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. e du/thir dc ir c uit_1997/285Filed December 30, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1125

CHESTER RESIDENTS CONCERNED FOR QUALITY LIVING; ZULENE MAYFIELD; CATHY MORSE; OSSIE MORSE; KING MCDONALD; ANGELA MCDONALD; CARLENE P. STEVENSON; LOUIS S. MORSE; RICK OTTEN; LINDA MORSE ROTHWELL; ARTHUR H. ROTHWELL, III; MARGARITA SANTIAGO; RICARDO SANTIAGO*; DANIEL MURPHY; JANET WEISS; REAGAN
OTTEN; RENEE D. DALE; FRANCES ROTHWELL;

LISA GILLIAM

v.

JAMES M. SEIF, in his capacity AS SECRETARY OF THE

PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION; PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; CAROL R. COLLIER, in her capacity AS DIRECTOR OF THE SOUTHEASTERN

REGION OF DEPARTMENT OF ENVIRONMENTAL PROTECTION; PENNSYLVANIA DEPARTMENT OF

ENVIRONMENTAL PROTECTION - SOUTHEAST REGION

Chester Residents Concerned for Quality, Zulene May field, Cathy Morse, King McDonald, Angela McDonald, Carlen e P. Stevenson*, Louis S. Morse, Rick Otten, Lisa Mor se Rothwell, Arthur H. Rothwell, III, Margarita Santia go, Ricardo Santiago, Daniel Murphy, Janet Weiss, Renee D. Dale, Frances Rothwell, and Lisa Gilliam, Appellants

(Caption amended per Clerk's 3/10/97 order)On Appeal from the United States District Court

for the Eastern District of Pennsylvania (D.C. No. 96-cv-03960)

Argued September 25, 1997

BEFORE: COWEN, ROTH and LEWIS, Circuit Judges

(Filed December 30, 1997)

Jerome Balter, Esq.
Public Interest Law Center of Philadelphia

125 South 9th Street
Suite 700 Philadelphia, PA 19107

Gilbert Paul Carrasco, Esq. (Argued) Villanova University
Villanova Law School Villanova, PA 19085

COUNSEL FOR APPELLANTS

Chester Residents Concerned for Quality Living Zulene Mayfield; Cathy Morse; Ossie Morse; King McDonald; Angela McDonald; Carlene P. Stevenson; Louis S. Morse; Rick Otten; Linda Morse Rothwell; Arthur H. Rothwell, III; Margarita Santiago; Daniel Murphy; Janet Weiss; Reagan Otten; Renee D. Dale; Frances Rothwell; Lisa Gilliam; Ricardo Santiago

2Mark L. Freed, Esq. (Argued)

Commonwealth of Pennsylvania Department of Environmental

Resources
555 North Lane Suite 6015, Lee Park Conshohocken, PA 19428-2233

COUNSEL FOR APPELLEES

James M. Seif, in his capacity as Secretary of the Pennsylvania Department of Environmental
Protection

Pennsylvania Department of
Environmental Protection

Carol R. Collier, in her capacity as
Director of the Southeastern Region of Department of
Environmental Protection

Pennsylvania Department of Environmental Protection, Southeast Region

Seth M. Galanter, Esq. United States Department of Justice Civil Rights Division

P.O. Box 66078 Washington, D.C. 20035-6078

COUNSEL FOR AMICUS-

APPELLANT

United States of America

3Arthur H. Bryant, Esq.

Trial Lawyers of Public Justice 1717 Massachusetts Avenue, N.W.
Suite 800 Washington, D.C. 20036

COUNSEL FOR AMICUS-

APPELLANT

Trial Lawyers for Public Justice Southern Poverty Law Center

OPINION OF THE COURT

Cowen, Circuit Judge.

This appeal presents the purely legal question of w hether a private right of action exists under discriminato ry effect regulations promulgated by federal administrative a gencies pursuant to section 602 of Title VI of the Civil Ri ghts Act of 1964, 42 U.S.C. S 2000d et seq. The district court determined that plaintiffs-appellants Chester Resid ents Concerned for Quality Living ("CRCQL") could not ma intain an action under a discriminatory effect regulation promulgated by the United States Environmental Prot ection Agency ("EPA") pursuant to section 602 of Title VI. See 944 F. Supp. 413 (E.D. Pa. 1996). In so doing, it relie d largely on our decision in Chowdhury v. Reading Hosp. & Med

. Ctr., 677 F.2d 317 (3d Cir. 1982).

We find that Chowdhury is not dispositive on this i ssue. Subsequent jurisprudence, namely Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 103 S. Ct. 3221 (1983), and its progeny, provides support for the existence of a private right of action. Moreover, Chowdhury did not apply this court's test for determining when it is appropriate to imply a private right of action to enforce regulations. W e agree with the overwhelming number of courts of appeals t hat have indicated, with varying degrees of analysis, t hat a private right of action exists under section 602 of Title VI and its implementing regulations. We will reverse.

4I.

