`Disparate-impact' suits may survive after High Court ruling on Civil Rights Act.

Trial lawyers are changing the way they bring private actions against state agencies, following a U.S. Supreme Court decision in April that eliminated private actions in disparate-impact discrimination cases. (Alexander v. Sandoval, 121 S. Ct. 1511 (2001).)

As a result of the decision, some lawyers say, the future of civil rights litigation may rest more on 42 U.S.C. [sections] 1983 than on Title VI of the Civil Rights Act of 1964. Title VI prohibits state agencies that receive federal funding from discriminating on the basis of race, color, or national origin. Lawyers are waiting to see how the recent ruling affects litigation under Title IX, the law prohibiting gender-based discrimination.

In a disappointing decision for plaintiff (Disparate-impact suits, cont. from p. 17) lawyers, the Court ruled 5-4 in Sandoval that individuals cannot sue federally funded state agencies over policies that have a disparate impact on members of minority groups. The decision stemmed from Alabama's policy of administering its driver's license exam only in English, after a 1990 state constitutional amendment made English the official state language.

Martha Sandoval, a Mexican immigrant, and other plaintiffs filed a class action against the Alabama Department of Public Safety and its director, James Alexander, claiming that the policy had a disparate impact on minority applicants.

The Supreme Court ruled that no private right of action exists to enforce [sections] 602 of the Civil Rights Act of 1964. That section prohibits federally funded agencies from performing acts and establishing practices that have a disparate impact on members of minority groups.

"What we've witnessed in this term is a broad assault on civil rights litigation and legislation," said Malden, Massachusetts, lawyer Robert Hernandez, chair of ATLA's Civil Rights Section.

"I don't think every door has been closed," said Adele Kimmel of Trial Lawyers for Public Justice in Washington, D.C. But overall, she said, "it's a horrible decision."

Trial lawyers weren't alone in their criticism of the decision. In a lengthy dissent, Justice John Paul Stevens said, "Today, in a decision unfounded in our precedent and ,hostile to decades of settled expectations, a majority of this Court carves out an important exception to the right of private action long recognized under Title VI."

Stevens said the Court ignored a consensus among the appeals courts and should have refused to even review the case.

Sid Wolinsky, litigation director for the Oakland, California-based Disability Rights Advocates, said the decision could prompt lawyers to file some cases in state, rather than federal, court. The Sandoval decision, Wolinsky said, "is one more backwards step" for civil rights after decades of progress.

In the first major federal decision after Sandoval, U.S. District Judge Stephen Orlofsky showed the importance of [sections] 1983, given the Supreme Court's ruling. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, a closely watched case, Orlofsky upheld an injunction keeping a cement plant from operating. (No. 01-702, 2001 WL 491965 (D.N.J. May 10, 2001).)

Residents of a neighborhood inhabited mostly by African-Americans and Hispanics sued to block Montreal-based St. Lawrence Cement Co. from opening a $60 million cement plant. The plaintiffs claimed that their health would be jeopardized by pollution from the plant and that the state Department of Environmental Protection failed to consider the potential adverse, disparate impact of issuing permits for operation, as federal regulations required.

The district court had issued the injunction just five days before the Supreme Court released the Sandoval decision. Less than a half hour after the decision was released, lawyers in the New Jersey case were on a conference call to the district court, which ordered both sides to file briefs. After another hearing, Orlofsky ruled that, although the plaintiffs' Title VI claim was negated by Sandoval, the injunction could stand under their [sections] 1983 claim.

The 37-page ruling was significant not only because it protected the plaintiffs' rights, but also because it was the first detailed analysis of the effect of Sandoval by a federal court.

"The Supreme Court's decision in Sandoval clearly held that private individuals can no longer sue directly under [sections] 602 to enforce the disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964," Orlofsky wrote. "The question presented to this court for the first time, and perhaps for the first time to any federal court, is whether the same disparate-impact regulations which can no longer be enforced through a private right of action brought directly under [sections] 602 of Title VI, can be enforced pursuant to 42 U.S.C. [sections] 1983."

Orlofsky ruled that Sandoval did not prohibit the plaintiffs from pursuing a claim for disparate-impact discrimination in violation of the EPA's regulations governing implementation of Title VI. He also ruled that the plaintiffs were entitled to preliminary injunctive relief based on their [sections] 1983 claim.

The defendants have filed a notice of appeal.