1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-30-1997

Chester Residents v. Seif

Precedential or Non-Precedential:

Docket 97-1125

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Recommended Citation

"Chester Residents v. Seif" (1997). 1997 Decisions. Paper 285.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/285
Filed 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 Mayfield, 

Cathy Morse, King McDonald, Angela McDonald, Carlene 

P. Stevenson*, Louis S. Morse, Rick Otten, Lisa Morse 

Rothwell, Arthur H. Rothwell, III, Margarita Santiago, 

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 

 2 
 Mark 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 

 3 
 Arthur 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 whether 

a private right of action exists under discriminatory effect 

regulations promulgated by federal administrative agencies 

pursuant to section 602 of Title VI of the Civil Rights Act of 

1964, 42 U.S.C. S 2000d et seq. The district court 

determined that plaintiffs-appellants Chester Residents 

Concerned for Quality Living ("CRCQL") could not maintain 

an action under a discriminatory effect regulation 

promulgated by the United States Environmental Protection 

Agency ("EPA") pursuant to section 602 of Title VI. See 944 

F. Supp. 413 (E.D. Pa. 1996). In so doing, it relied 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 issue. 

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. We agree 

with the overwhelming number of courts of appeals that 

have indicated, with varying degrees of analysis, that a 

private right of action exists under section 602 of Title VI 

and its implementing regulations. We will reverse. 

 4 
I. 

The non-profit corporation CRCQL brought suit against 

the Pennsylvania Department of Environmental Protection 

("PADEP") and James M. Seif, in his capacity as Secretary 

of PADEP, and other related defendants. CRCQL alleges 

that PADEP's issuance of a permit to Soil Remediation 

Services, Inc., to operate a facility in the City of Chester, a 

predominantly black community, violated the civil rights of 

CRCQL's members.1 Specifically, the complaint asserts that 

PADEP's grant of the permit violated: (1) section 601 of Title 

VI of the Civil Rights Act of 1964, 42 U.S.C. S 2000d 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 that it 

would not violate the regulations. This appeal concerns only 

Count Two. 

_________________________________________________________________ 

1. The City of Chester is located in Delaware County, Pennsylvania, and 

has a population of approximately 42,000, of which 65% is black and 

32% is white. Delaware County, excluding Chester, has a population of 

approximately 502,000, of which 6.2% is black and 91% is white. 

CRCQL alleges that PADEP granted five waste facility 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 million 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, be excluded from 

participation in, be denied the benefits of, or be subjected to 

discrimination under any program or activity receiving 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 program or activity, by 

 way of grant, loan, or contract other than a contract of insurance 

or 

 guaranty, is authorized and directed to effectuate 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 

statute 
 authorizing the financial assistance in connection with which the 

 action is taken. 

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

 5 
PADEP has authority to issue or deny applications for 

permits to operate waste processing facilities. See 35 Pa. 

Cons. Stat. Ann. S 6018.101 et seq. (West 1993). PADEP 

receives federal funding from the EPA to operate 

Pennsylvania's waste programs pursuant to the Resource 

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 Title VI 

and the regulations. See 40 C.F.R. S 7.80(a) (1997).4 In part, 

these regulations prohibit recipients of federal funding from 

using "criteria or methods . . . which have the effect 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 failed to 

allege intentional discrimination on the part of PADEP, 

which is a required element for an action brought under 

section 601 of Title VI.5 The court, however, granted leave 

to amend Count One, affording CRCQL the opportunity to 

allege intentional discrimination. CRCQL subsequently 

informed the district court that it would not amend the 

complaint, and the district court entered a final judgment 

on that count. 

The district court dismissed Counts Two and Three with 

_________________________________________________________________ 

4. This provision requires: 

 Applicants for EPA assistance shall submit an assurance with their 

 applications stating that, with respect to their programs or 

activities 

 that receive EPA assistance, they will comply with the requirements 

 of this Part. Applicants must also submit any 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 Guardians established that 

"Title VI itself directly reache[s] only instances of intentional 

discrimination"). 

 6 
prejudice, finding that no private right of action exists 

under which CRCQL could enforce the EPA's civil rights 

regulations.6 In reaching this determination, it relied 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 section 601. 

