Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice


Chapter 4

Environmental Justice Litigation and Remedies: The Impact of Sandoval and South Camden


Title VI of the Civil Rights Act of 1964[1] is used extensively to pursue claims of discrimination for both administrative and judicial relief.[2] Because of the difficulty in proving intentional discrimination under 601, many minority and poor communities, concerned that they are being disproportionately overburdened by hazardous and toxic facilities in their neighborhoods, bring claims of disparate impact discrimination under federal agency regulations promulgated under 602.[3] Prevailing on a disparate impact claim in the administrative Title VI process is neither guaranteed nor does success come swiftly. In fact, few complaints are upheld and the process may take many months, if not years, to conclude. Section 602 claims, however, can also be brought in court. Although Title VI does not explicitly state that there is a private right of action under 602 for allegations of disparate impact, the federal courts consistently acknowledged this implied right.[4]

In 2001, the Supreme Court in Alexander v. Sandoval, however, ruled that there is no private right of action to enforce disparate impact regulations promulgated under Title VI.[5] This Supreme Court ruling eliminated a major judicial tool for private civil rights and environmental justice plaintiffs to enforce their claims of discrimination in violation of Title VI. This enforcement of disparate impact regulations promulgated under Title VI by private individuals was further narrowed by a Third Circuit ruling in South Camden Citizens in Action v. New Jersey Department of Environmental Protection.[6] The Third Circuit Court of Appeals in South Camden held that in addition to the lack of standing for private individuals to bring claims of discrimination in violation of regulations promulgated under 602 of Title VI, these regulations do not create free standing rights to be enforced through 42 U.S.C. 1983[7] by private individuals.[8] Although the Supreme Court has not directly ruled on the enforceability of Title VI regulations through 42 U.S.C. 1983, the Third Circuit has barred this enforcement. Additionally, though other federal courts of appeals are split on the issue, these circuits may potentially follow the Third Circuit s prohibition. Lastly, the Supreme Court in Gonzaga v. Doe, adopting the same test of implied right of action cases,[9] held that there must be explicit congressional intent to confer a private right in spending clause legislation to be enforced through 1983.[10]

While the full implications of Sandoval, South Camden, and Gonzaga on civil rights and environmental justice enforcement are yet to be realized, it is clear that plaintiffs alleging discrimination based on disparate impact are substantially limited in their ability to bring these claims to court. Accordingly, this chapter reviews the rulings of Sandoval, South Camden, and Gonzaga and analyzes the judicial limitations set by these cases that affect the enforceability of Title VI regulations. First, in order to explain the history of Title VI and implied right of action cases, the chapter gives a brief overview of Title VI enforcement and implied right of action cases prior to Sandoval and South Camden. It then reviews and analyzes the Sandoval and South Camden decisions, addresses the enforceability of Title VI using 1983, and reviews and analyzes the Gonzaga decision. Next, it discusses current and future environmental justice and civil rights enforcement in light of Sandoval, South Camden, and Gonzaga. The chapter ends with recommendations.

History of Title VI and Implied Right of Action Cases

Pre-Sandoval Title VI Enforcement

Prior to the Sandoval decision, the Supreme Court had long debated and ruled on the enforceability of Title VI. In Lau v. Nichols, the Supreme Court held that the English language requirement for graduation had a disparate impact on non-English-speaking Chinese students and, therefore, was actionable under Title VI without proving discriminatory intent.[11] The Court in Regents of the University of California v. Bakke, however, suggested in dicta, that claims of Title VI violations require proof of intentional discrimination.[12] The Court revisited the standard of proof required to establish a Title VI violation in Guardians Association v. Civil Service Commission.[13] The Supreme Court found that a written entrance examination required by a police department, though neutral on face, had a disparate effect on black and Hispanic candidates and therefore established a Title VI violation.[14] Finally in Alexander v. Choate, the Supreme Court stated, we [have] held that Title VI [has] delegated to the agencies in the first instance the complex determination of what sort of disparate impacts upon minorities constituted sufficiently significant social problems, and [are] readily enough remediable, to warrant altering the practices of the federal grantees that have produced those impacts. [15] Since then many civil rights plaintiffs have brought their discrimination claims in violation of disparate impact regulations promulgated under 602. Though this right of action is not explicitly stated in the statute, courts have generally recognized it as an implied right of action.

Pre-Sandoval Implied Right of Action Enforcement

The Supreme Court first recognized an implied right of action in J.I. Case Co. v. Borak under the Securities Exchange Act of 1934.[16] Since Borak, both the Supreme Court and lower courts acknowledged this implied private right of action under several statutes. In Cort v. Ash, the Court established a four-part test to determine whether a private right of action is implicit in a statute that does not explicitly state one.[17] Under this four-part test, the Court in Ash found that there was no implied private right of action in 18 U.S.C. 610, which prohibits corporate contributions to federal elections, for plaintiff stockholder to enforce against the corporate directors.[18]

In Cannon v. University of Chicago, the Supreme Court allowed an implied right of action for private individuals to sue an educational institution under Title XI of the Education Act Amendments of 1972.[19] Since Cannon, the Supreme Court has applied Justice Powell's dissenting argument in Cannon, that in order to imply a private right of action there must be substantial evidence of congressional intent to create that right, and has restricted the implied right of action cases.[20] Finally, in Sandoval, the Supreme Court ruled that there must be clear congressional intent to create an implied right of action before a private individual may bring this claim.[21]

Review of Alexander v. Sandoval

In 1990, the state of Alabama declared English to be its official language.[22] Following this declaration, the Alabama Department of Public Safety chose to administer state driver's license exams only in English.[23] Martha Sandoval, a Hispanic woman, filed a class action suit under 602 of Title VI against the Department of Public Safety and its director in the District Court for the Middle District of Alabama, alleging that the English-only policy violated Department of Justice regulations prohibiting the use of federal funds in a way that has the effect of discriminating on the basis of national origin.[24] The court held that the English-only policy discriminated on the basis of national origin, and the Court of Appeals for the Eleventh Circuit later affirmed that decision.[25] In a 5 to 4 vote, however, the Supreme Court held that Congress did not intend for 602 of Title VI to provide a private right of action for disparate impact discrimination claims.[26]

The Majority Opinion

Justice Scalia, writing for the majority, began his opinion by defining the scope of review, limiting review to the question of whether there is a private right of action to enforce regulations promulgated under 602 of Title VI.[27] He also reaffirmed three points: (1) there is a private right of action under 601 of Title VI that can provide injunctive relief and damages; (2) 601 prohibits only intentional discrimination; and (3) the Court assumes that regulations promulgated under 602 may prohibit activities having a disparate impact that would otherwise be allowable under 601.[28]

