Justia Federal District Court Opinions

This appeal raises a number of important questions in the area of employment discrimination law to which there are as yet no definitive answers. In order to determine the rights of the parties to this action we must explore such concepts as disproportionate impact and job-relatedness and must resolve such issues as when a particular discriminatory hiring practice ceases for purposes of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ; whether there exists an implied private cause of action for compensatory relief under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and whether 42 U.S.C. § 1981 prohibits conduct having a discriminatory impact absent proof of discriminatory purpose.

Unfortunately, the authorities do not speak with one voice. The only thing that has been clear, as we have considered this case, is that whichever way these issues are finally resolved, the impact on the future direction of employment discrimination litigation will be substantial. We are aware that because of the importance and complexity of these questions, today's decision will not put them to rest. Therefore, in order to facilitate the continued consideration of these issues in other forums, we have attempted to explain the factual setting and the reasoning underlying our determinations in some detail.

BACKGROUND

In 1972 a lawsuit was brought by black and Hispanic police officers challenging seven written examinations administered during the years 1968-1970 and used in making appointments to the New York City Police Department ("NYPD" or "department") until 1974. The complaint alleged that these entry-level examinations had a racially disproportionate impact and were not job-related and, therefore, that the use by the department of lists ranking eligibility for appointment on the basis of the results of these examinations was unlawful under various federal and state laws. In Guardians Association v. Civil Service Commission, 490 F.2d 400 (2d Cir. 1973) ("Guardians I"), this Court upheld the district court's denial of a preliminary injunction against the continued use of these eligibility lists, on the ground that the lists had been exhausted. Neither party took any further steps in regard to Guardians I until June of 1975 when, in response to a fiscal crisis, New York City laid off over 2,500 police officers. When plaintiffs' attempt to revive the case proved unsuccessful, they commenced the present action in the United States District Court for the Southern District of New York before Robert L. Carter, Judge, in April of 1976.¹

In the new action the June layoffs, which were carried out pursuant to the department's "last-hired, first-fired" policy, were alleged to be violative of the Fourteenth Amendment, 42 U.S.C. §§ 1981 and 1983, Title VII and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and 2000d et seq., as well as various other federal and state laws. Central to the attack on the system of layoff by seniority was the contention that the department's entry level examinations were discriminatory, and that but for this discrimination plaintiffs would have been hired earlier and thus would have accrued sufficient seniority to withstand being fired.² In Guardians Association v. Civil Service Commission, 431 F.Supp. 526 (S.D.N.Y.1977) ("Guardians II"), Judge Carter certified the proposed class, which consisted of "all black and Hispanic New York City policemen currently on layoff who would not have been furloughed but for defendants' allegedly discriminatory employment practices," and granted a preliminary injunction restraining the department from firing or recalling any officers until the seniority lists were reordered "to accord plaintiffs the seniority they would have had but for defendants' discriminatory practices." Id. at 531, 530. Judge Carter held that although plaintiffs had failed to make out a case under the federal Constitution, § 1981 or § 1983, they had demonstrated entitlement to relief under Title VII.³ He found: (1) that under Title VII plaintiffs had established a prima facie case of discrimination in hiring⁴ by demonstrating that the challenged entry examinations had a disproportionate impact, that is, that as a group black and Hispanic applicants achieved lower scores than white applicants, and (2) that defendants had failed to rebut plaintiffs' case by demonstrating the job-relatedness of these examinations. Further, rejecting defendants' argument that no post-Act discriminatory conduct had been alleged, the district court held that the 1975 layoff of police officers pursuant to a concededly neutral last-hired, first-fired system perpetuated the effects of the department's pre-1972 discriminatory practices and thus fell within the scope of Title VII.⁵

On June 21, 1977, this Court vacated the preliminary injunction and remanded the case for reconsideration in light of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which had been handed down after Judge Carter's decision in Guardians II but prior to argument of the appeal. Guardians II, on appeal, 562 F.2d 38 (2d Cir. 1977). In Teamsters the Supreme Court ruled that a bona fide seniority system which merely perpetuated the effects of pre-Title VII discrimination beyond the effective date of the Act was immunized from attack by § 703(h) of the statute.⁶ Recognizing that Teamsters effectively overruled his earlier determination, Judge Carter reassessed plaintiffs' case in order to determine what claims, if any, survived:

Under Teamsters, a meritorious Title VII claim against a municipality requires an act of discrimination after March 24, 1972, rather than discrimination before that date whose effects are felt thereafter through a facially neutral seniority system. . . . If plaintiffs can now show that the results of (the discriminatory) entrance tests contributed to discriminatory acts committed after March 24, 1972, the Teamsters requirement will have been met.

Guardians Association v. Civil Service Commission, 466 F.Supp. 1273, 1276-77 (S.D.N.Y.1979) ("Guardians III").

The district judge reasoned that "(s)tripped of the argument concerning the NYPD's seniority system, plaintiffs' allegations are reduced to claims of discriminatory refusals to hire." Id. at 1277. Noting that "(d) iscriminatory refusal to hire is a well established basis for awarding a discriminatee seniority retroactive to the date upon which he would have been hired but for the discrimination," finding that the last such refusal to hire ceased on October 7, 1974, two years after Title VII was made applicable to municipalities, and finding further that a timely charge had been filed with the Equal Employment Opportunity Commission ("EEOC"),⁷ Judge Carter concluded that plaintiffs were entitled to relief under Title VII. Id. at 1277-78.

Judge Carter declined to limit relief to those plaintiffs who had been refused employment at some point within the 300 days preceding the filing of the EEOC charge. Relying on Acha v. Beame, 570 F.2d 57 (2d Cir. 1978), the district court held that the use of the eligibility lists to determine the order in which applicants were hired amounted to a continuing policy of discriminatory hiring and thus a continuing violation of Title VII.

The refusals to appoint minorities were not discrete acts; they were all made on the same basis, viz., scores on the defective tests. After the tests were administered and the results certified, the NYPD embarked on a discriminatory hiring program which terminated only when the last person was hired off the lists. Since E.E.O.C. charges were filed within 300 days of the last illegal appointment, all plaintiffs are deemed to have made timely challenge to the defendants' discriminatory actions.

Guardians III, 466 F.Supp. at 1280. Ruling that the rehiring of members of the original class had not mooted the case, Judge Carter revised the class definition to include all black and Hispanic policemen "previously on layoff who would not have been furloughed but for defendants' discriminatory practices." Id. at 1278.

Having determined that the types of relief sought under Title VII could not properly take into account any conduct occurring before March 24, 1972, Judge Carter considered plaintiffs' Title VI claim in order to determine whether additional relief was available. After reviewing the legislative history of the statute and the relevant cases, Judge Carter held first, that § 601 impliedly conferred a right of action on private individuals, and second, that Title VI banned both intentional discrimination and conduct which has a discriminatory impact. In light of the fact that unlike Title VII, Title VI has been applicable to municipalities since 1964, Judge Carter concluded that all members of the plaintiff class were entitled to compensatory seniority extending back to the date upon which they would have been hired but for defendants' discriminatory practices. The preliminary injunction which had been vacated by this Court was therefore reinstated by order dated May 15, 1979. This appeal followed.⁸

As a preliminary matter, defendants dispute Judge Carter's finding that the challenged examinations were discriminatory, that is, that they had a disproportionate impact not justified by a showing of job-relatedness. Defendants also contend that even if the examinations were discriminatory, any discriminatory conduct on their part ceased before Title VII became applicable to municipalities and, further, was not the subject of a timely filing with the EEOC. Additionally, defendants take issue with Judge Carter's analysis of Title VI. They argue that the statute is addressed only to purposeful discrimination. Endorsing the district court's rejection of § 1981 as a basis for relief, defendants conclude that plaintiffs have failed to make out a case for the readjustment of their seniority. In response, plaintiffs urge the soundness of the district court's factfinding, the inevitability of its approach to the Title VII and Title VI issues, and the propriety of the relief granted. The EEOC, as amicus curiae, addresses solely the § 1981 issue, urging that this Court reject the intent standard announced below.