In holding that a plaintiff need not do so, we reasoned in 

Chowdhury: 

 Congress explicitly provided for an administrative 

 enforcement mechanism, contained in section 602, by 

 which the funding agency attempts to secure voluntary 

 compliance and, failing that, is empowered to terminate 

 the violator's federal funding. Under the regulations 

 promulgated pursuant to this section, an aggrieved 

 individual may file a complaint with the funding agency 

 but has no role in the investigation or adjudication, if 

 any, of the complaint. The only remedies contemplated 

 by the language of the Act and the Regulations 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 district court 

took these statements to signify that no private right of 

action exists under the EPA's civil rights regulations. 

Although the district court noted that the Supreme Court's 

decision in Guardians and the decisions of other courts of 

appeals provide support for implying a private right of 

action, it determined that Chowdhury required the opposite 

conclusion. See 944 F. Supp. at 417 n.5 ("We find that the 

Supreme Court has never decided the question of whether 

there is an implied right of action under the regulations 

and that our Court of Appeals's Chowdhury decision is 

authoritative on us."). 

_________________________________________________________________ 

6. CRCQL only appeals the dismissal of Count Two. We have no occasion 

to consider the issue, raised by Count Three, of whether a private cause 

of action exists to enforce 40 C.F.R. S 7.80(a), which requires applicants 

for EPA assistance to "submit an assurance with their applications 

stating that, with respect to their programs or activities that receive 

EPA 

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

 7 
II. 

The district court had jurisdiction pursuant to 28 U.S.C. 

S 1331. We have jurisdiction over this appeal pursuant to 

28 U.S.C. S 1291. We exercise plenary review over the 

district court's construction of Title VI and its conclusions 

of law. See In re Corestates Trust Fee Litig., 39 F.3d 61, 63 

(3d Cir. 1994); Unger v. Nat'l Residents Matching Program, 

928 F.2d 1392, 1394 (3d Cir. 1991). 

III. 

It is important to distinguish at the outset between 

section 601 of Title VI, which was the basis of Count One 

of CRCQL's complaint, and section 602, which was the 

basis of Count Two. A private right of action exists under 

section 601, but this right only reaches instances of 

intentional discrimination as opposed to instances of 

discriminatory effect or disparate impact. See Alexander, 

469 U.S. at 293, 105 S. Ct. at 716 ("Title VI itself directly 

reache[s] only instances of intentional discrimination."). 

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 methods of 

 administering its program which have the effect of 

 subjecting individuals to discrimination because of 

 their race, color, national origin, or sex, or have the 

 effect of defeating or substantially impairing 

 accomplishment of the objectives of the program with 

 respect to individuals of a particular race, color, 

 national origin, or sex. 

40 C.F.R. S 7.35(b). This regulation clearly incorporates a 

discriminatory effect standard. The Supreme Court 

subsequently held that the promulgation of regulations 

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. 

 8 
A. 

We look first to the applicable Supreme Court 

jurisprudence. CRCQL contends that the Court's decisions 

in Guardians and Alexander establish a private right of 

action. Guardians is a fragmented decision consisting 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 Civil Rights 

Act of 1964, as well as the Fourteenth Amendment, 42 

U.S.C. SS 1981 and 1983, and other state and federal 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 VI that 

requires plaintiffs to show intentional discrimination; and 

(2) discriminatory effect regulations promulgated by 

agencies pursuant to section 602 are valid exercises 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 private 

right of action exists under discriminatory effect regulations 

promulgated under section 602. CRCQL contends that 

Guardians nevertheless implicitly validated the existence of 

a private right of action. CRCQL makes two principal 

arguments in support of its position: (1) a majority of the 

Court in Guardians determined that private plaintiffs in 

disparate impact cases can recover injunctive or declarative 

relief; and (2) if a private right of action did not exist, the 

Court would have dismissed the plaintiffs' claims under the 

regulations sua sponte for failure to state a claim. 