Justice Scalia explained that in Lau v. Nichols,[29] the Supreme Court interpreted 601 of Title VI to prohibit disparate impact discrimination.[30] This interpretation of 601, Scalia stated, had since been rejected.[31] The majority explained that the disparate impact regulations promulgated pursuant to 602 forbid activities permitted under 601 and, accordingly, the private right of action found under 601 does not include a private right of action to enforce 602 disparate impact regulations.[32] Therefore, that right, if it is to exist, must originate from 602.[33] The Court first reiterated its assumption, for the purpose of this case, that 602 regulations do apply to disparate impact discrimination.[34] The Court noted, however, that the question remained unanswered whether there is a private right of action to enforce disparate impact regulations promulgated under 602.[35]

Having defined the scope of review, Justice Scalia articulated that private rights of action to enforce federal law must be created by Congress.[36] He added that, accordingly, the role of the Court is to interpret the statute to determine whether Congress intended to create not only a private right of action, but also a private remedy.[37] The Court went on to explain that, despite the respondents wish to revert to the method of discerning private rights of action as found in J.I. Case Co. v. Borak,[38] the Court in Cort v. Ash[39] abandoned that method.[40] In Borak, the Court found that it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose of the statute. [41] The majority in Sandoval explained that since Cort v. Ash, the Supreme Court has abandoned the Borak method of discerning and defining causes of action and has not returned to it.[42] Thus, the Court explained that it would not go beyond Congress intent in interpreting the statute.[43] The Court further refused to give dispositive weight to the expectations formed by the enacting Congress in light of the contemporary legal context in interpreting statutes.[44] It explained, legal context matters only to the extent that it clarifies text. [45]

The majority in Sandoval then reviewed the text and structure of Title VI itself to determine whether Congress intended to create a private right of action.[46] The Court expressed that the rights-creating language, no person . . . shall be subjected to discrimination, in 601 was absent in 602.[47] It stated that 602 limits agencies to effectuating rights already created in 601.[48] After its examination of the text and structure of 602, the majority found that the text itself did not suggest that Congress intended to create a private right of action to enforce 602's disparate impact regulations.[49] It then considered the method of remedies provided under 602 and explained that 602 authorizes agencies to enforce their regulations through termination of funding or through other means provided under the law.[50] The Court further added that every agency enforcement action is subject to judicial review. The majority, examining the remedial scheme of 602, found that the funding agency's ability to terminate funding and the judicial review of its enforcement action suggest that Congress did not intend to create a private right of action. It reasoned that, as indicated in 42 U.S.C. 1983 cases, some remedial schemes, such as the one found in 602, foreclose a private right of action, even if the language of the statute creates substantive individual rights.[51] In Sandoval, the majority found no need to determine whether 602's remedial scheme overcomes other evidence of congressional intent to create a private right of action, as it could not find one in the text of the statute.[52]

Writing for the majority, Justice Scalia maintained that it is not the role of the courts to create a cause of action where Congress has not allowed for one in the statute.[53] Justice Scalia asserted that the text of 602 expressly includes the enforcement methods to be undertaken by the funding agencies for 602 violations.[54] These designated methods of enforcement are evidence that Congress intended to exclude private rights of actions.[55] Justice Scalia discounted the contention that amendments to 602 of Title VI show evidence of an implied private right of action.[56] Finally, the majority concluded that there is no implied private right of action without affirmative proof of congressional intent.[57] The Court stated, neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under 602. We therefore hold that no such right of action exists. [58]

The Dissent

Justice Stevens, writing for the dissent in which Justices Souter, Ginsburg, and Breyer joined, argued that Lau, Cannon, and Guardians support a private right of action.[59] Justice Stevens argued these cases were identical in substance to the case at hand and that the majority's decision in Sandoval was unprecedented.[60] He further stated, a majority of this Court carves out an important exception to the right of private action long recognized under Title VI. [61]

Justice Stevens explained that the Court in Cannon allowed for a private right of action under Title XI by reasoning that Title XI was patterned after Title VI, which conferred a private right of action.[62] Accordingly, he saw the majority's attempt to limit Cannon's holding as being wholly foreign to Cannon's text and reasoning. [63]

In addition, the dissent contended, [t]he majority s statutory analysis does violence to both the text and the structure of Title VI. [64] Justice Stevens saw 601 and 602 as part of an integrated remedial scheme. [65] He stated that the purpose of 602 is to effectuate the antidiscrimination ideals of 601.[66] Thus, Justice Stevens argued that there is no statutory support for the majority's view that 601 and 602 function independently of each other.[67] The dissent further explained that, for the past three decades, the Supreme Court has treated 602 as giving broad power to funding agencies to create regulations to effectuate 601.[68]

Lastly, Justice Stevens maintained, there is clear precedent of this Court for the proposition that the plaintiffs in this case can seek injunctive relief either through an implied right of action or through 1983. [69] He noted that the majority's denial of relief is caused by the fact that respondents failed to frame their claim under 42 U.S.C. 1983.[70] Accordingly, Justice Stevens suggested that future litigants must bring their Title VI 602 claim under 1983.[71]

The Impact of Sandoval

The majority in Sandoval ruled that while plaintiffs may bring Title VI claims for intentional discrimination under 601, there is no implied right of private action under 602 regulations to bring disparate impact claims in court. The Court in Sandoval found it critical that before this implied right of action be recognized, it must be established that Congress in enacting the legislation also intended for private individuals to have the right to enforce that legislation. To determine whether Congress intended to confer a private right of action under 602, the Court analyzed its precedent interpreting Title VI and the text and structure of Title VI. After its analysis, the majority concluded that Title VI did not indicate the intent to create a private right of action in 602 regulations.[72]

In the dissent, Justice Stevens argued, however, that a review of the Court's prior decisions and the legislative history behind 602 revealed that there exists a private right of action to enforce 602 regulations.[73] The majority in Sandoval applied a very narrow reading of Title VI to conclude that it could not find congressional intent to create a private right of action in 602 regulations. The Court in Sandoval limited its review of congressional intent to the text and the structure of Title VI itself and refused to consider any other indicia of intent. Furthermore, the majority failed to recognize 601 and 602 of Title VI as an integrated remedial scheme as Justice Stevens did.

In passing Title VI, Congress sought to remedy discrimination. It would be inconsistent to conclude that, while Congress saw regulations promulgated under 602 as effectuating the antidiscrimination ideals of 601, it only intended to allow the agencies implementing disparate impact regulations to enforce 602 violations. The intent of Title VI is to provide a remedy for individuals who are discriminated by programs or activities that receive federal funding. Section 602 specifically mandates that each funding agency implement regulations to ensure that the funding is not used to discriminate. Since the overarching goal of Title VI is to prevent discrimination and to provide remedies for discrimination, it is inconsistent to read 601 and 602 as providing two separate remedies. The purpose of 602 is to carry out the antidiscrimination ideals of 601 and, therefore, the same private right of action to enforce the purpose of 601 should apply in 602 regulations.