The non-profit corporation CRCQL brought suit again st the Pennsylvania Department of Environmental Protec tion ("PADEP") and James M. Seif, in his capacity as Sec retary of PADEP, and other related defendants. CRCQL alleg es that PADEP's issuance of a permit to Soil Remediati on Services, Inc., to operate a facility in the City o f Chester, a predominantly black community, violated the civil r ights of CRCQL's members.1 Specifically, the complaint asser ts that PADEP's grant of the permit violated: (1) section 6 01 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. S 200 0d et seq.;2 (2) the EPA's civil rights regulations, 40 C.F.R.S 7.10 et seq., promulgated pursuant to section 602 of Title VI;3 and (3) PADEP's assurance pursuant to the regulations t hat it would not violate the regulations. This appeal conc erns only

Count Two.

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1. The City of Chester is located in Delaware Count y, Pennsylvania, and has a population of approximately 42,000, of which 65% is black and 32% is white. Delaware County, excluding Chester, h as a population of approximately 502,000, of which 6.2% is black and 9 1% is white. CRCQL alleges that PADEP granted five waste facilit y permits for sites in the City of Chester since 1987, while only granting two permits for sites in the rest of Delaware County. It further alleges that the Chester facilities have a total permit capacity of 2.1 mill ion tons of waste per year, while the non-Chester facilities have a total permit capacity of only 1,400 tons of waste per year.

2. Section 601 of Title VI provides, "No person in the United States shall, on the ground of race, color, or national origin, b e excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiv ing Federal financial assistance." 42 U.S.C. S 2000d (1994).

3. Section 602 of Title VI provides, in part, that:

Each Federal department and agency which is empowered to extend Federal financial assistance to any p rogram or activity, by way of grant, loan, or contract other than a contract of insurance

or guaranty, is authorized and directed to effe ctuate the provisions

of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability
which
shall be consistent with achievement of the objectives of the

statuteauthorizing the financial assistance in conn ection with which the

action is taken.

42 U.S.C. S 2000d-1.

5PADEP has authority to issue or deny applications f or

permits to operate waste processing facilities. See 35 Pa. Cons. Stat. Ann. S 6018.101 et seq. (West 1993). PA DEP receives federal funding from the EPA to operate Pennsylvania's waste programs pursuant to the Resou rce Conservation and Recovery Act, 42 U.S.C. S 6901 et seq., and other federal sources.

Title VI and the EPA's civil rights regulations implementing Title VI condition PADEP's receipt of federal funding on its assurance that it will comply with T itle VI and the regulations. See 40 C.F.R. S 7.80(a) (1997) .4 In part, these regulations prohibit recipients of federal fu nding from using "criteria or methods . . . which have the eff ect of subjecting individuals to discrimination because of their race, color, national origin, or sex . . . ." 40 C. F.R. S 7.35(b).

The district court dismissed Count One of CRCQL's complaint without prejudice. It found that CRCQL fa iled to allege intentional discrimination on the part of PA DEP, which is a required element for an action brought u nder section 601 of Title VI.5 The court, however, grant ed leave to amend Count One, affording CRCQL the opportunity to allege intentional discrimination. CRCQL subsequent ly
informed the district court that it would not amend the complaint, and the district court entered a final j udgment

on that count.

The district court dismissed Counts Two and Three w ith

___________________________________________________ ______________

4. This provision requires:

Applicants for EPA assistance shall submit a n assurance with their applications stating that, with respect to t heir programs or
activities that receive EPA assistance, they will compl y with the requirements of this Part. Applicants must also submit an y other information

that the OCR determines is necessary for preaward review. The applicant's acceptance of EPA assistance is an acceptance of the obligation of this assurance and this Part.

40 C.F.R. S 7.80(a)(1).

5. See Alexander v. Choate, 469 U.S. 287, 293, 105 S. Ct. 712, 716 (1985) (clarifying that the Court's decision in Gua rdians established that "Title VI itself directly reache[s] only instances of intentional discrimination").

6prejudice, finding that no private right of action exists

under which CRCQL could enforce the EPA's civil rig hts regulations.6 In reaching this determination, it re lied on our statements in Chowdhury, which concerned whether a private plaintiff must first exhaust administrative remedies under section 602 of Title VI and its implementing regulations before bringing suit directly under sec tion 601. In holding that a plaintiff need not do so, we reas oned in Chowdhury:

Congress explicitly provided for an administ rative enforcement mechanism, contained in section 602, by which the funding agency attempts to secure voluntary compliance and, failing that, is empowered t o terminate the violator's federal funding. Under the re gulations promulgated pursuant to this section, an agg rieved individual may file a complaint with the fun ding agency but has no role in the investigation or adju dication, if any, of the complaint. The only remedies con templated by the language of the Act and the Regulatio ns are voluntary compliance and funding termination . There is no provision for a remedy for the victim of the discrimination, such as injunctive relief or damages.

677 F.2d at 319-20 (footnotes omitted). The distric t court took these statements to signify that no private ri ght of action exists under the EPA's civil rights regulati ons. Although the district court noted that the Supreme Court's
decision in Guardians and the decisions of other co urts of appeals provide support for implying a private righ t of action, it determined that Chowdhury required the o pposite conclusion. See 944 F. Supp. at 417 n.5 ("We find t hat the Supreme Court has never decided the question of whe ther there is an implied right of action under the regul ations and that our Court of Appeals's Chowdhury decision is authoritative on us.").

