The Civil Rights Act of 1964: An Overview

September 21, 2020 R46534

The Civil Rights Act of 1964: An Overview
September 21, 2020
The Civil Rights Act of 1964, comprised of eleven titles and numerous sections, has been called
the “most comprehensive undertaking” to prevent and address discrimination in a wide range of
Christine J. Back
contexts.
Legislative Attorney

From discriminatory voter registration practices to racial segregation in business establishments
and public schools, the Civil Rights Act of 1964 enacted new prohibitions and protections

targeting discriminatory conduct in different forms and diverse contexts. The Act not only
created new statutory rights, but also designed distinct methods of enforcing these rights, and established federal entities
responsible for the enforcement or facilitation of these protections as well. “In our time,” the Supreme Court has stated, “few
pieces of federal legislation rank in significance.”
Although the titles address discrimination based on race, color, religion, national origin, or sex, the Civil Rights Act of 1964
was principally a legislative response to ongoing and pervasive conditions of racial segregation and discrimination in the
United States. Such conditions included the enforced exclusion of black citizens from a host of services and establishments
affecting much of daily life: public libraries, public parks and recreation systems, public schools and colleges, restaurants,
hotels, businesses, performance halls, hospitals and medical facilities, and any other setting designated as “white-only.”
Legislative history reflects that Titles II, III, IV, and VI, for example, were enacted to address these forms of race-based
segregation and discrimination.
Though its titles share a thematic focus on discrimination, the 1964 Act—from a legal perspective—is perhaps best
understood as a series of unique and distinct statutes. The titles vary in terms of the actions and practices they prohibit,
whether and how an individual may seek relief for the violation of a title’s requirements, and available remedies for particular
violations. Relatedly, where provisions of a title are enforced in federal courts, they have given rise to distinct lines of case
law, questions of interpretation, and application. Federal courts have also interpreted the titles as having been enacted on
different constitutional bases—the Commerce Clause, the Spending Clause, and the Fourteenth and Fifteenth Amendments.
The eleven titles differ in other respects as well. Some, such as Titles II and VI, enacted altogether new laws while others,
such as Titles I and V, amended earlier federal civil rights laws. Among the titles which enacted new laws, one finds further
differentiation: some, such as Titles II and VII, created new statutory rights and protections against private actors, while
others, such as Titles III and IV, addressed the federal enforcement of constitutional rights and protections against state
actors. These differences may have unique legal implications when amending one particular title or another.

Congressional Research Service

The Civil Rights Act of 1964: An Overview

Introduction
The Civil Rights Act of 19641 addresses a range of subjects, including discriminatory voting
tactics;2 discrimination in service or access to commercial establishments;3 the desegregation of
public facilities4 and schools;5 discrimination in employment;6 race discrimination in federal y
funded programs;7 and federal enforcement in these areas.8 The Act also created two federal
agencies (the Equal Employment Opportunity Commission9 and the Community Relations
Service10) to enforce or facilitate certain civil rights protections.
As original y enacted, every title that created or enforced protections addressed discriminatory
actions on the basis of race, color, religion, or national origin,11 with one title—Title VII—
including a prohibition against sex discrimination.12 Since then, Congress has enacted various
amendments to the Civil Rights Act of 1964, including amendments to Titles IV and IX
authorizing the Attorney General’s enforcement against certain equal protection violations based
on sex,13 and numerous other amendments specific to Title VII, including the codification of
disparate impact liability.14
This report is intended to provide a general legal understanding of the Act’s titles and
requirements. Importantly, given the breadth of the Act, and the significant and considerable
range of legal issues that can arise under each title,15 this overview is not exhaustive. Rather, this

1 See T he Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. T he Act became law on July 2, 1964. See id.
2 See 52 U.S.C. § 10101(a)(2) (codified as amended). See also id. § 10101(a)(1) (providing that all citizens who are
otherwise qualified voters “shall be entitled and allowed to vote at all such elections, without distinction of race, color,
or previous condition of servitude”).
3 See 42 U.S.C. § 2000a (addressing “discrimination or segregation on the ground of race, color, religion, or national
origin”).
4 Id. § 2000b et seq. (addressing the “right to the equal protection of the laws, on account of his race, color, religion, or
national origin,” in the context of “ equal utilization of any public facility”).
5 See Pub. L. No. 88-352, 78 Stat. 246-248 (addressing federal enforcement and technical assistance concerning the
desegregation of public schools based on race, color, religion, or national origin).
6 42 U.S.C. § 2000e et seq. (addressing discrimination in the workplace based on “race, color, religion, sex, or national
origin”).
7 Id. § 2000d et seq. (addressing discrimination “on the ground of race, color, or national origin” in any program or
activity receiving federal financial assistance).
8 See, e.g., id. § 2000h-2.
9 See id. § 2000e-4.
10 Id. § 2000g et seq. See also About CRS, Community Relations Service, Dep’t of Justice,
https://www.justice.gov/crs/about/faq (stating that the Community Relations Service “ is an agency within DOJ that is
congressionally mandated by T itle X of the Civil Rights Act of 1964 to assist communities in resolving conflicts based
on race, color, and national origin.”).
11 See supra notes 2-7.
12 See Pub. L. No. 88-352, § 703, 78 Stat. at 255 (reflecting T itle VII provisions, as originally enacted, addressing
discrimination in employment based on “race, color, religion, sex, or national origin”).
13 See Pub. L. No. 92-318, § 906(a), 86 Stat. 235, 375, (“ Sections 401(b), 407(a) (2), 410, and 902 of the Civil Rights
Act of 1964 (42 U.S.C. §§ 2000c(b), 2000c-6(a) (2), 2000c-9, and 2000h-2) are each amended by inserting the word
‘sex’ after the word ‘religion.’”).
14 See, e.g., T he Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074-75.
15 Such issues might include, for example, the relationship between specific titles of the 1964 Act and other federal
civil rights statutes; the methods of proving violations under each title, judicially -created defenses or theories of
liability under a part icular title; implications that might arise from certain amendments to a particular title or provision;
the evidence that courts have found sufficient or insufficient to show violations of a statutory provision in a title;
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The Civil Rights Act of 1964: An Overview

report offers discussion relating to the general background of each title, each title’s principal
statutory sections, the methods of enforcing their requirements, and the constitutional bases for
their enactment (as reflected in legislative history or interpreted by federal courts). The report also
includes some limited discussion of legal issues that have arisen under a given title’s provisions.
This report addresses each title of the Act in separate sections, which vary in length and depth of
treatment. This variability largely corresponds to the unique operation of each title, and the
questions of interpretation, application, and enforcement that may have arisen under each. A title
comprised of more complex or frequently litigated provisions, for example, invites more
discussion of resulting case law and agency interpretations than a title with less frequently
litigated or debated provisions.
In discussing legislative history, this report relies primarily upon two sources: the House Judiciary
Committee report (House Report No. 88-914) 16 which accompanied H.R. 7152, the bil that
would become the 1964 Act;17 and the Senate Commerce Committee report (Senate Report No.
88-872),18 which addressed provisions that were incorporated into Title II of the Act. The report
does not discuss or draw upon other aspects of the voluminous congressional record relating to
the passage of the 1964 Act, or other historical or contemporaneous developments. When federal
courts have discussed legislative history relating to the 1964 Act, or the historical context and
purposes of a specific title, this overview includes discussion from such decisions.
This report concludes with potential legislative considerations regarding amendments to the Act.
Title I: Prohibiting discriminatory voter registration
“tactics”
Title I19 of the 1964 Act amended voting provisions of an earlier statute, the Civil Rights Act of
1957 (1957 Civil Rights Act),20 to address “problems encountered in the operation and

differing views among federal courts on how to construe and apply various sections and exemptions under a title;
interpretations by federal agencies of statutory provisions in the 1964 Act (including competing or apparently
conflicting interpretations); and other complex questions that have arisen with respect to a particular t itle.
16 H. REP. NO. 88-914 (1963) (report from the Committee on the Judiciary, to accompany H.R. 7152). H. REP. NO. 914
is divided into two parts. Part I, submitted on November 20, 1963, includes a general statement of the bill, and a
general “sectional analysis,” followed by the inclusion of individual views expressed by various Members, and
additional majority and minority views. See id. at pt, 1, at 1-121. Citations in this overview to Part I are either to its
opening general statement, or its sectional analysis. Part II of H. REP . NO. 914 was submitted on December 2, 1963, and
reflects addit ional views on H.R. 7152 of William M. McCullough, John V. Lindsay, William T . Cahill, Garner E.
Shriver, Clark MacGregor, Charles Mathias, and James E. Bromwell. Because Part II contains a more detailed
discussion of the factual background and testimony presented before Congress, as discussed by proponents of H.R.
7152, than the general statement and sectional analysis in Part I, this overview often cites to Part II for such discussion.
17 See Hayes v. United States, 464 F.2d 1252, 1261 (5th Cir. 1972) (“House Report Number 914, November 20, 1963,
accompanied H.R. 7152, the version which eventually became the Civil Rights Act of 1964.”).
18 S. REP. NO. 88-872 (1964) (report from the Committee on Commerce, together with individual views, to accompany
S. 1732). T he Supreme Court, when addressing T itle II of the 1964 Act, has repeatedly cited this report. See, e.g.,
Katzenbach v. McClung, 379 U.S. 294, 299-300 (1964) (citing S. REP . NO. 872); Heart of Atlanta Motel, Inc. v. U. S.,
379 U.S. 241, 250, 252 (1964) (same).
19 T itle I was originally codified through various subsections in 42 U.S.C. § 1971. See Florida State Conf. of NAACP
v. Browning, 522 F.3d 1153, 1173 (11th Cir. 2008) (“Section 1971(a)(2)(B) was originally enacted as part of T itle I of
the Civil Rights Act of 1964”). T he provisions enacted through T itle I are now codified at 52 U.S.C. § 10101,
preceding the statutory provisions that comprise the Voting Rights Act of 1965, codified at 52 U.S.C. § 10301 et seq.
20 T he Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634 (codified as amended at 52 U.S.C. § 10101). T he
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The Civil Rights Act of 1964: An Overview

enforcement” of these earlier provisions.21 Title I was not the first time Congress amended the
1957 Civil Rights Act—it had previously done so through the Civil Rights Act of 1960.22 These
earlier legislative efforts, however, had failed to effectively “counteract state and local
government tactics of using, among other things, burdensome registration requirements to
disenfranchise African–Americans.”23 Title I thus amended the 1957 Act to “outlaw[] some of the
tactics used to disqualify Negroes from voting.”24
The voting provisions of Title I and the 1957 Civil Rights Act are distinct from the Voting Rights
Act of 1965 (VRA),25 and general y lesser known—a circumstance that some scholars have
attributed to the effectiveness of the VRA, which was enacted just a year after Title I.26 Provisions

