II 

109TH CONGRESS 

2D SESSION S. 4009 

To restore, reaffirm, and reconcile legal rights and remedies under civil 

rights statutes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 29, 2006 

Mr. MENENDEZ introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

A BILL 

To restore, reaffirm, and reconcile legal rights and remedies 

under civil rights statutes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Environmental Justice 

5 Enforcement Act of 2006’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) This Act is made necessary by a decision of 

9 the Supreme Court in Alexander v. Sandoval, 532 

10 U.S. 275 (2001) that significantly impairs statutory 


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1 protections against discrimination that Congress has 

2 erected over a period of almost 4 decades. The 

3 Sandoval decision undermines these statutory pro4 tections by stripping victims of discrimination (de5 fined under regulations that Congress required Fed6 eral departments and agencies to promulgate to im7 plement title VI of the Civil Rights Act of 1964 (42 

8 U.S.C. 2000d et seq.)) of the right to bring action 

9 in Federal court to redress the discrimination and 

10 by casting doubt on the validity of the regulations 

11 themselves. 

12 (2) The Sandoval decision attacks settled expec13 tations created by title VI of the Civil Rights Act of 

14 1964. In 1964 Congress adopted title VI of the Civil 

15 Rights Act of 1964 to ensure that Federal dollars 

16 would not be used to subsidize or support programs 

17 or activities that discriminated on racial, color, or 

18 national origin grounds. 

19 (3) From the outset, Congress and the execu20 tive branch made clear that the regulatory process 

21 would be used to ensure broad protections for bene22 ficiaries of the law. The first regulations promul23 gated by the Department of Justice under title VI 

24 of the Civil Rights Act of 1964 forbade the use of 

25 ‘‘criteria or methods of administration which have 


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1 the effect of subjecting individuals to discrimination 

2 . . .’’ (section 80.3 of title 45, Code of Federal Regu3 lations) and prohibited retaliation against persons 

4 participating in litigation or administrative resolu5 tion of charges of discrimination brought under the 

6 Act. These regulations were drafted by the same ex7 ecutive branch officials who played a central role in 

8 drafting title VI of the Civil Rights Act of 1964. 

9 (4) These regulations have never been invali10 dated. In 1966, Congress considered and rejected a 

11 proposal to invalidate the disparate impact regula12 tions promulgated pursuant to title VI of the Civil 

13 Rights Act of 1964. The Supreme Court has recog14 nized that Congress’s failure to disapprove regula15 tions implies that the regulations accurately reflect 

16 congressional intent. North Haven Bd. of Educ. v. 

17 Bell, 456 U.S. 512, 533–34 (1982). 

18 (5) Title VI of the Civil Rights Act of 1964 was 

19 designed to confer a benefit on persons who were 

20 discriminated against. Title VI of such Act relied 

21 heavily on private attorneys general for effective en22 forcement. Congress acknowledged that it could not 

23 secure compliance solely through enforcement ac24 tions initiated by the Attorney General. Newman v. 


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1 Piggie Park Enterprises, 390 U.S. 400 (1968) (per 

2 curiam). 

3 (6) The Supreme Court has made it clear that 

4 individuals suffering discrimination in violation of 

5 title VI of the Civil Rights Act of 1964 have a pri6 vate right of action in the Federal courts, and that 

7 this is necessary for effective protection of the law, 

8 although Congress did not make such a right of ac9 tion explicit in the statute. Cannon v. University of 

10 Chicago, 441 U.S. 677 (1979). 

11 (7) Notwithstanding the decision of the Su12 preme Court in Cort v. Ash, 422 U.S. 66 (1975) to 

13 abandon prior precedent and require explicit statu14 tory statements of a right of action, Congress and 

15 the Courts both before and after Cort have recog16 nized an implied right of action under title VI of the 

17 Civil Rights Act of 1964. For example, Congress has 

18 consistently provided the means for enforcing the 

19 statutes. In 1972, Congress established a right to 

20 attorney’s fees in private actions brought under title 

21 VI of the Civil Rights Act of 1964. 

22 (8) The Supreme Court had no basis in law or 

23 in legislative history in Sandoval for denying a right 

24 of action under regulations promulgated pursuant to 

25 title VI of the Civil Rights Act of 1964 while permitVerDate Aug 31 2005 02:57 Oct 04, 2006 Jkt 049196 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4009.IS S4009

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1 ting it under the statute. The regulations were con2 gressionally mandated and their promulgation was 

3 specifically directed by Congress under section 602 

4 of that Act (42 U.S.C. 2000d–1) ‘‘to effectuate’’ the 

5 antidiscrimination provisions of the statute. Title VI 

6 of the Civil Rights Act of 1964 stressed the impor7 tance of the regulations by requiring them to be 

8 ‘‘approved by the President’’. 