___________________________________________________ ______________

6. CRCQL only appeals the dismissal of Count Two. W e have no occasion to consider the issue, raised by Count Three, of wh ether a private cause of action exists to enforce 40 C.F.R. S 7.80(a), wh ich requires applicants
for EPA assistance to "submit an assurance with the ir applications stating that, with respect to their programs or act ivities that receive

EPA assistance, they will comply with the requirements of [the regulations]."

7II.

The district court had jurisdiction pursuant to 28 U.S.C. S 1331. We have jurisdiction over this appeal pursu ant to 28 U.S.C. S 1291. We exercise plenary review over t he
district court's construction of Title VI and its c onclusions of law. See In re Corestates Trust Fee Litig., 39 F .3d 61, 63 (3d Cir. 1994); Unger v. Nat'l Residents Matching P rogram, 928 F.2d 1392, 1394 (3d Cir. 1991).

III.

It is important to distinguish at the outset betwee n section 601 of Title VI, which was the basis of Cou nt One of CRCQL's complaint, and section 602, which was th e basis of Count Two. A private right of action exist s under section 601, but this right only reaches instances of intentional discrimination as opposed to instances of discriminatory effect or disparate impact. See Alex ander, 469 U.S. at 293, 105 S. Ct. at 716 ("Title VI itsel f directly reache[s] only instances of intentional discriminat ion.").

In contrast, section 602 merely authorizes agencies that distribute federal funds to promulgate regulations implementing section 601. The EPA promulgated such implementing regulations, which provide in relevant part:

A recipient shall not use criteria or method s of administering its program which have the eff ect of subjecting individuals to discrimination bec ause of their race, color, national origin, or sex, or have the effect of defeating or substantially impairi ng accomplishment of the objectives of the prog ram with respect to individuals of a particular race, color, national origin, or sex.

40 C.F.R. S 7.35(b). This regulation clearly incorp orates a discriminatory effect standard. The Supreme Court subsequently held that the promulgation of regulati ons incorporating this standard is a valid exercise of agency authority. See Alexander, 469 U.S. at 292-94, 105 S . Ct. at 716. CRCQL seeks the right to proceed against PADEP under this standard, rather than the more stringent standard required under section 601.

8A.

We look first to the applicable Supreme Court jurisprudence. CRCQL contends that the Court's deci sions in Guardians and Alexander establish a private righ t of action. Guardians is a fragmented decision consisti ng of five separate opinions. It concerned a suit by black and hispanic police officers alleging that certain lay- offs by their department violated Title VI and Title VII of the C ivil Rights Act of 1964, as well as the Fourteenth Amendment, 4 2 U.S.C. SS 1981 and 1983, and other state and federa l laws. The Supreme Court has now made it undeniably clear that Guardians stands for at least two propositions: (1) a private right of action exists under section 601 of Title V I that requires plaintiffs to show intentional discriminat ion; and (2) discriminatory effect regulations promulgated b y agencies pursuant to section 602 are valid exercise s of their authority under that section. See Alexander, 469 U. S. at 292-94, 105 S. Ct. at 716.

i.

Guardians did not explicitly address whether a priv ate right of action exists under discriminatory effect regulations promulgated under section 602. CRCQL contends that Guardians nevertheless implicitly validated the exi stence of a private right of action. CRCQL makes two principa l arguments in support of its position: (1) a majorit y of the Court in Guardians determined that private plaintif fs in disparate impact cases can recover injunctive or de clarative relief; and (2) if a private right of action did no t exist, the Court would have dismissed the plaintiffs' claims u nder the regulations sua sponte for failure to state a claim

.

A close reading of the opinions in Guardians reveal s that five Justices agreed that injunctive and declarativ e relief are available in discriminatory effect cases. For insta nce, Justice White stated in his opinion that he would a llow private plaintiffs to proceed under section 601 wit h a discriminatory effect claim and to recover injuncti ve or declaratory relief. See 463 U.S. at 584, 589-93, 10 3 S. Ct. at 3223, 3226-28 (opinion of White, J.). Justice Wh ite did not comment on section 602 and its implementing

9regulations. We can infer, however, from his willin gness to

allow a private plaintiff to proceed under section 601 in cases of discriminatory effect that he would have a llowed private actions to proceed under section 602 and it s implementing regulations, where a discriminatory ef fect standard applies.7

Justice Marshall stated in his dissent that he woul d allow private plaintiffs in discriminatory effect cases t o proceed under section 601 but, unlike Justice White, would allow them to recover injunctive, declaratory, or compens atory relief. See 463 U.S. at 615, 103 S. Ct. at 3239-40 (Marshall, J., dissenting). As with Justice White, we can infe r that
Justice Marshall would have allowed similar actions under section 602 and its implementing regulations.

Justice Stevens, joined by Justices Brennan and Blackmun, determined: (1) private plaintiffs may se ek injunctive, declaratory, or compensatory relief und er Title VI; (2) intentional discrimination is a necessary e lement under section 601 of Title VI; and (3) regulations that incorporate a disparate impact standard are valid. See 463 U.S. at 641-45, 103 S. Ct. at 3253-55 (Stevens, J., dissenting, joined by Brennan and Blackmun, JJ.). Although Justice Stevens did not distinguish betwee n a private right of action and an administrative remed y, he concluded by saying, "[A]lthough petitioners had to prove that the respondents' actions were motivated by an invidious intent in order to prove a violation of[T itle VI], they only had to show that the respondents' actions were producing discriminatory effects in order to prove a violation of [the regulations]." Id. at 645, 103 S. Ct. at
3255.