The Court's narrow reading of Title VI does injustice to the antidiscrimination ideals of Title VI. The Court should have recognized that, just as 601 allows private individuals to bring their claims of intentional discrimination, 602 should allow private individuals to bring disparate impact claims in court. The Court's prohibition of this implied private right of action to enforce regulations promulgated under 602 bars civil rights and environmental justice plaintiffs from enforcing their disparate impact discrimination claims.

As stated, prior to Sandoval, many federal courts had recognized an implied private right of action under Title VI disparate impact regulations. Because of difficulty in proving intentional discrimination, many civil rights and environmental justice plaintiffs have relied on 602 regulations to bring their claims of disparate impact discrimination to court. The Supreme Court's decision in Sandoval eliminated this judicial remedy for these plaintiffs. While these plaintiffs may seek administrative relief by filing their complaints with the federal funding agencies, these agencies have been slow to respond.

As Justice Stevens pointed out in his dissent, the majority in Sandoval did not address whether a private plaintiff may bring a claim of Title VI through 42 U.S.C. 1983. Section 1983 provides a private cause of action for violations of the Constitution and federal laws.[74] Accordingly, while the Sandoval decision barred direct enforcement of 602 of Title VI, 1983 may potentially provide a private right of action to enforce 602 violations. Although the Supreme Court has not addressed this issue, the Third Circuit Court of Appeals in South Camden ruled that a private plaintiff is barred from using 1983 to bring a 602 Title VI regulation claim to court.

Review of South Camden Citizens in Action v. New Jersey Department of Environmental Protection

The impact of the Sandoval decision was felt immediately in the environmental justice arena. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, the plaintiffs, South Camden Citizens in Action, filed for a preliminary injunction pursuant to Title VI, in order to prevent the final approval of the New Jersey Department of Environmental Protection's (NJDEP) air quality permit to the St. Lawrence Cement Company for the operation of its cement facility in the Waterfront South area.[75] The plaintiffs filed a complaint against NJDEP stating that its issuance of an air quality permit to operate a cement facility in a predominantly minority community, already hosting 20 percent of the city's contaminated sites, would have an adverse disparate impact on the plaintiffs in violation of 602 of Title VI.[76] Before the Supreme Court ruled in Sandoval, the District Court for the District of New Jersey granted injunctive relief and a declaratory judgment for the plaintiffs in South Camden on the basis that NJDEP discriminated against the plaintiffs by issuing an air permit in violation of 602 of Title VI.[77]

Although environmental justice advocates applauded this ruling, their celebration was short-lived. Five days after the district court decided this case, the Supreme Court held in Sandoval that there is no private right of action to enforce regulations promulgated under 602 of Title VI.[78] Following the Sandoval decision, the defendants requested a stay of the injunction, pending a motion for reconsideration.[79] The district court instructed the parties to file supplemental briefs analyzing the impact of Sandoval.[80] Specifically, the district court allowed the parties to examine the issue of whether disparate impact regulations that could not be enforced with a private right of action pursuant to 602 of Title VI could be imposed instead by 42 U.S.C. 1983.[81] The district court subsequently ruled that the Sandoval decision did not prevent the complainants from bringing a suit under 1983 to enforce EPA's Title VI 602 disparate impact regulations.[82]

The Third Circuit Court of Appeals, however, reversed the lower court, holding that no private right of action was allowed under 1983.[83] The court of appeals ruled that private citizens cannot sue under 42 U.S.C. 1983 to enforce environmental justice regulations promulgated under 602 of Title VI.[84]

The Majority Opinion

The Third Circuit began its analysis by stating that the Sandoval decision overruled Powell v. Ridge,[85] a Third Circuit decision that was heavily relied on by the district court in deciding that plaintiffs can bring 602 claims under 1983.[86] At the end of its review of the Sandoval analysis and decision, the Third Circuit pointed out that the plaintiff in Sandoval did not raise a cause of action under 1983 and that the Supreme Court did not consider whether such action is available.[87] The court in South Camden noted that the plaintiffs in this case sought to enforce disparate impact discrimination regulations promulgated by EPA and not explicitly stated in Title VI.[88] Accordingly, the Third Circuit framed the issue as whether a regulation can create a right enforceable through section 1983 where the alleged right does not appear explicitly in the statute, but only appears in the regulation. [89]

The majority in South Camden explained that 1983 provides a remedy for deprivation of any rights secured by the Constitution and laws.[90] It further explained that the Supreme Court has ruled that certain rights created under federal statutes are also enforceable under 1983.[91] The court listed two situations where rights are not enforceable under 1983: (1) where Congress has foreclosed such enforcement, and (2) where the statute does not create such enforceable rights.[92]

In addition, the court stated that the Supreme Court's Blessing three-part test must be applied to determine whether a federal statute creates an enforceable individual right through 1983.[93] This test weighs three factors: (1) whether Congress intended that the provision in question benefit the plaintiff; (2) whether the plaintiff has demonstrated that the right protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence; and (3) whether the statute clearly imposes a binding obligation on the states.[94]

Applying the three-part test, the court sought to determine whether Congress intended to confer a federal private right of action in administrative regulations promulgated under 602 of Title VI.[95] The court explained that a federal regulation alone may not create an enforceable right through 1983 if that right is not implicit in the statute.[96] The majority in South Camden added that, in light of Sandoval, it did not believe that Congress intended to create enforceable rights in adopting Title VI.[97] The Third Circuit found that the district court's conclusion that the EPA regulations created a federal right was erroneous and, therefore, erred in granting relief based on 1983.[98] Accordingly, the Third Circuit in South Camden ruled that 42 U.S.C. 1983 cannot be used to enforce a federal regulation, unless the interest already is implicit in the statute authorizing the regulation. [99]

The Third Circuit Dissent

Judge McKee argued in his dissent that, while the majority is correct in pointing out that Sandoval overruled a part of the Third Circuit's decision in Powell, it did not overrule it in its entirety.[100] McKee asserted that the majority in South Camden instead overruled Powell in its entirety by engaging in an analysis that over-reads Sandoval while, at the same time, unduly limiting the decision in Powell.[101]

To establish that the majority opinion in South Camden overread the Sandoval decision, Judge McKee noted that Sandoval only addressed whether a freestanding private right of action exists to enforce regulations promulgated under 602.[102] The dissent argued that, based on the question presented, Sandoval only overruled that portion of the holding in Powell recognizing that a private right of action exists under 602.[103] Judge McKee reasoned that the Supreme Court, therefore, did not address the second part of the holding in Powell establishing a right to enforce regulations promulgated pursuant to 602 of Title VI under 1983.[104]