A close reading of the opinions in Guardians reveals that 

five Justices agreed that injunctive and declarative relief are 

available in discriminatory effect cases. For instance, 

Justice White stated in his opinion that he would allow 

private plaintiffs to proceed under section 601 with a 

discriminatory effect claim and to recover injunctive or 

declaratory relief. See 463 U.S. at 584, 589-93, 103 S. Ct. 

at 3223, 3226-28 (opinion of White, J.). Justice White did 

not comment on section 602 and its implementing 

 9 
regulations. We can infer, however, from his willingness to 

allow a private plaintiff to proceed under section 601 in 

cases of discriminatory effect that he would have allowed 

private actions to proceed under section 602 and its 

implementing regulations, where a discriminatory effect 

standard applies.7 

Justice Marshall stated in his dissent that he would allow 

private plaintiffs in discriminatory effect cases to proceed 

under section 601 but, unlike Justice White, would allow 

them to recover injunctive, declaratory, or compensatory 

relief. See 463 U.S. at 615, 103 S. Ct. at 3239-40 (Marshall, 

J., dissenting). As with Justice White, we can infer 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 seek 

injunctive, declaratory, or compensatory relief under Title 

VI; (2) intentional discrimination is a necessary element 

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 between a 

private right of action and an administrative remedy, 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[Title 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 approval 

by five Justices of the existence of a private right of action 

under discriminatory effect regulations implementing 

section 602 of Title VI. We hesitate, however, to hold 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 supposition, because 

sections 601 and 602 differ in substantial respects, as the discussion in 

section III.C.ii., infra, indicates. 

 10 
CRCQL's second argument based on Guardians also has

some merit. CRCQL argues that a private right of action 

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 Rules 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 reason to 

speak directly to the issue, and based on the foregoing 

discussion, it is clear that it did not. Consequently, we find 

that CRCQL's second argument also lacks sufficient force to 

dispose of this appeal. 

ii. 

The Court offered some clarification of Guardians in its 

unanimous decision in Alexander, which involved section 

504 of the Rehabilitation Act of 1973, 29 U.S.C.S 794, and 

its implementing regulations. With respect to Guardians, 

the Alexander Court stated: 

 In Guardians, we confronted the question whether 

 Title VI of the Civil Rights Act of 1964, which prohibits 

 discrimination against racial and ethnic minorities in 

 programs receiving federal aid, reaches both intentional 

 and disparate-impact discrimination. No opinion 

 commanded a majority in Guardians, and Members of 

 the Court offered widely varying interpretations of Title 

 VI. Nonetheless, a two-pronged holding on the 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 intentional 

 discrimination. Second, the Court held that actions 

 having an unjustifiable disparate impact on minorities 

 could be redressed through agency regulations 

 designed to implement the purposes of Title VI. In 

 essence, then, we held that Title VI had delegated to 

 the agencies in the first instance the complex 

 determination of what sorts of disparate impacts upon 

 minorities constituted sufficiently significant social 

 problems, and were readily enough remediable, to 

 11 
 warrant altering the practices of the federal 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 this 

language is that it confirms that a private right of action 

exists under section 601 of Title VI and that the 

promulgation of discriminatory effect regulations is a valid 

exercise of agency authority under section 602. 

CRCQL argues that the Court recognized the existence of 

a private right of action in the following language from 

Alexander: 

 "Guardians, therefore, does not support petitioners' 

 blanket proposition that federal law proscribes only 

 intentional discrimination against the handicapped. 

 Indeed, to the extent our holding in Guardians is 

 relevant to the interpretation of S 504, Guardians 

 suggests that the regulations implementing S 504, 

 upon which respondents in part rely, could make 

 actionable the disparate impact challenged in this case. 

469 U.S. at 294, 105 S. Ct. at 716.8 Stitching together 

CRCQL's arguments and those made by the Trial Lawyers 

for Public Justice ("TLPJ") and the Southern Poverty Law 

Center ("SPLC") as amici, the argument in favor of inferring 

the existence of a private right of action from Alexander 

proceeds as follows. The Alexander Court noted in the 

above-quoted language that, to the extent that Title VI 

jurisprudence is relevant to the Rehabilitation Act, 

Guardians "suggests" that a party can proceed with a 

disparate impact claim under section 504's implementing 

regulations. This suggestion obtains, the argument must 

go, because Guardians itself stands for the proposition that 

a party can proceed with a disparate impact claim under 

the regulations implementing section 602. Alexander, 

_________________________________________________________________ 

8. The issue that the Alexander Court was addressing when it made 

these statements was whether discriminatory intent is required to 

establish a violation of section 504 of the Rehabilitation 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. 469 U.S. at 292-99, 105 

S. Ct. at 715-19. 

 12 
therefore, implicitly confirms that Guardians recognized 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 passive 

voice -- "could make actionable" -- and did not indicate 

whether Guardians stood for the proposition that a private 

plaintiff, or the relevant agency, could proceed under a 

disparate impact standard. CRCQL's argument requires 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 have been 

speaking of private plaintiffs when it used the passive voice. 