Although this is the second time this case has come before us, we have not previously reviewed either the factual findings or the legal conclusions reached by the district court.⁹ We start with the contested issues of fact.

THE CHALLENGED EXAMINATIONS

In Guardians II, Judge Carter set forth accurately and succinctly the proper method of evaluating the challenged examinations under Title VII:¹⁰

In Griggs v. Duke Power Co. (401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)), the Supreme Court held that Title VII forbids the use of employment selection practices that have a racially discriminatory impact unless the employer meets "the burden of showing that (the selection practices have) . . . a manifest relationship to the employment in question." Id. at 432, (91 S.Ct. at 854). This burden arises only after the complaining party or class has made out a prima facie case of discrimination. The Court held in Albemarle Paper Company v. Moody, 422 U.S. 405, (95 S.Ct. 2362, 45 L.Ed.2d 280) (1975) that a prima facie case is made out if the complainants can show "that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants." Id. at 425, (95 S.Ct. at 2375). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, (93 S.Ct. 1817, 36 L.Ed.2d 668) (1973). A showing of discriminatory purpose need not be made under Title VII. Griggs, supra; Albemarle, supra.

431 F.Supp. at 538. Under the "clearly erroneous" standard of review, we see no basis for overturning the factual findings which prompted Judge Carter to conclude that, judged by this standard, the examinations were discriminatory.¹¹ Fed.R.Civ.P. 52(a).

In 1973 the parties to the Guardians I suit authorized the Rand Institute to conduct an independent study of NYPD's entry level examinations to determine the passing rates of whites, blacks, and Hispanics.¹² The results of two examinations were analyzed; these tests, one administered in 1968 and one in 1970, were respectively the earliest and the most recent tests with eligibility lists still in use at the time of the study.

As the district court noted, because the department did not keep systematic records of the race or ethnic background of applicants, Rand relied on various indirect methods of racial and ethnic identification.

Five different sources of data were used: (1) (NYPD) records giving the race of about 30 percent of the applicants taking each examination; (2) results of a questionnaire inquiring into race which was mailed to nearly all persons who took the examinations; (3) a compilation of approximately 8,000 surnames compiled by the U.S. Bureau of Census with which the subjects' names were compared; (4) census tract data, evidencing racial residential concentration with which the subjects' addresses were matched; and (5) a telephone sample of the subjects whose race remained unknown after the (NYPD) data and the questionnaire data were on hand.

Guardians II, supra, 431 F.Supp. at 539 (footnote omitted). On the basis of the information thus gathered, Rand determined the racial or ethnic identity of those taking each examination. Rand then proceeded to estimate the distribution by group of the scores. In summarizing its findings, Rand stated:

"(w)e have found substantial and statistically significant differences by race in the distributions of exam scores for whites as compared to blacks and Hispanics . . . . Blacks and Hispanics scored lower than whites and failed at higher rates . . . . These findings were confirmed by three different methods of data analysis." Rand Report at 46.

Guardians II, 431 F.Supp. at 540 (footnote omitted). Furthermore, because of the similarity of the patterns observed for the two examinations analyzed, Rand concluded that it was "confident" that these patterns were " 'most likely typical of the patterns for all recent civil service patrolmen's exams.' " Rand Report at 38, quoted in Guardians II, 431 F.Supp. at 540.

At the hearings held before the initial issuance of the preliminary injunction, each side presented expert testimony regarding the significance of the Rand Report. As Judge Carter noted, the methodological criticisms offered by defendants' witness were seriously undercut by the fact that Rand came up with similar figures using three different methods to estimate the distribution by group of the scores. Similarly, while only two of the challenged tests were studied by Rand, the similar distribution patterns made reasonable the inference that similarly drawn examinations would yield similarly skewed results. Although defendants attempted to cast doubt on the accuracy of the Rand finding of disproportionate impact, they offered no evidence tending to establish that white, black and Hispanic applicants performed equally well, or comparably, on any or all of the challenged examinations.¹³ Finally, since the methodology was derived and the data compiled by independent professionals selected by agreement of the parties, we have no reason to question the objectivity of the research.

On the basis of the record before us we cannot conclude that Judge Carter's finding of disproportionate impact was clearly erroneous. Defendants attack the Rand study as guesswork. However, the fact that Rand was required to estimate the racial and ethnic composition of the applicant pools and the distribution by group of the scores does not invalidate Rand's conclusions. The science of statistical analysis encompasses more than the mere notation of directly observed phenomena. Necessity often dictates that the composition of a given population be estimated by projecting data gathered by less than optimal means from only a sample of that population. If the sample is adequate, the data gathering techniques reliable, and the conclusions drawn demonstrated to be statistically significant, such estimates and projections may properly be admitted into evidence.¹⁴(S)tatistical evidence by its very nature deals with probabilities rather than certainties. All that can be required of methods employed in gathering such evidence is that they assure reasonably accurate findings. Absolute perfection usually is not attainable in this kind of endeavor.

Vulcan Society v. Civil Service Commission, 360 F.Supp. 1265, 1270 (S.D.N.Y.), aff'd, 490 F.2d 387 (2d Cir. 1973) (footnote omitted). Not being generally obtainable, "absolute perfection" is not required. See, e. g., Jones v. New York City Human Resources Administration, 528 F.2d 696, 698 (2d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 80, 50 L.Ed.2d 88 (1976). As Judge Friendly wrote, affirming the district court's decision in Vulcan Society and quoting Mr. Justice Holmes:

It may well be that the cited figures and other more peripheral data relied on by the district judge did not prove a racially disproportionate impact with complete mathematical certainty. But there is no requirement that they should. "Certainty generally is illusion, and repose is not the destiny of man." We must not forget the limited office of the finding that black and Hispanic candidates did significantly worse in the examination than others. That does not at all decide the case; it simply places on the defendants a burden of justification which they should not be unwilling to assume.

490 F.2d at 393 (footnote omitted).

Under the familiar Title VII formula, since plaintiffs established a prima facie case of discrimination,¹⁵ the burden shifted to defendants to demonstrate that the challenged examinations were job-related. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977).

A job-related examination is one that accurately tests the capacity of the applicant to do the job for which he is applying, or is "reasonably constructed to measure what it purports to measure." Although this notion is a simple one, the task of determining whether an examination is in fact job-related involves issues and problems which are outside the experience of most laymen. Consequently, courts confronted with litigation of this kind have placed considerable reliance upon generally accepted principles of psychological testing which have been developed for the purpose of assuring that employment . . . tests measure what they purport to measure. Indeed, insistence upon the use of generally accepted professional standards of employment test validation would appear to be precisely the correct response to a prima facie showing of discriminatory impact upon racial minorities; for if an examination which disadvantages racial minorities does in fact conform to professional standards of job-relatedness, that provides at least some assurance that the white majority has not placed a burden upon racial minorities which it would have been unwilling to place upon others.

