Section VI- Proving Discrimination- Intentional Discrimination

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Title VI Legal Manual

SECTION VI: PROVING DISCRIMINATION – INTENTIONAL DISCRIMINATION

Table of Contents

1. Introduction

2. Proving Intentional Discrimination

   1. Direct Evidence of Discriminatory Motive

      1. Express classifications

      2. Other forms of direct evidence

   2. The Arlington Heights Framework

   3. The McDonnell-Douglas Framework

3. Other Issues Affecting Title VI Cases Involving Intent

   1. Proof of Systemic or Widespread Discrimination (Pattern or Practice)

   2. Permissible Use of Race

   3. Intentional Discrimination by a Third Party

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A. Introduction

Title VI prohibits discrimination based on “race, color, or national origin …under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. The purpose of Title VI is simple: to ensure that public funds are not spent in a way that encourages, subsidizes, or results in discrimination on these bases. Toward that end, Title VI bars intentional discrimination. See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 607–08 (1983); Alexander v. Choate, 469 U.S. 287, 292–93 (1985). A Title VI discriminatory intent claim alleges that a recipient intentionally treated persons differently or otherwise knowingly caused them harm because of their race, color, or national origin. Agency regulations implementing Title VI also prohibit intentional discrimination based on race, color, or national origin, covering any disposition, service, financial aid, or other benefits provided under the recipient’s program, the determination of the site or location of facilities, or other aspects of program operations. See, e.g., 28 C.F.R. § 42.104(b) (Department of Justice regulations).

Private parties seeking judicial enforcement of Title VI’s nondiscrimination protections must prove intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280–81 (2001). Private parties may also file administrative complaints with federal agencies alleging that a recipient of the agency’s federal financial assistance has engaged in intentional discrimination; the federal agency providing the assistance may investigate these complaints.[1]

 

This section provides an overview of the types of evidence necessary to prove intentional discrimination under Title VI. Much of the discussion in this section relies on judicial precedent developed in private plaintiffs’ intent claims for damages, and therefore focuses on standards applied in that context. Those standards may not always apply to agency investigations, which often follow a non-adversarial model in which the agency collects all relevant evidence and then determines whether the evidence establishes discrimination. Under this model, agencies do not “shift the evidentiary burdens” between complainant and recipient when making findings. The burden-shifting framework may nevertheless serve as a useful paradigm for organizing and analyzing the evidence.

B. Proving Intentional Discrimination

Courts have developed a number of analytical frameworks for assessing intent claims. The elements of a Title VI intent claim derive from and are similar to the analysis of cases decided under the Fourteenth Amendment’s Equal Protection Clause [2] and Title VII of the Civil Rights Act of 1964, as amended.[3] Because the Title VI statutory prohibition on discrimination is based on the Equal Protection Clause, the constitutional analysis of intentional discrimination should be applied under Title VI.[4] See Grutter v. Bollinger, 539 U.S. 306, 343–44 (2003) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (opinion of Powell, J.) (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.”).

 

Generally, intentional discrimination occurs when the recipient acted, at least in part, because of the actual or perceived race, color, or national origin of the alleged victims of discriminatory treatment. Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 548 (3d Cir. 2011). While discriminatory intent need not be the only motive, a violation occurs when the evidence shows that the entity adopted a policy at issue “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Some assume that the intentional use of race should be carefully scrutinized only when the intent is to harm a group or an individual defined by race, color, or national origin. That is not true: the Supreme Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989), and Adarand  Constructors, Inc., v. Pena, 515 U.S. 200, 226 (1995), established that any intentional use of race, whether for malicious or benign motives, is subject to the most careful judicial scrutiny.[5] Accordingly, the record need not contain evidence of “bad faith, ill will or any evil motive on the part of the [recipient].” Williams v. City of Dothan, 745 F.2d 1406, 1414 (11th Cir. 1984).

 

This section discusses a variety of methods of proof to consider when evaluating recipient behavior to determine whether it meets the legal standard for intentional discrimination. A method of proof—or analytical framework—is an established way of organizing the evidence in an investigation or lawsuit in order to show why that evidence amounts to intentional discrimination.

Those methods are as follows:

Methods that focus on direct evidence

• Express classifications. Express classifications are the clearest form of direct evidence of discriminatory intent. If a recipient explicitly conditions the receipt of benefits or services on the race, color, or national origin of the beneficiary, or directs adverse action to be taken based on race, color, or national origin, such a policy or practice constitutes an express classification. See Section B.1.a.
• Comments or conduct by decision-makers as direct evidence of intent. The direct method of proof typically involves a statement from a decision-maker that expresses a discriminatory motive. See Section B.1.b.