Based on the foregoing, we can find an implicit app roval by five Justices of the existence of a private righ t of action under discriminatory effect regulations implementin g section 602 of Title VI. We hesitate, however, to h old that Guardians is dispositive of this appeal because the Court did not directly address the issue now before us.

___________________________________________________ ______________

7. We recognize that this inference requires a supp osition, because sections 601 and 602 differ in substantial respects , as the discussion in section III.C.ii., infra, indicates.

10CRCQL's second argument based on Guardians also has

some merit. CRCQL argues that a private right of ac tion
exists because the Guardians Court did not dismiss the plaintiffs' action sua sponte for failure to state a claim. It is important to remember, however, that no party in Guardians raised, by Rule 12(b)(6) of the Federal R ules of Civil Procedure or otherwise, the issue of whether a private right of action exists under section 602 and its implementing regulations. The Court did not have re ason to speak directly to the issue, and based on the foreg oing discussion, it is clear that it did not. Consequent ly, we find that CRCQL's second argument also lacks sufficient force to dispose of this appeal.

ii.

The Court offered some clarification of Guardians i n its unanimous decision in Alexander, which involved sec tion 504 of the Rehabilitation Act of 1973, 29 U.S.C.S 7 94, and its implementing regulations. With respect to Guard ians,

the Alexander Court stated:

In Guardians, we confronted the question wh ether Title VI of the Civil Rights Act of 1964, wh ich prohibits discrimination against racial and ethnic min orities in programs receiving federal aid, reaches both intentional and disparate-impact discrimination. No opin ion commanded a majority in Guardians, and Membe rs of the Court offered widely varying interpretat ions of Title VI. Nonetheless, a two-pronged holding on th e nature of the discrimination proscribed by Title VI emerged in that case. First, the Court held that Title VI itself directly reached only instances of intention al discrimination. Second, the Court held that actions having an unjustifiable disparate impact on minorities could be redressed through agency regulation s designed to implement the purposes of Title VI. In essence, then, we held that Title VI had del egated to the agencies in the first instance the compl ex determination of what sorts of disparate imp acts upon minorities constituted sufficiently signific ant social problems, and were readily enough remediable , to

11warrant altering the practices of the federa l grantees

that had produced those impacts.

469 U.S. at 292-94, 105 S. Ct. at 716 (citation and footnotes omitted). The most plausible reading of t his language is that it confirms that a private right o f action
exists under section 601 of Title VI and that the promulgation of discriminatory effect regulations i s a valid exercise of agency authority under section 602.

CRCQL argues that the Court recognized the existenc e of a private right of action in the following language from

Alexander:

"Guardians, therefore, does not support pet itioners' blanket proposition that federal law proscri bes only intentional discrimination against the handi capped. Indeed, to the extent our holding in Guardia ns is relevant to the interpretation of S 504, Gua rdians suggests that the regulations implementing S 504, upon which respondents in part rely, could m ake actionable the disparate impact challenged i n this case.

469 U.S. at 294, 105 S. Ct. at 716.8 Stitching toge ther CRCQL's arguments and those made by the Trial Lawye rs for Public Justice ("TLPJ") and the Southern Povert y Law Center ("SPLC") as amici, the argument in favor of inferring the existence of a private right of action from Ale xander proceeds as follows. The Alexander Court noted in t he above-quoted language that, to the extent that Titl e VI jurisprudence is relevant to the Rehabilitation Act
, Guardians "suggests" that a party can proceed with a disparate impact claim under section 504's implemen ting regulations. This suggestion obtains, the argument must go, because Guardians itself stands for the proposi tion that a party can proceed with a disparate impact claim u nder the regulations implementing section 602. Alexander
,

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8. The issue that the Alexander Court was addressin g when it made these statements was whether discriminatory intent is required to
establish a violation of section 504 of the Rehabil itation Act, 29 U.S.C. S 794, and its implementing regulations. The Court ultimately determined that some, but not all, disparate impact showings constitute a prima facie case under the Rehabilitation Act. 46 9 U.S. at 292-99, 105

S. Ct. at 715-19.

12therefore, implicitly confirms that Guardians recog nized the

existence of a private right of action.

While CRCQL's argument has some merit, we are not persuaded. The Court in Alexander spoke in the pass ive
voice -- "could make actionable" -- and did not ind icate whether Guardians stood for the proposition that a private plaintiff, or the relevant agency, could proceed un der a disparate impact standard. CRCQL's argument require s the inference that because Alexander was a suit brought by private plaintiffs, and because Guardians was also brought by private plaintiffs, the Alexander Court must hav e been speaking of private plaintiffs when it used the pas sive voice. This inference from Guardians may be justified, but we find no direct authority in Alexander that either confir ms or denies the existence of a private right of action. Consequently, we decline to hold that a private rig ht of
action exists based on Guardians and Alexander alon e.9

___________________________________________________ ______________

9. PADEP argues that the Court's opinion in United States v. Fordice, 505 U.S. 717, 112 S. Ct. 2727 (1992), indicates that no private right of
action to enforce Title VI regulations exists. PADEP misco nstrues Fordice. Fordice addressed Title VI in a single footnote, wh ich stated in relevant
part:

Private petitioners reiterate in this Court their assertion that

the state system also violates Title VI, citing a regulation to that

statute which requires States to "take affirmative a ction to overcome the effects of prior discrimination." Our cases make clear, and the parties do not disagree, that the reach of T itle VI's protection

extends no further than the Fourteenth Amend ment. We thus treat the issues in these cases as they are implic ated under the
Constitution.