Vulcan Society, supra, 360 F.Supp. at 1272-73 (footnotes omitted). See also Blake v. City of Los Angeles, 595 F.2d 1367, 1377-79 (9th Cir. 1979).

Although defendants argued below that the validity of the entry-level examinations had been demonstrated by two different generally accepted methods,¹⁶ after considering the testimony of experts called by both sides, Judge Carter determined that defendants had failed to carry their burden.¹⁷ On the record before us we cannot characterize this finding as erroneous.

An examination has content validity if the content of the examination matches the content of the job. For a test to be content valid, the aptitudes and skills required for successful examination performance must be those aptitudes and skills required for successful job performance. It is essential that the examination test these attributes both in proportion to their relative importance on the job and at the level of difficulty demanded by the job.

Vulcan Society, supra, 360 F.Supp. at 1274 (footnotes omitted). The logical first step in drafting a content valid test is a careful study of the job in question.¹⁸ See Jones v. New York City Human Resources Administration, 391 F.Supp. 1064, 1077-83 (S.D.N.Y.1975), aff'd, 528 F.2d 696 (2d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 80, 50 L.Ed.2d 88 (1976); Kirkland v. New York State Department of Correctional Services, 374 F.Supp. 1361, 1373 (S.D.N.Y.1974), aff'd in pertinent part, 520 F.2d 420 (2d Cir. 1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976). Judge Weinfeld has defined a proper job analysis as:

a thorough survey of the relative importance of the various skills involved in the job in question and the degree of competency required in regard to each skill. It is conducted by interviewing workers, supervisors and administrators; consulting training manuals; and closely observing the actual performance of the job.

Vulcan Society, supra, 360 F.Supp. at 1274. Because of the unlikelihood that an examination prepared without benefit of a probing job analysis will be content valid, Judge Weinfeld has suggested that in the absence of such an analysis the proponent of the examination carries a greater burden of persuasion on the issue of job-relatedness. In affirming Vulcan Society, this Court enthusiastically adopted this sliding scale approach to content validity, explaining that taking the quality of test preparation into account in judging test validity would be useful in lessening "the risk that a court will fall into error in umpiring a battle of experts who speak a language it does not fully understand." Vulcan Society, supra, 490 F.2d at 396.

Although they never introduced a formal, written job analysis, defendants maintain that their method of preparation nevertheless ensured the content validity of the examinations.¹⁹ Conspicuous by its absence from the preparation process, however, was a critical component of a proper job analysis as defined by Judge Weinfeld in Vulcan Society : observation of the actual performance of the typical officer's daily routine. The examination preparation process therefore fails to raise any inference that the content of the job was accurately reflected in the content of the examination.

At the hearing below the former director of examinations for the City's Department of Personnel testified that in his opinion the tests were content valid, but he offered no reasons in support of his position. In contrast, plaintiffs' expert, Dr. Richard S. Barrett, "was able to point with specificity to serious deficiencies in the content of the examinations." For example, Dr. Barrett viewed questions pertaining to "civic awareness," "space and figure relations," and "coding" as failing to test for the content of a police officer's job. Guardians II, 431 F.Supp. at 544. Most significantly, Dr. David Hall, called by defendants, agreed that questions in these same three areas did not test skills important to the job and did not warrant inclusion in the department's entry-level examinations.²⁰

Attempting to establish the content validity of the challenged examinations by indirect as well as direct means, defendants contend that they were successful in developing a valid examination in 1973²¹ and that the challenged examinations test for content areas comparable to the later, valid examination. Finding the second assertion to be inaccurate, the district court did not consider the first. Judge Carter found that the content of the later test varied "substantially" from that of the earlier ones. Defendants' conclusory representation that the acknowledged differences in content between the later examination and the challenged examinations are of no moment are simply unsupported by the evidence. Furthermore, defendants' contention that substantial percentage differences in content areas-conceded to exist between the challenged tests and the purportedly valid examination-are insignificant flies in the face of both intuition and precedent. As noted above, a content valid examination must not only test required skills and aptitudes, it must test them "in proportion to their relative importance on the job . . . ." Vulcan Society, supra, 360 F.Supp. at 1274.

Criterion-related validity studies correlate test scores with job performance. To establish the criterion-related validity of the challenged examinations, defendants introduced the testimony of Dr. William Weechun, a researcher at the New York City Board of Education, who had made a study demonstrating that the examinations employed between 1968 and 1970 were good predictors of success at the Police Academy for whites, blacks, and Hispanics. However, no attempt was made to correlate performance on the examinations or at the Academy with performance on the job.²² Defendants contend that under Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), such a showing is unnecessary. Judge Carter properly rejected this contention.

In Vulcan Society, a case decided before Washington v. Davis, this Court recognized that in the absence of a showing that examinations testing performance at training school are themselves job-related, evidence that qualifying examinations predict performance on training school exams is "barren." 490 F.2d at 396 and n.11. Accord, Pennsylvania v. O'Neill, 348 F.Supp. 1084, 1090 (E.D.Pa.1972), aff'd in pertinent part, 473 F.2d 1029 (3d Cir. 1973); United States v. City of Chicago, 385 F.Supp. 543, 556 (N.D.Ill.1974); Officers for Justice v. Civil Service Commission, 371 F.Supp. 1328, 1337 (N.D.Cal.1973). Judge Carter's analysis of the instant case makes clear why that is so:

Defendants' study demonstrates a high correlation between performance on the challenged examinations and performance at the Academy, but the task of correlating the examinations to actual performance as police officers remains unaccomplished. The respective positions of the parties would be unchanged if, for example, instead of giving these entry level examinations, the (NYPD) had enrolled the same group of individuals in the Academy. Because of the established correlation, standing on completion of training at the Academy would, presumably, approximate standing achieved at the entry level examinations. That is to say, a consistently higher proportion of whites than minorities would achieve passing grades, and a large majority of the highest achievers would be white. Accordingly, the greatest number of Academy graduates first hired would be white, and the greatest number of those first fired would be Academy graduates who are black and Hispanic. In a Title VII attack in that situation, plaintiffs' prima facie case would be established by showing, as here, the disproportionate impact of Academy procedures and testing on minorities. Defendants would be required to demonstrate that those testing practices are job-related, as they are required here to do in respect of the entry level examination. By introducing Academy performance as a correlate to the examinations, defendants cannot avoid their obligation to show job-relatedness.

To provide that missing ingredient defendants would have this court find job-relatedness on the basis of a high correlation between the results of two separate testing practices, neither of which by itself has been validated according to accepted methods. We cannot accept this flawed argument.

Guardians II, 431 F.Supp. at 546-47. Nor can we.²³ Nor do we regard Washington v. Davis, supra, as requiring us to ignore the degree to which adoption of defendants' position would undermine Title VII's goal of eliminating arbitrary barriers to the employment of minorities.