 

Methods that focus on circumstantial evidence

• The Arlington Heights mosaic of factors.[6] This method of proof, originally developed for Equal Protection Clause cases, uses a number of different types of circumstantial evidence that, taken collectively, can demonstrate that the recipient acted, at least in part, because of race, color, or national origin. This framework is most commonly applied in cases alleging discrimination against a group. Agencies can use this method for many different types of cases, but will find it particularly useful where the complaint is about the treatment of a group, not individuals, and the investigation reveals many different kinds of evidence. Agencies should be sure to consider this method where a complaint challenges an expressly neutral practice that has an effect on a larger class defined by race, color, or national origin. For instance, a complaint alleging that a state agency adopted a new policy with the purpose of reducing the number of minority participants could be investigated using this method. See Section B.2.

• The McDonnell-Douglas framework.[7] Plaintiffs use this framework, originally developed for Title VII employment cases, to show that a defendant treated similarly situated individuals differently because of race, color, or national origin. The framework is most commonly applied in cases alleging discrimination in individual instances. Agencies should consider using this method for investigations involving the selection of individuals, such as for program participation, benefits, or services, particularly where the recipient provides a nondiscriminatory explanation for its decision. This method is most likely to be helpful where the complaint is about one or a few individuals, and involves easily identifiable similarly situated individuals not in the protected class. For instance, a complaint alleging that a state agency denied benefits to a family because of that family’s national origin might be investigated using this method. See Section B.3.

More than one type of analysis may apply to facts disclosed in an investigation or trial to determine race-based intent. Agencies and plaintiffs can use them individually or together and may combine both direct and circumstantial evidence. Ultimately, the “totality of the relevant facts” will determine whether the recipient has engaged in intentional discrimination in violation of Title VI. See Washington v. Davis, 426 U.S. 229, 242 (1976) (discussing analysis of intentional discrimination generally).

 

Regardless of the method or methods of proof ultimately employed, the central question remains whether the recipient acted intentionally based on race, color, or national origin. In evaluating the totality of relevant facts, courts and federal funding agencies look to either direct or circumstantial evidence to establish whether a recipient engaged in intentional discrimination.  Often, the available proof consists of a combination of these different kinds of evidence, and therefore more than one method of proof may be appropriate. The box below cross-references the major types of evidence with the related methods of proof discussed in this section.

Finally, it is important for agencies to remember that even if a recipient is found to have engaged in the intentional consideration of race, color, or national origin, this is not the end of the inquiry. Some uses of race are permissible. This is discussed more extensively beginning at page 30.

 

Title VI case law has traditionally borrowed jurisprudence from other civil rights laws with a similar structure and purpose.[8] The remainder of this section examines methods of proving intentional discrimination in greater detail, with reference to case law not only under Title VI and the Equal Protection Clause, but also under Title VII; Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §701, among other laws. Importantly, the analyses under these civil rights laws are not always the same, but this discussion identifies principles that are applicable to Title VI.

                   

                  1. Direct Evidence of Discriminatory Intent

 

Direct evidence of discriminatory intent is evidence that, “if believed, proves the fact [of discriminatory intent] without inference or presumption.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005) (citation omitted).

 

Occasionally, a recipient official admits to having considered race during the decisional process as a basis for its action. In other instances, a recipient explicitly conditions the receipt of benefits or services on the race, color, or national origin of the beneficiary, or explicitly directs action be taken based on race, color, or national origin. These kinds of requirements are often referred to as “express classifications,” and are the clearest form of direct evidence.

 

Short of an express classification, other direct evidence of discrimination includes “any statement or document which shows on its face that an improper criterion served as the basis … for [an] adverse … action.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003). On the other hand, “remarks by non-decisionmakers or remarks unrelated to the decision making process itself are not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

                            a. Express classifications

The Equal Protection Clause requires strict scrutiny of any government policy or practice that classifies individuals based on race, color, or national origin. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (“[W]hen the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.”); Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (applying strict scrutiny to student admissions policies that considered race as a factor). Similarly, Title VI requires recipients to demonstrate that any intentional use of race, color, or national origin classification is “narrowly tailored” to achieve a “compelling” government interest. Parents Involved, 551 U.S. at 720.