Judge McKee further noted that the Third Circuit's analysis in Powell was based on Supreme Court precedent holding that 1983 provides a remedy for violations of federal rights unless foreclosed by Congress.[105] He explained that, in Powell, the Third Circuit held that where there is no explicit foreclosure of suit under 1983, there is a private right of action to enforce regulations promulgated under 602 of Title VI through a 1983 action.[106] Accordingly, Judge McKee contended that the holding in Powell, allowing enforcement of 602 disparate impact regulations under 1983, was not overturned by Sandoval and remains the controlling authority on the issue.[107]

The Impact of South Camden

Though the Supreme Court ruled in Sandoval that there is no private right of action to enforce 602 regulations, many civil rights and environmental justice plaintiffs have viewed with hope Justice Stevens suggestion in his dissent that 1983 might remain as a means to bring forth their Title VI disparate impact claims. Unfortunately, the court in South Camden barred that enforcement in the Third Circuit. The court in South Camden used the Sandoval decision as the basis to overturn its previous ruling in Powell, which had previously found an enforceable right in federal administrative regulations under 1983. Like the Supreme Court in Sandoval, the Third Circuit in South Camden asserted that before a federal right be recognized, there must be proof of congressional intent in the statute authorizing the regulation. Under the South Camden ruling, short of Congress explicitly indicating its intent to confer a private right in enacting any legislation, a private individual may not enforce that implied right through 1983.

Enforcement of Title VI Regulations Using Section 1983

While the Third Circuit has foreclosed the possibility of bringing 602 disparate impact claims under 1983, other federal courts are split on this issue. Some courts have followed the ruling of the Third Circuit in South Camden to further narrow the enforceability of regulations promulgated under 602, while others have ruled that there is a viable claim of disparate impact discrimination in violation of 602 through 1983. For example, the Ninth Circuit[108] and a district court in the Second Circuit[109] do not recognize a private right of action under 1983 for disparate impact claims under 602. On the other hand, the Tenth Circuit[110] and a district court within the Sixth Circuit[111] enforce the regulations under 1983.

Despite this split, the Supreme Court has not directly addressed the issue of whether a private individual, who otherwise does not have a private right of action to directly enforce disparate impact regulations promulgated pursuant to 602, has a right to enforce those regulations under 1983. On June 24, 2002, the Supreme Court denied South Camden's petition for writ of certiorari.[112] In January 2003, the Court denied the petition for writ of certiorari in Robinson v. Kansas,[113] another case dealing with the enforceability of Title VI regulations through 1983.[114] The fact that the Supreme Court has not directly addressed this issue brings some hope to civil rights and environmental justice plaintiffs in their attempts to enforce claims of disparate impact discrimination in violation of 602 regulations under 1983 in federal circuits that have either ruled to uphold enforceability or have not directly ruled on this issue.

Section 1983 enforceability has been debated since the Sandoval and South Camden decisions and has also been seen as a way to enforce Title VI regulations. In an article written prior to the ruling in Sandoval, Professor Bradford Mank argued that, even if the Supreme Court found that there is no direct private right of action under 602, courts could still use 1983 to enforce regulations promulgated under 602.[115] He proposed that Congress clearly authorized 1983 suits, and those suits do not raise the same separation of powers issue in implied private rights of action.[116] Accordingly, a Title VI plaintiff, by meeting the Blessing three-part test of whether a statute creates a federal right, can successfully bring a 1983 claim.[117] Professor Mank saw 1983 as a powerful tool for vindicating both constitutional and federal statutory rights, including regulations such as those issued pursuant to 602 that flesh out existing statutory rights. [118]

While 1983 is a viable means to enforce 602 claims against federal agencies, it is important to point out that in its most recent decision, Gonzaga v. Doe, the Supreme Court indicated its unwillingness to find federal rights in legislation and regulations created under Congress spending clause power.[119] Gonzaga is controlling precedent for both environmental justice and more general civil rights claims[120] because like the Civil Rights Act of 1964, the Family Educational Rights and Privacy Act of 1974 (FERPA), which was at issue in the suit, is spending clause legislation.[121] FERPA forbids federal funding recipient schools from instituting a policy or practice of releasing students educational records without written consent from parents.[122] In Gonzaga, the Supreme Court examined whether regulations promulgated under FERPA create a federal right enforceable under 1983.[123] Civil rights advocates believe that Gonzaga when viewed in light of the Sandoval ruling, which narrowed the test for finding implied rights of action, is a case signaling the Court's intention to substantially curb private lawsuits. [124]

Gonzaga University and Roberta S. League v. John Doe

In Gonzaga, the plaintiff sued Gonzaga University, a private educational institution in Washington State, alleging a violation of the Family Education Rights and Privacy Act of 1974 because the university released information on an allegation of sexual misconduct to the state teacher certification agency.[125] The plaintiff alleged that 42 U.S.C. 1983 creates a private right of action to challenge the university's release of his education record in violation of FERPA.[126]

The Majority Opinion

Chief Justice Rehnquist, writing for the majority, stated that lower courts, both state and federal, have been divided on the question of FERPA's enforceability under 1983, but have relied on the same set of Supreme Court opinions in their differing rulings.[127] Accordingly, the Supreme Court had granted certiorari in this case to resolve the conflict among the lower courts and in the process resolve an ambiguity in [the Supreme Court s] own opinion. [128]

Chief Justice Rehnquist began his analysis by reviewing the line of cases that dealt with actions brought under 42 U.S.C. 1983 to enforce spending clause statutes. He explained that in Maine v. Thiboutot,[129] the Court, for the first time, recognized that 1983 can be used to enforce rights created by federal statutes.[130] In Pennhurst State School and Hospital v. Halderman,[131] however, the Court found that in legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance, but rather action by the Federal Government to terminate funds to the state. [132] Accordingly, the Court in Pennhurst found that unless Congress speaks with a clear voice and manifests an unambiguous intent to confer individual rights, federal funding provisions provide no basis for private enforcement by 1983. [133]

Chief Justice Rehnquist further explained that, since Pennhurst, there have been only two cases where the Court has found that spending legislation gave rise to enforceable rights under 1983.[134] In Wright v. City of Roanoke Redevelopment and Housing Authority, the Court allowed enforcement of a rent-ceiling provision of the Public Housing Act because the entitlement language was sufficiently specific and definite to qualify as enforceable rights. [135] The Court in Wright found it significant that there was no procedure in place for the tenants to file complaints.[136]