In Washington v. Davis, two unsuccessful applicants ("plaintiffs")²⁴ alleged that the recruiting procedures of the District of Columbia's metropolitan police force were racially discriminatory. Plaintiffs contended that these practices violated their rights under the due process clause of the Fifth Amendment, under § 1981, and under a section of the D.C.Code requiring that government jobs not be awarded or withheld on the basis of race or certain other specified factors. No violation of Title VII was alleged. One of the challenged practices was the use of "Test 21," a written examination developed by the Civil Service Commission and widely used throughout the federal service to test verbal, reading, and comprehension skills. To be accepted into the police training program an applicant was required to achieve a score of 40 out of 80 on Test 21 and to meet certain other physical and character standards. Plaintiffs made no claim of purposeful discrimination; they claimed only that Test 21 had a disproportionate impact and bore no relationship to job performance. The validity of Test 21 was the sole issue before the district court on cross motions for summary judgment.

The Supreme Court declined to hold "that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII . . . ." Id. 426 U.S. at 239, 96 S.Ct. at 2047. The Court ruled that unlike the more rigorous Title VII standard, the constitutional standard is concerned only with action reflecting a racially discriminatory purpose; disproportionate racial impact standing alone does not constitute a denial of equal protection.²⁵ Comparing the two approaches, the Court stated:

Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be "validated" in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed.

Id. at 246-47, 96 S.Ct. at 2051 (footnote omitted).

After deciding the constitutional issue adversely to plaintiffs, the Court rejected plaintiffs' statutory arguments as well. Although the statutory section of the opinion, section III, is not free from ambiguity, we agree with Judge Carter that it does not govern the instant appeal. Viewing the "advisability" of a recruit training course as conceded, the Court termed it "apparent" that some minimal communicative skill would be "useful, if not essential, to satisfactory progress in the training regimen." Id. at 250, 96 S.Ct. at 2052. The Court concluded that it was a "sensible construction of the job-relatedness requirement" to hold "that a positive relationship between the test and training-course performance was sufficient to validate the former, wholly aside from its possible relationship to actual performance as a police officer." Id. at 250-51, 96 S.Ct. at 2052.

It is clear that although the parties and the lower courts had relied heavily on Title VII standards, Title VII was simply not applicable to the facts of Washington v. Davis. There is therefore good reason to think that the Court was not interpreting "job-relatedness" as defined by Title VII. Having stressed, in the paragraph quoted above, that the nature of a prima facie showing of discrimination under Title VII (e. g., disproportionate impact) was irrelevant to the appeal before it, there was simply no reason for the Court to analyze the nature of the rebuttal contemplated by Title VII (i. e., job-relatedness). The view that the Court was addressing solely the job-relatedness requirements of the Constitution, § 1981, and the D.C.Code rather than of Title VII is further supported by the lack of any discussion, in this portion of the opinion, of the language or legislative history of Title VII or of the testing guidelines promulgated by the EEOC. In our view it is most unlikely that the Court would have attempted to interpret a concept so central to the operation of Title VII without consulting the usual sources. Therefore we conclude, as Justice Stevens emphasized in his concurring opinion:

there is no Title VII question in this case. The actual statutory holdings are limited to 42 U.S.C. § 1981 and § 1-320 of the District of Columbia Code, to which regulations of the Equal Employment Opportunity Commission have no direct application.

Id. at 255, 96 S.Ct. at 2055 (Stevens, J., concurring). See Blake v. City of Los Angeles, 595 F.2d 1367, 1378-82 and n.17 (9th Cir. 1979), cert. denied, 446 U.S. 928, 100 S.Ct. 1865, 64 L.Ed.2d 281 (1980). ("If employers were permitted to validate selection devices without reference to job performance, then non-job-related selection devices could always be validated through the simple expedient of employing them at both the pre-training and training stage.") See also the Uniform Guidelines, 29 C.F.R. § 1607.14B(3) (1979), quoted in the margin.²⁶

Even assuming that Washington v. Davis would govern the meaning of job-relatedness under Title VII, we think defendants misinterpret the intended scope of its holding. Dissenting from the Court's summary affirmance of National Education Association v. South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978), Justice White, the author of the majority opinion in Washington v. Davis, rejected precisely the interpretation defendants urge upon us today.

Washington v. Davis, 426 U.S. 229 (, 96 S.Ct. 2040, 48 L.Ed.2d 597) (1976), was thought by the District Court to have warranted validating the test in terms of the applicant's training rather than against job requirements; but Washington v. Davis, in this respect, held only that the test there involved, which sought to ascertain whether the applicant had the minimum communication skills necessary to understand the offerings in a police training course, could be used to measure eligibility to enter that program. The case did not hold that a training course, the completion of which is required for employment, need not itself be validated in terms of job relatedness. Nor did it hold that a test that a job applicant must pass and that is designed to indicate his mastery of the materials or skills taught in the training course can be validated without reference to the job. Tests supposedly measuring an applicant's qualifications for employment, if they have differential racial impact, must bear some "manifest relationship to the employment in question," Griggs v. Duke Power Co., 401 U.S. 424, 432 (, 91 S.Ct. 849, 854, 28 L.Ed.2d 158) (1971), and it is insufficient for the employer "to demonstrate some rational basis for the challenged practices." Washington v. Davis, supra, 426 U.S. at 247 (, 96 S.Ct. at 2051).

Id. at 1027-28, 98 S.Ct. at 757.

It is important to keep in mind that in the instant appeal each plaintiff officer has been certified by the department to be both fully qualified to enter the police training program and fully qualified to join the force. Although the entry-level tests have in fact been demonstrated to disqualify disproportionate numbers of blacks and Hispanics, the black and Hispanic officers who brought this suit have all performed at or above the level set by the department itself. The Guardians plaintiffs do not challenge the establishment of a particular passing grade and indeed it is not clear that they would have standing to do so. They challenge only the use of their passing scores to determine the order in which they were offered employment.²⁷ Therefore, the Washington v. Davis argument-that the entry-level tests were justified by the need to weed out those applicants who lacked the minimal skills necessary to successful completion of the training program-is simply not available to the defendants on this appeal.

APPLICABILITY OF TITLE VII: THE DATE OF THE LAST DISCRIMINATORY ACT

Having established in the district court that the challenged examinations were indeed discriminatory within the meaning of Title VII, plaintiffs faced the task of demonstrating their entitlement to relief under the statute. This was no easy matter, for at every turn in the path between the injury and the remedy, defendants vigorously contested plaintiffs' right to proceed.

Two different questions of timing are crucial to plaintiffs' Title VII claim: to prevail thereon plaintiffs must demonstrate both that defendants violated the Act after its effective date and that plaintiffs filed a timely charge with the EEOC. Acha v. Beame, supra, 570 F.2d at 65. In order to establish each of these elements of their case, plaintiffs have attempted to show that defendants discriminated against them as late as October of 1974. Since Title VII was made applicable to municipalities in 1972, any discriminatory hiring practices engaged in by defendants as late as October of 1974 would clearly constitute post-Act conduct. Furthermore, the EEOC charge filed May 23, 1975, was timely filed under § 706(e) as to any Title VII violation occurring within the previous 300 days, that is, on or after July 27, 1974.²⁸ Predictably, defendants urge in response that their discriminatory conduct, if any, ceased prior to 1972 and, therefore, that plaintiffs have failed to prove that defendants engaged in any post-Act discriminatory practices which were made the subject of a timely EEOC charge. We cannot agree.

