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MR. JUSTICE POWELL announced the judgment of the Court.
MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, concurring in the judgment in part and dissenting in part.
MR. JUSTICE BLACKMUN. concurring in the judgment
MR. JUSTICE MARSHALL. concurring
in the judgment in part and dissenting in part.
MR. JUSTICE WHITE concurring in the judgment
I write separately concerning the question
of whether Title VI of the Civil Rights Act of 1964, 42 U. S.
C. § 2000d et seq., provides for a private cause of action.
Four Justices are apparently of the view that such a private cause
of action exists, and four Justices assume it for purposes of
this case. I am unwilling merely to assume an affirmative answer.
If in fact no private cause of action exists, this Court and the
lower courts as well are without jurisdiction to consider respondent's
Title VI claim. As I see it, if we are not obliged to do so, it
is at least advisable to address this threshold jurisdictional
issue. See United States v. Griffin, 303 U.S. 226, 229 (1938).
1 Furthermore, just as it is
inappropriate to address constitutional issues without determining
whether statutory grounds urged before us are dispositive, it
is at least questionable practice to adjudicate a novel and difficult
statutory issue without first considering whether we have jurisdiction
to decide it. Consequently, I address the question of whether
respondent may bring suit under Title VI.
A private cause of action under Title VI, in
terms both of the Civil Rights Act as a whole and that Title,
would not be "consistent with the underlying purposes of
the legislative scheme" and would be contrary to the legislative
intent. Cort v. Ash, 422 U.S. 66, 78 (1975). Title II, 42 U. S.
C. § 2000a et seq., dealing with public accommodations, and
Title VII, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp.
V), dealing with employment, proscribe private discriminatory
conduct that as of 1964 neither the Constitution nor other federal
statutes had been construed to forbid. Both Titles carefully provided
for private actions as well as for official participation in enforcement.
Title III, 42 U. S. C. § 2000b et seq., and Title IV, 42
U. S. C. § 2000c et seq. (1970 ed. and Supp. V), dealing
with public facilities and public education, respectively, authorize
suits by the Attorney General to eliminate racial discrimination
in these areas. Because suits to end discrimination in public
facilities and public education were already available under 42
U. S. C. § 1983, it was, of course, unnecessary to provide
for private actions under Titles III and IV. But each Title carefully
provided that its provisions for public actions would not adversely
affect pre-existing private remedies. §§ 2000b-2 and
2000c-8.
The role of Title VI was to terminate federal
financial support for public and private institutions or programs
that discriminated on the basis of race. Section 601, 42 U. S.
C. § 2000d, imposed the proscription that no person, on the
grounds of race, color, or national origin, was to be excluded
from or discriminated against under any program or activity receiving
federal financial assistance. But there is no express provision
for private actions to enforce Title VI, and it would be quite
incredible if Congress, after so carefully attending to the matter
of private actions in other Titles of the Act, intended silently
to create a private cause of action to enforce Title VI.
It is also evident from the face of §
602, 42 U. S. C. § 2000d-1, that Congress intended the departments
and agencies to define and to refine, by rule or regulation, the
general proscription of § 601, subject only to judicial review
of agency action in accordance with established procedures. Section
602 provides for enforcement: Every federal department or agency
furnishing financial support is to implement the proscription
by appropriate rule or regulation, each of which requires approval
by the President. Termination of funding as a sanction for noncompliance
is authorized, but only after a hearing and after the failure
of voluntary means to secure compliance. Moreover, termination
may not take place until the department or agency involved files
with the appropriate committees of the House and Senate a full
written report of the circumstances and the grounds for such action
and 30 days have elapsed thereafter. Judicial review was provided,
at least for actions terminating financial assistance.
Termination of funding was regarded by Congress
as a serious enforcement step, and the legislative history is
replete with assurances that it would not occur until every possibility
for conciliation had been exhausted. 2
To allow a private individual to sue to cut off funds under Title
VI would compromise these assurances and short circuit the procedural
preconditions provided in Title VI. If the Federal Government
may not cut off funds except pursuant to an agency rule, approved
by the President, and presented to the appropriate committee of
Congress for a layover period, and after voluntary means to achieve
compliance have failed, it is inconceivable that Congress intended
to permit individuals to circumvent these administrative prerequisites
themselves.
Furthermore, although Congress intended Title
VI to end federal financial support for racially discriminatory
policies of not only public but also private institutions and
programs, it is extremely unlikely that Congress, without a word
indicating that it intended to do so, contemplated creating an
independent, private statutory cause of action against all private
as well as public agencies that might be in violation of the section.
There is no doubt that Congress regarded private litigation as
an important tool to attack discriminatory practices. It does
not at all follow, however, that Congress anticipated new private
actions under Title VI itself. Wherever a discriminatory program
was a public undertaking, such as a public school, private remedies
were already available under other statutes, and a private remedy
under Title VI was unnecessary. Congress was well aware of this
fact. Significantly, there was frequent reference to Simkins v.