In the only other case where the Supreme Court found enforceable rights under 1983, Wilder v. Virginia Hospital Association, the Court ruled that a reimbursement provision of the Medicaid Act explicitly conferred specific monetary entitlements upon the plaintiffs.[137] Additionally, it found that there was no sufficient administrative means to enforce the reimbursement provision against states for noncompliance.[138]

The majority in Gonzaga, however, noted that in the Supreme Court's most recent cases, it has declined to infer enforceable rights from spending clause statutes. In Suter v. Artist M., the Court rejected the plaintiffs claim that a provision of the Adoption Assistance and Child Welfare Act of 1980, which required funding recipient states to have a plan to make reasonable efforts to keep children out of foster homes, conferred enforceable rights under 1983.[139] The Court in Suter found that the language of the provision did not create enforceable rights by private individuals.[140]

Similarly, the Court in Blessing v. Freestone again rejected the plaintiff's 1983 claim. In Blessing, the plaintiff mothers filed a 1983 claim against Arizona state officials on the ground that they failed to comply with Title VI-D of the Social Security Act, which required funding recipient states to substantially comply with requirements that were put in place to ensure timely child support payments.[141] Blessing set forth three factors to guide the Court in determining whether a statute confers a right.[142] Applying this three-part test, the Court in Blessing stated, Congress must have intended that the provision in question benefit the plaintiff. [143] It concluded that Title VI-D focused on the aggregate services provided by the state and not the need of any particular person.[144] Accordingly, the Court in Blessing found that Title VI-D conferred no private rights to enforce under 1983.[145]

Having examined the line of cases that determined the enforceability of rights created under spending clause statutes through 1983, the majority in Gonzaga rejected the respondent's claim that this line of cases establishes a loose standard for finding rights enforceable under 1983 with the showing of congressional intent to benefit the plaintiff.[146] The Court noted that some courts have misinterpreted Blessing's three-part test as allowing plaintiffs to enforce a statute under 1983 by showing that the plaintiff is within the general zone of interest that the statute intended to protect.[147] This, the Court explained, is less than the requirement established for implied private right of action cases.[148] This misinterpretation of Blessing, the Court explained, is caused by the belief that the implied right of action cases have no bearing on the standards for determining whether a statute creates rights enforceable by 1983.[149] The majority stated:

We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under 1983. Section 1983 provides a remedy only for the deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States. Accordingly, it is rights, not the broader or vaguer benefits or interest, that may be enforced under the authority of that section. This being so, we further reject the notion that our implied right of action cases are separate and distinct from our 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under 1983.[150]

In addition, Chief Justice Rehnquist reiterated that, in Sandoval, the Court found that a plaintiff must show that the statute creates not only a private right but also a private remedy.[151] He went on to explain that plaintiffs filing 1983 claims do not have the burden of showing an intent to create a private remedy, as 1983 generally provides a remedy for rights secured by the federal statutes.[152] Like implied private right of action claims, however, the plaintiff must demonstrate that the statute confers rights on a particular class of person. [153] The Court in Gonzaga found this to make obvious sense, as 1983 is a mechanism by which individual rights secured elsewhere can be enforced.[154]

In Gonzaga, the Court found that FERPA's provision prohibiting the schools that receive federal funding from releasing students education records without written consent did not include the rights-creating language that the Court in Sandoval found critical in determining congressional intent.[155] It further found that the language of the provision does not confer individual entitlement required under Blessing.[156] The majority in Gonzaga asserted that, if Congress wishes to create new rights enforceable under 1983, it must do so in clear and unambiguous terms no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action. [157] Accordingly, the Supreme Court in Gonzaga concluded that FERPA's nondisclosure provision fails to confer enforceable rights.[158]

The Dissent

Writing for the dissent, Justice Stevens, in which Justice Ginsburg joined, argued that the nondisclosure provision meets the Blessing standard for establishing a federal right.[159] Justice Stevens expressed his opinion that, while the nondisclosure provision, 1232b(b), alone indicates evidence that an individual federal right has been created, it is clear that there is a federal right to be enforced under 1983 when the provision is reviewed in light of the entire legislative enactment. [160]

Justice Stevens further asserted that Congress has not foreclosed enforcement of FERPA under 1983.[161] He explained that while FERPA has provisions establishing administrative enforcement by the Secretary of Education, the administrative avenue to enforce FERPA violations is insufficient to overcome the presumption that an enforceable private right of action exists under the statute using 1983.[162] He reasoned that, since the enactment of FERPA in 1974, all of the federal circuit courts have ruled that there is a federal right under FERPA to enforce under 1983, and that Congress has not taken any action to foreclose this enforceability by amending FERPA.[163] The dissent in Gonzaga criticized the majority for borrowing from implied right of action cases to raise the standard for 1983 claims and establishing that in order to create new rights enforceable under 1983, Congress must do so in clear and unambiguous terms. [164]

Justice Stevens pointed out that the Court's previous rulings in implied right of action claims reflect a concern, grounded in separation of powers, that Congress rather than the courts controls the availability of remedies for violation of statutes. [165] He suggested that the separation of powers concerns inherent in implied right of action cases do not exist in 1983 claims, as Congress specifically authorized private suits in 1983.[166] The dissent asserted that the majority's ruling is inconsistent with the Court's precedent, which has always treated the implied right of action and 1983 inquiries as separate. [167]

The Impact of Gonzaga

Like the Court in Sandoval, the Court in Gonzaga limited its analysis to the text and structure of the statute itself to determine whether the statute confers a private right of action. Furthermore, the majority in Gonzaga applied the Blessing implied right of action test to determine whether there is clear and unambiguous evidence of congressional intent to establish an individual right. The Court, however, failed to define what evidence would constitute clear and unambiguous. By limiting its interpretation of the statute narrowly to the text and structure of the statute itself, the Court in Gonzaga limited the enforceability of federal statutes under 1983. Without defining what evidence constitutes clear and unambiguous congressional intent, the Court is unlikely to grant a private right of action arising out of regulations and statutes that do not explicitly confer that right. Additionally, it is unlikely that a federal regulation, without looking at the legislative history and general context, alone would provide this clear and unambiguous evidence of congressional intent to establish an individual right. As Justice Stevens stated in his dissent, the Court in Gonzaga adopts an unnecessarily stringent standard in 1983 cases by inferring the implied right of action claims test, even though the same separation of powers concerns did not apply.[168] By adopting a stringent standard in 1983 claims, the Supreme Court in Gonzaga made it difficult for plaintiffs seeking judicial fora to enforce their Title VI rights using 1983.