The district court held that the department's reliance on eligibility lists reflecting performance on discriminatory examinations constituted a program of discriminatory hiring which terminated only when the last person was hired off the lists-that is, in October of 1974. Only then, in the court's view, did the department cease its unjustified refusals to hire minorities.²⁹ Defendants concede, as they must, that as a general rule discriminatory refusals to hire are prohibited by Title VII.³⁰ See Weise v. Syracuse University, 522 F.2d 397, 409 (2d Cir. 1975). They contend however that the "operative" event in the hiring procedure under scrutiny, the relevant event for purposes of deciding when the unlawful discrimination occurred, was the promulgation of the eligibility lists reflecting the applicants' scores on the challenged exams. Defendants assert that since all the challenged examinations were administered and the corresponding lists were promulgated prior to the date Title VII became applicable to municipalities, the giving of the tests and the compilation of the eligibility lists are acts falling outside the scope of the statute. Defendants dismiss as a "fiction" the district court's view that the department's conceded utilization of these lists for purposes of making hiring decisions as late as 1974 in itself constituted a post-Act violation of Title VII. Defendants maintain that under Title VII the fact that, until they were exhausted, the lists determined the order in which all appointments were made constituted merely the non-actionable perpetuation of the effects of past, non-actionable discrimination.

A. Refusal to Hire as a Violation of Title VII

Defendants argue that "the claims of discriminatory refusal to hire presented here clearly depend upon 'a past event which has no present legal significance.' " Reply brief at 5, quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 560, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Defendants wish, understandably, to accentuate their pre-Act conduct and trivialize their post-Act conduct, but logic and precedent preclude acceptance of defendants' assessment of the legal significance of their actions. We need not decide whether the giving of the tests and the compilation of the lists in themselves constituted the infliction of an actionable injury,³¹ for the results of the tests were in effect being "used to discriminate," in direct contravention of § 703(h) of Title VII,³² each time a member of the plaintiff class was denied a chance to fill a vacancy. By utilizing the tainted test results for years after becoming subject to the commands of Title VII, defendants continued a course of discriminatory conduct that had indeed begun before the effective date of the Act but did not cease until defendants abandoned the practice of making hiring decisions in this manner.³³ Even if the unjustified refusals to hire did not comprise the core of defendants' discriminatory conduct, at the very least they represented the culmination of a continuously maintained illegal employment policy. Acha v. Beame, supra, 570 F.2d at 65. And it is settled law that the limitation period determining the timeliness of a complaint filed as to such a policy is measured from the last occurrence of an instance of that policy. Id.

Acha v. Beame provides a close and instructive parallel. In that action female police officers who, like the original Guardians II plaintiffs were laid off by the NYPD in 1975 sued under Title VII and various other federal laws, alleging that the last-hired, first-fired layoffs were discriminatory in light of the fact that women had been prevented from obtaining seniority because of the department's past discrimination in hiring. Acha v. Beame, 401 F.Supp. 816 (S.D.N.Y.1975). The department's alleged discrimination against women stemmed not from the use of invalid examinations, as in the Guardians action, but rather from the maintenance of separate eligibility lists for male and female applicants and the imposition of a quota on the hiring of women. Despite this difference in the precise form of the alleged discrimination in hiring, in both Guardians and Acha the conduct complained of was the refusal, in the absence of any business justification, to hire in a timely manner members of the protected plaintiff group.

On remand,³⁴ the district court in Acha, taking into account the Supreme Court's then recent decisions in Teamsters and United Air Lines, Inc. v. Evans, supra, stated:

I find that with respect to hiring practices, the discriminatory act occurs when a male police officer is hired instead of a female who meets all requirements for appointment and has a higher test score. Any class member who can demonstrate that such hirings occurred within the 300 days prior to (the filing of the EEOC charge) may succeed.

(T)he Teamsters holding requires that the discrimination have taken place after the effective date of Title VII, which in the case of municipal employees is March 24, 1972. Pre-Act discrimination which is perpetuated by a neutral seniority system is immunized from Title VII attack by reason of section 703(h). . . . To fall outside the immunity afforded to a bona fide seniority system, plaintiffs must show more than the system's failure to correct pre-Act discrimination.

Thus, the June 1975 layoffs pursuant to a facially neutral seniority system were immunized and cannot be the basis for a Title VII violation. Therefore, plaintiffs . . . to succeed must establish a prima facie case of a Title VII violation which occurred after the effective date of the Act and within the period of the statute of limitations. Thereafter, any class member who was not hired until after March 24, 1972 and, but for her sex would have been hired earlier than her actual appointment date, is entitled to a seniority revision.

438 F.Supp. 70, 75-77 (S.D.N.Y.1977) (citations omitted).

On appeal after remand in Acha, this Court gave its approval to the district court's articulation of the plaintiffs' burden:

To succeed at trial, then, the appellants would have to be able to demonstrate a Title VII violation occurring after the effective date of the Act, and within the period of the statute of limitations. Such a violation would occur if, absent discrimination, a woman would have been hired earlier than her actual date of appointment.

570 F.2d 57, 61 (2d Cir. 1978).

Acha makes clear that an unjustified refusal to hire is in itself a violation which cannot be dismissed as a mere effect of an earlier wrong. Defendants have advanced no persuasive basis for distinguishing Acha. In particular, their reliance on United Air Lines, Inc. v. Evans is doubly misplaced. First, as is obvious from our citation to the case in our Acha opinion, we were aware of the Supreme Court's holding in Evans and, of course, fashioned our decision accordingly. 570 F.2d at 60 n.4, 63-64. Second, Evans presented a fact situation entirely different from that presented in the instant case.³⁵ Nothing in Evans supports the notion that a refusal to hire within the 300 day period preceding the filing of an EEOC charge may not properly be viewed as a current manifestation of a continuing violation.

Therefore, we hold that the district court properly rejected the view that the department's discriminatory refusals to hire were merely effects of earlier discriminatory conduct.³⁶ Furthermore, we hold that the district court properly declined to limit relief to those plaintiffs who were wrongfully refused employment within the critical 300 day period. Guardians III, 466 F.Supp. at 1279-80. These refusals were not discrete acts; they were carried out pursuant to a conceded and consistent policy. All plaintiffs injured by the department's post-Act adherence to that policy are therefore entitled to relief.

A continuously maintained illegal employment policy may be the subject of a valid complaint until a specified number of days after the last occurrence of an instance of that policy. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011 (, 95 S.Ct. 2415, 44 L.Ed.2d 679) . . . (1975); Macklin v. Spector Freight Systems, Inc., (156 U.S.App.D.C. 69, 76-80), 478 F.2d 979, 986-90 (1973). See also 118 Cong.Rec. 7565 (March 6, 1972). Furthermore, where an illegal policy is so maintained, relief for injuries sustained even before the beginning of the limitations period is appropriate.

Acha v. Beame, supra, 570 F.2d at 65. See Egelston v. State University College at Geneseo, 535 F.2d 752 (2d Cir. 1976); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515, 518-19, 523 (S.D.N.Y.1973), appeal dismissed, 496 F.2d 1094 (2d Cir. 1974).

Defendants contend that even if their refusals to hire would otherwise constitute violations of the Act, § 703(h) of Title VII protects them from liability for their post-Act utilization of the lists.³⁷ Section 703(h) immunizes from challenge the application by an employer of a bona fide seniority or merit system. Defendants view it as indisputable that the certification of candidates in rank order from an eligibility list for appointment in accordance with the Civil Service Law of New York State³⁸ constitutes the application of a "bona fide merit system" and that therefore, because of the § 703(h) exemption, the use of the lists cannot be declared an unlawful practice under Title VII.

