Title VI Provides Private Cause of Action for Retaliation!

On April 22, 2003, the Fourth Circuit issued its highly anticipated, post Alexander v. Sandoval, 532 U.S. 275 (2001), opinion in the case of Peters v. Jenney, (2003 U.S. App. Lexis 7540). In the Sandoval case, the petitioner challenged the state of Alabama’s decision to provide drivers license testing only in English. Sandoval claimed that by doing so, the state was “subjecting non-English speakers to discrimination based on their national origin,” Sandoval, 532 U.S. at 279. The Supreme Court looked at whether section 602 of the Civil Rights Act of 1964, forbidding practices creating disparate impact, is enforceable via an implied private cause of action. The Supreme Court held that no such private cause of action exists. Id. at 291 (emphasis added). Post Sandoval, many advocates suspected that a private right of action based on Title VI would not survive legal scrutiny. Yet, in the case of Peters v. Jenney, the notion of an implied private cause of action was raised once again, this time in connection with alleged retaliation through acts of intentional discrimination.

In this Fourth Circuit case, a Caucasian woman employed by the Virginia Beach School District, who specialized in gifted education, designed a comprehensive program model that focused on improving minority participation in the Virginia Beach School District’s gifted program. Jenney, 2003 U.S. App. Lexis at 6. Subsequent to the implementation of her successful program model, the school district failed to renew her employment contract. Id. at 10 (emphasis added). Peters alleged intentional discrimination, stating that members of the school district had taken purposeful steps to prevent her from effectively implementing a program that would be equitable for all Virginia Beach children and that they had in effect penalized her for advocating for a fairer program, due to entrenched discriminatory practices by the District. Id. at 10-11.

In a major Fourth Circuit victory, the Court of Appeals drew a clear connection between retaliation, intentional discrimination, and section 601 of Title VI of the Civil Rights Act of 1964, stating that section 601 can be construed to “forbid purposeful retaliation based upon opposition to practices made unlawful by section 601,” which section is enforceable by an “implied private right of action.” Id. at 27-28.