1957 Civil Rights Act, which amended provisions of an earlier civil rights statute (see id. at 637), provided, among
other things, that: “All citizens of the United States who are otherwise qualified by law to vote at any election by the
people in any State, T erritory, district, county, city, parish, township, school district, municipality, or other territorial
subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous
condition of servitude; any constitution, law, custom, usage, or regulation of any State or T erritory, or by or under its
authority, to the contrary notwithstanding.” 52 U.S.C. § 10101(a)(1 ). T he 1957 Civil Rights Act also “authorized the
Attorney General to seek injunct ions against public and private interference with the right to vote on racial grounds.”
See South Carolina v. Katzenbach, 383 U.S. 301, 313 (1966) (describing voting provisions of the 1957 Act).
21 See H. REP. NO. 914, Part I at 19 (“Title I is designed to meet problems encountered in the operation and enforcement
of the Civil Rights Acts of 1957 and 1960, by which the Congress took steps to guarantee to all citizens the right to
vote without discrimination as to race or color.”). See also id., Part 2, at 3 (describing the “primary thrust of the 1957
and 1960 Civil Rights Acts” being “to guarantee and enforce voting rights”; stating that the “principal feature of the
1957 [A]ct” was to authorize the Attorney General to bring enforcement litigation “to end discrimination in voting
practices” while the 1960 Act “permitted the appointing of Federal referees to speed up registration after a pattern or
practice of discrimination had been found by a court”).
22 See Civil Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86. T he 1960 Act, among other things, amended the 1957
Civil Rights Act to permit States to be joined as defendants in voting rights litigation, to give “ the Attorney General
access to local voting records,” and to “authorize[] courts to register voters in areas of systematic discrimination.” See
South Carolina, 383 U.S. at 313. See generally Statutes Enforced by the Voting Section, Civil Rights Div., U.S. Dep’t
of Justice, https://www.justice.gov/crt/statutes-enforced-voting-section, (last visited Sept. 1, 2020) (“ The Civil Rights
Acts provide some of the early federal statutory protections against discrimination in voting. Certain of these
protections originated in the Civil Rights Act of 1870, and were later amended by the Civil Rights Acts of 1957, 1960,
and 1964. T he voting provisions of the Civil Rights Acts are codified at 52 U.S.C. 10101 & 52 U.S.C. 20701-20706
(formerly 42 U.S.C. 1971 & 1974).”).
23 See Florida State Conf. of NAACP v. Browning, 522 F.3d 1153, 1173 (11th Cir. 2008) (also stating that T itle I “was
at the time the latest entry in a spurt of federal enforcement of voting rights after a long slumber following syncopated
efforts during Reconstruction”).
24 See South Carolina, 383 U.S. at 313 (stating that, among other features, T itle I of the 1964 Act “outlawed some of
the tactics used to disqualify Negroes from voting in federal elections”). Such tactics included, for example, denying
voter registration to black voting applicants based on not listing “‘the exact number of months and days in his age’” or
requiring other such “trivial information” for the purpose of “inducing voter-generated errors that could be used to
justify rejecting applicants.” See Florida State Conf. of NAACP, 522 F.3d at 1173 (internal citation omitted). See also
H. REP . NO. 914, pt. 2, at 5 (stating that voting “ registrars [would] overlook minor misspelling errors or mistakes in age
or length of residence of white applicants, while rejecting” an application from a black applicant “for the same or more
trivial reasons.”).
25 Cf. 52 U.S.C. § 10101 (the voting provisions of the 1957 Civil Rights Act); 52 U.S.C. § 10301 et seq. (the statutory
provisions that comprise the Voting Rights Act of 1965).
26 See generally, Daniel P. T okaji, Public Rights and Private Rights of Action: The Enforcement of Federal Election
Laws, 44 IND. L. REV. 113, 138-40 (2010) (suggesting that the “ obscurity” of T itle I and other voting provisions of the
1957 Civil Rights Act is “partly attributable to the courts’ general refusal to imply a private right of action” to enforce
those provisions; also observing that the 1964 amendments enacted through T itle I “ might well have assumed greater
importance [] had Congress not enacted the V[oting] R[ights] A[ct of 1965] the next year,” which had “effectively
overwhelmed the system of disenfranchisement that had kept Southern blacks from voting since the end of
Reconstruction”). Brian K. Landsberg, Sumter County, Alabama and the Origins of the Voting Rights Act, 54 ALA. L.
REV. 877, 881-82 (2003) (discussing the voting provisions of the 1964 Act and stating that “ the combination of the
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The Civil Rights Act of 1964: An Overview

of Title I, however, continue to be litigated, including in recent years to chal enge state voter
registration practices.27
As discussed below, Title I added provisions28 prohibiting (1) the use of different standards for
qualifying voters;29 (2) certain uses of literacy or “interpretation” tests;30 and (3) the denial of the
right to vote based on immaterial errors in a registration or other voting document.31 In addition,
to “help meet the problem of lengthy and often unwarranted delays,”32 Title I of the 1964 Act
further amended the 1957 Civil Rights Act to expedite judicial review of voting cases.33
Legislative history reflects two constitutional bases for enacting Title I: Congress’s power to
enforce the Equal Protection Clause of the Fourteenth Amendment and to enforce the Fifteenth
Amendment of the Constitution.34 Relatedly, the Supreme Court has construed the voting
provisions of the 1957 Civil Rights Act as an exercise of Congress’s authority under the Fifteenth
Amendment.35

Mississippi summer of 1964 and the attack at the bridge in Selma” led to the Voting Rights Act of 1965 “before the
effectiveness of the 1964 Act could be tested” with respect to its voting provisions). Given these rationales for the
relative obscurity of T itle I, and changes to the VRA’s operation and enforcement resulting from the Supreme Court’s
2013 decision Shelby County v. Holder, 570 U.S. 529 (2013), which invalidated the VRA’s coverage formula, it may
be that T itle I’s provisions may see increased enforcement activity for challenging discrimination in the voting context.
For more information on the VRA, including its operation and enforcement following Shelby County, see CRS
T estimony T E10033, History and Enforcem ent of the Voting Rights Act of 1965 , by L. Paige Whitaker (Mar. 12, 2019).
27 See, e.g., Florida State Conf. of NAACP, 522 F.3d at 1158 (reflecting that plaintiffs alleged that a state statute
requiring “a new verification process as a precondition of voter registration ,” which involved a matching procedure that
was resulting in errors regarding individuals’ voting eligibility, “conflict[ed] with” T itle I of the 1964 Act, among other
statutory and constitutional claims). See also id. at 1172-75 (analyzing T itle I challenge). See also, e.g., Washington
Ass’n of Churches v. Reed, 492 F.Supp.2d 1264, 1266, 1270 (W.D. Wa. 2006) (reflecting that plaintiffs challenged a
state statute requiring a “ match [of] a potential voter’s name to either the Social Security Administration (“ SSA”)
database or to the Department of Licensing (“DOL”) database before allowing that person t o register to vote,” as a
violation of T itle I; concluding that the plaintiffs had “ demonstrated a likelihood of success on the merits” of their
claim that the state statute violated the “ materiality” provision, “ 42 U.S.C. § 1971(a)(2)(B)”). As noted earli er, 42
U.S.C. § 1971(a)(2)(B) is now codified at 52 U.S.C. § 10101(a)(2)(B).
28 T his overview of T itle I of the 1964 Act only discusses the statutory provisions that were amended by T itle I, and
does not address any other pre-existing provisions of the 1957 or 1960 Acts. T hose provisions included, for example, a
declaration that all U.S. citizens who are otherwise qualified by law to vote “shall be entitled and allowed to vote,”
“without distinction of race, color, or previous condition of servitude” (see 52 U.S.C. § 10101(a)(1)); a prohibition
against intimidation, threats, or coercion for the purpose of interfering with an individual’s right to vote ( see id. §
10101(b)); the grant of jurisdiction to federal district courts over civil actions brought under the voting section (see id. §
10101(d)); actions that a federal court must take upon finding a “pattern or practice” of discrimination ( see id. §
10101(e)); and the appointment of voting referees (see id.), among other topics.
29 See id. § 10101 (a)(2)(A).
30 See id. § 10101(a)(2)(C).
31 See id. § 10101(a)(2)(B).
32 See H. REP. NO. 914, pt. 1, at 19.
33 South Carolina, 383 U.S. at 313.
34 See H. REP. NO. 914, pt. 2, at 6 (citing the Equal Protection Clause of the 14th Amendment, Section 2 of the 15th
Amendment, and Article I of Section 8 of the Constitution as bases for enacting T itle I of the Civil Rights Act of 1964;
stating that “ through the use of the 15th amendment, Congress is vested with the authority in Section 2 to enact
appropriate legislation to enforce the provisions of the amendment,” and that “[u]nder the ‘equal protection’ clause of
the 14th amendment, Congress also has the authority to enact the voting provision of title I”).
35 See United States v. Mississippi, 380 U.S. 128, 138-40 (1965) (addressing the voting provisions of the 1957 Civil
Rights Act , and stating that they were “ passed by Congress under the authority of the Fifteenth Amendment to enforce
that Amendment’s guarantee, which protects against any discrimination by a State, its laws, its customs, or its officials
in any way”).
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General Background: Different Standards for Qualifying Black
Voters
The main objective of Title I, as reflected in House Report No. 914, was to address the
“[d]iscriminatory use of literacy tests and other devices by registration officials,” and prohibit
“disqualifying an applicant for immaterial errors or omissions in papers requisite to voting.”36
Describing such discriminatory practices, the Supreme Court observed that numerous states had
enacted literacy tests or other registration requirements “specifical y designed to prevent Negroes
from voting.”37 If white il iterate voters would be disqualified from voting based on such tests,
states had developed “alternate tests” in the form of “grandfather clauses, property
qualifications,” or “‘good character’ tests” to “assure” that il iterate white voters would stil be
able to vote.38 Later, as literacy rates increased among black citizens of voting age, the Court
observed that states began administering “interpretation” or “understanding” tests,39 which
required that applicants give, for example, “‘a reasonable interpretation’ of any section of the
State or Federal Constitution, ‘when read to him by the registrar.’”40 Besides being “given easy
versions” of both literacy and interpretation tests, white applicants for registration were
commonly “excused altogether” from taking or satisfying those tests, or “received extensive help
from voting officials.”41 Black applicants were typical y “required to pass difficult versions of al
the tests, without any outside assistance and without the slightest error.”42
Congress heard testimony regarding the unequal application of these tests43 and sought through
Title I to target methods “employed by some State or county voting officials to defeat Negro