It is by no means clear that the "merit system" language of § 703(h) applies to hiring practices. The first sentence of § 703(h) is made up of two major clauses, the first, which we have italicized, dealing with bona fide seniority and merit systems, the second dealing with professionally developed ability tests.

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.

42 U.S.C. § 2000e-2(h) (emphasis added). In response to defendants' invocation of § 703(h) as immunizing use of a hiring list, plaintiffs contend that the term "merit system," like the companion term "seniority system," is generally understood to refer to a system whereby an employer rewards employees, pursuant to a regularized plan, for performance which has been superior in terms of length or quality. Plaintiffs also see significance in the use of the terms "seniority system" and "merit system" to refer solely to post-employment compensation practices in the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1). See Corning Glass Works v. Brennan, 417 U.S. 188, 199, 94 S.Ct. 2223, 2230, 41 L.Ed.2d 1 (1974). Plaintiffs contend that defendants have failed to uncover anything in either the wording of § 703(h) or its legislative history to suggest that Congress intended the phrase "seniority or merit system" to be understood, contrary to common usage and usage in prior legislation, to refer to pre-employment and hiring practices as well as post-employment practices. In addition, pointing out that § 703(a) of Title VII specifically identifies discriminatory refusal to hire as a prohibited practice in addition to discrimination in terms, conditions or privileges of employment, plaintiffs argue that the omission of any "refusal to hire" language in § 703(h) is indicative of the narrower scope of the latter section.

Although we do not minimize the appeal of plaintiffs' argument on this point, but see Dickerson v. United States Steel Corp., 472 F.Supp. 1304, 1323-26 (E.D.Pa.1978), we need not decide today whether the term "merit system" in § 703(h) encompasses hiring practices. Assuming for present purposes that it does, it is clear that a hiring system that ranks applicants according to their performance on discriminatory examinations cannot claim the status of a "bona fide merit system" within the meaning of the statute.

Under the second, or "testing," clause of § 703(h), action based on the results of employment tests may not lawfully be "used to discriminate." At least since Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), it has been absolutely clear that testing practices are judged by their impact as well as their intent. Nevertheless, defendants contend that the practice of hiring on the basis of the results of pre-employment testing is a "bona fide merit system" which is protected by the first clause of § 703(h) regardless of impact, unless the system was purposefully designed to discriminate.

Under defendants' interpretation of § 703(h), any employer who administered a discriminatory entry-level examination before March of 1972 could lawfully base hiring decisions on the results of that examination indefinitely. As is urged in the instant case, an employer could, with impunity, refuse to hire in a timely manner hundreds of minority applicants, solely because of performance on an invalid test, years after Title VII explicitly forbade the use of testing results to discriminate in hiring. Read in such a fashion the first clause of § 703(h) would effectively break the promise held out in the second clause-the promise that as of the effective date of the Act, artificial barriers to the employment of minorities would be dismantled. Defendants hazard no guess as to why Congress would have taken such a Januslike approach to the subject of testing.

Defendants contend that International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), requires us to read § 703(h) in this improbable manner. Teamsters, they argue, defined a bona fide seniority system as one not designed to be discriminatory. By analogy, defendants insist, a merit system not designed to be discriminatory must also pass muster as bona fide. In our view, this argument slides over a rather crucial distinction. There was no contention in Teamsters that the seniority system under scrutiny did not measure precisely what it purported to measure, that is, the length of time a given employee had been on the job. The measurement of length of employment was race-neutral: a white employee and a black employee hired on the same day would have the same seniority and the same attendant privileges and benefits. While such a system in a sense locked in the effects of past discrimination in hiring, the system itself was non-discriminatory.

Unlike the seniority system in Teamsters, the merit system in the instant case does not measure what it purports to measure. The failing of the department's hiring system is therefore not that it perpetuates the effects of past discrimination, but rather that it perpetuates discrimination. It is one thing to utilize a system that locks in the effects of past discriminatory hiring decisions; it is a very different thing to lock in a discriminatory method of making hiring decisions. Once it has been determined that an examination has a disproportionate impact on minority groups and that it is not job-related, one cannot logically characterize a system of hiring solely on the basis of the results of the test as a "merit" system for whatever the test does measure it does not have merit: it does not measure fitness for the job in question, which is surely the only logical meaning of the term "merit" in the hiring context. Section 703(h) makes sense only if the term "bona fide merit system" is understood to refer to merit in areas related to the necessities of the business, not "merit" in the abstract. Nothing in Teamsters implies that by labelling a non-job-related system of employee selection a "merit" system, an employer can avoid the command of Title VII that it henceforth select its workforce in a non-discriminatory fashion. Compare California Brewers Association v. Bryant, 444 U.S. 598, 100 S.Ct. 814, 821, 63 L.Ed.2d 55 (1980) (upholding seniority system):

What has been said does not mean that § 703(h) is to be given a scope that risks swallowing up Title VII's otherwise broad prohibition of "practices, procedures and tests" that disproportionately affect members of those groups that the Act protects. Significant freedom must be afforded employers and unions to create differing seniority systems. But that freedom must not be allowed to sweep within the ambit of § 703(h) employment rules that depart fundamentally from commonly accepted notions concerning the acceptable contours of a seniority system, simply because those rules are dubbed "seniority" provisions or have some nexus to an arrangement that concededly operates on the basis of seniority.

Therefore, again assuming arguendo that the merit system language of § 703(h) applies to pre-employment testing, we must agree with those courts that have applied the Griggs impact and job-relatedness standards to test the bona fides of a challenged "merit" hiring system. See Dickerson v. United States Steel Corp., supra, 472 F.Supp. at 1323-26; League of United Latin American Citizens v. City of Santa Ana, 410 F.Supp. 873, 910 n.28 (C.D.Cal.1976) ("Suffice it to say that a system which relies on discriminatory devices not based on a business necessity is not a 'bona fide' 'merit' system. . . . The Act does not give rights with one hand and take them away with the other.") But cf. United States v. City of Chicago, No. 73C 661 (N.D.Ill., Oct. 17, 1979) (where post-employment "merit system" promotion list developed from pre-Act test was challenged, burden on plaintiffs to show lack of job-relatedness). Defendants have cited no case in which § 703 has been held to immunize post-Act hiring on the basis of an eligibility list reflecting performance on pre-Act discriminatory examinations. In the absence of any guideposts pointing that way, we decline to blaze a trail in that direction.³⁹

Racial discrimination in employment is one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the "outer benefits" of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies and chooses. Title VII of the 1964 Civil Rights Act provides us with a clear mandate from Congress that no longer will the United States tolerate this form of discrimination. It is, therefore, the duty of the courts to make sure that the Act works . . . .

Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th Cir. 1970).

For the foregoing reasons we affirm Judge Carter's ruling on plaintiffs' Title VII claim.

TITLE VI

Because the particular types of relief granted under Title VII could not properly take into account any period of time prior to March 24, 1972, the effective date of Title VII as applied to municipalities, the district court turned to plaintiffs' Title VI claim in order to determine whether additional relief was available.⁴⁰ After ruling that there exists an implied private cause of action under Title VI,41 Judge Carter held that like Title VII, Title VI prohibits not only intentionally discriminatory conduct but also practices and policies having "a disparate impact on minorities for which there is no countervailing justification." Guardians III, 466 F.Supp. at 1285.