A recipient’s express or admitted use of a classification based on race, color, or national origin establishes intent without regard to the decision-makers’ animus or ultimate objective. Such classifications demonstrate a discriminatory purpose as a matter of law. See Miller v. Johnson, 515 U.S. 900, 904–05 (1995); see also Wittmer v. Peters, 904 F. Supp. 845, 849–50 (C.D. Ill. 1995), aff’d, 87 F.3d 916 (7th Cir. 1996). “Put another way, direct evidence of intent is ‘supplied by the policy itself.’” Hassan v. City of New York, 804 F.3d. 277, 295 (3d Cir. 2015) (quoting Massarsky v. Gen. Motors Corp., 706 F.2d 111, 128 (3d Cir.1983) (Sloviter, J., dissenting)).

Where a plaintiff demonstrates, or an agency determines, that a challenged policy overtly and expressly singles out a protected group for disparate treatment, “a plaintiff need not prove the malice or discriminatory animus of a defendant ….” Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995); see also Ferrill v. Parker Grp., Inc., 168 F.3d 468, 473 n.7 (11th Cir. 1999) (“[I]ll will, enmity, or hostility are not prerequisites of intentional discrimination.”). Rather, the focus is on the “explicit terms of the discrimination,” Int’l Union, United Auto. Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991); that is, how the recipient’s actions specifically deprived or otherwise adversely affected the individual or individuals of access to a federally funded program or benefit. Even benign motivations for racial classifications are presumptively invalid and trigger strict scrutiny in Equal Protection Clause and Title VI cases. Adarand, 515 U.S. at 223–24 (1995); Grutter, 539 U.S. at 326.

                            b. Other forms of direct evidence of intent

Even without a direct admission or express policy, a plaintiff may prove intentional discrimination with other forms of direct evidence demonstrating that the “decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.” Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring); [9] Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997) (direct evidence includes “evidence which in and of itself suggests” that someone with managerial authority was “animated by an illegal ... criterion.”). For example, a statement of an official involved in the decision stating that an ostensibly race-neutral action was taken in order to limit minority individuals’ eligibility for a federally funded benefit or program is direct evidence of race-based intent. Even isolated comments may constitute direct evidence of discrimination if they are “contemporaneous with the [adverse action] or causally related to the [adverse action] decision making process.” Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 723 (7th Cir. 1998) (citations omitted).

This type of direct evidence of discriminatory intent does not require “a virtual admission of illegality.” Venters, 123 F.3d at 973. For example, direct evidence need not take the form of an admission where the defendant states “I’m [taking this adverse action] because you’re in a protected group.” Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th Cir. 1999); see Venters, 123 F.3d at 973. The court in Venters explained that “the evidence need not be this obvious to qualify as direct evidence.” Id. And the Sheehan court explained why: because such a requirement “would cripple enforcement of the ... discrimination laws.” Sheehan, 173 F.3d at 1044. The direct evidence of such remarks must, however, establish that race was an important factor motivating the challenged action. “Stray remarks,” “derogatory comments,” even those uttered by decision-makers, may not constitute direct evidence of discrimination if unrelated to the adverse decision. Price Waterhouse, 490 U.S. at 277 (O’Connor, J., concurring); Fuentes v. Perskie, 32 F.3d 759, 767 (3d Cir. 1994). Evidence of such remarks or comments is nevertheless important in an intent case, and can help to establish circumstantial or indirect evidence of intent. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 368 (3d Cir. 2008); Fitzgerald v. Action, Inc., 521 F.3d 867, 877 (8th Cir. 2008) (same); see also Lounds v. Lincare, Inc., 812 F.3d 1208, 1224 (10th Cir. 2015) (citing Kerri Lynn Stone, Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law, 77 Mo. L. Rev. 149, 177 (2012) (“[S]tray remarks can prove to be invaluable insights into biases at every level of consciousness that may be rife but invisible within the workplace.... [They] may bespeak a workplace culture in which certain language or sentiments are tolerated and perhaps encouraged or rewarded.”)).