Current Environmental Justice and Civil Rights Enforcement

Heightening the standard for 1983 claims has serious consequences for many civil rights and environmental justice groups that have turned to federal courts to enforce their rights. As a result of Sandoval, individual plaintiffs have lost a forum in which to enforce their 602 rights. The Third Circuit Court of Appeals in South Camden barred this enforcement of Title VI 602 regulations under 1983 in that circuit. While the Supreme Court in Gonzaga did not directly address the enforceability of 602 regulations under 1983, it generally ruled that legislation and regulations created pursuant to Congress spending power do not create individual rights enforceable through 1983.[169] Furthermore, the Court in Gonzaga established that there must be explicit congressional intent to create an individual right to enforce legislation or regulations under 1983.[170] Ironically, and as Justice Stevens pointed out, 1983 is a statute that Congress explicitly established to allow individuals to enforce rights created in other statutes.[171] In light of the Supreme Court's decision in Gonzaga, and short of Congress explicitly providing in legislation that private individuals have the right to seek enforcement of Title VI under 1983, Title VI enforcement under 1983 is all but impossible. Once a plaintiff can establish that a regulation or legislation includes a federal right, a private individual should be allowed to raise a 1983 claim to enforce that federal right.

Unfortunately, the Supreme Court in Gonzaga established a new stringent standard for 1983 claims by requiring that if Congress wishes to create new rights enforceable under 1983, it must do so in clear and unambiguous terms. [172] This ruling may have a devastating effect on how the Supreme Court will handle future civil rights and environmental justice litigation brought under 1983. In future cases, the Supreme Court could hold that before individual plaintiffs can use 1983 to enforce disparate impact regulations promulgated pursuant to 602 of Title VI, the plaintiffs must establish that Congress intended to create that right in clear and unambiguous terms. The Court in Sandoval already found that it could not establish, by the language of 602, that Congress intended to establish rights enforceable by private individuals. The Court in Gonzaga, narrowing the analysis of the case to textual reading of the statute, ruled that before spending clause legislation can be enforced under 1983, there must be clear and unambiguous congressional intent to create a private right of action. Like FERPA, Title VI is spending clause legislation. Accordingly, in addition to already having ruled that the language of 602 does not establish congressional intent to create a private right of action, the current Supreme Court, applying the same textual reading of Title VI, could likely rule that Congress did not confer a private right of action in Title VI to be enforced under 1983.

Currently, federal circuit courts are split on the enforceability of 602 regulations under 1983. Accordingly, civil rights and environmental justice litigants can continue to raise their claims of disparate impact discrimination in violation of 602 under 1983 in federal courts that have not barred this enforcement. When viewed, however, in light of the Gonzaga ruling on general enforcement through 1983, it is questionable that 1983 is a long-term remedy for civil rights litigants. Just as the Court in Gonzaga sought to resolve the disagreement of enforceability of FERPA under 1983, the Supreme Court is likely to rule on the enforceability of 602 under 1983. Just as the Court in Sandoval refused to grant a private right of action without explicit statutory language indicating congressional intent, the same Court is unlikely to grant a private right of action for 602 disparate impact claims without clear and unambiguous language authorizing that enforcement under 1983.[173]

As Chapter 3 demonstrated, federal agencies have not been effective in enforcing 602 regulations. Accordingly, both civil rights groups and environmental justice groups have turned to courts to enforce their civil rights. By eliminating this major legal tool, civil rights and environmental justice groups are now faced with the possibility that the discriminatory effects of activities and programs receiving federal funding may go unchallenged.[174] They must now solely rely on the very funding agencies that have been slow to respond to administrative complaints to enforce their civil rights.

Many environmental justice advocates testifying at the Commission's hearings in January and February 2002 agreed that, in light of Sandoval and South Camden, enforcing Title VI regulations has become difficult.[175] Some environmental advocates have called for overturning Sandoval.[176] However, because of the newness of the decision and the current climate of the Supreme Court, overturning Sandoval is not realistic.[177] Other advocates believe that Title VI is not completely lost. To the extent that the federal agencies have enforcement authority under Title VI, individual complainants can bring administrative complaints to appropriate federal agencies. Unfortunately, many communities and advocates who have patiently waited for positive resolution from the federal agencies, all express their concern that the federal agencies have not been very effective in enforcing Title VI.[178]

As Justice Scalia wrote in the Sandoval decision, like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. [179] Therefore, it is no surprise that many policy analysts and advocates are interested in having Congress address the problems created by the Sandoval decision. Luke Cole testified that the only way to undo the harm that has been caused by the Supreme Court in Sandoval is to pass legislation overturning it.[180] In addition, the National Environmental Policy Commission, in its report to the Congressional Black Caucus & Congressional Black Caucus Foundation Environmental Justice Braintrust, recommended that (1) congressional riders interfering with the processing of Title VI be defeated, and that (2) the Congressional Black Caucus consider amending the civil rights laws to provide a private right of action.[181]

Despite recommendations and calls for Congress to pass legislation to supercede Sandoval, no such legislation has been introduced. Mr. Cole expressed his optimism that, just as President George H.W. Bush signed into law the Civil Rights Restoration Act of 1991, undoing the very real damage that the Supreme Court decisions of the late 1980s had done, advocates should work to introduce and have passed a Civil Rights Restoration Act to supercede Sandoval.[182] In the absence of congressional action, federal agencies must become active in enforcing Title VI.

Conclusion

Sandoval's ruling that there is no freestanding private right of action in regulations promulgated under 602 of Title VI eliminated a major tool in enforcing civil rights for civil rights and environmental justice groups. South Camden, which held that in addition to having no freestanding private right of action under 602, private individuals are barred from bringing their disparate impact discrimination claims under 1983, foreclosed the possibility of enforcing these civil rights in the Third Circuit. Other circuits may potentially follow the Third Circuit's ruling. The Court in Gonzaga established a heightened standard for 1983 claims by requiring that, if Congress wishes to create new rights enforceable under 1983, it must do so in clear and unambiguous terms. [183] Accordingly, both civil rights and environmental justice groups are left with few legal channels to enforce these civil rights. While 1983 is a tool that can be utilized in federal circuit courts that have not barred this enforcement, civil rights enforcement attempts must be at the administrative level.

Therefore, the Commission recommends congressional and agency action to provide relief to private plaintiffs. Specifically, the Commission recommends that:



[1] 42 U.S.C. 2000d (1994) ( No person in the United States 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. ).

[2] The Supreme Court Leading Case, 115 Harv. L. Rev. 306, 497 98 (2001).