36 See H. REP. NO. 914, p. 1, at 19.
37 South Carolina v. Katzenbach, 383 U.S. 301, 310 (1966) (identifying “ Alabama, Georgia, Louisiana, Mississippi,
North Carolina, South Carolina, and Virginia” as states that had “enacted tests still in use which were specifically
designed to prevent Negroes from voting”).
38 Id. at 310-13.
39 See United States v. Mississippi, 380 U.S. 128, 132-33 (1965) (stating that “[b]y the 1950’s a much higher proportion
of Negroes of voting age in Mississippi was literate”; also reflecting that by 1954, the state required that “an applicant
for registration had to be able to read and copy in writing any section of the Mississippi Constitution, and give a
reasonable interpretation of that section to the county registrar, and, in addition, demonstrate to the registrar ‘a
reasonable understanding of the duties and obligations of citizenship under a constitutional form of government’”). See
also, e.g., Louisiana v. United States, 380 U.S. 145, 149 (1965) (stating that “[b]eginning in the middle 1950’s
registrars of at least 21 parishes began to apply the interpretation test. In 1960 the State Constitution was amended to
require every applicant thereafter to ‘be able to understand’ as well as ‘give a reasonable interpretation’ of any section
of the State or Federal Constitution ‘when read to him by the registrar’”).
40 See Louisiana, 380 U.S. at 149-50 (stating that “the registrars, without any objective standard to guide them,
determine the manner in which the interpretation test is to be given, whether it is to be oral or written, the length and
complexity of the sections of the State or Federal Constitution to be understood and interpreted, and what interpretation
is to be considered correct”).
41 South Carolina, 383 U.S. at 312. As an illustration of how such tests were administered to disqualify black but not
white applicants, the Court noted that a white applicant had satisfied the requirement of being able “ to interpret the
state constitution by writing, ‘FRDUM FOOF SPET GH.’” See id., n. 12. (citing United States v. Louisiana, 225 F.
Supp. 353, 384 (E.D. La 1963), aff’d, 380 U.S. 145 (1965)).
42 South Carolina, 383 U.S. at 312.
43 See H. REP. NO. 914, pt. 2, at 5 (“Testimony shows that Negroes will be given long and difficult parts of the
Constitution to read, transcribe, and analyze, while whites will be assigned easy sections. Registrars have been known
to aid white registrants but ignore the Negro applicant. Similarly , registrars will overlook minor misspelling errors or
mistakes in age or length of residence of white applicants, while rejecting a Negro application for the same or more
trivial reasons.”).
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registration.”44 The legislative history of Title I also reflects concern that federal courts delayed
the adjudication of cases brought under the 1957 and 1960 Civil Rights Acts’ voting provisions to
curb these practices.45 Though the 1957 Civil Rights Act authorized the Attorney General to file
civil actions to enforce the statute’s voting rights provisions,46 House Report No. 914 reflects that
Congress was concerned that “certain district court judges ha[d] been less than enthusiastic in
their enforcement” of these earlier provisions, taking two or more years to issue decisions, and in
some cases, “refus[ing] to act in the face of convincing evidence.”47 The vehicles chosen for
addressing these practices through Title I are detailed below.
Title I Substantive Provisions
Mandating Uniform Standards for Qualifying Individuals to Vote
In the context of disparately applied voting registration practices, Title I amended the 1957 Civil
Rights Act to make it unlawful for any person acting under the color of law to “apply any
standard, practice, or procedure different from the standards, practices, or procedures applied
under such law or laws to other individuals within the same county, parish, or similar political
subdivision” to determine “whether any individual is qualified” to vote.48 Put another way, this
provision requires states and localities to use the same standards, practices, or procedures for al
individuals to determine their voting eligibility.49
Prohibition of Literacy or Interpretation Tests, with Exceptions
Title I also amended the 1957 Civil Rights Act to add a general prohibition against the use of
“any literacy test as a qualification for voting in any election.”50 A literacy test, as defined by Title
I, includes “any test of the ability to read, write, understand, or interpret any matter.”51 The
statutory provision, however, al ows the use of a literacy test if (1) it is administered to al
individuals, (2) “is conducted wholly in writing,” and (3) “a certified copy of the test and of the

44 See id., pt. 2, at 5.
45 See id., pt. 2, at 4-5.
46 See 52 U.S.C. § 10101(c) (providing that “the Attorney General may institute for the United States, or in the name of
the United States, a civil action or other proper proceeding for preventive relief, including an application for a
permanent or temporary injunction, restraining order, or other order”). See also supra notes 20-21.
47 See H. REP. NO. 914. pt. 2, at 4.
48 52 U.S.C. § 10101(a)(2)(A).
49 See id. § 10101(a)(2)(A).
50 See id. § 10101(a)(2)(C) (“No person acting under color of law shall…employ any literacy test as a qualification for
voting in any election unless (i) such test is administered to each individual and is conducted wholly in writing, and (ii)
a certified copy of the test and of the answers given by the individual is furnished to him within twenty -five days of the
submission of his request made within the period of time during which records and papers are required to be retained
and preserved pursuant to title III of the Civil Rights Act of 1960 [52 U.S.C. § 20701 et seq.]: Provided, however, T hat
the Attorney General may enter into agreements with appropriate State or local authorities that preparation, conduct,
and maintenance of such tests in accordance with the provisions of applicable State or local law, including such special
provisions as are necessary in the preparation, conduct, and maintenance of such tests for persons who are blind or
otherwise physically handicapped, meet the purposes of this subparagraph and constitute compliance therewith.”).
51 Id § 10101(a)(3)(B) (“the phrase ‘literacy test’ includes any test of the ability to read, write, understand, or interpret
any matter”).
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answers given by the individual is furnished to him within twenty-five days of the submission of
his request.”52
In addition, Title I created a “rebuttable presumption” to apply in a legal proceeding brought by
the Attorney General to chal enge a discriminatory voting practice, where “literacy is a relevant
fact.”53 In such cases, a person is presumed to “possess sufficient literacy, comprehension, and
intel igence to vote in any election,” if such individual “has not been adjudged an incompetent”
and has completed the sixth grade in a public school or an accredited private school “where
instruction is carried on predominantly in the English language.”54
Immaterial Errors or Omissions on Voting Applications, Registrations, or
Records
Title I also added a prohibition against denying a person’s right to vote based on errors or
omissions on “any record or paper relating to any application, registration, or other act requisite
to voting,” that “is not material” to determining whether the individual is qualified to vote.55 The
intent of this provision—sometimes referred to as the “materiality” provision56—was to prohibit
the use of “unnecessary information for voter registration” as “an excuse” for disqualifying
potential voters.57 This “materiality” provision continues to be litigated, including in recent
years58 (though federal courts disagree about the availability of a private right of action under
Title I, as discussed below).

52 See id. § 10101(a)(2)(C).
53 See id. § 10101(c) (providing that the Attorney General may institute a civil action or other proceeding for preventive
relief “[w]henever any person has engaged or . . . is about to engage in any act or practice which would deprive any
other person of any right or privilege secured by subsection (a) or (b),” and establishing a rebuttal presumption “ in any
such proceeding literacy is a relevant fact”).
54 See id.
55 52 U.S.C. § 10101(a)(2)(B) (“No person acting under color of law shall…deny the right of any individual to vote in
any election because of an error or omission on any record or paper relating to any application, registration, or other act
requisite to vot ing, if such error or omission is not material in determining whether such individual is qualified under
State law to vote in such election”). See also, e.g., Florida State Conf. of NAACP v. Browning, 522 F.3d 1153, 1173
(11th Cir. 2008) (describing this provision as prohibiting the denial of a person’s “ right to vote based on errors or
omissions that are not material in determining voter eligibility”).
56 See, e.g., Schwier v. Cox, 340 F.3d 1284, 1297 (11th Cir. 2003) (referring to 42 U.S.C. § 1971(a)(2)(B) , now
codified at 52 U.S.C. § 10101(a)(2)(B), as “the materiality provision”).
57 Id. at 1294. See also id. (citing, as an example, the disqualification of an applicant based on the failure to list the
exact number of months and days in his age on an application). See generally, Florida State Conf. of NAACP, 522 F.3d
at 1173 (“ Such trivial information served no purpose other than as a means of inducing voter -generated errors that
could be used to justify rejecting applicants.”); H. REP . NO. 914, pt. 2, at 5 (stating that voting “ registrars [would]
overlook minor misspelling errors or mistakes in age or length of residence of white applicants, while rejecting” an
application from a black applicant “for the same or more trivial reasons.”). While th e provision was intended to address
registration practices that had been used to disenfranchise black voters, it does not expressly refer to race. See 52
U.S.C. § 10101(a)(2)(B).
58 See, e.g., Florida State Conf. of NAACP, 522 F.3d at 1158 (reflecting that plaintiffs alleged that a state statute
requiring “a new verification process as a precondition of voter registration ,” which involved a matching procedure that
was resulting in errors regarding individuals’ voting eligibility, “conflict[ed] with” T itle I of the 1964 Act, among other
statutory and constitutional claims). See also id. at 1172-75 (analyzing T itle I challenge). See also, e.g., Washington
Ass’n of Churches v. Reed, 492 F.Supp.2d 1264, 1266, 1270 (W.D. Wa. 2006) (reflecting that plaintiffs challenged a
state statute requiring a “ match [of] a potential voter’s name to either the Social Security Administration (“ SSA”)
database or to the Department of Licensing (“DOL”) database before allowing that person to register to vote,” as a
violation of T itle I; concluding that the plaintiffs had “ demonstrated a likelihood of success on the merits” of their
claim that the state statute violated the “ materiality” provision, “ 42 U.S.C. § 1971(a)(2)(B)”). As noted earlier, 42
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The materiality provision does not define when an error is or is not “material” for determining
voter qualifications.59 Recent litigation under this provision has pressed federal courts to address,
for example, whether an applicant’s social security number is “material” or “not material,” for
registering to vote;60 or whether an individual’s unintentional failure to mark a check box on a
registration form is “material” such that a state or locality may deny voter registration on that
basis.61 With no clear statutory definition, and given that the term “material” is subject to various
meanings,62 federal courts have interpreted this Title I provision in different—and sometimes
conflicting—ways.63
Title I Enforcement
Expedited Judicial Review of Cases Brought by the Attorney General
As noted above, although the 1957 Civil Rights Act had expressly authorized the Attorney
General to file enforcement actions in federal court,64 there were reports of delays by federal
courts in adjudicating these claims.65 To expedite such adjudications, Congress amended the 1957
Civil Rights Act through Title I in two related respects.66

U.S.C. § 1971(a)(2)(B) is now codified at 52 U.S.C. § 10101(a)(2)(B).
59 See 52 U.S.C. § 10101(a)(2)(B).
60 See, e.g., Schwier v. Cox, 439 F.3d 1285, 1286 (11th Cir. 2006) (affirming district court’s conclusion that the state of
Georgia could not mandate disclosure of social security numbers “because such information is not ‘material’ to a voter
registration system” under T itle I); Diaz v. Cobb, 435 F.Supp.2d 1206, 1213 (S.D. Fla. 2006) (stating, without citation,
that a failure to provide a social security number is one type of error that is not material for T itle I purposes). Cf.
Florida State Conference of NAACP, 522 F.3d at 1155-57, 1174-75 (where Florida law required the inclusion of a
drivers’ license number or the last four digits of a social security number as “a precondition of registering to vote,”
holding that errors in transposing those numbers on a registration form were “material” under T itle I; interpreting the
Help America Vote Act of 2002 as indicating that “Congress deemed” identification numbers “material” for the
purpose of T itle I and adding that T itle I does not expressly require “a least -restrictive-alternative test for voter
registration applications”).
61 See, e.g., Diaz, 435 F.Supp.2d at 1208, 1211-14 (where plaintiffs alleged that several voter applications had been
improperly rejected for the inadvertent failure to check a box relating to mental incapacitation or a felony conviction,
concluding that “the questions posed by the check boxes” were material “as a matter of law” for the purposes of T itle I,
and interpreting a provision in the Help America Vote Act of 2002 as “ constitut[ing] a specific Congressional direction
to reject an application as incomplete for failure to check one of the boxes”). But see Washington Ass’n of Churches,
492 F.Supp.2d at 1268-71 (W.D. Wa. 2006) (interpreting the Help America Vote Act of 2002 to require verification of
a voter’s identity before casting or counting that person’s vote, “but not as a prerequisite to registering to vote,” and
concluding that the plaintiffs had demonstrated a likelihood of success on the merits of their claim that errors in
information that prevented Washingt on state from matching an applicant to another government database were not
material in determining whether that person was qualified to vote under Washington law.).
62 See, e.g., Florida State Conference of NAACP, 522 F.3d at 1173-74 (stating that the term “not surprisingly signifies
different degrees of importance in different legal contexts” and discussing two possible ways of construing
“materiality” in the context of T itle I’s provision and the substantially different legal outcomes, depending on wh ich
meaning of “materiality” is used).
63 See, e.g., supra notes 60 and 61.
64 See 52 U.S.C. § 10101(c) (“Whenever any person has engaged or there are reasonable grounds to believe that any
person is about to engage in any act or practice which would depriv e any other person of any right or privilege secured
by subsection (a) or (b), the Attorney General may institute for the United States, or in the name of the United States, a
civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary
injunction, restraining order, or other order.”); id. § 10101(d) (providing that “district courts of the United States shall
have jurisdiction of proceedings instituted pursuant to this section”).
65 See supra “General Background: Different Standards for Qualifying Black Voters,” p. 6.
66 See Pub. L. No. 88-352, 78 Stat. 242 (adding subsection (h) addressing expedited judicial review). T his subsection
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First, in a case al eging “a pattern or practice of discrimination,”67 Title I permits the Attorney
General or a defendant to request that a three-judge panel “hear and determine the entire case.”68
At least one panelist must be an appel ate court judge and at least one must be a district court
judge.69 The designated judges must assign the case for hearing “at the earliest practicable date,”
“participate in the hearing and determination” of the case, and “cause the case to be in every way
expedited.”70 The final judgment of the panel is directly appealable to the Supreme Court.71
Second, in certain other cases,72 Title I requires that the chief judge of the district where the case
is pending “immediately” designate a judge to the case.73 If no judge in the district is available,
the case must be designated to appel ate court judge of the circuit instead.74 Title I makes it “the
duty” of the designated federal judge to “assign the case for hearing at the earliest practicable date
and to cause the case to be in every way expedited.”75
Injunctive Relief
When the Attorney General files a civil action under Title I or other voting provisions of the 1957
and 1960 Civil Rights Acts, the action is “for preventive relief, including an application for a
permanent or temporary injunction, restraining order, or other order.”76 Thus, courts granting
relief for violations of these voting provisions, for example, have issued orders enjoining the
discriminatory practice at issue.77