By way of illustration, in Wilson v. Susquehanna Township Police Dep’t, 55 F.3d 126 (3d Cir. 1995), a Title VII case, a female plaintiff alleged that she was not promoted because of her sex. The plaintiff’s evidence revealed a number of discriminatory occurrences, including the daily circulation of sexually explicit drawings, the posting of obscene notices (some referring to female employees by name), sexual conversations between officers and female employees, the showing of an x-rated movie and graphic home videos in the station house, the Chief’s regular discussion of sex lives and employees’ anatomy, the Chief’s bemused dismissal of the plaintiff’s complaint about an indecent assault committed by an officer, and the Chief’s comment that he did not promote the plaintiff because the town manager “wanted a man.” Id. at 127–29. The court of appeals described that evidence as direct evidence of intentional sex discrimination, explaining that “[t]he record clearly goes beyond ‘stray remarks’ and evinces strong gender bias in the police department.... This evidence, which included ‘conduct or statements by persons involved directly reflecting the discriminatory attitude,’ ... constitutes ‘direct evidence’ of discriminatory animus.” Id. at 130 (citations and quotations omitted).

In In re Rodriguez, 487 F.3d 1001, 1006–08 (6th Cir. 2007), a case originally brought under Michigan’s Civil Rights Act, which borrows legal standards from federal civil rights laws including Title VII, [10] the court found that a Hispanic employee was not selected for promotion based on a manager’s impression about the applicant’s “language” and “how he speaks.” This evidence, the court held, was direct evidence of discrimination. Stating that “the [EEOC] recognizes linguistic discrimination as national origin discrimination” and that “discriminationbased on manner of speaking can be national origin discrimination,” the court found that the plaintiff’s “Hispanic speech pattern and accent” played a motivating part in the manager’s decision to deny the plaintiff a promotion. Id. at 1008–09; accord, Diaz v. Jiten Hotel Mgmt., Inc., 762 F. Supp. 2d 319, 337 (D. Mass. 2011) (“racially, sexually, or ageist offensive language is necessarily prejudicial, precisely because it is highly probative”).

A clean “direct evidence” case—where direct evidence alone establishes that discrimination was the sole reason for an adverse decision—is rare. Price Waterhouse, 490 U.S. at 271 (“[D]irect evidence of intentional discrimination is hard to come by.”) (O’Connor, J., concurring). After all, decision-makers seldom will admit that they based decisions on race or ethnic origin, or used either as a criterion. See, e.g., SECSYS, LLC v. Vigil, 666 F.3d 678, 686 (10th Cir. 2012).

                2. The Arlington Heights Framework

Many cases of intentional discrimination are not proven by a single type of evidence. Rather, many different kinds of evidence-direct and circumstantial, statistical and anecdotal-are relevant to the showing of intent and should be assessed on a cumulative basis. Arlington Heights, 429 U.S. at 266–68, and its progeny set forth a variety of factors probative of intent to discriminate.[11] Under this method of proving intent, the court or investigating agency analyzes whether discriminatory purpose motivated a recipient’s actions by examining factors such as statistics demonstrating a “clear pattern unexplainable on grounds other than” discriminatory ones; “[T]he historical background of the decision”; “[T]he specific sequence of events leading up to the challenged decision”; the defendant’s departures from its normal procedures or substantive conclusions, and the relevant “legislative or administrative history.” Faith Action for Cmty. Equity v. Hawai’i, No. CIV. 13-00450 SOM, 2015 WL 751134, at *7 (D. Haw. Feb. 23, 2015) (Title VI case citing Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158–59 (9th Cir. 2013)); see also Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810, 819 (4th Cir. 1995) (adding to the Arlington Heights factors evidence of a “consistent pattern” of actions of decision-makers that have a much greater harm on minorities than on non- minorities). When a recipient applies different procedural processes or substantive standards to requests of minorities and non-minorities, the use of such different processes or standards, when a non-minority receives more favorable treatment, may raise an inference of discriminatory intent. “These factors are non-exhaustive.” Pac. Shores Props., 730 F.3d at 1159.

In court and agency investigations, evaluation of these factors “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429U.S. at 266. Moreover, when a plaintiff relies on the Arlington Heights method to establish intent, “the plaintiff need provide very little such evidence ... to raise a genuine issue of fact ...; any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a fact-finder.” Pac. Shores Props., 730 F.3d at 1159 (citations omitted).