9 (9) Regulations that prohibit practices that 

10 have the effect of discrimination are consistent with 

11 prohibitions of disparate treatment that require a 

12 showing of intent, as the Supreme Court has ac13 knowledged in the following decisions: 

14 (A) A disparate impact standard allows a 

15 court to reach discrimination that could actu16 ally exist under the guise of compliance with 

17 the law. Griggs v. Duke Power Co., 401 U.S. 

18 424 (1971). 

19 (B) Evidence of a disproportionate burden 

20 will often be the starting point in any analysis 

21 of unlawful discrimination. Village of Arlington 

22 Heights v. Metropolitan Hous. Dev. Corp., 429 

23 U.S. 252 (1977). 

24 (C) An invidious purpose may often be in25 ferred from the totality of the relevant facts, inVerDate Aug 31 2005 02:57 Oct 04, 2006 Jkt 049196 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4009.IS S4009

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1 cluding, where true, that the practice bears 

2 more heavily on one race than another. Wash3 ington v. Davis, 426 U.S. 229 (1976). 

4 (D) The disparate impact method of proof 

5 is critical to ferreting out stereotypes under6 lying intentional discrimination. Watson v. Fort 

7 Worth Bank & Trust, 487 U.S. 977 (1988). 

8 (10) The interpretation of title VI of the Civil 

9 Rights Act of 1964 (42 U.S.C. 2000d et seq.) as 

10 prohibiting practices that have disparate impact and 

11 that are not justified as necessary to achieve the 

12 goals of the programs or activities supported by the 

13 Federal financial assistance is powerfully reinforced 

14 by the use of such a standard in enforcing title VII 

15 of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 

16 seq.). When the Supreme Court wavered on the ap17 plication of a disparate impact standard under title 

18 VII, Congress specifically reinstated it as law in the 

19 Civil Rights Act of 1991 (Public Law 102–166; 105 

20 Stat. 1071). 

21 (11) By reinstating a private right of action 

22 under title VI of the Civil Rights Act of 1964, Con23 gress is not acting in a manner that would expose 

24 entities subject to that title to unfair findings of dis25 crimination. The legal standard for a disparate imVerDate Aug 31 2005 02:57 Oct 04, 2006 Jkt 049196 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4009.IS S4009

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1 pact claim has never been structured so that a find2 ing of discrimination could be based on numerical 

3 imbalance alone. 

4 (12) In contrast, a failure to reinstate or con5 firm a private right of action would leave vindication 

6 of the rights to equality of opportunity solely to Fed7 eral agencies, which may fail to take necessary and 

8 appropriate action because of administrative over9 burden or other reasons. Action by Congress to 

10 specify a private right of action is necessary to en11 sure that persons will have a remedy if they are de12 nied equal access to education, housing, health, envi13 ronmental protection, transportation, and many 

14 other programs and services by practices of entities 

15 subject to title VI of the Civil Rights Act of 1964 

16 that result in discrimination. 

17 (13) As a result of the Supreme Court’s deci18 sion in Sandoval, courts have dismissed numerous 

19 claims brought under the regulations promulgated 

20 pursuant to title VI of the Civil Rights Act of 1964 

21 that challenged actions with an unjustified discrimi22 natory effect. 

23 (14) The right to maintain a private right of 

24 action under a provision added under this Act to 

25 title VI of the Civil Rights Act of 1964 will be effecVerDate Aug 31 2005 02:57 Oct 04, 2006 Jkt 049196 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4009.IS S4009

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1 tuated by a waiver of sovereign immunity in the 

2 same manner as sovereign immunity is waived under 

3 the remaining provisions of that title. 