This inference from Guardians may be justified, but we find 

no direct authority in Alexander that either confirms or 

denies the existence of a private right of action. 

Consequently, we decline to hold that a private right of 

action exists based on Guardians and Alexander alone.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 misconstrues Fordice. 

Fordice addressed Title VI in a single footnote, which 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 action to overcome the 

 effects of prior discrimination." Our cases make clear, and the 

 parties do not disagree, that the reach of Title VI's protection 

 extends no further than the Fourteenth Amendment. We thus treat 

 the issues in these cases as they are implicated under the 

 Constitution. 

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

not 

indicate that private plaintiffs were barred from asserting a claim under 

the regulation quoted. Rather, the Court merely noted that the 

affirmative relief called for under the statute could 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 are 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 Guardians and Alexander 

in such an oblique manner. 
 13 
B. 

Having determined that the applicable Supreme Court

precedent is not dispositive, we look to our own precedent. 

The district court relied on our statements in Chowdhury 

for the conclusion that no private right of action exists. See 

944 F. Supp. at 417. CRCQL, and TLPJ and SPLC as amici, 

argue that reliance on Chowdhury is questionable because: 

(1) Chowdhury did not apply this Circuit's three-prong test 

for determining when it is appropriate to infer a private 

right of action to enforce regulations; and (2) Chowdhury 

was decided before Guardians. 

The sole question in Chowdhury was whether a private 

plaintiff must first exhaust administrative remedies under 

section 602 and its implementing regulations before

bringing suit directly under section 601. In holding that a 

plaintiff need not do so, we reasoned that "an aggrieved 

individual may file a complaint with the funding agency but 

has no role in the investigation or adjudication, if any, of 

the complaint." 677 F.2d at 319 (footnotes omitted). 

Moreover, we stated that "[t]here is no provision for a 

remedy for the victim of the discrimination, such as 

injunctive relief or damages." Id. at 320 (footnote omitted). 

Chowdhury appears to decide that no private right of 

action exists under the regulations, and we readily

understand why the district court reached this conclusion. 

We nevertheless disagree with that conclusion. Chowdhury 

does not hold that no private right of action exists under 

section 602 and its implementing regulations. It merely 

indicates that the regulations themselves do not expressly 

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 private 

right of action. Section 602 and its implementing 

regulations were only relevant in Chowdhury to the extent 

that they, on their face, afforded private plaintiffs a 

peripheral role in administrative proceedings. The 

Chowdhury court took this peripheral role as an indication 

that private plaintiffs should not have to pursue their 

claims under the regulations before initiating a direct 

action pursuant to their rights under section 601. The 

district court misapplied our statements in Chowdhury. 

 14 
Looking to our other precedent, CRCQL and amici cite 

our decision in Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 

F.2d 779 (3d Cir. 1990), a post-Guardians opinion, in 

support of the existence of a private right of action. Pfeiffer 

involved a suit by a high school student alleging gender 

discrimination in her dismissal from the local chapter of the 

National Honor Society. The plaintiff asserted claims under 

Title IX of the Education Amendments of 1972 and its 

implementing regulations, as well as other federal and state 

statutes. Pfeiffer is only significant to this appeal because 

we made therein the following statements concerning

Guardians: 

 In Guardians, the "threshold issue before the Court 

 [was] whether . . . private plaintiffs . . . need to prove 

 discriminatory intent to establish a violation of Title VI 

 . . . and administrative implementing regulations 

 promulgated thereunder." A majority of the Court 

 agreed that a violation of the statute itself requires 

 proof of discriminatory intent. A different majority 

 seemed to suggest that proof of discriminatory effect 

 suffices to establish liability when suit is brought to 

 enforce the regulations rather than the statute 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 interpretation of 

Guardians by a prior panel. The interpretation, however, 

is dicta and not binding on this panel. Pfeiffer concerned 

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 whether the 

district court's finding that school authorities dismissed the 

plaintiff from the National Honor Society because of 

premarital sex and not gender discrimination was clearly 

erroneous. See id. at 780. The court had no reason to 

consider the status of a private right of action under section 

602 and its implementing regulations. In addition, the 

above-quoted language from Pfeiffer, like the Supreme 

Court's opinion in Alexander, is in the passive voice-- 

"when suit is brought"-- and fails to specify who may bring 

 15 
suit 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 test 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 statute 

under which the rule was promulgated properly permits 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. PrudentialBache 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 Court's 

unanimous opinion in Alexander makes clear that "actions 

having an unjustifiable disparate impact on minorities [can] 

be redressed through agency regulations designed to

implement the purposes of Title VI." 469 U.S. at 293, 105 

S. Ct. at 716 (footnote omitted). 

ii. 