Critically, Arlington Heights directs courts and agencies to engage in a cumulative assessment of the evidence. By way of illustration, in North Carolina State Conference of NAACP v. McCrory, No. 1:13CV658, 2016 WL 1650774, at *5 (M.D.N.C. Apr. 25, 2016), plaintiffs challenged provisions of a North Carolina election law, alleging that discriminatory intent to disenfranchise African-American voters motivated the legislature in violation of the Fourteenth and Fifteenth Amendments and the Voting Rights Act. The Fourth Circuit agreed. N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016). The district court’s error in holding otherwise, the Fourth Circuit explained, “resulted from the court’s consideration of each piece of evidence in a vacuum, rather than engaging in the totality of the circumstances analysis required by Arlington Heights.” Id. at 233. The district court “missed the forest in carefully surveying the many trees.” Id. at 214. Instead, agencies evaluating possible intentional discrimination by recipients must conduct a cumulative assessment of all the available evidence.

 

This case also illustrates the kinds of evidence relevant to each of the Arlington Heights factors described above:

• • Historical background of the decision. First, the court considered the historical background in the state generally and related to voting in particular, identifying “North Carolina’s history of race discrimination and recent patterns of official discrimination, combined with the racial polarization of politics in the state” as particularly relevant. Id. at 223. Against this background of historical discrimination in the state, the court found “the record is replete with evidence of instances since the 1980s in which the North Carolina legislature has attempted to dilute the voting rights of African Americans” and pointed to the numerous instances of “Department of Justice and federal court determinations have determined that the North Carolina General Assembly acted with discriminatory intent .…” Id. The court found these examples revealed “a series of official actions taken for invidious purposes,” and held that the district court “erred in minimizing these facts.” Id. (citing Arlington Heights, 429 U.S. at 267).
  • Sequence of events leading to the decision. Next, the court turned to an examination of the sequence of events leading to the legislature’s passage of the challenged provisions, finding these events “devastating” to the defense. N.C. State Conf. of NAACP, 831 F.3d at 227. The court found that the undisputed sequence of events—“the General Assembly’s eagerness to … rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow—bespeaks a certain purpose …. Although this factor, as with the other Arlington Heights factors, is not dispositive on its own, it provides another compelling piece of the puzzle of the General Assembly’s motivation.” Id. at 229.
  • Legislative history leading to the decision. As instructed by Arlington Heights, the court also considered the sequence of events described above from the perspective of “legislative history” because such evidence “may be highly relevant, especially where there are contemporaneous statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. (citing Arlington Heights, 429 U.S. at 268). The record revealed that the General Assembly requested a report on voting patterns, and that data established that African Americans in North Carolina disproportionately used early voting, same-day registration, and out-of-precinct voting. N.C. State Conf. of NAACP, 831 F.3d at 230. The court held that “relying on this data, the General Assembly enacted legislation restricting all—and only—practices disproportionately used by African Americans …. [W]e cannot ignore the choices the General Assembly made with this data in hand.” Id.

  • Impact. The first Arlington Heights factor, statistics demonstrating a clear pattern of discriminatory effect, acknowledges that disparate impact evidence can be probative of discriminatory intent. Arlington Heights, 429 U.S. at 266 (discussing the importance of the impact of the official action, including “whether it bears more heavily on one race than another”). Here, the court analyzed the available impact data and held that the same data showing that African Americans disproportionately used each of the voting mechanisms removed by the new provisions also established “sufficient disproportionate impact” for an Arlington Heights analysis. N.C. State Conf. of NAACP, 831 F.3d at 231.

The court conducted a cumulative assessment of this evidence:

Id at 233. Accordingly, when viewed collectively, the evidence in the record established intentional discrimination based on race. Id.

Finally, it is important to understand that under the Arlington Heights framework, evidence identifying similarly situated comparators is helpful but not required. In this regard, the relationship between the Arlington Heights framework and the McDonnell-Douglas framework is sometimes misunderstood. As discussed more extensively below in Section B.3., the McDonnell-Douglas method of proof requires a showing that the recipient treated one or a few similarly situated individuals differently because of race, color, or national origin. However, plaintiffs alleging intentional discrimination under civil rights statutes “need not demonstrate the existence of a similarly situated entity who or which was treated better than the plaintiff in order to prevail.” Pac. Shores Props., 730 F.3d at 1158-59 (explaining that a plaintiff need not rely on the McDonnell-Douglas approach to intentional discrimination but may instead produce circumstantial evidence of intentional discrimination using the Arlington Heights method). McDonnell Douglas “is not a straightjacket requiring the plaintiff to demonstrate that such similarly situated entities exist” but is just one way to prove intentional discrimination. Id. at 1159.