Although we are unanimous in our determination that the district court's grant of relief under Title VI must be reversed, the three members of this panel have taken two different paths to that result. The remainder of section IV of this opinion represents only the view of the author. Judge Coffrin's concurring opinion, in which Judge Kelleher has joined, represents the opinion of the Court on the Title VI issue presented by this appeal.

Having determined that there was liability under Title VI, the district court turned to the question of relief:

Since the substantive standard for illegal employment discrimination is the same under Title VI as it is under Title VII, and all forms of traditional equitable relief are available under Title VI, it seems logical to adopt the body of remedial law already developed under Title VII. Similar kinds of remedies should apply unless they would conflict with some purpose peculiar to Title VI.... Although the statutory predicate has changed, there is no reason for the relief provided here to be any less comprehensive than that previously ordered in Guardians II.

Id. at 1287 (footnote omitted).

I must disagree. In my view, the compensatory remedies sought by and awarded to plaintiffs in the case at bar are not available to private litigants under Title VI. I therefore view it as unnecessary to decide today whether there is a private cause of action for other types of relief under Title VI and, if so, whether this action was timely brought.⁴²

In the recent case of Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), the Supreme Court made two points pertinent to the issue before us. First, the Court reemphasized that the existence of a private cause of action is not so much a question of wisdom as it is one of congressional intent, assuming for purposes of argument that the two may, on occasion, differ.

The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction. . . . While some opinions of the Court have placed considerable emphasis upon the desirability of implying private rights of action in order to provide remedies thought to effectuate the purposes of a given statute, . . . what must ultimately be determined is whether Congress intended to create the private remedy asserted ....

Id. at 15, 100 S.Ct. at 245 (citations omitted).

Second, Transamerica illustrates that implication of a private right of action is not necessarily an all or nothing undertaking. The proper inquiry is two-fold: did Congress intend to create a private right of action and, if so, what were the intended limits on this private right of action. Thus in Transamerica, although recognizing a limited private remedy under the Investment Advisors Act of 1940 to void contracts made in violation of the statute, the Court held that the Act conferred no other private causes of action. Because Transamerica counsels us to consider not only the existence but the scope and nature of any private right of action that may have been created by Congress, it is necessary to focus on the remedies requested and awarded in this case before considering whether Congress intended to confer on private parties the right to bring this particular type of action under Title VI.

Much of the relief granted by the district court was intended to compensate plaintiffs for their being hired later than they would have been but for the defendants' discriminatory practices. The district court expressly attempted to make plaintiffs whole, insofar as is possible, for past losses and injuries.⁴³ Toward this end, Judge Carter ordered as a first step that all class members be assigned constructive seniority dates, which were to be calculated pursuant to a formula spelled out by the court. With respect to the period during which they would have been employed had they been hired on their constructive seniority dates, plaintiffs were apparently to be awarded back pay,⁴⁴ with interest, and reimbursement for certain medical and insurance disbursements.

The parties have referred us to no case in which compensatory relief has been awarded under Title VI, nor has my own research disclosed any.⁴⁵ In fact, I have located only three cases that address the issue. In Rendon v. Utah State Department of Employment Security Job Service, 454 F.Supp. 534 (D.Utah 1978), the court held squarely that Title VI does not provide a plaintiff with a private cause of action for damages in an employment discrimination action, while noting in contrast that "in proper instances private parties can indeed maintain an action under Title VI in a role that could loosely but accurately be described as that of private attorneys general," citing Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), inter alia.

The nature of such an action, however, differs markedly from the instant action. Here plaintiff is not attempting to directly enforce compliance with Title VI, nor is he seeking declaratory or injunctive relief. Rather, plaintiff is seeking compensation . . . for (an) alleged injury . . . .

Rendon v. Utah State Department of Employment Security Job Service, supra, 454 F.Supp. at 536.

In Gilliam v. City of Omaha, 388 F.Supp. 842 (D.Neb.), aff'd, 524 F.2d 1013 (8th Cir. 1975), the district court took a different view, expressing the opinion, in dictum, that a private action for damages might be maintained under Title VI. Accord, Quiroz v. City of Santa Ana, 18 FEP Cas. 1138 (C.D.Cal. Aug. 29, 1978) (dictum). In affirming the district court's judgment for the defendants in Gilliam, on the ground that plaintiff had failed to prove the employment discrimination she had alleged, the Eighth Circuit did not discuss the question of remedies. In Chambers v. Omaha Public School District, 536 F.2d 222 (8th Cir. 1976), another employment discrimination suit brought under Title VI, inter alia, the action was barred by the applicable statutes of limitations. Noting that "(t)he issue of whether a monetary judgment can be obtained under Title VI has not been definitively resolved," the court expressed "no view on the propriety of permitting money judgments in § 2000d actions." Id. at 225 n.2.

It appears then that in the sixteen years since the passage of Title VI, those courts that have either assumed or held that a private action may be brought under the statute have uniformly granted only declaratory or injunctive relief aimed at bringing defendants into compliance with Title VI, in effect focusing on the correction of present wrongs and the prevention of future violations and as a practical matter leaving past injuries unredressed. See, e. g., Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (defendants ordered to admit plaintiff excluded from medical school under admissions system held violative of Title VI; compensation for wrongful delay of presumably lucrative practice not discussed and apparently not sought). In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), a class suit against school officials in which non-English-speaking Chinese students sought relief from allegedly unequal educational opportunities, plaintiffs urged no specific remedy on the courts. Relying solely on Title VI, the Supreme Court reversed the denial of relief below, suggesting by implication that the appropriate relief would be prospective and corrective rather than compensatory:

Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioners ask only that the Board of Education be directed to apply its expertise to the problem and rectify the situation.

Id. at 565, 94 S.Ct. at 787.

The approach has been the same in the courts of appeals. It appears that in all the circuits the relief granted in Title VI cases is generally aimed at bringing defendants into compliance with Title VI rather than compensating plaintiffs for past violations. See, e. g., Uzzell v. Friday, 591 F.2d 997 (4th Cir. 1979) (declaring invalid under Title VI certain race-related regulations at state college) (subsequently reargued and remanded by en banc court for fuller development of the record, Uzzell v. Friday, 625 F.2d 1117 (4th Cir. 1980)); Serna v. Portales Municipal Schools, 499 F.2d 1147 (10th Cir. 1974) (ordering school system to implement plan under which special needs of Spanish-surnamed students would be taken into account); Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir.), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967) (ordering submission of desegregation plan by school board).

Although plaintiffs' inability to point to a precedent for the award of compensatory relief under Title VI is not dispositive, the apparently uniform approach of the courts over the many years since the passage of Title VI counsels us to scrutinize with particular care the claim that such relief is indeed contemplated by the statute.⁴⁶

B. Implication of a Private Cause of Action for Compensatory Relief.

As a preliminary matter, it should be noted that although private litigants have brought suit under Title VI on a number of occasions, the Supreme Court has not yet definitively declared whether any private cause of action under Title VI should be implied. The several opinions written in Bakke indicate that Chief Justice Burger and Justices Stevens, Stewart and Rehnquist would imply a private action under Title VI and that Justice White would not. Justices Powell, Marshall, Blackmun, and Brennan declined to address "this difficult issue," which had been neither argued nor decided in the courts below. Cf. Burks v. Lasker, 441 U.S. 471, 476 and n.5, 99 S.Ct. 1831, 1836 and n.5, 60 L.Ed.2d 404 (1979). I express no view on this issue today as the appeal before us can be decided on a narrower and more certain ground. I would hold only that Congress did not intend to create a private right of action for compensatory relief under Title VI.