[3] John DiBari, Comment: How the Sandoval Ruling Will Affect Environmental Justice Plaintiffs, 76 St. John's L. Rev. 1019, 1025 (2002). Section 601 of Title VI prohibits intentional discrimination against individuals based on race, color, or national origin. 42 U.S.C. 2000d. Section 602 of Title VI authorizes and directs federal agencies to issue regulations to implement 601. Id. 2000d-1. Pursuant to 602, agencies have promulgated regulations prohibiting funding recipient agencies from engaging in practices that have a disparate impact on a protected class.

[4] Alexander v. Sandoval, 532 U.S. 275, 295 n.1 (J. Stevens, Dissenting).

[5] Id. at 293.

[6] South Camden Citizens in Action v. New Jersey Dept of Envtl. Prot., 274 F.3d 771, 790 (3d Cir. 2001) (hereafter cited as South Camden II).

[7] 42 U.S.C. 1983 (1994). Section 1983 provides a federal remedy for persons whose rights have been violated under the Constitution and federal laws. It states, Every person who, under color of any statute, ordinance, regulation, custom, usage, of any State of Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Id.

[8] South Camden II, 274 F.3d 771, 790 (3d Cir. 2001).

[9] An implied right of action allows private individuals to file lawsuits under a federal statute that does not explicitly provide for such a right.

[10] Gonzaga v. Doe, 536 U.S. 273 (2002).

[11] 414 U.S. 563 (1974).

[12] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 318 19 (1978) (ruling that 601 proscribes only those racial classifications that would violate the Equal Protection Clause of the Fifth Amendment ).

[13] See Guardians Ass n. v. Civil Serv. Comm n of New York City, 463 U.S. 582 (1983).

[14] Id.

[15] 469 U.S. 287, 293 94 (1985).

[16] 377 U.S. 426 (1964).

[17] 422 U.S. 66, 78 (1975). This four-part test looks to determine (1) whether the plaintiff is one of the class for whose special benefit the statute was created, that is, whether the statute creates a federal right in favor of the plaintiff; (2) whether there is any indication of legislative intent, explicit or implicit, either to create or deny such a remedy; (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff; and (4) whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law. Id.

[18] Id.

[19] 441 U.S. 677 (1979) (holding that there is a private right of action to enforce Title IX of the Education Amendments of 1972, reasoning that Title IX was patterned after Title VI, which had already been construed to have created a private remedy).

[20] Bradford C. Mank, Suing Under 1983: The Future After Gonzaga University v. Doe, 39 Hous. L. Rev. 1417, 1424 (2003).

[21] Sandoval, 532 U.S. at 293.

[22] Id. at 279.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 288 89.

[27] Id. at 283.

[28] Sandoval, 532 U.S. at 279 82 (citing Cannon, 441 U.S. at 694; Bakke, 438 U.S. at 287).

[29] Lau v. Nichols, 414 U.S. 563 (1974).

[30] Sandoval, 532 U.S. at 285 (citing Lau, 414 U.S. at 570 71).

[31] Id.

[32] Id.

[33] Id. at 286.

[34] Id.

[35] Id.

[36] Id.

[37] Id. (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979)).

[38] Borak, 377 U.S. at 426.

[39] Cort, 422 U.S. at 66.

[40] Sandoval, 532 U.S. at 287.

[41] Id. (citing Borak, 377 U.S. at 433).

[42] Id.

[43] Id.

[44] Id. at 287 88.

[45] Id. at 288.

[46] Id.

[47] Id. (citing 42 U.S.C. 2000d).

[48] Id. at 289.

[49] Id.

[50] Id.

[51] Id. at 290 (citing Middlesex County Sewerage Auth. v. Nat l Sea Clammers Ass n., 453 U.S. 1, 19 20 (1981)).

[52] Id. at 291.

[53] Id. at 286 87.

[54] Id. at 289 90.

[55] Id.

[56] Id. at 291.

[57] Id. at 293.

[58] Id.

[59] Id. at 294 (Stevens, J., dissenting).

[60] Id.

[61] Id.

[62] Id.; see Cannon, 441 U.S. at 684.

[63] Sandoval, 532 U.S. at 297 (Stevens, J., dissenting).

[64] Id. at 304 (Stevens, J., dissenting).

[65] Id.

[66] Id. at 305 (Stevens, J., dissenting).

[67] Id. at 304 (Stevens, J., dissenting).

[68] Id.

[69] Id. at 301 (Stevens, J., dissenting).

[70] Id. at 299 300 (Stevens, J., dissenting).

[71] Id. at 300 (Stevens, J., dissenting).

[72] Id. at 293.

[73] Id. at 309 10 (Stevens, J., dissenting).

[74] 42 U.S.C. 1983.

[75] South Camden Citizens in Action v. New Jersey Dept of Envtl. Prot., 145 F. Supp. 2d 505 (D.N.J. 2001) (hereafter cited as South Camden I).

[76] South Camden II, 274 F.3d at 774 75.

[77] See South Camden I, 145 F. Supp. 2d at 446.

[78] See Sandoval, 532 U.S. at 275.

[79] South Camden I, 145 F. Supp. 2d at 511.

[80] Id. at 451 52.

[81] Id. at 508.

[82] Id. at 549.

[83] South Camden II, 274 F.3d at 791.

[84] Id. at 771.

[85] Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999) (holding that a plaintiff can bring a disparate impact claim under 602 and/or under 1983).

[86] See South Camden II, 274 F.3d at 777 78.

[87] Id. at 779.

[88] Id. at 780.

[89] Id. at 781.

[90] Id. at 779.

[91] Id. (citing Maine v. Thiboutot, 448 U.S. 1, 6 8 (1980) (holding that causes of action under 1983 are not limited to claims based on constitutional or equal rights violations)).

[92] Id. at 779.

[93] Id. at 780.

[94] Id. at 779 80 (citing Blessing v. Freestone 520 U.S. 329, 343 (1997)).

[95] Id. at 790.

[96] Id.

[97] Id.

[98] South Camden II, 274 F.3d at 781.

[99] Id. at 786.

[100] Id. at 791 (McKee, J., dissenting).

[101] Id.

[102] Id.

[103] Id. at 793 (McKee, J., dissenting).

[104] Id.

[105] Id.

[106] Id.

[107] Id. at 796 (McKee, J., dissenting).

[108] Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003) (holding that the plaintiffs did not have a private right of action under 42 U.S.C. 1983 to challenge the Central Puget Sound Regional Transit Authority s plan to build a light rail line that allegedly discriminated against its residents based on race in violation of DOT's regulations promulgated pursuant to 602 of Title VI).

[109] In Ceaser v. Pataki, the District Court for the Southern District of New York, following the Supreme Court holding in Sandoval, refused to recognize a freestanding private right of action to enforce regulations promulgated under 602. 2002 U.S. Dist. LEXIS 5098 (S.D.N.Y. Mar. 25, 2002) The United States Court of Appeals for the Second Circuit, however, has not addressed whether there is a private right of action in regulations promulgated under 602 to be enforced under 1983. Accordingly, while a district court ruling alone carries little precedential value, without further review by the Second Circuit, 602 claims are unlikely to be enforced under 1983.