Impact evidence. In many cases, including many litigated under Arlington Heights, evidence will show that an ostensibly race-neutral practice has had a much more harmful effect on minorities than on non-minorities. Arlington Heights instructs courts and agencies to consider “the impact of the official action” including whether “it bears more heavily on one race than another.” 429 U.S. at 266 (citations and quotations omitted). Accordingly, the discriminatory impact of a facially neutral policy or practice (frequently, but not always, demonstrated through the use of statistics) can be used as part of the evidentiary showing in an intentional discrimination case. See Melendres v. Arpaio, 989 F. Supp. 2d 822, 902 (D. Ariz. 2013) (awarding injunctive relief to Title VI plaintiffs and finding that plaintiffs demonstrated “racially disparate results” and “additional indicia of discriminatory intent”) (citing Feeney, 442 U.S. at 272); see also Arlington Heights, 429 U.S. at 264–66; Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009) (Title VI and equal protection case finding that statistical evidence was sufficient to create inference of intent where race-neutral precondition to receiving municipal services served to exclude Latino-majority neighborhoods)).

In only rare instances will a showing of disparate impact by itself support a showing of discriminatory intent¾for example, where racially variant results cannot be explained on other grounds, such as in cases of a dramatic mismatch between jury representation and the composition of a surrounding community.  Castaneda v. Partida, 430 U.S. 482, 495–96 (1977). In most instances, however, “impact alone is not determinative, and the Court must look to other evidence.” Arlington Heights, 429 U.S. at 266, 267–68 (enumerating factors that indicate evidence of intent) (footnotes omitted).

When attempting to rely on impact evidence in an intent case, the plaintiff must, as an initial matter, precisely identify the “facially neutral policy or practice” at the heart of the discrimination claim. (The Title VI Legal Manual’s disparate impact section discusses this requirement in detail.) In addition, in Arlington Heights, the selection of a similarly situated comparator group is a key feature of cases where plaintiffs proffer impact evidence. By its nature, “disparate impact” evidence involves showing a disparity. Plaintiff must show that the extent of harm the policy or practice causes minorities and non-minorities is different. The level or degree of impact that a plaintiff alleging discriminatory intent must show depends on a variety of factors, including the strength of the impact evidence and the strength of other indicators of intent under Arlington Heights. But, as one court noted, “[i]t would be improper to posit a quantitative threshold above which statistical evidence of disparate racial impact is sufficient as a matter of law to infer discriminatory intent, and below which it is insufficient as a matter of law.” Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 551 (9th Cir. 1982). Because disparate impact is not the only factor in an Arlington Heights case, “showing disproportionate impact, even if not overwhelming impact, suffices to establish one of the circumstances evidencing discriminatory intent.” N. Carolina State Conference of NAACP, 831 F.3d at 231.

In addition, impact evidence most often involves the presentation of statistical evidence. Thomas v. Washington Cty. Sch. Bd., 915 F.2d 922, 926 (4th Cir. 1990). However, statistical evidence, while extremely beneficial, is not a necessity in impact cases. Id. Indeed, a series of “discrete episodes” negatively affecting minorities can raise a plausible inference of discriminatory impact. McCoy v. Canterbury, No. 3:10-0368, 2010 WL 5343298, at *5 (S.D.W. Va. Dec. 20, 2010), aff’d, 428 Fed. App’x 247 (4th Cir. 2011). Accordingly, non-statistical evidence of harm to minorities and non-minorities that is significantly different will be relevant evidence in an Arlington Heights case.

Moreover, statistics alone will seldom prove discriminatory intent. There may be cases where statistics establish “a clear pattern, unexplainable on grounds other than race,” “but such cases are rare.” Arlington Heights, 429 U.S. at 266, No matter how “devastating or reliable” the statistics appear to be, Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1270 (9th Cir. 1980) (per curiam), they must reveal that some “invidious discriminatory purpose” is causing the disparate outcomes. Arlington Heights, 429 U.S. at 266; see also Feeney, 442 U.S. at 279 (plaintiff must show that the rule was promulgated or reaffirmed “‘because of,’ not merely ‘in spite of,’ its adverse impact on” persons in the plaintiff’s class); Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 276 (6th Cir. 1994) (citing Feeney). As such, and in most instances, “the question whether the facts proved are sufficient to permit a legal inference of discriminatory intent cannot properly be reduced into a mere battle of statistics.” Gay, 694 F.2d at 552.[12] Absent a “stark” pattern, then, discriminatory intent requires more than discriminatory impact. Arlington Heights, 429 U.S. at 266.