The second and third prongs are the crux of this case. In 

addressing the second, a court will consider the factors set 

out by the Supreme Court in Cort v. Ash, 422 U.S. 66, 95 

S. Ct. 2080 (1975), and its progeny. See Angelastro, 764 

F.2d at 947. The factors relevant here are: (1) whether 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 purposes of 

the legislative scheme to imply such a remedy for the 

 16 
plaintiff." 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 consistent with 

legislative intent because Congress acknowledged the 

existence of the right when it amended Title VI. The 

purpose of the amendment was to broaden the scope of 

coverage of Title VI in response to the Supreme Court's 

decision in Grove City College v. Bell, 465 U.S. 555, 104 S. 

Ct. 1211 (1984), where the Court narrowly construed the 

terms "program or activity."11 The United States cites 

various items of legislative history which it claims indicates 

an "understanding . . . [of] the existence of the 

discriminatory effects regulations and the fact that they 

could be enforced in federal court by private parties." 

Amicus Br. at 21. 

First, the United States relies on a House Report on an 

early version of the relevant bill, which states that the 

"private right of action which allows a private individual 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. REP. NO. 

963, Pt. 1, 99th Cong., 2d Sess. 24 (1986).12 Second, the 

_________________________________________________________________ 

10. The other Cort factors are: (1) whether the plaintiff is "one of the 

class for whose especial benefit the statute was enacted,-- that is, does 

the statute create a federal right in favor of the plaintiff "; and (2) 

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." 422 

U.S. at 78, 95 S. Ct. at 2088 (citations and internal quotation marks 

omitted). Clearly, CRCQL satisfies the first. The second 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 grounds. See 42 U.S.C. 

S 2000d. 

12. Courts have regarded Title IX and Title VI jurisprudence 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 was patterned after 

Title VI of the Civil Rights Act of 1964. Except for 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 language to describe the 

benefited class. . . . The drafters of Title IX explicitly assumed that it 

would be interpreted and applied as Title VI had been during the 

preceding eight years." (footnotes omitted)). 
 17 
United States relies on several legislators' comments in the 

Congressional Record, where the legislators appear to 

recognize the existence of a private right of action.13 Third, 

the United States also relies on the following compilations 

of testimony at congressional hearings: Civil Rights Act of 

1984: Hearings on S. 2568 Before the Subcomm. on the 

Const. of the Senate Comm. on the Judiciary, 98th Cong., 

2d Sess. 23-24, 153-54, 200 (1984); Civil Rights Restoration 

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 the 

Office of Management and Budget ("OMB") which states 

OMB's opinion that "every licensed attorney would be 

empowered to file suit to enforce the `effects test' 

regulations of agencies, challenging practices in every 

aspect of every institution that receives any Federal 

assistance." Civil Rights Act of 1984: Hearings on S. 2568 

Before the Subcomm. on the Const. of the Senate Comm. on 

the Judiciary, 98th Cong., 2d Sess. 527 (1984). 

PADEP presents two responses. First, PADEP emphasizes 

that the purpose of the amendment of Title VI was to 

address the Supreme Court's decision in Grove City, not to 

confirm or announce the existence of a private right of 

action. Second, PADEP reminds the court that many of the 

_________________________________________________________________ 

13. The United States quotes the following observations of Senator 

Hatch: 

 The failure to provide a particular share of contract opportunities 

to 

 minority-owned businesses, for example, could lead Federal agencies 

 to undertake enforcement action asserting that the failure to 

provide 

 more contracts to minority-owned firms, standing alone, is 

 discriminatory under agency disparate impact regulations 

 implementing Title VI. . . . Of course, advocacy groups will be 

able 

 to bring private lawsuits making the same allegations 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). 

