Short title

This Act may be cited as the

Environmental Justice Enforcement Act of 2008

Findings

Congress finds the following: (1)This Act is made necessary by a decision of the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001), which established a new precedent for the interpretation of statutory protections against discrimination that Congress has erected over a period of almost 4 decades. The Sandoval decision limits the statutory protections by stripping victims of discrimination (defined under regulations that Congress required Federal departments and agencies to promulgate to implement title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)) of the right to bring action in Federal court to redress the discrimination and by casting doubt on the validity of the regulations themselves. (2)The Sandoval decision established a new precedent for the interpretation of title VI of the Civil Rights Act of 1964. In 1964 Congress adopted title VI of the Civil Rights Act of 1964 to ensure that Federal dollars would not be used to subsidize or support programs or activities that discriminated on racial, color, or national origin grounds. (3)From the outset, Congress and the executive branch made clear that the regulatory process would be used to ensure broad protections for beneficiaries of the law. The first regulations promulgated by the Department of Justice under title VI of the Civil Rights Act of 1964 forbade the use of criteria or methods of administration which have the effect of subjecting individuals to discrimination . . . (section 80.3 of title 45, Code of Federal Regulations) and prohibited retaliation against persons participating in litigation or administrative resolution of charges of discrimination brought under the Act. These regulations were drafted by the same executive branch officials who played a central role in drafting title VI of the Civil Rights Act of 1964. (4)These regulations have never been invalidated. In 1966, Congress considered and rejected a proposal to invalidate the disparate impact regulations promulgated pursuant to title VI of the Civil Rights Act of 1964. The Supreme Court has recognized that Congress’s failure to disapprove regulations implies that the regulations accurately reflect congressional intent. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 533–34 (1982). (5)Title VI of the Civil Rights Act of 1964 was designed to confer a benefit on persons who were discriminated against. Title VI of such Act relied heavily on private attorneys general for effective enforcement. Congress acknowledged that it could not secure compliance solely through enforcement actions initiated by the Attorney General. Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) (per curiam). (6)The Supreme Court has made it clear that individuals suffering discrimination in violation of title VI of the Civil Rights Act of 1964 have a private right of action in the Federal courts, and that this is necessary for effective protection of the law, although Congress did not make such a right of action explicit in the statute. Cannon v. University of Chicago, 441 U.S. 677 (1979). (7)Notwithstanding the decision of the Supreme Court in Cort v. Ash, 422 U.S. 66 (1975) to abandon prior precedent and require explicit statutory statements of a right of action, Congress and the courts both before and after Cort have recognized an implied right of action under title VI of the Civil Rights Act of 1964. For example, Congress has consistently provided the means for enforcing the statutes. In 1972, Congress established a right to attorney’s fees in private actions brought under title VI of the Civil Rights Act of 1964. (8)The right of action regulations promulgated pursuant to title VI of the Civil Rights Act of 1964 were congressionally mandated and their promulgation was specifically directed by Congress under section 602 of that Act (42 U.S.C. 2000d–1) to effectuate the antidiscrimination provisions of the statute. Title VI of the Civil Rights Act of 1964 stressed the importance of the regulations by requiring them to be approved by the President. (9)Regulations that prohibit practices that have the effect of discrimination are consistent with prohibitions of disparate treatment that require a showing of intent, as the Supreme Court has acknowledged in the following decisions: (A)A disparate impact standard allows a court to reach discrimination that could actually exist under the guise of compliance with the law. Griggs v. Duke Power Co., 401 U.S. 424 (1971). (B)Evidence of a disproportionate burden will often be the starting point in any analysis of unlawful discrimination. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977). (C)An invidious purpose may often be inferred from the totality of the relevant facts, including, where true, that the practice bears more heavily on one race than another. Washington v. Davis, 426 U.S. 229 (1976). (D)The disparate impact method of proof is critical to ferreting out stereotypes underlying intentional discrimination. Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). (10)The interpretation of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) as prohibiting practices that have disparate impact and that are not justified as necessary to achieve the goals of the programs or activities supported by the Federal financial assistance is powerfully reinforced by the use of such a standard in enforcing title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). When the Supreme Court ruled against the application of a disparate impact standard under title VII, Congress specifically reinstated it as law in the Civil Rights Act of 1991 (Public Law 102–166; 105 Stat. 1071). (11)By reinstating a private right of action under title VI of the Civil Rights Act of 1964, Congress is not acting in a manner that would expose entities subject to that title to unfair findings of discrimination. The legal standard for a disparate impact claim has never been structured so that a finding of discrimination could be based on numerical imbalance alone. (12)In contrast, a failure to reinstate or confirm a private right of action would leave vindication of the rights to equality of opportunity solely to Federal agencies, which may fail to take necessary and appropriate action because of administrative overburden or other reasons. Action by Congress to specify a private right of action is necessary to ensure that persons will have a remedy if they are denied equal access to education, housing, health, environmental protection, transportation, and many other programs and services by practices of entities subject to title VI of the Civil Rights Act of 1964 that result in discrimination. (13)Following the Supreme Court’s decision in Sandoval, courts have dismissed numerous claims brought under the regulations promulgated pursuant to title VI of the Civil Rights Act of 1964 that challenged actions with an unjustified discriminatory effect. (14)The right to maintain a private right of action under a provision added under this Act to title VI of the Civil Rights Act of 1964 will be effectuated by a waiver of sovereign immunity in the same manner as sovereign immunity is waived under the remaining provisions of that title.