Recipient’s awareness of the impact. Also consistent with the Arlington Heights factors is an inquiry into whether the discriminatory impact of the challenged action was foreseeable:

Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464–65 (1979); see United States v. Brown, 561 F.3d 420, 433 (5th Cir. 2009). Foreseeability is a common feature of Title VI and equal protection claims, and allegations that properly package foreseeability together with factors such as impact and history of defendant’s actions, have succeeded.[13] See, e.g., N.C. State Conf. of NAACP, 831 F.3d at 223; Dowdell v. City of Apopka, 698 F.2d 1181, 1186 (11th Cir. 1983) (discussing “obviously foreseeable” outcome of the town’s decision to spend nearly all of its revenue-sharing monies on the white community, at the expense of communities of color); United States v. Bannister, 786 F. Supp. 2d 617, 665–66 (E.D.N.Y. 2010) (expressing support for using discriminatory impact, foreseeable consequences, and historical background to demonstrate intent in enacting mandatory minimums for crack cocaine, but determining that court could not find intentional discrimination where Second Circuit already made finding on the specific issue under consideration).

Additional examples of successful outcomes where impact and foreseeable consequences combine with other Arlington Heights factors, such as history of state action, include the following:

• • Spanish-speaking food stamp beneficiaries alleged that state agencies administering the state food stamp program continued a policy of failing to ensure bilingual services for food stamp applicants who were limited English proficient. The plaintiffs alleged that the defendants continued this policy while knowing that Spanish-speaking applicants and beneficiaries were being harmed as a consequence. The court found that such knowledge was sufficient to state a Title VI claim that the defendants purposefully acted based on national origin, finding that “disparate impact, history of the state action, and foreseeability and knowledge of the discriminatory onus placed upon the complainants” is the type of circumstantial evidence upon which a case of intentional discrimination is often based. Almendares v. Palmer, 284 F. Supp. 2d 799, 806 (N.D. Ohio 2003) (citations omitted)
• • A facially neutral NCAA rule (Proposition 16) raising the minimum academic requirements for incoming college athletes to qualify for athletic scholarships and compete in college sports applied to all incoming college athletes but had a statistically greater adverse impact on black athletes. The NCAA was aware that the impact of the proposed rule would reduce the number of black athletes qualifying for athletic scholarships, and adopted the rule specifically to promote higher academic standards among black athletes. The court held that plaintiffs had stated a claim of purposeful discrimination under Title VI. Pryor v. NCAA, 288 F.3d 548, 562 (3d Cir. 2002). Pryor directly addressed the Arlington Heights standards for intentional discrimination, concluding that the plaintiffs met the intent test where the NCAA had actual notice and knowledge of the impact on black athletes, and affirmatively considered that impact in reaching its decision to adopt Proposition 16.[14]
• • Plaintiffs claimed intentional discrimination based partly on the defendant’s knowledge of the impact that placement of a cement grinding facility would have on the minority community, together with allegations regarding historical practices and a specific sequence of events leading to the placement decision. The court found that the plaintiffs “not only showed that the operation of the cement grinding facility would have a disparate impact upon the predominantly minority community … but also that the [defendant] was well-aware of the potential disproportionate and discriminatory burden placed upon that community and failed to take measures to assuage that burden.” The court further determined that the plaintiffs had stated a claim of intentional discrimination under Title VI, sufficient to survive the defendant’s motion to dismiss. The court set forth that “the controlling decisions of the Supreme Court and the Third Circuit make it clear that a case of intentional discrimination is often based upon the type of circumstantial evidence which the … Plaintiffs allege …, namely, disparate impact, history of the state action, and foreseeability and knowledge of the discriminatory onus placed upon the complainants.” S. Camden, 254 F. Supp. at 496–97 (citing Arlington Heights, 429 U.S. at 267; Penick, 443 U.S. at 465 (1979); Pryor, 288 F.3d at 563).[15]

 

                3. The McDonnell-Douglas Framework

Another common way to prove intentional discrimination is to establish that a recipient treated similarly situated individuals differently because of race, color, or national origin.