 18 
above-cited comments may only reflect the views of 

individual members of Congress. PADEP does not, however, 

cite to any statements in the Congressional Record or 

elsewhere that would undermine those cited by the United 

States. We therefore find that there is some indication in 

the legislative history, here uncontroverted, of an intent to 

create a private right of action, in satisfaction of the Cort 

factors. 

This finding, however, does not end our inquiry. The Cort 

factors also require a court to determine whether it is 

"consistent with the underlying purposes of the legislative 

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 situate the 

EPA as, in essence, a gatekeeper to enforcement, and that 

the implication of a private right of action would be 

inconsistent with this legislative scheme. According to 

PADEP, section 602 imposes what PADEP terms as "strict 

preconditions" on the use of that section's enforcement 

apparatus.14 Specifically, section 602 provides: 

 [N]o such action shall be taken until the department or 

 agency concerned has advised the appropriate person 

 or persons of the failure to comply with the

 requirement and has determined that compliance 

 cannot be secured by voluntary means. In the case of 

 any action terminating, or refusing to grant or 

 continue, assistance because of failure to comply with 

_________________________________________________________________ 

14. Section 602 provides for the following enforcement apparatus: 

 Compliance with any requirement adopted pursuant to this section 

 may be effected (1) by the termination of or refusal to grant or to 

 continue assistance under such program or activity to any recipient 

 as to whom there has been an express finding on the record, after 

 opportunity for hearing, of a failure to comply 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 thereof, in which such 

 noncompliance has been so found, or (2) by any other means 

 authorized by law . . . . 

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

 19 
 a requirement imposed pursuant to this section, the 

 head of the Federal department or agency shall file 

 with the committees of the House and Senate having 

 legislative jurisdiction over the program or activity 

 involved a full written report of the circumstances and 

 the grounds for such action. No such action shall 

 become effective until thirty days have elapsed after the 

 filing of such report. 

42 U.S.C. S 2000d-1. EPA enforcement action can occur 

only after the agency has negotiated these procedural 

requirements. Should we find that it is appropriate to imply 

a private right of action, PADEP emphasizes that private 

plaintiffs would not have to negotiate these requirements. 

In addition, PADEP emphasizes that the EPA's 

regulations expressly provide private parties with an 

administrative mechanism through which they can raise 

allegations of unintentional discrimination. See 40 C.F.R. 

SS 7.120-7.130. These regulations provide, in relevant part: 

 A person who believes that he or she or a specific class 

 of persons has been discriminated against in violation 

 of this Part may file a complaint. The complaint may be 

 filed by an authorized representative. A complaint 

 alleging employment discrimination must identify at 

 least one individual aggrieved by such discrimination. 

 Complaints solely alleging employment discrimination 

 against an individual on the basis of race, color, 

 national origin, sex or religion shall be processed under 

 the procedures for complaints of employment 

 discrimination filed against recipients of federal 

 assistance. Complainants are encouraged but not 

 required to make use of any grievance procedure 

 established under S 7.90 before filing a complaint. 

 Filing a complaint through a grievance procedure 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 parties 

submitting their allegations to the agency and its 

discretion. PADEP contends that a private right of action is 

inconsistent with this legislative scheme. 

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

There is, however, a more convincing counter-argument. 

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 termination of 

its funding. We note that a private lawsuit also affords a 

fund recipient similar notice. If the purpose of the 

requirements is to provide bare notice, private lawsuits 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 significant in 

private lawsuits, where the potential remedy does not 

include the result (i.e., termination of funding) at which 

Congress directed the requirements. Stated differently, 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 private right of 

action would be consistent with the legislative scheme of 

Title VI. 

In sum, we find that there is some indication in the 

legislative history of an intent to create a private 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. Accordingly, 

we find that " `the statute under which the rule was 

promulgated properly permits the implication of a private 

right of action,' " Polaroid Corp., 862 F.2d at 994 (quoting 

Angelastro, 764 F.2d at 947), and that the second prong of 

the test is satisfied. 

_________________________________________________________________ 

15. While it is well established that private plaintiffs do not have the 

authority to compel a termination of funding, we make 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 Center, Inc., 599 F.2d 

1247, 1254 n.27 (3d Cir. 1979). See also Cannon, 441 U.S. at 711-17, 

99 S. Ct. at 1965-68 (discussing the legislative history of Title VI as it 

relates to the implication of a private remedy for victims of 

discrimination). Rather, should relief prove warranted in this case, we 

leave the determination of the appropriate remedy to the district court in 

the first instance. 

