by Charles S.P. Hodge
On Tuesday, April 24, the U.S. Supreme Court announced its decision in the case of Alexander v. Sandoval. Justice Antonin Scalia delivered the opinion of the court, and Justice John Paul Stevens delivered a stinging dissenting opinion. The case arose out of a challenge under Title VI of the Civil Rights Act of 1964 mounted by a class of Spanish-speaking citizens against the State of Alabama’s practice of administering its driver’s license examination to all applicants only in the English language. Before the federal trial court in Alabama and before the U.S. Court of Appeals for the Eleventh Circuit in Atlanta, Georgia, the plaintiff class successfully argued using a disparate impact theory, which was cited to prove that Alabama’s practice unlawfully discriminated against them and all others similarly situated based on their national origin, as proscribed by Title VI and the implementing regulations of both the U.S. Department of Justice and the U.S. Department of Transportation. The State of Alabama then sought and successfully gained review by the U.S. Supreme Court.
Justice Scalia’s majority opinion holds for the court that Congress or the federal courts may only authorize causes of action to carry out the purposes and objectives of an enacted statute itself. The court then holds that the text of Section 601 of Title VI of the Civil Rights Act of 1964 as amended merely outlaws simple intentional discrimination. While the Department of Justice and Department of Transportation implementing regulations under Title VI which authorize the assertion of claims based upon a disparate impact (or effects) theory of discrimination may well have been validly promulgated, neither the Congress nor the federal courts have created or implied a cause of action for disparate impact or effects discrimination under either Section 602 of Title VI or the various implementing regulations. Thus, Justice Scalia, who speaks for the five-to-four majority, holds that the disparate impact claim of unlawful national origin discrimination under Title VI is not authorized and cannot be brought before the federal courts.
Earlier, the Supreme Court itself had held that claims of disparate impact discrimination under Title V could be brought by private party litigants before the federal courts. The dissent argues that this case should never have been accepted for review in the first place by the high court, but that once accepted for review, well established principles of following prior decisions should have led the court to answer the question presented here in the affirmative. In effect, Justice Stevens accuses the majority of reaching out to accept review of this case and of then ignoring settled cannons for decision, to reach a preordained results-based conclusion despite prior decisions of the Supreme Court and a unanimous array of federal appellate court holdings on the question presented for review. The dissent also accuses the majority of rendering a muddled and erroneous interpretation of the earlier decisions of the Supreme Court and their historical context. The dissent then concludes by characterizing the majority holding as one of the least anticipated and most absurd and outrageous decisions that the court has rendered during Justice Stevens’ more than a quarter of a century tenure on the high court.
The distinction between simple intentional discrimination on the one hand as contrasted with disparate impact (or effects) discrimination on the other hand established by the majority in the Alexander v. Sandoval opinion should be viewed as very troubling by disabled observers of the high court’s proceedings. Until this holding by the court, the disparate impact (or effects) theory of discrimination had been thought of and held to be just another method of establishing the intentional discrimination outlawed by most of the federal civil rights laws. After the Alexander v. Sandoval holding, all of the prohibitions of unlawful discrimination by recipients of federal financial assistance (whether state government entities or private parties) including disability discrimination under Section 504 of the Rehabilitation Act of 1973 as amended are subject to challenge under the distinction created by the high court. You can be virtually certain that defendants in Section 504 lawsuits raising claims of disparate impact (or effects) disability discrimination will be attempting to have such claims thrown out of federal court arguing that such claims are beyond the power of Congress to authorize and of the federal courts to entertain. In addition, you can also be virtually certain that state government defendant recipients of federal financial assistance in Section 504 lawsuits for money damages in federal court will be arguing that the Garrett holding and rationale should be applied to dismiss Section 504 claims brought against them. The prognosis for avoiding or defending against such challenges is very guarded at best, and the legal landscape in light of these recent Supreme Court decisions appears to be bleak indeed. Such judicial decisions certainly do erect high legal barriers for our advocacy efforts to surmount, yet we dare not shrink from this challenge.