                                  1) Step 1—The prima facie case

Plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. To establish a prima facie case of intentional discrimination under Title VI using the McDonnell-Douglas framework from Title VII, a plaintiff typically shows that he or she is a member of a particular protected group, was eligible for the recipient’s program, activity or service, and was not accepted into that program or otherwise treated in an adverse manner, and that an individual who was similarly situated with respect to qualifications, but was not in the plaintiff’s protected group was given better treatment. See, e.g., Brewer v. Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 921 (7th Cir. 2007) (Title VI case where court found that plaintiff’s case “falls apart because of a failure to locate a similarly situated individual”).[16]

With respect to what constitutes adverse action or “harm,” there are “no bright-line rules,” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997), so courts and agencies must make that determination in each case. As such, whether conduct rises to the level of “adverse action” is a fact-specific inquiry. The harm need not be physical in nature, or even the type of harm that would permit an award of compensatory damages. For example, the Supreme Court has held that intentional racial segregation is a harm in and of itself. See Brown v. Bd. of Educ., 347 U.S. 483 (1954). Similarly, the stigma that intentional discrimination may cause is a cognizable harm. See generally Johnson v. California, 543 U.S. 499, 507 (2005) (“racial classifications ‘threaten to stigmatize individuals by reason of their membership in a racial group’”) (quoting Shaw v. Reno, 509 U.S. 630, 643 (1993)). The provision of fewer or inferior services or benefits to a person or class of persons will satisfy the adversity requirement, but adversity can be established even without the loss of specific services or benefits; threatened or imminent harm can satisfy the adverse action requirement.

Moreover, Title VI’s broad nondiscrimination mandate means that investigating agencies generally should take an inclusive approach to determining legally sufficient harms. Title VI’s plain language supports this approach. The statute states that no person shall on the ground of race, color, or national origin “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Agency regulations further state that recipients may not administer their programs or activities in a manner that “den[ies] any individual any disposition, service, financial aid, or benefit provided under the program,” 28 C.F.R. § 42.104(b)(1)(i) (DOJ) (emphasis added), or “restrict[s] an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any disposition, service, financial aid, or benefit under the program,” Id. § 42.104(b)(1)(iv) (emphasis added). This language is best read to encompass a broad range of “adverse actions” that may be caused by a recipient’s administration of its program.[17]

                                      2) Step 2 – The defendant must articulate a legitimate non-discriminatory reason

If the plaintiff establishes a prima facie case, the burden in court shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the challenged action. EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009). The defendant’s explanation of its legitimate reasons must be clear and reasonably specific; not all proffered reasons would be legally sufficient to rebut a prima facie case. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55, 258 (1981). For example, in the employment context, a defendant may not merely state that the employment decision was based on the hiring of the “best qualified” applicant, but must provide specifics regarding that applicant’s qualifications, such as seniority, length of service in the same position, personal characteristics, general education, or experience in comparable work, and must demonstrate why that person’s qualifications were considered superior to those of the plaintiff. See Steger v. Gen. Elec. Co., 318 F.3d 1066, 1075–76 (11th Cir. 2003).

                                     3) Step 3 – The plaintiff must demonstrate pretext

If the defendant meets the Step 2 burden, the burden shifts back to the plaintiff to demonstrate that the proffered reason is false—that is, that the nondiscriminatory reason(s) the defendant gives for its actions are not the true reasons and are actually a pretext for the exercise of prohibited discriminatory intent. Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1162– 63 (11th Cir. 2006) (addressing a Title VII race discrimination claim). A plaintiff can show pretext by pointing to “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the defendant’s proffered legitimate reasons for its action, such that a reasonable fact finder could rationally find them unworthy of credence. Id. at 1163 (quoting Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005)); Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1315 (10th Cir. 2006). Plaintiffs can, for example, present evidence that the defendant’s stated reasons for taking the adverse action were false; the defendant acted contrary to a written policy setting forth the action the defendant should have taken under the circumstances; or the defendant acted contrary to an unwritten policy or practice when making the decision. See Plotke v. White, 405 F.3d 1092, 1102 (10th Cir. 2005). A plaintiff may also show pretext through evidence that the “employer’s proffered non-discriminatory reasons [were] either a post hoc fabrication or otherwise did not actually motivate the employment action ….” Fuentes, 32 F.3d at 764.

The Supreme Court has cautioned that the four McDonnell-Douglas elements are not “an inflexible formulation.” Teamsters, 431 U.S. at 358. Further, as previously noted, agency Title VI investigations generally follow a non-adversarial model that does not involved burden- shifting. Nevertheless the McDonnell-Douglas framework may be useful for complaint investigations, particularly where the investigation uncovers evidence of similarly situated comparators who were treated differently or better. The example below, from joint DOJ and Department of Education guidance, illustrates how the McDonnell-Douglas framework would inform an administrative investigation.[18]