[110] Robinson v. Kansas, 295 F.3d 1183, 1186 (10th Cir. 2002) (holding that plaintiffs are not barred from bringing a disparate impact claim in violation of 602 regulations under 1983).

[111] White v. Engler, 188 F. Supp. 2d 730 (E.D. Mich. 2001) (holding that while the plaintiff had no direct private right of action under Title VI and its implementing regulations to bring a private action against the state of Michigan for its Merit Award Scholarship Program, which allegedly perpetuates racial and ethnic bias and discriminates against African Americans, Hispanics, Native Americans, and educationally disadvantaged high school students, the plaintiff could bring a private action under 1983 to enforce disparate impact regulations promulgated pursuant to 602).

[112] South Camden in Action v. New Jersey Dept of Envtl. Prot., 274 F.3d 771 (2001), cert. denied, 536 U.S. 939 (2002).

[113] Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002), cert. denied, 123 S. Ct. 2574 (2003).

[114] Steve France, High Court Is Rolling Back Implied Private Rights Action, 89 A.B.A. J. 18 (2003) (contending that while it is certain that the Supreme Court is likely to address the issue of implied private rights of action in the future, it is more likely to let the lower courts take the lead on addressing the issue before it is to make further legal development).

[115] Bradford C. Mank, Using 1983 to Enforce Title VI's Section 602 Regulations, 49 U. Kan L. Rev. 321, 322 (2001) (hereafter cited as Mank, Using 1983 to Enforce Title VI).

[116] Ibid.

[117] Ibid., p. 380.

[118] Ibid.

[119] See Gonzaga v. Doe, 536 U.S. 273 (2002). Congress, under its spending clause power, imposes certain conditions in granting federal funds to state and local governments for their programs. As recipients of federal funds, state and local governments must comply with regulations established by Congress, generally known as spending clause legislation. See Susan M. Luken, Comment: Irreconcilable Differences: The Spending Clause and the Eleventh Amendment: Living Congress's Use of Conditional Spending to Circumvent Eleventh Amendment Immunity, 70 U. Cin. Rev. 693 (Winter 2002).

[120] Suzanne Smith, Current Treatment of Environmental Justice Claims: Plaintiffs Face a Dead End in the Courtroom, 12 B.U. Pub. Int. L.J. 223, 245 (Fall 2002).

[121] See 20 U.S.C. 1232g (1994).

[122] Id.

[123] Gonzaga, 536 U.S. at 276.

[124] France, High Court Is Rolling Back Implied Private Rights Action, p. 18.

[125] Gonzaga, 536 U.S. at 276.

[126] Id. at 277.

[127] Id. at 278.

[128] Id.

[129] Maine v. Thiboutot, 448 U.S. 1 (1980).

[130] Gonzaga, 536 U.S. at 276.

[131] Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1 (1981).

[132] Gonzaga, 536 U.S. at 279 80 (quoting Pennhurst, 451 U.S. at 28).

[133] Id. (citing Pennhurst 451 U.S. at 17, 28 and n. 21).

[134] See Wilder v. Va. Hosp. Ass n., 496 U.S. 498 (1990); Wright v. Roanoke Redevelopment and Hou. Auth., 479 U.S. 418 (1987).

[135] Gonzaga, 536 U.S. at 280 (citing Wright, 479 U.S. at 432).

[136] Wright, 479 U.S. at 426.

[137] Wilder, 496 U.S. at 522 23.

[138] Id.

[139] Suter v. Artist M., 503 U.S. 347, 358 (1992).

[140] Id. at 357.

[141] Blessing, 520 U.S. at 343.

[142] This three-part test looks at (1) whether Congress intended the plaintiff to be a beneficiary; (2) whether the plaintiff can demonstrate that the statute creates a right that is not vague and amorphous ; and (3) whether the right is mandatory in terms. Blessing, 520 U.S. at 343.

[143] Id. at 340 41.

[144] Id. at 343.

[145] Id.

[146] Gonzaga, 536 U.S. at 283.

[147] Id.

[148] Id.

[149] Id.

[150] Id.

[151] Id. at 284 (quoting Sandoval, 532 U.S. at 286).

[152] Id.

[153] Id. at 285 (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)).

[154] Id.

[155] Id.

[156] Id.

[157] Id. at 290.

[158] Id.

[159] Id. at 295 (Stevens, J., dissenting).

[160] Id. at 296 (Stevens, J., dissenting).

[161] Id. at 297 (Stevens, J., dissenting).

[162] Id.

[163] Id. at 299 (Stevens, J., dissenting).

[164] Id. at 300 (Stevens, J., dissenting).

[165] Id. (quoting Wilder, 496 U.S. at 509).

[166] Id.

[167] Id. at 300 (Stevens, J., dissenting).

[168] Id. at 302 (Stevens, J., dissenting).

[169] Id. at 276.

[170] Id. at 290.

[171] Id. at 301 02 (Stevens, J., dissenting). The statute, 42 U.S.C. 1983, explicitly allows persons deprived of any rights secured by the Constitution and laws to bring a cause of action under its provisions. See 42 U.S.C. 1983.

[172] Id. at 290.

[173] Id.

[174] Mank, Using 1983 to Enforce Title VI, p. 322.

[175] See Luke Cole, director, California Rural Legal Assistance Foundation, testimony before the U.S. Commission on Civil Rights, hearing, Washington, DC, Feb. 8, 2002, official transcript, p. 37 (hereafter cited as February Hearing Transcript).

[176] Ibid.

[177] Ibid.

[178] See ibid., pp. 17, 19 21; Monique Harden, Earthjustice Legal Defense Fund, testimony before the U.S. Commission on Civil Rights, hearing, Washington, DC, Jan. 11, 2002, official transcript, pp. 23 25 (hereafter cited as January Hearing Transcript); and Peggy Shepard, executive director, West Harlem Environmental Action, Inc., Testimony, January Hearing Transcript, p. 123.

[179] Sandoval, 532 U.S. at 1519.

[180] Luke Cole, director, California Rural Legal Assistance Foundation, Testimony, February Hearing Transcript, p. 37.

[181] National Environmental Policy Commission, Report to the Congressional Black Caucus and Congressional Black Caucus Foundation Environmental Braintrust, Sept. 28, 2001, p. 37.

[182] Luke Cole, director, California Rural Legal Assistance Foundation, Testimony, February Hearing, p. 37.

[183] Gonzaga, 536 U.S. at 290.