UNITED STATES SUPREME COURT DECISION

STATEMENT

By:  Barnaby Zall, Esq.

I have now read today’s Sandoval decision and the dissent.  It’s a good win, reversing the lower court decisions.  Even more important, however, the question rests on a 5-4 majority on the court.  The dissent basically invited a continuation of this case and an expansion to others.

The decision is a straight-forward analysis of the private right of action.  That’s all it is on its face.  Justice Scalia, who wrote the opinion for a 5-4 Court (split along the usual conservative-liberal lines), said, “We do not inquire here whether the DOJ regulation was authorized by § 602, or whether the courts below were correct to hold that the English-only policy had the effect of discriminating on the basis of national origin.”

The majority held that there was no private right of action.  Scalia wrote that there was no “intent” in Title VI “to create a freestanding private right of action to enforce regulations promulgated under § 602.”  The majority did not reach another of the arguments over the reach of the Pennhurst decision.  Scalia did go out of his way to reinforce the view that Lau v. Nichols (which had found a private right of action) was later limited to only cases of “intentional” discrimination, rather than just some disparate effect on language minorities.  The majority reversed the decisions below, meaning that the lower court decisions are not merely vacated, but wrong.

The dissent (by Stevens) rejected this line of argument.  Stevens argued that Title VI explicitly authorized private suits and that some of the Supreme Court decisions have found such a right.

A little reading, however, demonstrates that the threat to the English language is real.  Compare Scalia’s refusal to deal with the language issue to these words from the four-person dissent:

“When this Court faced an identical case 27 years ago, all the Justices believed that private parties could bring lawsuits under Title VI and its implementing regulations to enjoin the provision of governmental services in a manner that discriminated against non-English speakers,” citing Lau v. Nichols.

In other words, if the dissent had garnered one more justice, we would have had a clear mandate for suits requesting services in a manner that does not “discriminate against non-English speakers.”  This would have spread Lau far beyond the educational context and made this a booming legal industry.

As Justice Stevens wrote:  

“To the extent that the majority denies relief to the respondents merely because they neglected to mention 42 U.S.C. § 1983 in framing their Title VI claim, this case is something of a sport.  Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference § 1983 to obtain relief; indeed, the plaintiffs in this case (or other similarly situated individuals) presumably retain the option of re-challenging Alabama’s English-only policy in a complaint that invokes § 1983 even after today’s decision.”

So this case may not be over.  Scalia’s majority opinion seems to close off these private suits, but the Southern Poverty Law Center might re-file before the same judge in the same place relying on § 1983 and Steven’s dissent this time.  And then it would have to be litigated all over again.

What kind of danger are we in?  Consider that Scalia may have had to focus carefully on the narrow private right of action question in order to hold his five vote majority bloc.  One vote different and the outcome would be a deluge.

I would be happy to answer questions or hear comments.

Law Offices of Barnaby Zall