was later re-designated through the VRA. See Pub. L. No. 89-110, § 15, 79 Stat. 445.
67 See 52 U.S.C. § 10101(g) (providing for the availability of a “three-judge court” in “any proceeding instituted by the
United States” in which “the Attorney General requests a finding of a pattern or practice of discrimination pursuant to
subsection (e) of this section”).
68 Id. (requiring that the request for the three-judge court “be immediately furnished” to the chief judge of the circuit, or
the presiding circuit judge of the circuit, in which the case is pending).
69 Id. See also H. REP. NO. 914, pt. 2, at 4-5 (expressing the view that a three-judge court would bring a “balanced and
broad range of views” to “bear upon a voting case,” which “should assure fewer instances of delay and a greater
willingness to safeguard the individual’s right to vote”).
70 52 U.S.C. § 10101(g).
71 Id. See also H. REP. NO.914, pt. 2, at 5 (conveying the view that “[b]y cutting down a layer of appeal, it is our hope
that the time will not be long distant when the issue of voter discrimination is behind us.”).
72 See 52 U.S.C. § 10101(g) (referring to “any proceeding brought under subsection (c) of this section to enforce
subsection (b) of this section, or in the event neither the Attorney General nor any defendant files a request for a three -
judge court in any proceeding authorized by this subsection”).
73 Id. (in the absence of the chief judge, making it the duty of the acting chief judge).
74 Id. (“In the event that no judge in the district is available to hear and determine the case, the chief judge of the
district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit . . . who shall
then designate a district or circuit judge of the circuit to hear and determine the case”).
75 Id.
76 See id. § 10101(c).
77 See, e.g., United States v. Atkins, 323 F.2d 733, 734-35, 745 (5th Cir. 1963) (in case alleging that racially
discriminatory voter registration practices violated the 1957 Civil Rights Act, directing the district court to enter an
order “enjoining the members of the Board of Registrars of Dallas County, and their successors in office, from
engaging in any act or practice intended to result or the probable effect of which would be to result in racial
discrimination in the registration for voting in Dallas County,” amon g other injunctive relief).
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Whether Individuals May Bring a Private Action to Challenge Discriminatory
Voting Practices
Though the 1957 Civil Rights Act, as amended, expressly authorizes the Attorney General to
bring litigation to enforce its voting rights provisions, the statute is silent on whether an
individual may bring a private right of action.78 Thus, federal appel ate courts have disagreed on
whether an individual may bring a private right of action al eging a violation of Title I or other
voting provision of the 1957 Civil Rights Act,79 including through 42 U.S.C. § 1983, which
permits individuals to bring a private action against persons acting under the color of state law for
constitutional or statutory violations.80 The U.S. Court of Appeals for the Eleventh Circuit, for
example, has held that a claim al eging a violation of Title I’s “materiality” provision may be
enforced through a private action brought under 42 U.S.C. § 1983.81 The U.S. Court of Appeals
for the Sixth Circuit, however, has adopted the opposite view, dismissing Title I claims brought
by private plaintiffs on the basis that the statute “is enforceable by the Attorney General, not by
private citizens.”82
As reflected above, Title I of the 1964 Act was motivated by concerns over voter registration
practices intentional y designed to disqualify black applicants, and the pace with which federal
courts were adjudicating voting cases. Though two other titles in the 1964 Act relate in some
manner to voting (Title V with respect to the U.S. Commission on Civil Rights’ investigations of
equal protection violations in the voting context, for example, and Title VIII relating to voting
statistics), Title I is the only title in the Act containing substantive requirements directed at
discrimination in the voting context.

78 See 52 U.S.C. § 10101.
79 See generally, e.g., Daniel P. T okaji, Public Rights and Private Rights of Action: The Enforcement of Federal
Election Laws, 44 IND. L. REV. 113, 140-41 (2010) (discussing federal case law on the question of the private
enforceability of the voting provisions of the 1957 Civil Rights Act and stating that “ [t]here is a split of authority in the
lower courts”) (footnotes omitted).
80 42 U.S.C. § 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or T erritory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress”).
81 Schwier v. Cox, 340 F.3d 1284, 1296-97 (11th Cir. 2003) (addressing 42 U.S.C. § 1971(c), now codified at 52
U.S.C. § 10101(c), and concluding that the statute’s voting rights provisions “ may be enforced by a private right of
action under § 1983”).
82 McKay v. T hompson, 226 F.3d 752, 756 (6th Cir. 2000) (dismissing claim alleging violation of the “materiality”
provision of T itle I of the 1964 Act, brought by a private plaintiff, on the basis that the provision “ is enforceable by the
Attorney General, not by private citizens”). See also Northeast Ohio Coal. for the Homeless v. Husted, 837 F.3d 612,
630 (6th Cir. 2016) (holding that plaintiff could not bring a private right of action alleging a violation of T itle I’s
materiality provision, as “ [w]e have held that the negative implication of Congress’s provision for enforcement by the
Attorney General is that the statute does not permit private rights of action” and that “McKay v. Thompson therefore
binds this panel”; also observing that “[a]nother circuit later reached the opposite conclusion” (citing Schwier v. Cox,
340 F.3d 1284, 1294–96 (11th Cir. 2003)).
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Title II: Addressing discrimination and segregation
in business establishments
Title II of the 1964 Act, divided into seven sections,83 addresses segregation and discrimination84
against individuals based on race, color, religion, or national origin, in the context of access and
service at various business establishments. Title II, as reflected in legislative history85 and
interpreted by the Supreme Court,86 was enacted based on Congress’s power to regulate interstate
commerce.87
As discussed below, Title II’s substantive protections are contained in its first three sections.88
The first section general y provides that al persons “shal be entitled to the full and equal
enjoyment” of goods and services of certain establishments that constitute places of “public
accommodation,” “without discrimination or segregation on the ground of race, color, religion, or
national origin.”89 Title II also prohibits discrimination or segregation where mandated by state or
local laws or rules, regardless of whether the establishment at issue constitutes a place of “public
accommodation” under the first section.90 A third section prohibits interference with those federal
statutory rights.91
General Background: Racial Segregation in Business and Travel
Racial segregation in the commercial context, often mandated by local law,92 commonly took
form in the wholesale exclusion of black citizens from business establishments designated as
“white only.”93 If black citizens sought service at these establishments or businesses, they were

83 See 42 U.S.C. §§ 2000a - 2000a-6.
84 See, e.g., id. § 2000a(a); id. § 2000a(b); id. § 2000a(d); id. § 2000a-1.
85 See S. REP. NO. 88-872, at 12-14 (discussing the Commerce Clause basis for the public accommodations provisions);
H. REP . NO. 914, pt. 2, at 8, 13 (discussing the constitutional bases for enacting T itle II as both the Equal Protection
Clause of the Fourt eenth Amendment and the Commerce Clause).
86 Heart of Atlanta Motel, 379 U.S. at 261-62 (upholding T itle II against a constitutional challenge asserting that
Congress exceeded its authority under the Commerce Clause to enact it with respect to hotels and m otels).
87 See U.S. CONST. art. I, § 8, cl. 3.
88 See 42 U.S.C. §§ 2000a(a), 2000a-1, 2000a-2.
89 Id. § 2000a(a).
90 Id. § 2000a-1.
91 Id. § 2000a-2.
92 See, e.g., Peterson v. City of Greenville, S.C., 373 U.S. 244, 246-47 (1963) (discussing a local South Carolina
ordinance that mandated racially segregated eating areas in “ any hotel, restaurant, cafe, eating house, boarding-house or
similar establishment”; reflecting that under the ordinance, meals ordered by black persons and white persons could be
served in the same room only where white and black persons were seated at a “ distance of at least thirty -five feet,” with
“separate eating utensils and separate dishes” used for white and black persons, which were required to be “distinctly
marked” as such, and where a separate facility was used to clean dishes and utensils used by white persons and black
persons). See also generally Regents of Univ. of California v. Bakke, 438 U.S. 265, 393 -94 (1978) (Marshall, J.,
concurring in part and dissenting in part) (stating that following the Supreme Court’s 1896 decision in Plessy v.
Ferguson, state and local laws permitting or mandating racial segregation “ expanded” to “ residential areas, parks,
hospitals, theaters, waiting rooms, and bathrooms,” including laws that “ authorized separate phone booths for Negroes
and whites, which required that textbooks used by children of one race be kept separate from those used by the other,
and which required that Negro and white prostitutes be kept in separate districts . . .Nor were the laws restricting the
rights of Negroes limited solely to the Southern States. In many of the Northern States, the Negro was. . .excluded from
theaters, restaurants, hotels, and inns.”).
93 See generally, e.g., Blow v. North Carolina, 379 U.S. 684, 684–85 (1965) (describing a roadside restaurant that
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often subject to arrest and criminal prosecution, and convicted and sentenced to fines or
imprisonment under state or local trespassing laws.94 Against this backdrop and leading up to the
1964 Act,95 Congress heard testimony regarding the daily forms of discrimination against black
citizens in public transportation, eating establishments, hotels, retail stores, markets, and other
places that catered to the general public but offered black individuals “either differentiated service
or none at al .”96
In addition, “voluminous testimony” before Congress provided “overwhelming evidence” of
discrimination against black travelers, including the routine denial of food and lodging services.97
In its 1964 decision Heart of Atlanta Motel v. United States,98 the Supreme Court observed that
this “uncertainty” of when and where one might find accommodations not only resulted in
economic harm—by impeding and discouraging interstate travel for “a substantial portion” of the

