The sorcerer's apprentice: Sandoval, Chevron, and agency power to define private rights of action.

• Author: Gorod, Brianne J.

Peters v. Jenney, 327 F.3d 307 (4th Cir. 2003); Jackson v. Birmingham Board of Education, 309 F.3d 1333 (11th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3736 (U.S. May 13, 2003) (No. 02-1672).

Private individuals have long played a key role in enforcing federal rights. (1) Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. (2) In Alexander v. Sandoval, for example, the Court held that there was no private right of action to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964. (3) It is unclear, however, whether that decision precluded private rights of action to enforce other regulations promulgated under Title VI and comparable civil rights statutes. Even more significantly, Sandoval left unclear whether, and to what extent, federal agencies can shape private rights of action.

While Sandoval's broad language implied that agencies can play only a limited role in creating private rights of action, its holding still allows substantial room for agencies to define those rights. Indeed, a recent split between the Fourth and the Eleventh Circuits illustrates that Sandoval does not necessarily preclude agencies from playing such a role. Although the Eleventh Circuit, in Jackson v. Birmingham Board of Education, (4) held that there was no private right of action to enforce anti-retaliation regulations promulgated under Title IX of the Education Amendments of 1972, the Fourth Circuit, in Peters v. Jenney, (5) held that a private individual can sue under Title VI of the Civil Rights Act of 1964 to enforce the anti-retaliation regulations promulgated under that statute. (6) The critical distinction between the two courts' analyses was the significance each attached to the requirement of deference to agency regulations established by Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. (7)

This Comment argues that the Fourth Circuit was correct to incorporate Chevron into its analysis, and that its decision suggests a role for agencies in creating implied private rights of action that is much greater than the one articulated in Sandoval. While Sandoval may prevent agencies from creating private rights of action by themselves, they can achieve much the same effect by expansively interpreting the statutory rights of action created by Congress. With careful regulatory and statutory drafting, agencies and Congress can--and should--capitalize on the Chevron deference shown by the Fourth Circuit in Peters v. Jenney.

I

Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in all programs that receive federal funding. (8) Section 601 of Title VI provides that no person shall "on the ground of race, color, or national 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." (9) Section 602 authorizes federal agencies that administer programs covered by section 601 to "effectuate the provisions of [section 601] ... by issuing rules, regulations, or orders of general applicability." (10) Title IX of the Education Amendments of 1972, which prohibits gender discrimination in educational programs receiving federal funding, was patterned after Title VI and has a similar structure. (11) Section 901 prohibits discrimination, (12) while section 902 empowers agencies to "effectuate the provisions of" section 901. (13)

In Alexander v. Sandoval, a private individual sued to enforce a regulation promulgated by the Department of Justice under Title VI. (14) This regulation prohibited funding recipients from "utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin." (15) The Court held that there was no implied private right of action to enforce such a regulation. Although the Court had earlier recognized an implied private right of action to enforce section 601, (16) it held that Sandoval's suit could not be brought pursuant to that right, as the Court had previously construed section 601 to permit the disparate impact practices that the regulations prohibited. (17) Therefore, the plaintiff could bring a private action only if one existed under section 602 or the regulation itself. The Court searched the structure and text of section 602 for clear evidence of congressional intent to create a private right of action, but found none, relying in large part on the lack of "rights-creating language" in the text of section 602. (18)

The Court then turned to the DOJ regulation. Although the regulation contained the "rights-creating language" that, in statutory text, would have suggested the existence of an implied private right of action, the Court quickly dismissed the possibility that the regulation itself could create such a right: "Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.... Agencies may play the sorcerer's apprentice but not the sorcerer himself." (19) Thus, Sandoval seemed to restrict significantly the role that federal agencies could play in creating private rights of action. Yet as the split between the Fourth and Eleventh Circuits suggests, appearances can be deceiving.

II

Cheryl Peters was hired by the Virginia Beach School Board to serve as Director of Gifted Education and Magnet Programs. In this role, she worked to promote minority enrollment in the school district's gifted and talented program. When the Board decided not to renew Peters's probationary contract, she claimed that it was because of her work to end discrimination, and filed suit. (20) Her claim was based in part on a Department of Education...