Id. at 732 n.7, 112 S. Ct. at 2738 n.7 (citations o mitted). Fordice did

not indicate that private plaintiffs were barred from a sserting a claim under the regulation quoted. Rather, the Court merely not ed that the
affirmative relief called for under the statute cou ld not reach beyond

that afforded by the Constitution itself. Hidden within the Court's statement may be an indication that implementing regulations, such as the EPA's, that incorporate a discriminatory effect standard a re invalid, because they extend further than the Fourteenth Amendment. Guardians and Alexander, however, state that such regulations are valid. Moreover, we
do not believe that the Court would overturn Guardi ans and Alexander in such an oblique manner.13B.

Having determined that the applicable Supreme Court precedent is not dispositive, we look to our own pr ecedent.
The district court relied on our statements in Chow dhury for the conclusion that no private right of action exists. See 944 F. Supp. at 417. CRCQL, and TLPJ and SPLC as am ici, argue that reliance on Chowdhury is questionable be cause: (1) Chowdhury did not apply this Circuit's three-pr ong test for determining when it is appropriate to infer a p rivate right of action to enforce regulations; and (2) Cho wdhury
was decided before Guardians.

The sole question in Chowdhury was whether a privat e plaintiff must first exhaust administrative remedie s under section 602 and its implementing regulations before bringing suit directly under section 601. In holdin g that a plaintiff need not do so, we reasoned that "an aggr ieved individual may file a complaint with the funding ag ency but has no role in the investigation or adjudication, i f any, of the complaint." 677 F.2d at 319 (footnotes omitted)

. Moreover, we stated that "[t]here is no provision f or a remedy for the victim of the discrimination, such a s injunctive relief or damages." Id. at 320 (footnote omitted).

Chowdhury appears to decide that no private right o f action exists under the regulations, and we readily understand why the district court reached this conc lusion. We nevertheless disagree with that conclusion. Chow dhury does not hold that no private right of action exist s under section 602 and its implementing regulations. It me rely indicates that the regulations themselves do not ex pressly provide for a significant role for private parties, which is apparent on the face of the regulations. Chowdhury says nothing about the appropriateness of implying a pri vate right of action. Section 602 and its implementing regulations were only relevant in Chowdhury to the extent that they, on their face, afforded private plaintif fs a peripheral role in administrative proceedings. The Chowdhury court took this peripheral role as an ind ication that private plaintiffs should not have to pursue t heir claims under the regulations before initiating a di rect action pursuant to their rights under section 601. The district court misapplied our statements in Chowdhu ry.

14Looking to our other precedent, CRCQL and amici cit e

our decision in Pfeiffer v. Marion Ctr. Area Sch. D ist., 917 F.2d 779 (3d Cir. 1990), a post-Guardians opinion, in support of the existence of a private right of acti on. Pfeiffer involved a suit by a high school student alleging g ender discrimination in her dismissal from the local chap ter of the National Honor Society. The plaintiff asserted clai ms under
Title IX of the Education Amendments of 1972 and it s implementing regulations, as well as other federal and state statutes. Pfeiffer is only significant to this appe al because we made therein the following statements concerning
Guardians:

In Guardians, the "threshold issue before t he Court [was] whether . . . private plaintiffs . . . need to prove discriminatory intent to establish a violati on of Title VI . . . and administrative implementing regula tions promulgated thereunder." A majority of the C ourt agreed that a violation of the statute itsel f requires proof of discriminatory intent. A different majority seemed to suggest that proof of discriminato ry effect suffices to establish liability when suit is brought to enforce the regulations rather than the stat ute itself.

917 F.2d at 788 (quoting Guardians, 463 U.S. at 584 , 103 S. Ct. at 3223) (citations omitted).

It is of course informative to read an interpretati on of Guardians by a prior panel. The interpretation, how ever, is dicta and not binding on this panel. Pfeiffer co ncerned a claim of intentional gender discrimination, not discriminatory effect. See id. ("This is, therefore , not a case of discriminatory effect, but one of discriminatory intention."). The issue before the court was whethe r the district court's finding that school authorities di smissed the plaintiff from the National Honor Society because o f premarital sex and not gender discrimination was cl early
erroneous. See id. at 780. The court had no reason to consider the status of a private right of action un der section 602 and its implementing regulations. In addition, the above-quoted language from Pfeiffer, like the Supre me Court's opinion in Alexander, is in the passive voi ce-- "when suit is brought"-- and fails to specify who m ay bring

15suit to enforce the regulations. Although Pfeiffer is

instructive, we find it insufficient to dispose of this appeal.

C.