“served whites only and carried a sign to that effect on its front door”); Katzenbach, 379 U.S. at 297 (stating that the
defendant restaurant “has refused to serve Negroes in its dining accommodations since its original opening in 1927”);
Bouie v. City of Columbia, 378 U.S. 347, 348 -49 (1964) (describing drug store with several departments, including a
“restaurant department, which was reserved for whites”).
94 See, e.g., Bell v. State of Md., 378 U.S. 226, 228-29 (1964) (reflecting that petitioners, black students, went to a
Baltimore restaurant and were told they would not be served because of their race; that the restaurant owner went to the
police station to get warrants for their arrest; and that the students were arrested and subsequently convicted under a
state criminal trespass law); Bouie, 328 U.S. at 348-49 (reflecting that petitioners, black college students, were
convicted for criminal trespass under South Carolina law, after taking seats at a restaurant booth where they “continued
to sit quietly” waiting to be served, were refused service, and were then arrested after the owner called the police to
remove them); Lombard v. State of La., 373 U.S. 267, 268 -69 (1963) (reflecting that petitioners, three black college
students and one white college student, were arrested and convicted under a state trespass law; stating that the
petitioners had gone to a “ refreshment counter” where they “ sat quietly” to await service but were refused and told to
leave, and that the petitioners were then arrested after the manager closed the counter believing t he situation to
constitute an emergency; also reflecting that the petitioners were sentenced to prison time and fines); Peterson, 373
U.S. at 245-46 (reflecting that black petitioners were arrested and convicted for violating a state trespass statute for
sitting at a lunch counter reserved for white persons).
95 See United States v. Baird, 85 F.3d 450, 454-55 (9th Cir. 1996) (explaining that prior to Title II, “many
establishments generally open to the public” excluded groups based on race, color, religion, and national origin, and
thereby “established public badges of inferiority for the excluded groups, marking them as of lower social status”;
stating that “ [i]n response to almost a decade of massive demonstrations, freedom rides, and sit -ins, which swayed
public opinion throughout the nation, Congress used its power under the Commerce Clause to eliminate segregation of
public accommodations.”).
96 See, e.g., S. REP. NO. 88-872, at 15. See also Katzenbach v. McClung, 379 U.S. 294, 301 (stating that, in its 1964
companion decision Heart of Atlanta Motel v. United States, the Court had noted “ that a number of witnesses attested
to the fact that racial discrimination was not merely a state or regional problem but was one of nationwide scope”). See
also, e.g., id. at 299-300 (pointing to testimony by t he Under Secretary of Commerce, before the Senate Committee on
Commerce, attributing the “condition” of race-based discrimination in various establishments, which caused lower per
capita spending in those establishments by black patrons, to racial segregat ion).
97 Heart of Atlanta Motel, 379 U.S. at 253 (stating that conditions for black travelers were “so acute” that they
necessitated a “special guidebook” identifying the accommodations that would serve black travelers in different parts
of the country). See also S. REP . NO. 872, at 15-16 (quoting witness testimony describing the uncertainties during
travel; “I invite the members of this committee to imagine themselves darker in color and to plan an auto trip from
Norfolk, Va., to the gulf coast of Mississippi, say, to Biloxi . . . How far do you drive each day? Where and under what
conditions can you and your family eat? Where can they use a rest room? Can you stop driving after a reasonable day
behind the wheel or must you drive, until you reach a city where relatives or friends will accommodate you and yours
for the night? Will your children be denied a soft drink or ice cream cone because they are not white?”).
98 379 U.S. 241 (1964).
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black community99—but also “qualitative” harm.100 Black travelers were “subjected to or fear
discrimination in railroad, bus, and airlines terminals—thereby reducing interstate travel.”101
Relatedly, Congress received testimony that black commercial truck drivers were “not sent on
overnight trips in certain areas of the country because of a lack of rest accommodations.”102
The “primary purpose” of Title II’s public accommodations provisions was “to solve this
problem, the deprivation of personal dignity that surely accompanies denials of equal access to
public establishments.”103
Title II Provisions: “Full and Equal Enjoyment”
In a “Place of Public Accommodation”
Section 201 of Title II provides that “[a]l persons shal be entitled to the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and accommodations of any place of
public accommodation, as defined in this section, without discrimination or segregation on the
ground of race, color, religion, or national origin.”104 As discussed below, the statute expressly
identifies four types of establishments subject to this “public accommodations” provision.

99 Id. at 253. See also id. at 257 (stating that the fact that Congress addressed what it considered a “moral problem”
through T itle II “does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has
had on commercial intercourse”); Katzenbach, 379 U.S. at 299-300 (stating that “[t]he record is replete with testimony
of the burdens placed on interstate commerce by racial discrimination in restaurants” and discussing examples of such
effects; also stating that “there was an impressive array of testimony that discrimination in restaurants had a direct and
highly restrictive effect upon interstate travel by Negroes,” including that “ discriminatory practices prevent[ed]
Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants
and under most unsatisfactory and often unpleasant conditions. T his obviously discourages travel and obstructs
interstate commerce for one can hardly travel without eating.”).
100 See Heart of Atlanta Motel, 379 U.S. at 253 (in addition to the economic effects of racial discrimination on interstate
travel, pointing to the “ obvious impairment of the Negro traveler’s pleasure and convenience”). See generally, e.g., S.
REP. NO. 88-872, at 15 (1964) (Comm. Rep.) (quoting witness testimony ) (“ The truth is that the affronts and denials
that this section, if enacted, would correct are intensely human and personal. Very often they harm the physical body,
but always they strike at the root of the human spirit, at the very core of human dignity”).
101 H. REP. NO. 914, pt. 2 at p. 10.
102 Id.
103 See S. REP. NO. 88-872, at 16. See also, Heart of Atlanta Motel, 379 U.S. at 250 (“T he Senate Commerce
Committee made it quite clear that the fundamental object of T itle II was to vindicate ‘the deprivation of personal
dignity that surely accompanies denials of equal access to public establishments.’”). See also H. REP . NO. 914, pt. 1, p.
18 (generally discussing the proposed Act and stating that it “ would make it possible to remove the daily affront and
humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.”).
104 42 U.S.C. § 2000a(a).
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Covered Establishments That “Affect Commerce”
Section 201(a)105 identifies “four classes of business establishments”106 subject to Title II’s public
accommodations provision, if their “operations affect commerce, or if discrimination or
segregation by [them] is supported by State action.”107 Thus, an establishment must constitute a
covered business and affect commerce,108 to be subject to this provision’s requirements.109
Relatedly, Section 201(c) establishes the legal standard “for determining whether the operations”
of an establishment affects commerce under Title II.110 Section 201 also provides that an
enumerated establishment wil constitute a place of public accommodation under Title II if the
“discrimination or segregation by it is supported by State action.”111
The four categories of covered establishments under Section 201 are:
 Lodging for transient guests: “any inn, hotel, motel, or other establishment
which provides lodging to transient guests.”112 Establishments in this category
per se “affect commerce” under the statute, and do not require a separate showing
to that end.113
 Eating establishments: “any restaurant, cafeteria, lunchroom, lunch counter,
soda fountain, or other facility principal y engaged in sel ing food for
consumption on the premises, including, but not limited to, any such facility
located on the premises of any retail establishment; or any gasoline station.”114
An establishment in this category “affect[s] commerce” if it “serves or offers to
serve interstate travelers of a substantial portion of the food which it serves, or
gasoline or other products which it sel s, has moved in commerce.”115

105 Section 201 is codified at 42 U.S.C. § 2000a(a).
106 Heart of Atlanta Motel, 379 U.S. at 247 (describing T itle II’s list of “four classes of business establishments”).
107 42 U.S.C. § 2000a(b).
108 See, e.g., United States v. Lansdowne Swim Club, 894 F.2d 83, 86 (3d Cir. 1990) (“ Under the statute, a place of
public accommodation has two elements: first, it must be one of the statutorily enumerated categories of establishments
that serve the public, 42 U.S.C. § 2000a(b); second, its operations must affect commerce.”).
109 See also 42 U.S.C. § 2000a(c) (generally defining “commerce” as “travel, trade, traffic, commerce, transportation,
or communication” among states, between the District of Columbia and any State, between any foreign country,
territory, or possession and any State or the District of Columbia; or between points in the same State but through any
other State or the District of Columbia or a foreign country).
110 See 42 U.S.C. § 2000a(c) (for each category of covered establishments, identifying conduct that affects commerce).
See also Daniel v. Paul, 395 U.S. 298, 303 (1969) (“ Section 201(c) sets forth the standards for determining whether the
operations of an establishment in any of these categories affect commerce within the meaning of T itle II”).
111 See 42 U.S.C. § 2000a(b) (stating that the listed establishments constitute a place of public accommodation “if its
operations affect commerce, or if discrimination or segregation by it is supported by State action”). See also id. §
2000a(d) (“Discrimination or segregation by an establishment is supported by State action within the meaning of this
subchapter if such discrimination or segregation (1) is carried on under color of any law, statute, ordinance, or
regulation; or (2) is carried on under color of any custom or usage required or enforced by officials of the State or
political subdivision thereof; or (3) is required by action of the State or political subdivision thereof.”).
112 Id. § 2000a(b)(1). T he statute does not apply, however, to “an establishment located within a building which
contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such
establishment as his residence.” See id.
113 See id. § 2000a(c) (stating that the “operations of an establishment affect commerce within the meaning of this
subchapter” if it is one of the establishments described in paragraph (1) of subsection (b)). Cf. id. §2000a(b)(1).
114 Id. § 2000a(b)(2).
115 See id. §2000a(c). See, e.g., Daniel, 395 U.S. at 304-05 (concluding that a snack bar moved in interstate commerce,
as “three of the four food items sold at the snack bar contain[ed] ingredients originating outside of the State,” and that it
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 Entertainment establishments: “any motion picture house, theater, concert hal ,
sports arena, stadium or other place of exhibition or entertainment.”116 Such an
establishment “affect[s] commerce” if “it customarily presents films,
performances, athletic teams, exhibitions, or other sources of entertainment
which move in commerce.”117
 Entities physically located within and serving patrons of another covered
establishment: Distinct from the other three categories, this part of the statute
addresses entities that are either:
 located within another covered establishment under Title II (e.g., a
barbershop operating within a hotel118); or
 have, on its premises, a covered establishment “physical y located
within” it.119

Under either circumstance, if that entity “holds itself out as serving
patrons” of the otherwise covered establishment, it too is a covered
establishment.120 Relatedly, an establishment in this category
“affect[s] commerce” if “it is physical y located within the premises
of, or there is physical y located within its premises, an
establishment the operations of which affect commerce within the
meaning of this subsection.”121

offered to serve and served out -of-state persons); Blow v. North Carolina, 379 U.S. 684, 685 -86 (1965) (holding that
facts concerning defendant restaurant –that it was located on an interstate highway next to a motel owned by the same
person, that its menu and other advertising was posted in those motel rooms, and that it advertised on billboards along
the interstate highway, radio and newspapers–“ made it clear ‘that the restaurant ‘serves or offers to serve interstate
travelers’” and thus constituted a place of public accommodation within the meaning of T itle II). See generally, e.g.,
Katzenbach, 379 U.S. at 304 (stating that by prohibiting discrimination “ only in those establishments having a close tie
to interstate commerce, i.e., those, like the [defendant restaurant], serving food that has come from out of the State,”
“Congress acted well within its power to protect and foster commerce in extending the coverage of T itle II only to
those restaurants offering to serve interstate travelers or serving food, a substantial port ion of which has moved in
interstate commerce.”).
116 Id. § 2000a(b)(3).
117 See id. § 2000a(c).
118 See Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C., 397 F.2d 96, 100 ( 4th Cir. 1968) (“A typical
example of the situation at which this section is aimed is a barbershop operated within a hotel but under separate
management from the lodging establishment. In such a case, if the barbershop represented that it would service guests
of the hotel, the barbershop would become a ‘covered establishment.’”).
119 42 U.S.C. § 2000a(b)(4). See, e.g., Daniel, 395 U.S. at 305 (holding that a snack bar’s status as a covered
establishment affecting commerce rendered the 232 -acre recreational area in which the snack bar was located a covered
establishment under 42 U.S.C. §2000a(b)(4)).
120 See 42 U.S.C. § 2000a(b)(4).
121 Id. § 2000a(c).
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Retail and Other Establishments or Services
As noted above, in setting forth the categories of establishments covered by Title II, Section 201
provides il ustrative examples of the types of entities that fal under those categories. These
examples, however, are not exhaustive. For establishments not expressly listed in the statute,
courts engage in “a fact-intensive inquiry”122 that looks at whether the particular establishment in
question is similar enough in operation or nature to those expressly listed in the statute to fal
within one of the four categories,123 to constitute a business subject to Section 201. When
analyzing such questions, federal courts have more readily concluded that places offering
recreational activities (e.g., swimming, scuba diving, basketbal , ice skating, bowling, amusement
parks) may be covered under the statute as a “place of exhibition or entertainment.”124 The
absence of express identification in the statute, however, has led some courts to conclude that
certain establishments are general y not subject to Title II’s public accommodation provision,125
such as retail stores126 (ranging from sporting goods stores127 to car dealerships128), transportation
services (e.g., commercial airlines),129 banks,130 and salons,131 among others.132

