In The

Supreme Court of the United States




Decided July 1, 1983

Justice O’Connor, Concurring

Topic: Civil Rights*Court vote: 5–4
Note: No other Justices joined this opinion.
Citation: 463 U.S. 582 Docket: 81–431Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring in the judgment.

For reasons given in Part I of the dissent by JUSTICE STEVENS, post at 463 U. S. 636 -639, I cannot agree with the limitations that JUSTICE WHITE's opinion would place on the scope of equitable relief available to private litigants suing under Title VI. [ Footnote 3/1 ] Therefore, like the dissent, I would address two further questions: (1) whether proof of purposeful discrimination is a necessary element of a valid Title VI claim, and (2) if so, whether administrative regulations incorporating an impact standard may be upheld as within the agency's statutory authority. My affirmative answer to the first question leads me to conclude that regulations imposing an impact standard are not valid. On that basis, I would affirm the judgment below.

Were we construing Title VI without the benefit of any prior interpretation from this Court, one might well conclude that the statute was designed to redress more than purposeful discrimination. Cf. University of California Regents v. Bakke, 438 U. S. 265, 438 U. S. 412 -418 (1978) (opinion of STEVENS, J.). In Bakke, however, a majority of the Court concluded otherwise. Id. at 438 U. S. 287 (opinion of POWELL, J.); id. at 438 U. S. 328 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.). Like JUSTICE STEVENS, post at 463 U. S. 641 -642, I feel constrained by stare decisis to follow that interpretation of the statute. I part company with JUSTICE STEVENS' dissent, however, when it concludes that administrative regulations incorporating an "effects" standard may be upheld notwithstanding the statute's proscription of intentional discrimination only. See post at 463 U. S. 642 -645. Administrative regulations having the force of law may be set aside only if they exceed the statutory authority of the agency or are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Batterton v. Francis, 432 U. S. 416, 432 U. S. 426 (1977). JUSTICE STEVENS' dissent argues that agency regulations incorporating an "effects" standard reflect a reasonable method of "further[ing] the purposes of Title VI." Post at 463 U. S. 644. If, as five Members of the Court concluded in Bakke, the purpose of Title VI is to proscribe only purposeful discrimination in a program receiving federal financial assistance, it is difficult to fathom how the Court could uphold administrative regulations that would proscribe conduct by the recipient having only a discriminatory effect. Such regulations do not simply "further" the purpose of Title VI; they go well beyond that purpose.

The Court's decision in City of Rome v. United States, 446 U. S. 156 (1980), does not persuade me to the contrary. The challenge there was to the constitutionality of a federal statute that imposed a stricter standard of nondiscrimination than that required by the constitutional provision pursuant to which the statute was enacted. Specifically, the Court held that, under the enabling authority in § 2 of the Fifteenth Amendment, Congress may enact a statute banning voting practices having a discriminatory effect, even if § 1 of the Amendment prohibits only intentional discrimination in voting. Id. at 446 U. S. 178. The Court reasoned that Congress' power under § 2 of the Amendment is "no less broad than its authority under the Necessary and Proper Clause." Id. at 446 U. S. 175. Therefore, as long as the statute was an appropriate means of enforcing the Fifteenth Amendment's prohibition, the statute was valid.

The breadth of authority granted to Congress under the enabling provision of the Fifteenth Amendment is not equivalent to the amount of discretion that an administrative agency possesses in implementing the provisions of a federal statute. [ Footnote 3/2 ] An administrative agency is itself a creature of statute. Although the Court has stated that an agency's legislative regulations will be upheld if they are "reasonably related" to the purposes of the enabling statute, Mourning v. Family Publications Service, Inc., 411 U. S. 356, 411 U. S. 369 (1973), we would expand considerably the discretion and power of agencies were we to interpret "reasonably related" to permit agencies to proscribe conduct that Congress did not intend to prohibit. "Reasonably related to" simply cannot mean "inconsistent with." Yet that would be the effect of upholding the administrative regulations at issue in this case if, as five Justices concluded in Bakke, the expressed will of Congress is that federal funds recipients are prohibited only from purposefully discriminating on the grounds of race, color, or national origin in the administration of funded programs.

I acknowledge that, in Lau v. Nichols, 414 U. S. 563 (1974), the Court approved liability under Title VI for conduct having only a discriminatory impact. Nevertheless, I believe that JUSTICES BRENNAN, WHITE, MARSHALL, and BLACKMUN accurately observed in Bakke, 438 U.S. at 438 U. S. 352, that Bakke's interpretation of "Title VI's definition of racial discrimination [to be] absolutely coextensive with the Constitution's" casts serious doubt on the correctness of the Lau decision. In my view, the logical implications of that interpretation require that Lau be overruled. Accordingly, I would conclude that the Title VI regulations at issue here cannot validly serve as the basis for liability. Because petitioners have failed to prove intentional discrimination, I would affirm the judgment of the Court of Appeals.


[ Footnote 3/1 ]

Because I conclude that the decision below should be affirmed on the ground that petitioners have failed to prove intentional discrimination, I have no occasion to address the question whether there is a private cause of action under Title VI for damages relief.

[ Footnote 3/2 ]

JUSTICE STEVENS relies upon a 1900 decision by this Court for the proposition that

an administrative regulation's conformity to statutory authority [is] to be measured by the same standard as a statute's conformity to constitutional authority.

Post at 463 U. S. 644 (citing Boske v. Comingore, 177 U. S. 459, 177 U. S. 470 ). Boske, however, is distinguishable in that the statutory authority for the regulation at issue there conferred the general administrative power to adopt rules to carry out the functions of the office. 177 U.S. at 177 U. S. 467. With respect to this same statute, the Court observed in a subsequent case that it conferred "administrative power only.... [C]ertainly under the guise of regulation, legislation cannot be exercised." United States v. George, 228 U. S. 14, 228 U. S. 20 (1913). In George, the Court disapproved a regulation by the Interior Department which had the effect of enlarging the statute, emphasizing the fundamental "distinction between the legislative and administrative function." Id. at 228 U. S. 22.

Moreover, cases since Boske articulating the limitations applicable to agency rulemaking power indicate that the scope of agency discretion is indeed narrower than the language of Boske would suggest. For example, in Ernst & Ernst v. Hochfelder, 425 U. S. 185 (1976), the Court declined to endorse an interpretation of Securities and Exchange Commission Rule 10b-5, 17 CFR § 240.10b-5 (1975), as proscribing mere negligent conduct. The Court observed:

"More importantly, Rule 10b-5 was adopted pursuant to authority granted the Commission under § 10(b). The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is " the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.'" Dixon v. United States, 381 U. S. 68, 381 U. S. 74 (1965), quoting Manhattan General Equipment Co. v. Commissioner, 297 U. S. 129, 297 U. S. 134 (1936). Thus,... [the Rule] cannot exceed the power granted the Commission by Congress under § 10(b)."

425 U.S. at 425 U. S. 212 -214. See also Manhattan General Equipment Co. v. Commissioner, 297 U. S. 129, 297 U. S. 134 (1936) ("A regulation which does not [carry into effect the will of Congress as expressed by the statute], but operates to create a rule out of harmony with the statute, is a mere nullity"). Cf. FCC v. American Broadcasting Co., 347 U. S. 284, 347 U. S. 296 (1954) (agency cannot make illegal by regulation what is legal under the statute).

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