Since our own precedent does not resolve the matter , we must now determine whether to imply a private right of action. This court has established a three-prong te st for determining when it is appropriate to imply private rights of action to enforce regulations. The test requires a court to inquire: "(1) `whether the agency rule is properly within the scope of the enabling statute'; (2) `whether the st atute under which the rule was promulgated properly permi ts the implication of a private right of action'; and (3)` whether implying a private right of action will further the purpose of the enabling statute.' " Polaroid Corp. v. Disney, 862 F.2d 987, 994 (3d Cir. 1988) (quoting Angelastro v. Prud entialBache Sec., Inc., 764 F.2d 939, 947 (3d Cir. 1985)) . We discuss each prong in turn.

i.

There is no question that the EPA's discriminatory effect regulation satisfies the first prong. The Supreme C ourt's unanimous opinion in Alexander makes clear that "ac tions having an unjustifiable disparate impact on minorit ies [can] be redressed through agency regulations designed to implement the purposes of Title VI." 469 U.S. at 29 3, 105 S. Ct. at 716 (footnote omitted).

ii.

The second and third prongs are the crux of this ca se. In addressing the second, a court will consider the fa ctors set out by the Supreme Court in Cort v. Ash, 422 U.S. 6 6, 95 S. Ct. 2080 (1975), and its progeny. See Angelastro , 764 F.2d at 947. The factors relevant here are: (1) whe ther there is "any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one"; and (2) whether it is "consistent with the underlying purpo ses of the legislative scheme to imply such a remedy for t he

16plaintiff." Cort, 422 U.S. at 78, 95 S. Ct. at 2088 (citations

omitted).10

The United States, as amicus, contends that the implication of a private right of action is consist ent with legislative intent because Congress acknowledged th e existence of the right when it amended Title VI. Th e purpose of the amendment was to broaden the scope o f coverage of Title VI in response to the Supreme Cou rt's decision in Grove City College v. Bell, 465 U.S. 55 5, 104 S. Ct. 1211 (1984), where the Court narrowly construed the terms "program or activity."11 The United States ci tes various items of legislative history which it claim s indicates an "understanding . . . [of] the existence of the discriminatory effects regulations and the fact tha t they could be enforced in federal court by private parti es."
Amicus Br. at 21.

First, the United States relies on a House Report o n an early version of the relevant bill, which states th at the "private right of action which allows a private ind ividual or entity to sue to enforce Title IX would continue to provide the vehicle to test [certain] regulations in Title IX and their expanded meaning to their outermost limits." H.R. R EP. NO. 963, Pt. 1, 99th Cong., 2d Sess. 24 (1986).12 Secon d, the

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10. The other Cort factors are: (1) whether the pla intiff is "one of the class for whose especial benefit the statute was en acted,-- that is, does the statute create a federal right in favor of the plaintiff "; and (2) whether the cause of action is "one traditionally r elegated 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 sole ly on federal law." 422 U.S. at 78, 95 S. Ct. at 2088 (citations and intern al quotation marks omitted). Clearly, CRCQL satisfies the first. The s econd is irrelevant
because Title VI is federal law.

11. Section 601 of Title VI prohibits any "program or activity" receiving Federal funds from discriminating on various ground s. See 42 U.S.C.

S 2000d.

12. Courts have regarded Title IX and Title VI juri sprudence as, more or less, interchangeable. See Cannon v. University of Chicago, 441 U.S. 677, 694-96, 99 S. Ct. 1946, 1956-57 (1979) ("Title IX w as patterned after Title VI of the Civil Rights Act of 1964. Except fo r the substitution of

the word `sex' in Title IX to replace the words `race, color, or national origin' in Title VI, the two statutes use identical languag e to describe the benefited class. . . . The drafters of Title IX exp licitly assumed that it would be interpreted and applied as Title VI had be en during the preceding eight years." (footnotes omitted)).17United States relies on several legislators' commen ts in the

Congressional Record, where the legislators appear to recognize the existence of a private right of actio n.13 Third, the United States also relies on the following comp ilations of testimony at congressional hearings: Civil Right s Act of 1984: Hearings on S. 2568 Before the Subcomm. on th e Const. of the Senate Comm. on the Judiciary, 98th C ong., 2d Sess. 23-24, 153-54, 200 (1984); Civil Rights Re storation Act of 1985: Joint Hearings on H.R. 700 Before the House
Comm. on Educ. & Labor and the Subcomm. on Civil & Const. Rights of the House Comm. on the Judiciary, 99th Cong., 1st Sess. 734, 1095, 1099 (1985). The first compilation contains, inter alia, a memorandum by t he Office of Management and Budget ("OMB") which state s OMB's opinion that "every licensed attorney would b e empowered to file suit to enforce the `effects test ' regulations of agencies, challenging practices in e very aspect of every institution that receives any Feder al assistance." Civil Rights Act of 1984: Hearings on S. 2568

Before the Subcomm. on the Const. of the Senate Com m. on the Judiciary, 98th Cong., 2d Sess. 527 (1984).

PADEP presents two responses. First, PADEP emphasiz es that the purpose of the amendment of Title VI was t o address the Supreme Court's decision in Grove City, not to confirm or announce the existence of a private righ t of action. Second, PADEP reminds the court that many o f the

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13. The United States quotes the following observat ions of Senator

Hatch:

The failure to provide a particular share of contract opportunities

to minority-owned businesses, for example, coul d lead Federal agencies to undertake enforcement action asserting th at the failure to provide more contracts to minority-owned firms, stan ding alone, is discriminatory under agency disparate impact regulations implementing Title VI. . . . Of course, advo cacy groups will be

able to bring private lawsuits making the same al legations before

federal judges.