122 See Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 431 (4th Cir. 2006).
123 See, e.g., Daniel, 395 U.S. at 301, 305-06 (holding that a 232-acre recreational lake facility that had amenities such
as “swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities, and a snack bar,” constituted a place
of entertainment under T itle II; rejecting the defendant’s argument that T itle II’s entertainment provision concerned
only places “ where patrons are entertained as spectators or listeners” rather than places in which patrons directly
participated in a sport or activity). Cf. Denny, 456 F.3d at 432 (distinguishing a hair salon, which in the court’s view
“primarily offer[ed] body maintenance services with tangential entertainment value,” from the recreational facility that
the Supreme Court held constituted a place of entertainment in Daniel v. Paul, where the “ raison d’etre [of that facility]
was to sell entertainment to its customers”) (citing Daniel, 395 U.S. at 301)).
124 See generally, e.g., Denny, 456 F.3d at 432-33 (citing and discussing other federal appellate decisions analyzing
whether certain types of businesses constituted a place of entertainment under T itle II). See also, e.g., United States v.
Allen, 341 F.3d 870, 877-88 (9th Cir. 2003) (holding that local park was a place of entertainment within the meaning of
T itle II, citing evidence including that the park was a place where local and national fundraising events were held,
where the symphony orchestra would perform, and pointing to the presence of playground equipment, picnic tables,
and barbeque grills on park grounds as other sources of entertainment); Smith v. Young Men’s Christian Ass’n of
Montgomery, Inc., 462 F.2d 634, 648 (5th Cir. 1972) (concluding that the “ recreational activities presented by the
Montgomery YMCA” rendered it a “place of entertainment” under T itle II’s public accommodation provision).
125 As noted earlier, even if a particular establishment does not fall within one of the first three categories of lodging,
eating, or entertainment, it may still be subject to T itle II under the fourth category if it has, located on its premises, a
covered establishment, and the entity “holds itself out as serving patrons of such covered establishment.” See 42 U.S.C.
§ 2000a(b)(4). See, e.g., Dombrowski v. Dowling, 459 F.2d 190 , 197-98 (7th Cir. 1972) (where plaintiff brought T itle
II claim against a commercial office building for refusing to rent to him based o n the race of his clientele, holding that
the district court erred in granting summary to the defendant, as the presence of a restaurant in the office building could
render the building a covered establishment under 42 U.S.C. § 2000a(b)(4), if the building held itself out as serving the
restaurant’s patrons).
126 See, e.g., Priddy v. Shopko Corp., 918 F.Supp. 358, 359 (D. Utah 1995) (concluding that Congress did not intend for
retail stores to be covered; pointing to statutory language in 42 U.S.C. § 2000a(b)(2) indicating that restaurants,
including those located within a retail store, constitute covered establishments and reasoning that if “ retail
establishments were also intended to be covered, there would be no need” for that additional statutory language
concerning restaurants within retail stores). Cf. Armstrong v. T arget Corporation, No. 10 -1340, 2010 WL 4721062, at
*3-4 (D. Minn. Nov. 15, 2010) (concluding that, though retail stores are not generally subject to T itle II’s public
accommodations provision, “the fact that T arget has a restaurant on its premises brings it within § 2000a(b)(4) and
makes it a covered establishment”). See generally Anne-Marie G. Harris, A Survey of Federal and State Public
Accom m odations Statutes: Evaluating Their Effectiveness in Cases of Retail Discrim ination , 13 VA. J. SOC. POL’Y & L.
331, 338, 341 (2006) (discussing T itle II and its absence of coverage for racial discrimination at retail stores).
127 See, e.g., Bishop v. Henry Modell & Co., 2009 WL 3762119, at *13 (S.D.N.Y. Nov. 10, 2009) (“The text of § 2000a
does not explicitly include retail establishments, see 42 U.S.C. § 2000a(b), and case law confirms that retail stores are
not places of public accommodation within the meaning of the prov ision.”) (collecting district court cases).
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Membership Organizations Closely Affiliated with a Physical Location
Apart from the question of whether Title II covers a particular type of business establishment, at
least two federal appel ate courts have addressed whether a membership organization may
constitute a “place of public accommodation” under the statute, regardless of whether it operates
a physical location open to the general public.133 Emphasizing the plain language of the statute
enumerating physical places, both the U.S. Court of Appeals for the Seventh and Ninth Circuits
have held that—absent a close affiliation or connection to a physical place open to the public134—
membership organizations standing alone do not constitute a “place” within the meaning of Title
II’s public accommodations provision.135 Based on the same rationale, the few federal courts to

128 See, e.g., Lewis v. Northland Chrysler Dodge Ram Jeep, 2014 WL 3054563, at *3 (E.D.Mich. July 7, 2014), aff’d
(Aug. 7, 2015) (dismissing plaintiff’s T itle II claim and concluding that “[p]lainly, car dealerships, like retail stores and
beauty salons, do not fall within” one of the four types of covered establishments “that count as places of public
accommodation”).
129 See, e.g., James v. Am. Airlines, Inc., 247 F.Supp.3d 297, 305-06 (E.D.N.Y. Mar. 31, 2017) (where plaintiff brought
a T itle II claim alleging racially discriminatory treatment on an American Airlines flight, dismissing her claim on the
basis that “ an aircraft is not a ‘place of public accommodation’”) (citing federal district court decisions addressing
whether a commercial airline is an establishment covered by T itle II); Kalantar v. Lufthansa German Airlines, 402
F.Supp.2d 130, 139 (D.D.C. 2005) (“ Among the four categories of places of public accommodation provided by T itle
II—places of lodging, places of eating, places of entertainment, and establishments located within or surrounding these
other three types of premises—none even remotely resembles an airline, or indeed any other vehicle or mode of
transportation.”).
130 See, e.g., Lowe v. ViewPoint Bank, 972 F.Supp.2d 947, 959 (N.D.T ex. 2013) (granting summary judgment on
plaintiff’s T itle II claim against defendant bank on the basis that “a bank is not a place of public accommodation” under
42 U.S.C. § 2000a(b)).
131 See, e.g., Denny, 456 F.3d at 433-34 (concluding that a salon was not a “place of entertainment” within the meaning
of T itle II and observing that “[b]arber shops and beauty salons are sufficiently common and pervasive that we cannot
casually attribute their omission [in the statute] to mere oversight”; by way of comparison, pointing to Congress’s
specific inclusion of beauty shops as a public accommodation covered by the Americans with Disabilities Act). T hough
beyond the scope of this report , even when relief is precluded under T itle II’s public accommodation provisions,
plaintiffs can assert a claim under 42 U.S.C. § 1981, which generally prohibits race -based discrimination in private
contracts. See, e.g., Denny, 456 F.3d at 434-47 (analyzing § 1981 claim and concluding that plaintiffs’ evidence created
a triable issue that the salon had refused to perform on a contract because of race).
132 See, e.g., Cuevas v. Sdrales, 344 F.2d 1019, 1021, 1023 (10th Cir. 1965) (stating that “ if the legislation were
intended to cover such places as bars and taverns, where the sale of drinks is the principal business, Congress would
have specifically included them”; also stating that “ generally, beer is considered a drink, and although it may be served
in eating places, a place serving only beer is not considered a restaurant, cafeteria, lunch room, lunch counter or soda
fountain”). Cf. United States v. DeRosier, 473 F.2d 749, 751-52 (5th Cir. 1973) (concluding that a neighborhood bar
was a place of entertainment subject to T itle II’s public accommodations section, based on the presence in the bar of a
juke box, shuffle board, and pool table “for the use and enjoyment of the bar’s patrons”).
133 See Clegg v. Cult Awareness Network, 18 F.3d 752, 755-56 (9th Cir. 1994); Welsh v. Boy Scouts of America, 993
F.2d 1267, 1269-75 (7th Cir. 1993).
134 See Welsh, 993 F.2d at 1272 (distinguishing between T itle II’s applicability to membership organizations “that are
closely connected to a facility or structure” such as the YMCA, and membership organizations “whose purpose is not
closely connected to a particular facility”).
135 See Clegg, 18 F.3d at 756 (“[W]e hold that T itle II covers only places, lodgings, facilities and establishments open
to the public, and applies to organizations only when they are affiliated with a place open to the public and membership
in the organization is a necessary predicate to use of the facility. When the organization is unconnected to entry into a
public place or facility, the plain language of T itle II makes the statute inapplicable.”); Welsh, 993 F.2d at 1269
(pointing to statutory language identifying “fifteen specific examples of regulated facilities” and concluding that the list
“reveals Congress’ intent to regulate facilities as opposed to gatherings of people”). See generally Ford v. Schering-
Plough Corp., 145 F.3d 601, 613 (3d. Cir. 1998) (stating that Title II’s prohibition against discrimination in places of
public accommodation “ has been limited to places rather than including membership in an organization” or an
“organization’s operations unconnected to any physical facility”) (citing Clegg, 18 F.3d at 755–56 and Welsh, 993 F.2d
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have addressed whether a web-based service could constitute a “place” covered by Title II have
held that they are not.136 Thus, for a membership organization to constitute a place of public
accommodation under Title II, several federal courts have required a showing that the
organization is closely affiliated with a physical location open to the public.137
Private Club Exemption
Title II’s public accommodation section specifical y identifies one category of place not subject to
Section 201’s requirements—“private club[s]” or “other establishment[s] not in fact open to the
public.”138 The intent of this exception, as described by the U.S. Court of Appeals for the Seventh
Circuit, “is to preserve the right of truly private organizations to maintain their unique
existence.”139 An establishment seeking shelter under the exception has the burden of proving that
it is not “open to the public.”140
Title II does not otherwise address or define what constitutes a private club or other establishment
“not in fact open to the public” that qualifies for this exemption.141 Case law, however, reflects
that federal courts have interpreted this exemption to require more than the mere assertion that an
establishment is a private club142 or evidence that certain membership criteria exist.143 As the

