B.
The structure of Title Il's remedial scheme similarly reveals no authority for the Department to commence civil litigation. That remedial scheme incorporates remedies available under §505 of the Rehabilitation Act of 1973 ("§505"), 29 U.S.C. §794a, and makes them available to ''any person alleging discrimination'' under Title II. 42 U.S.C. §12133; see Olmstead, 527 U.S. at 590. Section 504 of the Rehabilitation Act, which §505 enforces, prohibits disability-discrimination by federally funded programs or activities. See 29 U.S.C. §794(a) (2014). Section 505 provides that ''[t]he remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964...shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance..." 29 U.S.C. §794a(a)(2). Ultimately, Title VI of the Civil Rights Act of 1964 ("Title VI''), which prohibits race-discrimination by federally funded programs or activities, provides:
| 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... Compliance with any requirement adopted pursuant to this section may be affected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient...or (2) by any other means authorized by law..." |
42 U.S.C. §2000d-1.
The State argues that no statutory cause of action for Attorney General enforcement exists under Title VI, and therefore none exists under Title II. The State observes that, similar to the ADA's structure, Titles II, III, IV, and VII of the Civil Rights Act of 1964 expressly authorize suit by the Attorney General, but Title VI does not.6 Title VI instead allows enforcement of conditions attached to federal funding by "any other means authorized by law''--a phrase that naturally points to extrinsic sources of enforcement authority. Hence, according to the State, suits by the Attorney General for Title VI violations are typically actions for breach of contract. See Guardians Ass'n v. Civil Serv. Comm'n of N.Y.C., 463 U.S. 582, 630 n. 24 (1983) ("the Federal Government can always sue any recipient who fails to comply with the terms of the grant agreement"); Cannon v. Univ. of Chi., 441 U.S. 677, 772 (1979) (White, J., dissenting) (''The 'other means' provisions of [Title VI] include agency suits to enforce contractual antidiscrimination provisions"); United States v. Marion Cnty. Sch. Dist., 625 F.2d 607, 609-11 & 617 (5th Cir. 1980) ("we conclude that the United States is entitled to sue to enforce contractual assurances of compliance with Title Vl's prohibition against discrimination in the operation of federally funded schools''); see also Arthur R. Block, Enforcement Of Title VI Compliance Agreement By Third Party Beneficiaries, 18 Harv. C.R.-C.L. L. Rev. 9 n.24 (1983) (noting that the Department has enforced Title VI ''under two legal authorizations'': suits under Title IV of the Civil Rights Act of 1964 and actions for "specific performance of contractual assurances of non-discrimination made by fund recipients").7 Because Title II is not tied to federal funding, any cause of action for breach of a contract or covenant running with that funding was not carried over to Title II.
Although the State's logic is availing, there is a simpler explanation: Congress did not incorporate all "remedies, procedures, and rights'' available under Title Vl--it incorporated only those ''remedies, procedures, and rights'' that may be exercised by a ''person alleging discrimination.'' 42 U.S.C. §12133. The Department rightly concedes that Title II, by its nature, incorporates less than the full panoply of Title VI procedures and remedies.8 For example, the power to terminate federal funding under Title VI has no foothold in Title II . See 42 U.S.C. §2000d-1. It is also beyond dispute that Title VI, the Rehabilitation Act, and Title II each authorize suit by private individuals. The Supreme Court has consistently held that Title VI allows private individuals to sue for both injunctive relief and damages. See Cannon, 441 U.S. 677 (embracing the existence of a private right of action under Title VI); Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 (1992) (finding that §2000d-7 of Title VI, which abrogates states' sovereign immunity, validates Cannon's holding); Alexander, 532 U.S. at 280. Title II borrows that private right of action from §505, which in turn incorporates it from Title VI. See Barnes v. Gorman, 536 U.S. 181, 186 (2002) ("Rehabilitation Act [remedies] are coextensive with the remedies available in a private cause of action brought under Title VI''); Olmstead, 527 U.S. at 591 n.5 (''a person alleging discrimination on the basis of disability in violation of Title II may seek to enforce its provisions by commencing a private lawsuit''). Among the remedies, procedures, and rights available under Title VI and §505, this private right of action is the only such procedure that could be "provide[d] to'' a ''person alleging discrimination.'' 42 U.S.C . §12133.