134 CONG. REC. 4,257 (1988). The United States also quotes a portion of the following statement by Representative Fields: " If a greater percentage of minority than white students fail a bar exam or a medical exam . . . will a State be subject to private lawsuits because the tests have a disproportionate impact on minorities[.]" 130 CONG. REC. 18,880 (1984).

18above-cited comments may only reflect the views of

individual members of Congress. PADEP does not, how ever, cite to any statements in the Congressional Record or elsewhere that would undermine those cited by the U nited
States. We therefore find that there is some indica tion in the legislative history, here uncontroverted, of an intent to create a private right of action, in satisfaction o f the Cort

factors.

This finding, however, does not end our inquiry. Th e Cort factors also require a court to determine whether i t is "consistent with the underlying purposes of the leg islative scheme to imply such a remedy for the plaintiff[.]" 422 U.S. at 78, 95 S. Ct. at 2088. Relevant to this inquiry is PADEP's argument that section 602 and the regulations situa te the EPA as, in essence, a gatekeeper to enforcement, an d that the implication of a private right of action would be inconsistent with this legislative scheme. Accordin g to PADEP, section 602 imposes what PADEP terms as "str ict preconditions" on the use of that section's enforce ment apparatus.14 Specifically, section 602 provides:

[N]o such action shall be taken until the de partment or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that complian ce cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to c omply with

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14. Section 602 provides for the following enforcem ent apparatus:

Compliance with any requirement adopted purs uant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or ac tivity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to com ply with such requirement, but such termination or refusal shall be limited to

the particular political entity, or part thereof , or other recipient as

to whom such a finding has been made and, shall be limited in its effect to the particular program, or part th ereof, in which such noncompliance has been so found, or (2) by a ny other means authorized by law . . . .

42 U.S.C. S 2000d-1.

19a requirement imposed pursuant to this secti on, the

head of the Federal department or agency sha ll file
with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circum stances and the grounds for such action. No such action shall become effective until thirty days have elap sed after the filing of such report.

42 U.S.C. S 2000d-1. EPA enforcement action can occ ur only after the agency has negotiated these procedur al requirements. Should we find that it is appropriate to imply a private right of action, PADEP emphasizes that pr ivate plaintiffs would not have to negotiate these requir ements.

In addition, PADEP emphasizes that the EPA's regulations expressly provide private parties with an administrative mechanism through which they can rai se allegations of unintentional discrimination. See 40 C.F.R. SS 7.120-7.130. These regulations provide, in relev ant part:

A person who believes that he or she or a sp ecific class of persons has been discriminated against in violation of this Part may file a complaint. The compl aint may be filed by an authorized representative. A com plaint alleging employment discrimination must iden tify at least one individual aggrieved by such discr imination. Complaints solely alleging employment discri mination against an individual on the basis of race, color, national origin, sex or religion shall be pr ocessed under the procedures for complaints of employment discrimination filed against recipients of f ederal assistance. Complainants are encouraged but not required to make use of any grievance proced ure established under S 7.90 before filing a com plaint. Filing a complaint through a grievance proce dure does not extend the 180 day calendar requirement of paragraph (b)(2) of this section.

40 C.F.R. S 7.120(a) (citation omitted). In PADEP's estimation, section 602 and the regulations situate the EPA as a gatekeeper to enforcement, with private partie s submitting their allegations to the agency and its discretion. PADEP contends that a private right of action is inconsistent with this legislative scheme.

20We recognize that PADEP's argument has some force.

There is, however, a more convincing counter-argume nt. The procedural requirements in section 602 provide a fund recipient with a form of notice that the agency has begun an investigation which may culminate in the termina tion of its funding. We note that a private lawsuit also af fords a fund recipient similar notice. If the purpose of th e requirements is to provide bare notice, private law suits are consistent with the legislative scheme of Title VI. Furthermore, unlike the EPA, private plaintiffs do not have the authority to terminate funding.15 As a result, the purpose that the requirements serve is not as signi ficant in private lawsuits, where the potential remedy does n ot include the result (i.e., termination of funding) a t which Congress directed the requirements. Stated differen tly, the requirements were designed to cushion the blow of a result that private plaintiffs cannot effectuate. Based on the foregoing, we find that the implication of a privat e right of action would be consistent with the legislative sch eme of
Title VI.

In sum, we find that there is some indication in th e legislative history of an intent to create a privat e right of action and that the implication of a private right of action would be consistent with the legislative scheme of Title VI,
in accordance with the relevant Cort factors. Accor dingly,
we find that " `the statute under which the rule wa s promulgated properly permits the implication of a p rivate right of action,' " Polaroid Corp., 862 F.2d at 994 (quoting Angelastro, 764 F.2d at 947), and that the second p rong of
the test is satisfied.