at 1269–75).
136 See Noah v. AOL T ime Warner, Inc., 261 F.Supp.2d 532, 541 -45 (E.D. Va. 2003), aff’d, No. 03-1770, 2004 WL
602711 (4th Cir. Mar. 24, 2004) (where plaintiff argued that AOL’s chat rooms were places of entertainment within the
meaning of T itle II, concluding that “ an examination the statute’s exhaustive definition make clear, ‘places of public
accommodation’ are limited to actual, physical places and structures, and thus cannot include chat rooms, which are not
actual physical facilities”); Ebeid v. Facebook, Inc., No. 18-07030, 2019 WL 2059662, at *6 (N.D.Ca. May 9, 2019)
(holding that Facebook is not a place of public accommodation within the meaning of T itle II on the basis that the
statute only covers physical establishments).
137 See supra notes 135-36.
138 See 42 U.S.C. § 2000a(e) (“The provisions of this subchapter shall not apply to a private club or other establishment
not in fact open to the public, except to the extent that the facilities of such establishment are made available to the
customers or patrons of an establishment within the scope of subsection (b).”).
139 See Welsh, 993 F.2d at 1277. See also, generally, Watson v. Fraternal Order of Eagles, 915 F.2d 235, 240 (6th Cir.
1990) (stating that “ [t]he reason for this particular exclusion is that private clubs often resemble places of public
accommodation by serving food and drink and providing entertainment for their guests”; adding that the exception does
not “give the clubs carte blanche to violate all other antidiscrimination laws” but “only exempts them from the
particular provisions of T itle II” and observing that suits can proceed against such establishments under other statutes
such as 42 U.S.C. § 1981 or state law).
140 See, e.g., Lansdowne Swim Club, 894 F.2d at 85 (stating that the establishment “has the burden of proving it is a
private club”); United States v. Richberg, 398 F.2d 523, 529 (5th Cir. 1968) (same).
141 See id. See also, e.g., United States v. Lansdowne Swim Club, 894 F.2d 83, 85 (3d Cir. 1990) (observing that “[a]
lthough the statute does not define ‘private club,’ cases construing the provision do offer some guidance”).
142 See, e.g., Richberg, 398 F.2d at 527-29 (discussing record evidence relating to the defendant’s contention that it was
a private club, and concluding that the diner “ was a club in name only, and a facade to permit [it] to continue in its
racially discriminatory ways of yesterday. A club must have substance”). See also id. at 528 (describing as instructive a
district court’s discussion of T itle II’s legislative history and quoting its conclusion that “it is clear that the only clubs
which meet the ‘factual’ test of the statute are those whose ‘membership is genuinely selective on some reasonable
basis.’ Specifically precluded from this exemption are ‘sham establishments’ which ‘are in fact open to the white public
and not to Negroes’”) (quoting United States v. Clarksdale, King & Anderson Co., 288 F.Supp. 792, 795 (N.D.
Miss.1965). See also, e.g., People of State of N.Y. by Abrams v. Ocean Club, Inc., 602 F.Supp. 489 , 490-91, 496
(E.D.N.Y. 1984) (in T itle II case alleging that an establishment discriminated against Jewish guests and Jewish
applicants for membership, rejecting the establishment’s contention that it was a private club).
143 See, e.g., T illman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431, 433, 438-440 (1973) (where membership
was defined by geographic area, limited in maximum number, and required formal board or majority members’
approval, holding that not -for-profit association which operated neighborhood pool facilities did not constitute a private
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Supreme Court observed in Daniel v. Paul, an establishment might refer to itself as a private club,
charge a nominal membership fee, and then routinely and openly grant membership cards to
white patrons but not black patrons, al as a “subterfuge designed to avoid coverage of the 1964
Act.”144
To determine, then, whether an establishment constitutes a bona fide “private club” under Title II,
federal courts have engaged in fact-specific analyses that consider various aspects of a given
establishment,145 including but not limited to:
 the establishment’s selectivity,146 such as evidence of its standards for
admission,147 the process required for membership,148 or whether the
establishment’s ultimate approval of a membership application reflects genuine
selectivity or is little more than a procedural formality;149
 whether the entity is publicly or privately financed, or is nonprofit or for profit;150

club within the meaning of T itle II; ordering the lower court, on remand, to evaluate the plaintiffs’ T itle II claim “ free
from the misconception that Wheaton-Haven is exempt”).
144 Daniel, 395 U.S. at 301-02.
145 See generally Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C., 397 F.2d 96, 101-02 (4th Cir. 1968) (“ In
determining whether an establishment is in fact a private club, there is no single test. A number of variables must be
examined in the light of the Act’s clear purpose of protecting only ‘the genuine privacy of private clubs . . . whose
membership is genuinely selective. . .’”) (quoting 110 Cong. Rec. 13697 (1964) (remarks of Senator Humphrey) ).
146 See Welsh, 993 F.2d at 1276-77 (stating that “ [i]n construing the private club exception of T itle II, courts have
properly placed great weight on the first factor, that of selectivity” and that a “pertinent factor regarding selectivity is
the nexus between the organization’s purpose and its membership requirements”).
147 See Nesmith, 397 F.2d at 102 (observing that private clubs typically have clearly articulated admission standards,
and contrasting that with the defendant YMCA, which had “no standards for admissibility” and as such, was “simply
too obviously unselective in its membership policies to be adjudicated a private club”). See also, e.g., Olzman v. Lake
Hills Swim Club, Inc., 495 F.2d 1333, 1336 (2d Cir. 1974) (rejecting club’s argument that it was not open to the
general public because it was only open to 110 residents out of 2,300 homeowners in the community; stating that “ if
limitation on the number of users were the [dispositive] test, every restaurant or night club limited by law or fire
regulations to a given number of occupants at a given time would be magically transformed into a ‘private club.’
Accordingly, we have no difficulty in . . . finding that the Lake Hills Swim Club, Inc., is not a ‘private club’ within the
meaning of § 2000a(e)”).
148 See, e.g., Lansdowne Swim Club, 894 F.2d at 85-86 (concluding that the criteria for admission were “not genuinely
selective,” where membership process for pool club required completing an application, submitting two letters of
recommendation, and paying fees). Cf. Welsh, 993 F.2d at 1276-77 (in the context of addressing T itle II claim alleging
exclusion based on religion—that is, the plaintiff’s lack of a belief in a supreme being—analyzing whether the Boy
Scouts was a private club exempt from T itle II and concluding that the membership commitment required by its
Constitution and Oath to “nurture belief in God, respect for one’s country and his fellow man, and being of good moral
character” sufficiently demonstrated the Boy Scouts’ selectivity).
149 See, e.g., Lansdowne Swim Club, 894 F.2d at 86 (addressing the defendant’s argument that membership approval
was a fifth factor to consider, and concluding that, even if treated as a fifth factor, the evidence of the organization’s
formal procedure of voting in new members failed to show genuine selectivity; pointing to evidence that the only
information given to members before voting on new member admission were applicants’ names, addresses, their
children’s names and ages, and the identities of the recommenders); Nesmith, 397 F.2d at 101 (discussing evidence that
though the YMCA has a membership committee, “ there are no prescribed or regularly used qualifications for
membership and no particular rules or regulations governing the committee’s activities” and noting that the
membership application “ asks only for the name, address and church affiliation of the prospective member” with no
interview apparently held or required).
150 See Welsh, 993 F.2d at 1277 (stating that the fact that the entity was a nonprofit organization “favor[ed] the private
club status” of the Boy Scouts); Smith, 462 F.2d at 648 (citing fact that the defendant receives “a substantial amount of
revenue from the general public” and “operates as a quasi-public agency” as supporting the conclusion that it was not a
private club within the meaning of T itle II).
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 the history or origin of the entity;151 and
 members’ activities,152 and whether or how it is controlled by members,153 among
other factors.154
Depending on these factors, if a court determines that an entity qualifies as a “private club”
within the meaning of Title II, the entity is not subject to the requirements of its public
accommodation provision.155
Barring State or Local Segregation Mandates
As discussed above, the applicability of Section 201 of Title II turns significantly on an
establishment’s characteristics to determine whether it constitutes a place of public
accommodation. By contrast, Section 202,156 which prohibits state-sponsored segregation, does
not turn on the category of establishment, but instead whether “discrimination or segregation is or
purports to be required by any law, statute, ordinance, regulation, rule, or order of a State… or
political subdivision thereof.”157 In other words, if a state or local law or rule can be said to
require “discrimination or segregation” based on race, color, religion, or national origin, Section
202 provides that “al persons shal be entitled to be free, at any establishment or place, from
discrimination or segregation of any kind” based on those protected traits.158
Among the few federal appel ate decisions interpreting and applying Section 202 is a 1967
decision from the U.S. Court of Appeals for the Fifth Circuit, Robertson v. Johnston.159 In
Robertson, a white female plaintiff al eged that the New Orleans police arrested her at a local bar
“to enforce a custom or usage of the City of New Orleans which forbids or discourages white
women from frequenting places that are predominantly Negro.”160 Though no city ordinance or
regulation was at issue, the court of appeals held that the text of Section 202 was “sufficiently

151 See, e.g., Lansdowne Swim Club, 894 F.2d at 86 (examining evidence relating to the origin of the pool club and
concluding that there was “ample evidence” to support the district court’s finding that it was n ot intended to be a
private club; citing facts including testimony that it was created to be a community pool, that organizers had solicited
area residents to join and had conducted public recruitment meetings, and that the club had accepted every family t hat
applied before its opening). See generally Welsh, 993 F.2d at 1277 (stating that another factor in the private club
analysis “considers the history” of the club.).
152 See, e.g., Richberg, 398 F.2d at 527 (given club’s asserted purposes, examining whether members’ activities
reflected any pursuit of those purposes and citing the absence of any meetings, committees, or planned member
“enterprises,” among other facts, as indicative that the club was not “private” within the meaning of T itle II; adding
“[a] cafe cannot, by drafting itself a set of by-laws, become an exempt club”).
153 See Welsh, 993 F.2d at 1276 (listing “the membership’s control over the operations of the establishment” as one of
seven factors it would consider to determine whether an entity is a private club under T itle II)
154 See id. (also listing factors such as “the use of facilities by nonmembers,” “the club’s purpose,” and “whether the
club advertises for members”).
155 See 42 U.S.C. § 2000a(e) (“The provisions of this subchapter shall not apply to a private club or other establishment
not in fact open to the public”).
156 42 U.S.C. § 2000a-1.
157 Id. § 2000a-1. See, e.g, T yson v. Cazes, 363 F.2d 742, 742, 744 (1966) (where public bar and lounge refused to
serve black patron and asked him to leave because of his race, and local ordinance had been in effect requiring separate
services for black and white patrons at public bars, stating that “ these two factors—the prohibitory ordinance and the
refusal to serve appellant on account of his race—[had] made the defendants’ conduct illegal under Section 203 of the
Civil Rights Act of 1964”).
158 42 U.S.C. § 2000a-1 (emphasis added).
159 Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967).
160 Id. at 44.
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broad to cover” a local custom of segregation or discrimination having the “force of a law,
ordinance, regulation, rule or order.”161 It was “readily apparent,” in the court’s view, that if the
plaintiff could show a local custom of “discrimination or segregation” that was required (or
purported to be required) by New Orleans officials, and that her arrest was to enforce that custom,
“she may wel be entitled to injunctive relief under” Section 202.162
A Prohibition Against Deprivation, Intimidation, or Punishment
Section 203 of Title II163 prohibits any person from depriving, or attempting to deprive an
individual of the rights secured by Sections 201 and 202, including through intimidation or
punishment.164 More specifical y, Section 203 makes it unlawful for any person to:
 “withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive
any person” of a right or privilege secured by Sections 201 and 202;
 “intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any
person with the purpose of interfering with any right or privilege secured by”
Sections 201 or 202; or
 “punish or attempt to punish any person for exercising or attempting to exercise
any right or privilege secured by” those sections.165
In general, Section 203 has served as the basis for court orders enjoining individuals from a range
of violent acts against black citizens for seeking service at covered establishments.166 In addition,
the Supreme Court has held that Section 203 forbids state or local prosecutions against
individuals for exercising their rights under Title II (e.g., seeking service at a segregated
establishment), based on trespassing or other local laws.167 When interference with an