Moreover, the ADA's structure as a whole supports the conclusion that Title II incorporates only enforcement rights that may be exercised by private parties. Again, Title I of the ADA incorporates ''powers, remedies, and procedures'' available under Title VII of the Civil Rights Act of 1964. Cognizant that Title VII of the Civil Rights Act of 1964 bestows specific rights on private parties, the Equal Employment Opportunity Commission, and the Attorney General, Congress was careful to ensure that Title I of the ADA conferred those rights on ''the Commission, the Attorney General, [and] any person alleging discrimination'' by name. 42 U.S.C. §12117(a). In Title III of the ADA, Congress incorporated certain "remedies and procedures'' from Title II of the Civil Rights Act of 1964 and provided them to "any person who is being subjected to discrimination on the basis of disability...'' 42 U.S.C. 12188(a). 42 U.S.C. §2000a-3(a), which Title III incorporates, only allows the Attorney General to intervene in litigation at the court's discretion. 42 U.S.C. §2000a-3(a). Title III of the ADA expands on that limited authority in a section titled "Enforcement by Attorney General,'' which details an investigatory obligation and an authorization to commence civil suit. 42 U.S.C. §12188(b). As does Title I, Title III deliberately sets forth the who and how of its remedial scheme.
In light of the judicious manner in which Title I and III are crafted, Title Il's failure to name the Attorney General or her rights under Title VI can hardly be seen as an after-thought. And the decision to limit enforcement of Title II to suits by private parties can hardly be seen as surprising. Title II reaches into many areas traditionally regulated by states. It thereby imposes significant federalism costs, subjecting state-run public services to federal judicial review. See Olmstead, 527 U.S. at 610 (Kennedy, J., concurring) ("This danger is in addition to the federalism costs inherent in referring state decisions regarding the administration and treatment programs and the allocation of resources to the reviewing authority of the federal courts."); id. at 624 (Thomas, J., dissenting) ("the Majority's approach imposes significant federalism costs, directing States how to make decisions about the delivery of public services."). The language employed in Title II avoids compounding those federalism costs by requiring that such judicial review be at the behest of the recipients of those public services, not the federal government.
6 Compare 42 U.S.C. §§2000a-5 (Title II), 2000b (Title III), 2000c-6 (Title IV), 2000e-5(f) & 2000e-6 (Title VII) with 42 U.S.C. §2000d-1 (Title VI).
7 The Department disagrees and suggests that, in the absence of a contractual assurance, its enforcement authority derives directly from Title VI. Cf. Barnes v. Gorman, 536 U.S. 181, 189 n.3 (2002) ("We do not imply, for example, that suits under Spending Clause legislation are suits in contract"). Whether the "other means'' provision authorizes suit directly under Title VI, or merely authorizes suit for breach of contract or violations of other titles of the Civil Rights Act of 1964 appears to be a question of first impression. Indeed, the former Fifth Circuit expressly avoided the issue in Marion County, 625 F.2d at 617. Resolution of this issue was perhaps unnecessary in the context of Title VI because the guarantees of Title VI would be coextensive with the terms and conditions of a Title VI funding grant. However, as Justice Stevens presciently observed in his concurrence in Barnes, there is a marked disconnect between Title II, which was enacted pursuant to §5 of the Fourteenth Amendment, and §505 and Title VI, which were enacted pursuant to the Spending Clause. See Barnes, 536 U.S. at 192 (stating that Spending Clause cases ''say [] nothing about the remedy that might be appropriate for [] a breach'' of Title II). The Court need not resolve that issue in this case, however, because any enforcement rights the Department may have under Title VI, whether in contract or by statute, were not incorporated into Title II. Title II only ''provides" remedial authority "to" private parties who allege discrimination. 42 U.S.C. §12133.
8 The Supreme Court has, in passing, mentioned that Title Il's remedies are "the same as'' those in §505. Barnes, 536 U.S. at 189 n.3 . However, Barnes holds only that, having incorporated a private right of action from Title VI, Title Il's private right of action would provide the same remedies as Title Vl's (i.e., no punitive damages). Id. at 185. Whether Title II has in fact incorporated "a 'cause of action' is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.'' Davis v. Passman, 442 U.S. 228, 239 (1979). The Barnes Court did not venture to say that the administrative procedures and causes of action arising under Title VI are coextensive with those available under Title II. Nor could it have.
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