues decisions on the scope of Title VII. (18) There can be no doubt that private enforcement is central to any understanding of Title VII.

   The story of Title VI is different. The provision has no explicit language or regulations allowing plaintiffs to file claims in court; agency regulations explicitly allow plaintiffs to bring administrative complaints. (14) Damages to individuals are not the typical remedy for a violation of Title VI; rather the goal of Title VI's regime is securing compliance upon threat of termination of federal funds. (20) While the Supreme Court would come to imply a private right of action to enforce the provision in court, (21) litigation has always been less central under Title VI than under Title VII. Indeed proponents introduced Title VI as an alternative to litigation, a way of leveraging federal funds to promote school desegregation and removing the litigation from courts "where they had been bogged down for more than a decade" after the Brown decision. (22) As a leading school desegregation expert Gary Orfield once put it: Title VI aimed "to make litigation unnecessary." (23) In this sense, Title VI grows out of a very different strand of civil rights law than Title VII: one that begins in the New Deal and uses executive and agency power to promote nondiscrimination. (24) And Title VI grants agencies meaningful power to enforce the statute. Section 601 of Title VI forbids discrimination in programs that receive federal funds, while section 602 gives agencies power to enforce this prohibition through binding regulations. Contrast this grant of regulatory power with its absence in Title VII: Congress granted the EEOC the power to issue only procedural--not binding substantive--regulations under Title VII. (25)

   Yet Title VI has never been only about executive power; private actors have always been part of the implementation regime in agencies, to be sure, but also in courts. Private administrative enforcement is an explicit part of Title VI's enforcement regime, and the regime has also come to encompass private court enforcement. Lower courts permitted litigation to directly enforce Title VI quickly after enactment of the statute despite the lack of an explicit private right of action. (26) Congress in 1976 permitted recovery of attorneys' fees by prevailing parties in Title VI cases, (27) thereby including the statute in a regime that incentivizes private court enforcement of civil rights laws. Then the Supreme Court's decision in Cannon confirmed that a private right of action existed to enforce Title IX, Title VI's sister statute. Cannon addressed the question of private enforcement of Title IX, which prohibits discrimination on the basis of sex by educational institutions that receive federal funds. (29) Title IX is modeled on Title VI and similarly lacks express authorization of a private right of action in court. (30) The Cannon Court concluded that Title IX's language and legislative history permitted implication of a private right of action, relying heavily on the similarities between Title VI and Title IX. (31) After Cannon, Congress seemed to bring Title VI closer to the typical individual enforcement model of a civil rights statute when it abrogated states' Eleventh Amendment sovereign immunity in Title VI suits. (32)

   At the same time, private court enforcement has proved precarious under Title VI, as seen in three cases considered in this...