Photo Credit: Cecil Stoughton/Lyndon B. Johnson Library and Museum
In the month leading up to the 2020 presidential election, the United States House of Representatives passed the Equity and Inclusion Enforcement Act (H.R. 2574), which would amend Title VI of the 1964 Civil Rights Act to create an avenue for private individuals to sue federally-funded institutions and programs for discrimination based on “race, color, or national origin.” Importantly, in contrast with the 14th Amendment’s Equal Protection Clause, Title VI prohibits disparate impact, even absent any intentional discrimination. The Equity and Inclusion Enforcement Act passed through the House with just 3 Republicans joining all 229 voting Democrats, but has not moved in the Senate.
Last month, the House Education and Labor Committee Chairman Robert Scott (D-Va.) and House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) reintroduced the bill in the House, in the hopes that a Democrat in the White House, and as tie-breaker in the Senate, would mean a better chance at enacting the law.
The key impact that the Equity and Inclusion Enforcement Act (EIEA) would have would be to essentially overwrite the Supreme Court’s 2001 decision in Alexander v. Sandoval. In a 5-4 opinion, the Court held that TItle VI of the 1964 Civil Rights Act did not create a private right of action for individuals to bring disparate impact claims of discrimination.
When Congress enacts a law establishing a particular right, there are a number of possible avenues for enforcing that right (for example, creating a review board within an administrative agency, delegating enforcement to state law enforcement agencies, and/or allowing an individual to sue in court). When a court is tasked with evaluating a claim brought under a rights-creating statute such as Title VI, the court’s interpretation includes determining the mechanism by which Congress intended the rights to be enforced.
When Congress includes as an enforcement mechanism the ability for an individual to file suit and seek court enforcement, that is referred to as creating an individual “cause of action;” one cannot appear before a judge without a cause of action (read: permission to sue) for each of their claims.
A number of rights-creating statutes, Title VI and Title IX among them, include no specific language creating a cause of action for an individual. This seems odd, given that the purpose of civil rights statutes is, generally, to protect the rights of individual people. Indeed, prior to the Sandoval decision, the court had ruled on a number of occasions that an individual cause of action could be implied in these civil rights laws, even where no such explicit designation existed within the text. In making these determinations, the Court relied on the legislative history and the context of the specific legal provisions within the statutes in which they sat, in an effort to understand whether Congress intended an individual cause of action to stem inherently from the rights-creating language.
In Sandoval, Justice Scalia’s majority opinion changed course, explaining that the Court would no longer review legislative history as part of its inquiry, and would instead look only to the precise text of the statutory provision. The year after Sandoval, the Court clarified in Gonzaga University v. Doe that any private cause of action had to be explicitly stated in the statute.
So what has it meant to have Title VI’s discrimination prohibitions, but no access to individuals to sue on those protections? The result has been that Title VI violations are the exclusive purview of the federal government to investigate and enforce, which has largely fallen to the Office of Civil Rights (OCR) in the U.S. Department of Education. As of March, 2019, OCR had about 1,500 pending Title VI complaints. For an institution found to have violated Title VI, OCR is able to withhold federal funding or refer the case to the Department of Justice for litigation, adding to the drawn-out procedures before a complainant gets any sort of relief. This expansive waitlist and procedural hurdles speak volumes as to the system’s inefficiency, and perhaps explains Democrats’ desire to shift enforcement to the courts.
If Congress successfully enacts the Equity and Inclusion Enforcement Act, the status quo would be returned to pre-Sandoval times. Individuals could sue in court for violations of Title VI, because Congress would have created an explicit private cause of action for them to do so, adding another tool to the toolbox of fighting against discrimination. Congress is currently embroiled with tasks like election laws, stimulus checks, and the capitol insurgence investigation, so it may be some time before we find out what the fate of this bill will be.