Moses H. Cone Memorial Hospital, 323 F.2d 959 (CA4 1963), cert.
denied, 376 U.S. 938 (1964), throughout the congressional deliberations.
See, e. g., 110 Cong. Rec. 6544 (1964) (Sen. Humphrey). Simkins
held that under appropriate circumstances, the operation of a
private hospital with "massive use of public funds and extensive
state-federal sharing in the common plan" constituted "state
action" for the purposes of the Fourteenth Amendment. 323
F.2d, at 967. It was unnecessary, of course, to create a Title
VI private action against private discriminators where they were
already within the reach of existing private remedies. But when
they were not -- and Simkins carefully disclaimed holding that
"every subvention by the federal or state government automatically
involves the beneficiary in 'state action,'" ibid. 3
-- it is difficult to believe that Congress silently created a
private remedy to terminate conduct that previously had been entirely
beyond the reach of federal law.
For those who believe, contrary to my views,
that Title VI was intended to create a stricter standard of color
blindness than the Constitution itself requires, the result of
no private cause of action follows even more readily. In that
case Congress must be seen to have banned degrees of discrimination,
as well as types of discriminators, not previously reached by
law. A Congress careful enough to provide that existing private
causes of action would be preserved (in Titles III and IV) would
not leave for inference a vast new extension of private enforcement
power. And a Congress so exceptionally concerned with the satisfaction
of procedural preliminaries before confronting fund recipients
with the choice of a cutoff or of stopping discriminating would
not permit private parties to pose precisely that same dilemma
in a greatly widened category of cases with no procedural requirements
whatsoever.
Significantly, in at least three instances
legislators who played a major role in the passage of Title VI
explicitly stated that a private right of action under Title VI
does not exist. 4 As an "indication
of legislative intent, explicit or implicit, either to create
such a remedy or to deny one," Cort v. Ash, 422 U.S., at
78, clearer statements cannot be imagined, and under Cort, "an
explicit purpose to deny such cause of action [is] controlling."
Id., at 82. Senator Keating, for example, proposed a private "right
to sue" for the "person suffering from discrimination";
but the Department of Justice refused to include it, and the Senator
acquiesced. 5 These are not
neutral, ambiguous statements. They indicate the absence of a
legislative intent to create a private remedy. Nor do any of these
statements make nice distinctions between a private cause of action
to enjoin discrimination and one to cut off funds, as MR. JUSTICE
STEVENS and the three Justices who join his opinion apparently
would. See post, at 419-420, n. 26. Indeed, it would be odd if
they did, since the practical effect of either type of private
cause of action would be identical. If private suits to enjoin
conduct allegedly violative of § 601 were permitted, recipients
of federal funds would be presented with the choice of either
ending what the court, rather than the agency, determined to be
a discriminatory practice within the meaning of Title VI or refusing
federal funds and thereby escaping from the statute's jurisdictional
predicate. 6 This is precisely
the same choice as would confront recipients if suit were brought
to cut off funds. Both types of actions would equally jeopardize
the administrative processes so carefully structured into the
law.
This Court has always required "that the
inference of such a private cause of action not otherwise authorized
by the statute must be consistent with the evident legislative
intent and, of course, with the effectuation of the purposes intended
to be served by the Act." National Railroad Passenger Corp.
v. National Association of Railroad Passengers, 414 U.S. 453,
458 (1974). See also Securities Investor Protection Corp. v. Barbour,
421 U.S. 412, 418-420 (1975). A private cause of action under
Title VI is unable to satisfy either prong of this test.
Because each of my colleagues either has a
different view or assumes a private cause of action, however,
the merits of the Title VI issue must be addressed. My views in
that regard, as well as my views with respect to the equal protection
issue, are included in the joint opinion that my Brothers BRENNAN,
MARSHALL, and BLACKMUN and I have filed. 7
---- Begin EndNotes ----
1 It is
also clear from Griffin that "lack of jurisdiction . . .
touching the subject matter of the litigation cannot be waived
by the parties . . . ." 303 U.S., at 229. See also Mount
Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 278 (1977); Louisville
& Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Mansfield,
C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884).
In Lau v. Nichols, 414 U.S. 563 (1974), we
did adjudicate a Title VI claim brought by a class of individuals.
But the existence of a private cause of action was not at issue.
In addition, the understanding of MR. JUSTICE STEWART's concurring
opinion, which observed that standing was not being contested,
was that the standing alleged by petitioners was as third-party
beneficiaries of the funding contract between the Department of
Health, Education, and Welfare and the San Francisco United School
District, a theory not alleged by the present respondent. Id.,
at 571 n. 2. Furthermore, the plaintiffs in Lau alleged jurisdiction
under 42 U. S. C. § 1983 rather than directly under the provisions
of Title VI, as does the plaintiff in this case. Although the
Court undoubtedly had an obligation to consider the jurisdictional
question, this is surely not the first instance in which the Court
has bypassed a jurisdictional problem not presented by the parties.