 21 
iii. 

The third prong of the test requires the court to inquire 

" `whether implying a private right of action will further the 

purpose of the enabling statute.' " Id. (quoting Angelastro, 

764 F.2d at 947). The United States contends that this 

prong is satisfied because the implication of a private right 

of action under section 602 and the regulations will further 

the dual purposes of Title VI, which are to: (1) combat 

discrimination by entities who receive federal funds; 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, moreover, 

points out that the EPA itself lacks sufficient resources 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 purposes of 

Title VI. Consequently, we find that the third prong of the 

test is also satisfied. 

iv. 

Lastly, although no other court of appeals has rendered 

a holding on the precise issue before this court, we note 

that the decisions of other courts of appeals indicate 

support for our reasoning. See, e.g., Latinos Unidos de 

Chelsea v. Secretary of Hous. & Urban Dev., 799 F.2d 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 discriminatory 

impact." (citation omitted)); New York Urban League, Inc. v. 

New York, 71 F.3d 1031, 1036 (2d Cir. 1995) ("Courts 

considering claims under analogous Title VI regulations 

have looked to Title VII disparate impact cases for

guidance. A plaintiff alleging a violation of the DOT 

regulations must make a prima facie showing that the 

alleged conduct has a disparate impact." (citations

omitted)); Castaneda by Castaneda v. Pickard, 781 F.2d 

 22 
456, 465 n.11 (5th Cir. 1986) ("Thus a Title VI action can 

now be maintained in either the guise of a disparate 

treatment case, where proof of discriminatory motive is 

critical, or in the guise of a disparate impact case, involving 

employment practices that are facially neutral in their 

treatment of different groups but that in fact fall more 

harshly on one group than another. In this latter type of 

case, proof of discriminatory intent is not necessary." 

(citation omitted)); Buchanan v. City of Bolivar, Tenn., 99 

F.3d 1352, 1356 n.5 (6th Cir. 1996) ("A plaintiff may 

pursue a claim under a disparate impact theory as well. 

However, a disparate impact theory is not applicable in the 

case at hand." (citation omitted)); David K. v. Lane, 839 

F.2d 1265, 1274 (7th Cir. 1988) ("It is clear that plaintiffs 

may maintain a private cause of action to enforce the 

regulations promulgated under Title VI of the Civil Rights 

Act. Moreover, plaintiffs need not show intentional

discriminatory conduct to prevail on a claim brought under 

these administrative regulations. Evidence of a 

discriminatory effect is sufficient." (citation omitted)); 

Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1044- 

45 (7th Cir. 1987) ("Although the voting of the Justices 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 under 

those regulations, although not under the statute."

(citations omitted)); Larry P. by Lucille P. v. Riles, 793 F.2d 

969, 981-82 (9th Cir. 1984) ("[P]roof of discriminatory effect 

suffices to establish liability when the suit is brought to 

enforce regulations issued pursuant to the statute rather 

than the statute itself." (footnote omitted)); Villanueva v. 

Carere, 85 F.3d 481, 486 (10th Cir. 1996) ("Although Title 

VI itself proscribes only intentional discrimination, certain 

regulations promulgated pursuant to Title VI prohibit 

actions that have a disparate impact on groups protected 

by the act, even in the absence of discriminatory intent." 

(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 intentional 

discrimination, the regulations promulgated pursuant to 

Title VI may validly proscribe actions having a disparate 

impact on groups protected by the statute, even if those 

 23 
actions are not intentionally discriminatory." (citations 

omitted)); Georgia State Conference of Branches of NAACP v. 

Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985) ("There is no 

doubt that the plaintiffs predicated this cause of action on 

the regulations. As a result, the district court correctly 

applied disparate impact analyses to their Title VI claims." 

(footnote omitted)). 

v. 

In conclusion, the district court misapplied our decision 

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 to imply 

a private right of action to enforce regulations and was 

decided before the Supreme Court's decision in Guardians. 

Applying that three-prong test, we hold that private 

plaintiffs may maintain an action under discriminatory 

effect regulations promulgated by federal administrative 

agencies pursuant to section 602 of Title VI of the Civil 

Rights Act of 1964. Accordingly, we will reverse and remand 

for further proceedings, including a consideration of the 

remaining grounds for dismissal contained in defendants' 

Motion to Dismiss. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 24