In contrast to the cases decided thereunder, Title VI itself is short and to the point. Only two of its provisions are relevant to this appeal: § 601 forbids discrimination by recipients of federal funds,⁴⁷ and § 602 requires federal agencies that disburse funds to issue regulations insuring nondiscrimination by recipients and authorizes the agencies to terminate funding if efforts to secure compliance by voluntary means are unsuccessful.⁴⁸ On its face then, Title VI provides for only one sanction against recipients of federal financial assistance who discriminate in the utilization of this money: termination of funding if and when efforts at voluntary compliance fail. Only the federal agencies providing the funds are expressly authorized to effect such a termination, and they may do so only after following the procedural steps spelled out in § 602.

In Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), and Transamerica Mortgage Advisors, Inc. v. Lewis, supra, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed. 146, the Supreme Court has reaffirmed that resort to the usual methods of statutory construction is appropriate in determining whether Congress intended to create a statutory cause of action. While the factors set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), may be relevant to the required analysis,⁴⁹ they are useful primarily insofar as they give us insight into the determinative question of congressional intent. CETA Workers' Organizing Committee v. City of New York, 617 F.2d 926, 931-32 (2d Cir. 1980). But cf. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).

It is undisputed that the plain language of Title VI hints at no private cause of action for compensatory relief, and I have found nothing in the legislative history to suggest that Congress intended the statute to mean more than it says.⁵⁰ The debates make clear that the overarching purpose of Title VI was "to make sure that funds of the United States are not used to support racial discrimination." 110 Cong.Rec. 6544 (Remarks of Senator Humphrey, floor manager of the bill).

The history of Title VI from President Kennedy's request that Congress grant executive departments and agencies authority to cut off federal funds to programs that discriminate against Negroes through final enactment of legislation incorporating his proposals reveals one fixed purpose: to give the Executive Branch of Government clear authority to terminate federal funding of private programs that use race as a means of disadvantaging minorities . . . .

This purpose was first expressed in President Kennedy's June 19, 1963, message to Congress proposing the legislation that subsequently became the Civil Rights Act of 1964.⁵¹ Representative Celler, the Chairman of the House Judiciary Committee, and the floor manager of the legislation in the House, introduced Title VI in words unequivocally expressing the intent to provide the Federal Government with the means of assuring that its funds were not used to subsidize racial discrimination . . . . (See 110 Cong.Rec. 1519 (1964).⁵²)

Bakke, supra, 438 U.S. at 328-30, 98 S.Ct. at 2768 (Opinion of Brennan, White, Marshall and Blackmun, JJ.) (footnotes added).

Although many of the lawmakers believed that discrimination in federally funded programs was already unlawful, they apparently viewed the new legislation as necessary in order to "eliminate uncertainty concerning the power of federal agencies to terminate financial assistance to programs engaging in racial discrimination in the face of various federal statutes which appeared to authorize grants to racially segregated institutions." Bakke, supra, 438 U.S. at 333, 98 S.Ct. at 2770 (opinion of Brennan, White, Marshall and Blackmun, JJ.), citing 110 Cong.Rec. 6544 (Remarks of Senator Humphrey). Thus, by enacting Title VI Congress strove "to end the Government's complicity in constitutionally forbidden racial discrimination by providing the Executive Branch with the authority and the obligation to terminate its financial support of any activity which employed racial criteria in a manner condemned by the Constitution." Bakke, 438 U.S. at 336, 98 S.Ct. at 2772 (Opinion of Brennan, White, Marshall and Blackmun, JJ.)⁵³

I can find nothing in the language or the legislative history of Title VI to support the view that the legislation was in addition intended to compensate individuals who have been improperly excluded from the benefits of a program receiving federal assistance. The language and the history of Title VII provide an instructive contrast. There the "make whole" purpose of the statute is evident from the legislators' remarks as well as the words of the statute itself. Albemarle Paper Co. v. Moody, supra, 422 U.S. at 419, 95 S.Ct. at 2372.

The next inquiry must be whether, despite the silence of both the statute and the legislative history, a private right of action for compensatory relief is so necessary to the fulfillment of the underlying purpose of Title VI that we must assume such a right to have been intended. As noted above the statute expressly sets forth in detail a mechanism for the enforcement of the proscription against discrimination in the use of federal money: administrative curtailment of funds. Section 602 provides, with great specificity, that termination may be effected only after attempts at voluntary compliance have failed, only after a hearing, and only after a report has been filed with the appropriate congressional committees and 30 days have elapsed.⁵⁴ A private cause of action for compensatory relief does not fit comfortably into this scheme. "(W)here a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." Transamerica, supra, 444 U.S. at 19, 100 S.Ct. at 247. See also CETA Workers', supra, 617 F.2d at 933. Particularly is this so when the remedy implied may work at cross-purposes with the remedy expressed.

As § 602 makes evident, termination is the least-favored way to enforce the rule of non-discrimination-perhaps because it punishes innocent beneficiaries of federally funded programs as well as those who violate § 601. Of course, many of the programs made possible by federal money are created by Congress precisely to help minorities overcome the effects of past discrimination. Termination renders achievement of this goal impossible. Although terminated funds may be reallocated to another recipient, money may be wasted, time may be lost, and those in greatest need may be passed over. Therefore compliance is the preferred enforcement mechanism of Title VI. Compliance ensures both that the programs Congress has funded will not be disrupted and that they will be operated in a non-discriminatory fashion.⁵⁵

One must consider the consequences, then, if private litigants seeking compensation are permitted to rush in where agencies fear to tread. One possible result would be a complete reassessment, by applicants for federal assistance, of the risks and benefits entailed in accepting federal funds. As things stand now, recipients face only two risks should they fail voluntarily to operate their programs in a discrimination-free manner-enforced compliance or termination of funding. There is no express provision in the statute for the recapture of funds that may have been spent in a non-complying manner and I know of no case in which an agency has attempted to force the return of funds given to a recipient during a period of non-compliance. See Adams v. Richardson, 356 F.Supp. 92, 100 (D.D.C.), aff'd as modified, 480 F.2d 1159, 1161 n.3 (D.C.Cir.1973) (en banc). If private actions for compensation are recognized, however, recipients would expose themselves to the additional risk of having to respond in damages, after the federal funds have been spent, even though they lacked any intention to discriminate, as in the instant case, and even though they have never received agency notice of non-compliance or been given a chance to achieve compliance with the help of the agency responsible. If potential recipients who, given the chance, might have operated discrimination-free programs are dissuaded from participation, federal agencies will be significantly hampered in their ability to carry out programs which Congress itself has chosen to authorize and fund. Cf. Loughran v. Flanders, 470 F.Supp. 110, 115 (D.Conn.1979) (no private cause of action for damages under Education for Handicapped Children Act of 1975; implication of such a remedy would thwart purpose of legislation by deterring participation by potential recipients because of potential liability).

It is not my purpose to express any view on the advantages or disadvantages of such an approach to Title VI. It is enough to say that I regard it as extremely unlikely that Congress intended to create, by its silence, a private remedy which works at cross purposes with the remedy explicitly provided for by the statute.⁵⁶ Although it is true that "courts may provide private litigants exercis