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15. While it is well established that private plain tiffs do not have the authority to compel a termination of funding, we ma ke no determination
at this time as to what alternative remedies offer appropriate relief for plaintiffs who prevail in actions to enforce agency regulations brought pursuant to section 602. See NAACP v. Medical Cente r, Inc., 599 F.2d 1247, 1254 n.27 (3d Cir. 1979). See also Cannon, 44 1 U.S. at 711-17, 99 S. Ct. at 1965-68 (discussing the legislative hi story of Title VI as it relates to the implication of a private remedy for victims of discrimination). Rather, should relief prove warran ted in this case, we leave the determination of the appropriate remedy t o the district court in
the first instance.

21iii.

The third prong of the test requires the court to i nquire " `whether implying a private right of action will further the purpose of the enabling statute.' " Id. (quoting An gelastro, 764 F.2d at 947). The United States contends that t his prong is satisfied because the implication of a pri vate right of action under section 602 and the regulations wil l further the dual purposes of Title VI, which are to: (1) co mbat discrimination by entities who receive federal fund s; and (2) provide citizens with effective protection against discrimination. See Cannon, 441 U.S. at 704, 99 S. Ct. at 1961. A private right of action will further these purposes, the argument goes, because it will deputize private attorneys general who will enforce section 602 and its implementing regulations. The United States, moreov er, points out that the EPA itself lacks sufficient res ources to achieve adequate enforcement.

We agree with the United States that, to the extent that a private right of action will increase enforcement , the implication of that right will further the dual pur poses of Title VI. Consequently, we find that the third pron g of the
test is also satisfied.

iv.

Lastly, although no other court of appeals has rend ered a holding on the precise issue before this court, w e note that the decisions of other courts of appeals indic ate support for our reasoning. See, e.g., Latinos Unido s de Chelsea v. Secretary of Hous. & Urban Dev., 799 F.2 d 774, 785 n.20 (1st Cir. 1986) ("Under the statute itself , plaintiffs must make a showing of discriminatory intent; under the regulations, plaintiffs simply must show a discrimi natory impact." (citation omitted)); New York Urban League , Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995) ("Court s considering claims under analogous Title VI regulat ions have looked to Title VII disparate impact cases for guidance. A plaintiff alleging a violation of the D OT regulations must make a prima facie showing that th e alleged conduct has a disparate impact." (citations omitted)); Castaneda by Castaneda v. Pickard, 781 F .2d

22456, 465 n.11 (5th Cir. 1986) ("Thus a Title VI act ion can

now be maintained in either the guise of a disparat e treatment case, where proof of discriminatory motiv e is critical, or in the guise of a disparate impact cas e, involving employment practices that are facially neutral in t heir treatment of different groups but that in fact fall more harshly on one group than another. In this latter t ype of case, proof of discriminatory intent is not necessa ry." (citation omitted)); Buchanan v. City of Bolivar, T enn., 99 F.3d 1352, 1356 n.5 (6th Cir. 1996) ("A plaintiff m ay pursue a claim under a disparate impact theory as w ell. However, a disparate impact theory is not applicabl e in the case at hand." (citation omitted)); David K. v. Lan e, 839 F.2d 1265, 1274 (7th Cir. 1988) ("It is clear that plaintiffs may maintain a private cause of action to enforce t he regulations promulgated under Title VI of the Civil Rights Act. Moreover, plaintiffs need not show intentional discriminatory conduct to prevail on a claim brough t under these administrative regulations. Evidence of a discriminatory effect is sufficient." (citation omi tted)); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 , 1044- 45 (7th Cir. 1987) ("Although the voting of the Jus tices may be difficult for the reader to discern at first, a majority of
the Court in Guardians Association concluded that a discriminatory-impact claim could be maintained und er those regulations, although not under the statute." (citations omitted)); Larry P. by Lucille P. v. Ril es, 793 F.2d 969, 981-82 (9th Cir. 1984) ("[P]roof of discrimina tory effect suffices to establish liability when the suit is br ought to enforce regulations issued pursuant to the statute rather than the statute itself." (footnote omitted)); Vill anueva v. Carere, 85 F.3d 481, 486 (10th Cir. 1996) ("Althoug h Title VI itself proscribes only intentional discriminatio n, certain regulations promulgated pursuant to Title VI prohib it actions that have a disparate impact on groups prot ected by the act, even in the absence of discriminatory i ntent." (citation omitted)); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993) ("While Title VI itself, like the Fourteenth Amendment, bars only intentiona l discrimination, the regulations promulgated pursuan t to Title VI may validly proscribe actions having a dis parate impact on groups protected by the statute, even if those

23actions are not intentionally discriminatory." (cit ations

omitted)); Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985) ("The re is no doubt that the plaintiffs predicated this cause of action on the regulations. As a result, the district court co rrectly applied disparate impact analyses to their Title VI claims." (footnote omitted)).

v.

In conclusion, the district court misapplied our de cision in Chowdhury v. Reading Hosp. & Med. Ctr., 677 F.2d 317 (3d Cir. 1982). Chowdhury did not apply this court' s threeprong test for determining when it is appropriate t o imply a private right of action to enforce regulations an d was decided before the Supreme Court's decision in Guar dians. Applying that three-prong test, we hold that privat e plaintiffs may maintain an action under discriminat ory effect regulations promulgated by federal administr ative agencies pursuant to section 602 of Title VI of the Civil Rights Act of 1964. Accordingly, we will reverse an d remand for further proceedings, including a consideration of the remaining grounds for dismissal contained in defend ants'
Motion to Dismiss.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

24