Prohibited discrimination

Section 601 of the Civil Rights Act of 1964 (42 U.S.C. 2000d) is amended— (1)by striking No and inserting (a) No; and (2)by adding at the end the following:

(b)(1)(A)Discrimination (including exclusion from participation and denial of benefits) based on disparate impact is established under this title only if— (i)a person aggrieved by discrimination on the basis of race, color, or national origin (referred to in this title as an aggrieved person) demonstrates that an entity subject to this title (referred to in this title as a covered entity) has a policy or practice that causes a disparate impact on the basis of race, color, or national origin and the covered entity fails to demonstrate that the challenged policy or practice is related to and necessary to achieve the nondiscriminatory goals of the program or activity alleged to have been operated in a discriminatory manner; or (ii)the aggrieved person demonstrates (consistent with the demonstration required under title VII with respect to an alternative employment practice) that a less discriminatory alternative policy or practice exists, and the covered entity refuses to adopt such alternative policy or practice. (B)(i)With respect to demonstrating that a particular policy or practice causes a disparate impact as described in subparagraph (A)(i), the aggrieved person shall demonstrate that each particular challenged policy or practice causes a disparate impact, except that if the aggrieved person demonstrates to the court that the elements of a covered entity’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as 1 policy or practice. (ii)If the covered entity demonstrates that a specific policy or practice does not cause the disparate impact, the covered entity shall not be required to demonstrate that such policy or practice is necessary to achieve the goals of its program or activity. (2)A demonstration that a policy or practice is necessary to achieve the goals of a program or activity may not be used as a defense against a claim of intentional discrimination under this title. (3)In this subsection, the term demonstrates means meets the burdens of production and persuasion. (c)No person in the United States shall be subjected to discrimination, including retaliation, because such person opposed any policy or practice prohibited by this title, or because such person made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.

Rights of action

Section 602 of the Civil Rights Act of 1964 (42 U.S.C. 2000d–1) is amended— (1)by inserting (a) before Each Federal department and agency which is empowered; and (2)by adding at the end the following:

(b)Any person aggrieved by the failure of a covered entity to comply with this title, including any regulation promulgated pursuant to this title, may bring a civil action in any Federal or State court of competent jurisdiction to enforce such person’s rights.

Right of recovery

Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) is amended by inserting after section 602 the following:

602A.

Actions brought by aggrieved persons

(a)

Claims Based on Proof of Intentional Discrimination

In an action brought by an aggrieved person under this title against a covered entity who has engaged in unlawful intentional discrimination (not a practice that is unlawful because of its disparate impact) prohibited under this title (including its implementing regulations), the aggrieved person may recover equitable and legal relief (including compensatory and punitive damages), attorney’s fees (including expert fees), and costs, except that punitive damages are not available against a government, government agency, or political subdivision. (b)

Claims Based on the Disparate Impact Standard of Proof

In an action brought by an aggrieved person under this title against a covered entity who has engaged in unlawful discrimination based on disparate impact prohibited under this title (including its implementing regulations), the aggrieved person may recover equitable relief, attorney’s fees (including expert fees), and costs.