Sandoval Decision Threatens Disparate Impact Regulations
Following U.S. Supreme Court decisions in Cannon v. University of Chicago and Guardians Ass'n v. Civil Service Commission, NYC in the late 1970's and early 1980's, it became both the understanding and settled practice that individuals could sue privately to enforce both statutes and their implementing regulations. On April 24, 2001, in Alexander v. Sandoval, the Supreme Court in a 5-4 decision shattered decades of practice and settled expectations regarding bedrock civil rights laws in holding that there is no private right of action to enforce the regulations prohibiting practices with a discriminatory effect on the basis of race or ethnicity under Title VI of the Civil Rights Act of 1964. Defendants are now questioning whether there is a private right of action to enforce disparate impact regulations promulgated under Title IX (gender) and Section 504 (disability) as well. Moreover, while not reaching the issue, the Sandoval majority also questioned the validity of the disparate impact regulations themselves (regulations first promulgated soon after the enactment of Title VI in 1964) - describing them as "in considerable tension" with a statute that prohibits only intentional discrimination - thus inviting substantive challenges to the regulations themselves.
Background
For more than 20 years, Alabama administered its state driver's license examination in several foreign languages, as do 48 other states, and never found non English-speaking persons posed a greater safety risk than other drivers. In 1990, the Alabama legislature ratified a provision making English the official language of the state and requiring state agencies to take steps to insure that the role of English as the common language of the state is preserved. The Alabama Department of Public Safety thereafter restricted all driver license examinations to English-only administration. Despite this rule, Alabama continued to issue driving licenses to persons who were illiterate by reading the exam to them and to persons who were deaf by offering the exam in sign language. Residents with a valid driver's license from a foreign country were allowed to drive in Alabama without regard to whether they could speak or read English.
Martha Sandoval was a permanent U.S. resident who came from Mexico to the United States in 1987. She worked cleaning houses and in the restaurant owned by her husband. In 1996, Sandoval sued the State of Alabama alleging that the English-only policy had an unjustified discriminatory effect on the basis of national origin in violation of the Title VI disparate impact regulations. Sandoval's native language is Spanish, although she understood some English and could understand Alabama's international traffic signals that "enable comprehension with little or no understanding of English." In ruling for Sandoval, the trial court found that the justifications for the English-only policy offered by the state were pretextual and baseless. The U.S. Court of Appeals for the Eleventh Circuit affirmed the trial court ruling. Significantly, Alabama did not even contest the finding that its justification for the policy was pretextual. Sandoval's case reached the Supreme Court this past term in Alexander v. Sandoval, where the Court ruled that she had no right to sue to enforce the Title VI disparate impact regulations.
Legal Analysis
Disparate impact regulations have been used to challenge a variety of practices that while appearing to be neutral, in fact have tremendous adverse impact on persons with disabilities, women and girls, and racial and ethnic minorities. For example, the regulations have been utilized in challenges to school construction practices that left minorities without any new schools in their communities, racial profiling, the disproportionate placement of toxic waste sites in minority communities, the use of standardized tests to award college scholarships where women routinely scored lower despite higher grades in college, and the construction of public buildings that are inaccessible to people with disabilities. Limiting civil rights protections to instances where individuals can prove animus or subjective discriminatory motive will leave intact many practices that are in fact discriminatory but cannot be shown to be so because 1) the search for an affirmative intent to harm is really inapplicable to the practice at issue, or 2) proving subjective intent is extremely difficult.
This year in a Supreme Court decision limiting the reach of the Americans with Disabilities Act, Justice Kennedy, joined by Justice O'Connor, acknowledged that practices that have the effect of discriminating against people are often not brought about by an affirmative intent to injure but rather by indifference or insensitivity.