4 SEC. 3. PROHIBITED DISCRIMINATION. 

5 Section 601 of the Civil Rights Act of 1964 (42 

6 U.S.C. 2000d) is amended— 

7 (1) by striking ‘‘No’’ and inserting ‘‘(a) No’’; 

8 and 

9 (2) by adding at the end the following: 

10 ‘‘(b)(1)(A) Discrimination (including exclusion from 

11 participation and denial of benefits) based on disparate 

12 impact is established under this title only if— 

13 ‘‘(i) a person aggrieved by discrimination on the 

14 basis of race, color, or national origin (referred to in 

15 this title as an ‘aggrieved person’) demonstrates that 

16 an entity subject to this title (referred to in this title 

17 as a ‘covered entity’) has a policy or practice that 

18 causes a disparate impact on the basis of race, color, 

19 or national origin and the covered entity fails to 

20 demonstrate that the challenged policy or practice is 

21 related to and necessary to achieve the nondiscrim22 inatory goals of the program or activity alleged to 

23 have been operated in a discriminatory manner; or 

24 ‘‘(ii) the aggrieved person demonstrates (con25 sistent with the demonstration required under title 


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1 VII with respect to an ‘alternative employment prac2 tice’) that a less discriminatory alternative policy or 

3 practice exists, and the covered entity refuses to 

4 adopt such alternative policy or practice. 

5 ‘‘(B)(i) With respect to demonstrating that a par6 ticular policy or practice causes a disparate impact as de7 scribed in subparagraph (A)(i), the aggrieved person shall 

8 demonstrate that each particular challenged policy or 

9 practice causes a disparate impact, except that if the ag10 grieved person demonstrates to the court that the elements 

11 of a covered entity’s decisionmaking process are not capa12 ble of separation for analysis, the decisionmaking process 

13 may be analyzed as one policy or practice. 

14 ‘‘(ii) If the covered entity demonstrates that a specific 

15 policy or practice does not cause the disparate impact, the 

16 covered entity shall not be required to demonstrate that 

17 such policy or practice is necessary to achieve the goals 

18 of its program or activity. 

19 ‘‘(2) A demonstration that a policy or practice is nec20 essary to achieve the goals of a program or activity may 

21 not be used as a defense against a claim of intentional 

22 discrimination under this title. 

23 ‘‘(3) In this subsection, the term ‘demonstrates’ 

24 means meets the burdens of production and persuasion. 


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1 ‘‘(c) No person in the United States shall be sub2 jected to discrimination, including retaliation, because 

3 such person opposed any policy or practice prohibited by 

4 this title, or because such person made a charge, testified, 

5 assisted, or participated in any manner in an investiga6 tion, proceeding, or hearing under this title.’’. 

7 SEC. 4. RIGHTS OF ACTION. 

8 Section 602 of the Civil Rights Act of 1964 (42 

9 U.S.C. 2000d–1) is amended— 

10 (1) by inserting ‘‘(a)’’ before ‘‘Each Federal de11 partment and agency which is empowered’’; and 

12 (2) by adding at the end the following: 

13 ‘‘(b) Any person aggrieved by the failure of a covered 

14 entity to comply with this title, including any regulation 

15 promulgated pursuant to this title, may bring a civil action 

16 in any Federal or State court of competent jurisdiction 

17 to enforce such person’s rights.’’. 

18 SEC. 5. RIGHT OF RECOVERY. 

19 Title VI of the Civil Rights Act of 1964 (42 U.S.C. 

20 2000d et seq.) is amended by inserting after section 602 

21 the following: 

22 ‘‘SEC. 602A. ACTIONS BROUGHT BY AGGRIEVED PERSONS. 

23 ‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL

24 DISCRIMINATION.—In an action brought by an aggrieved 

25 person under this title against a covered entity who has 


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1 engaged in unlawful intentional discrimination (not a 

2 practice that is unlawful because of its disparate impact) 

3 prohibited under this title (including its implementing reg4 ulations), the aggrieved person may recover equitable and 

5 legal relief (including compensatory and punitive dam6 ages), attorney’s fees (including expert fees), and costs, 

7 except that punitive damages are not available against a 

8 government, government agency, or political subdivision. 

9 ‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT

10 STANDARD OF PROOF.—In an action brought by an ag11 grieved person under this title against a covered entity 

12 who has engaged in unlawful discrimination based on dis13 parate impact prohibited under this title (including its im14 plementing regulations), the aggrieved person may recover 

15 equitable relief, attorney’s fees (including expert fees), and 

16 costs.’’. 

17 SEC. 6. EFFECTIVE DATE. 

18 (a) IN GENERAL.—This Act, and the amendments 

19 made by this Act, are retroactive to April 24, 2001, and 

20 effective as of that date. 

21 (b) APPLICATION.—This Act, and the amendments 

22 made by this Act, apply to all actions or proceedings pend23 ing on or after April 24, 2001, except as to an action 

24 against a State on a claim brought under the disparate 


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1 impact standard, as to which the effective date is the date 

2 of enactment of this Act. 

Æ 


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