Certainly the Court's silence on the jurisdictional question,
when considered in the context of the indifference of the litigants
to it and the fact that jurisdiction was alleged under §
1983, does not foreclose a reasoned conclusion that Title VI affords
no private cause of action.
2 "Yet,
before that principle [that 'Federal funds are not to be used
to support racial discrimination'] is implemented to the detriment
of any person, agency, or State, regulations giving notice of
what conduct is required must be drawn up by the agency administering
the program. . . . Before such regulations become effective, they
must be submitted to and approved by the President.
"Once having become effective, there is
still a long road to travel before any sanction whatsoever is
imposed. Formal action to compel compliance can only take place
after the following has occurred: first, there must be an unsuccessful
attempt to obtain voluntary compliance; second, there must be
an administrative hearing; third, a written report of the circumstances
and the grounds for such action must be filed with the appropriate
committees of the House and Senate; and fourth, 30 days must have
elapsed between such filing and the action denying benefits under
a Federal program. Finally, even that action is by no means final
because it is subject to judicial review and can be further postponed
by judicial action granting temporary relief pending review in
order to avoid irreparable injury. It would be difficult indeed
to concoct any additional safeguards to incorporate in such a
procedure." 110 Cong. Rec. 6749 (1964) (Sen. Moss).
"[The] authority to cut off funds is hedged
about with a number of procedural restrictions. . . . [There follow
details of the preliminary steps.]
"In short, title VI is a reasonable, moderate,
cautious, carefully worked out solution to a situation that clearly
calls for legislative action." Id., at 6544 (Sen. Humphrey).
"Actually, no action whatsoever can be taken against anyone
until the Federal agency involved has advised the appropriate
person of his failure to comply with nondiscrimination requirements
and until voluntary efforts to secure compliance have failed."
Id., at 1519 (Rep. Celler) (emphasis added). See also remarks
of Sen. Ribicoff (id., at 7066-7067); Sen. Proxmire (id., at 8345);
Sen. Kuchel (id., at 6562). These safeguards were incorporated
into 42 U. S. C. § 2000d-1.
3 This Court
has never held that the mere receipt of federal or state funds
is sufficient to make the recipient a federal or state actor.
In Norwood v. Harrison, 413 U.S. 455 (1973), private schools that
received state aid were held subject to the Fourteenth Amendment's
ban on discrimination, but the Court's test required "tangible
financial aid" with a "significant tendency to facilitate,
reinforce, and support private discrimination." Id., at 466.
The mandate of Burton v. Wilmington Parking Authority, 365 U.S.
715, 722 (1961), to sift facts and weigh circumstances of governmental
support in each case to determine whether private or state action
was involved, has not been abandoned for an automatic rule based
on receipt of funds.
Contemporaneous with the congressional debates
on the Civil Rights Act was this Court's decision in Griffin v.
School Board, 377 U.S. 218 (1964). Tuition grants and tax concessions
were provided for parents of students in private schools, which
discriminated racially. The Court found sufficient state action,
but carefully limited its holding to the circumstances presented:
"[Closing] the Prince Edward schools and meanwhile contributing
to the support of the private segregated white schools that took
their place denied petitioners the equal protection of the laws."
Id., at 232.
Hence, neither at the time of the enactment
of Title VI, nor at the present time to the extent this Court
has spoken, has mere receipt of state funds created state action.
Moreover, Simkins has not met with universal approval among the
United States Courts of Appeals. See cases cited in Greco v. Orange
Memorial Hospital Corp., 423 U.S. 1000, 1004 (1975) (WHITE, J.,
dissenting from denial of certiorari).
4 "Nowhere
in this section do you find a comparable right of legal action
for a person who feels he has been denied his rights to participate
in the benefits of Federal funds. Nowhere. Only those who have
been cut off can go to court and present their claim." 110
Cong. Rec. 2467 (1964) (Rep. Gill).
"[A] good case could be made that a remedy
is provided for the State or local official who is practicing
discrimination, but none is provided for the victim of the discrimination."
Id., at 6562 (Sen. Kuchel).
"Parenthetically, while we favored the
inclusion of the right to sue on the part of the agency, the State,
or the facility which was deprived of Federal funds, we also favored
the inclusion of a provision granting the right to sue to the
person suffering from discrimination. This was not included in
the bill. However, both the Senator from Connecticut and I are
grateful that our other suggestions were adopted by the Justice
Department." Id., at 7065 (Sen. Keating).
5 Ibid.
6 As Senator
Ribicoff stated: "Sometimes those eligible for Federal assistance
may elect to reject such aid, unwilling to agree to a nondiscrimination
requirement. If they choose that course, the responsibility is
theirs." Id., at 7067.
7 I also
join Parts I, III-A, and V-C of MR. JUSTICE POWELL's opinion.
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