161 Id. at 45, n. 5 (noting a definition of custom as a “practice of the people, which, by common adoption and
acquiescence, and by a long and unvarying habit, has become compulsory, and has acquired the force of law”) (citing
BLACK’S LAW DICTIONARY, 4th Ed. 1951, at 460 and 10 WORDS AND PHRASES 732 (Perm. Ed.); Cf. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 167-68 (1970) (discussing the statutory term “ custom” in 42 U.S.C. §1983 and interpreting
it to refer to practices of state officials, that either “by imposing sanctions or withholding benefits, transform private
predilections into compulsory rules of behavior” that have the force of law; stating that “Congress included customs
and usages within its definition of law in § 1983 because of the persistent and widespread discriminatory practices of
state officials in some areas of the post -bellum South”).
162 Robertson, 376 F.2d at 45. As the lower court had not analyzed the plaintiff’s claim under Section 2000a-1, the
court of appeals remanded the case to the district court for fact finding and analysis of a claim under that section. See
id. at 44-45.
163 42 U.S.C. § 2000a-2.
164 See id. (“No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive any
person of any right or privilege secured by section 2000a or 2000a–1 of this title, or (b) intimidate, threaten, or coerce,
or attempt to intimidate, t hreaten, or coerce any person with the purpose of interfering with any right or privilege
secured by section 2000a or 2000a–1 of this title, or (c) punish or attempt to punish any person for exercising or
attempting to exercise any right or privilege secured by section 2000a or 2000a–1 of this title.”).
165 See id.
166 See, e.g., U.S. by Katzenbach v. Original Knights of Ku Klux Klan, 250 F.Supp. 330, 340-42 (1965) (addressing
T itle II claim seeking an injunction against members of the Ku Klux Klan for interfering with the exercise of others’
rights under T itle II; reflecting that the interference included: making it a regular practice to go to “ places where they
anticipated that Negroes would attempt to exercise civil rights, in order to harass, threaten, and intimidate,” gathering a
group of about 30 white persons to attack black citizens and damage the car in which they were driving because they
sought service at a local gas station, “ brandishing clubs” while ordering black patrons to leave a local restaurant, and
attacking black citizens “with clubs, belts, and other weapons” to interfere with their enjoyment of a local park, among
other acts).
167 See Hamm v. City of Rock Hill, 379 U.S. 306, 311-12, 317 (1964) (concluding that Section 2000a-2 “prohibits
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individual’s Title II rights takes the form of a conspiracy by two or more persons to commit a
physical assault or attack, the perpetrators may face prosecution under 18 U.S.C. § 241, a federal
civil rights conspiracy statute.168
Title II Enforcement
Litigation by Private Individuals for Injunctive Relief & Attorney’s Fees Only
Section 204169 of Title II expressly provides that an aggrieved person may file a private right of
action to secure temporary or permanent injunctive relief halting the unlawful conduct.170 A
plaintiff who prevails on a Title II claim “cannot recover damages,”171 but a court “may al ow”
reasonable attorney’s fees for the prevailing party.172 The Supreme Court has interpreted Title II’s
fee provision to mean that a prevailing plaintiff “should ordinarily recover an attorney’s fees,”
with the exception being where “special circumstances would render such an award [to the
plaintiff] unjust.”173
Notably, Section 204 also provides that a federal court may appoint an attorney for the
complainant “[u]pon application by the complainant and in such circumstances as the court may

prosecution of any person for seeking service in a covered establishment, because of his race or color,” thereby
“immuniz[ing]” from prosecution “non-forcible attempts to gain admittance to or remain in establishments covered by
the Act”; vacating state court judgments and dismissing charges against black patrons who had been prosecuted under
South Carolina and Arkansas state trespassing statutes); Frinks v. North Carolina, 468 F.2d 639, 642 (4th Cir. 1972)
(“As Hamm made clear, the Civil Rights Act of 1964 protects persons who refuse to obey an order to leave public
accommodations, not only from conviction in state courts, but from prosecution in those courts.”) (emphasis in
original).
168 See, e.g., United States v. Allen, 341 F.3d 870, 873 (9th Cir. 2003) (reflecting facts of federal prosecution and
indictment of nine white defendants for interfering with the federally protected rights of Hispanic and black patrons
under T itle II, where the assailants “ surrounded them wielding weapons, berated them with racial epithets, and forced
them out of the park for no reason other than their race”). 18 U.S.C. § 241 generally prohibits two or more individuals
from conspiring to “ injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right
or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the
same,” and is punishable by fine or imprisonment.
169 42 U.S.C. § 2000a-3.
170 See id. § 2000a-3(a) (“Whenever any person has engaged or there are reasonable grounds to believe that any person
is about to engage in any act or practice prohibited by section 2000a–2 of this title, a civil action for preventive relief,
including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by
the person aggrieved”).
171 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968).
172 42 U.S.C. § 2000a-3(b) (“In any action commenced pursuant to this subchapter, the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United
States shall be liable for costs the same as a private person.”).
173 Newman, 390 U.S. at 402. In so holding, the Supreme Court observed that because the relief available under T itle II
is injunctive, and not monetary, “[i]f successful plaintiffs were routinely forced to bear their own attorneys’ fees, few
aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal
courts.” Id. “Congress therefore enacted the provision for counsel fees,” the Court explained, “to encourage individuals
injured by racial discrimination to seek judicial relief under T itle II.” Id. In reaching this conclusion, the Court also
expressly rejected a lower court’s interpretation that would have required additional evidence of bad faith on the part of
the defendant for a plaintiff to recover a reasonable attorney’s fee. Id. at 401 (where the court of appeals would have
granted fees “only to the extent that the respondents’ defenses had been advanced ‘for purposes of delay and no t in
good faith,’” holding that this standard did not “properly effectuate[] the purposes” of T itle II’s fee provision).
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deem just” and authorize the Title II action to proceed without the payment of fees, costs, or
security.174
Procedural Prerequisites for Filing Suit
Before filing a civil action under Title II, a plaintiff must satisfy certain procedural prerequisites if
the locality or state in which the conduct occurred also has public accommodation
antidiscrimination laws.175 Specifical y, Section 204 provides that if the al eged unlawful conduct
occurred in a state or locality that has such a law, and a state or local agency can grant or seek
relief or file criminal proceedings based on that conduct, a person must first provide “written
notice” of the al eged misconduct “in-person” or “by registered mail” to the state or local
agency.176 A person must then wait at least thirty days before filing a Title II lawsuit.177
Section 207178 further provides that federal district courts “shal have jurisdiction” over Title II
proceedings, and “shal exercise the same without regard to whether the aggrieved party shal
have exhausted any administrative or other remedies that may be provided by law.” Several
federal appel ate courts, however, have concluded that the procedural requirements of Section
204 (including written notification to a local agency) are jurisdictional in nature, meaning that a
person’s failure to adhere to those requirements renders the court without jurisdiction to hear the
matter.179
Referral to the Community Relations Service
Upon the filing of a Title II action in federal court, the statute gives a court discretion to “refer the
matter to the Community Relations Service” if the court “believes there is a reasonable possibility

174 42 U.S.C. § 2000a-3(a) (“Upon application by the complainant and in such circumstances as the court may deem
just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action
without the payment of fees, costs, or security.”).
175 See 42 U.S.C. § 2000a-3(c). See also Bilello v. Kum & Go, LLC., 374 F.3d 656, 658 (2004) (“ By its plain language,
42 U.S.C. § 2000a–3(c) requires notice to the state or local authority as a prerequisite to filing a civil action when a
state or local law prohibits discrimination in public accommodations and provides a remedy for such practice”).
176 42 U.S.C. § 2000a-3(c) (“In the case of an alleged act or practice prohibited by this subchapter which occurs in a
State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishin g
or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings
with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) before the
expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or
local authority by registered mail or in person, provided that the court may stay proceedings in such civil action
pending the termination of State or local enforcement proceedings.”).
177 Id. Cf. id. § 2000a-3(d) (“In the case of an alleged act or practice prohibited by this subchapter which occurs in a
State, or political subdivision of a State, which has no State or local law prohibiting such act or practice, a civil action
may be brought under subsection (a)”).
178 Id. § 2000a-6.
179 See, e.g., Bilello, 374 F.3d at 659 (holding that it “lack[ed] jurisdiction to review the district court’s dismissal” of the
plaintiff’s T itle II claim, because the plaintiff “ failed to notify the [Nebraska Equal Opportunity] Commission of the
alleged discriminatory public accommodation practice and policy”; further stating that “we join the Seventh and T enth
Circuits in holding these procedural prerequisites must be satisfied before we have jurisdiction over a section 200 0a
claim”); Stearnes v. Baur’s Opera House, Inc., 3 F.3d 1142, 1145 (7th Cir. 1993) (holding that the procedural
requirements of §2000a-3 are jurisdictional, and differentiating between § 2000a-3 and § 2000a-6 on the basis that the
latter is meant to indicate that a person who has already given notice to a state agency need not thereafter exhaust the
state-level remedy before a district court acquires jurisdiction over that person’s T itle II claim) (citing Harris v.
Ericson, 457 F.2d 765, 767 (10th Cir.1972)).
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of obtaining voluntary compliance.”180 The period for obtaining voluntary compliance cannot
exceed a total of 120 days.181 The Community Relations Service, a federal entity established by
Title X of the 1964 Act, is discussed in further detail later in this report.182
Exclusivity of remedies and litigation under other civil rights statutes
Section 207(b) states that “[t]he remedies provided in this subchapter shal be the exclusive
means of enforcing the rights based on this subchapter.”183 But immediately following that text,
the provision states that “nothing in this subchapter shal preclude any individual… from
asserting any right based on any other Federal or State law not inconsistent with this
subchapter…or from pursuing any remedy, civil or criminal, which may be available for the
vindication or enforcement of such right.”184 Over the years, there have been questions about the
import of Section 207’s reference to the exclusivity of Title II remedies.
In its 1968 decision United States v. Johnson,185 for example, the Supreme Court addressed
whether conspirators who had attacked black patrons at a restaurant for exercising their rights
under Title II could be criminal y prosecuted under 18 U.S.C. § 241, or could only be sued under
Title II for injunctive relief.186 The Court rejected the argument that, given the “exclusive-remedy
provision” of Title II, the assailants could only be subject to a civil suit for an injunction.187
Rather, the Court concluded that the provision was only intended to limit to injunction the penalty
against proprietors or owners for refusing to serve black patrons, and thus foreclosed criminal
prosecution of them on the basis of such refusals alone.188 The Court further reasoned that the
provision thus permitted the criminal prosecution of other individuals.189 As the assailants in
Johnson were not associated or connected to the proprietor or owner of the establishment,190 the
Court held that they could be criminal y prosecuted for their acts under 18 U.S.C. § 241.191 The

180 42 U.S.C. § 2000a-3(d) (providing that “the court may refer the matter to the Community Relations Service . . . for
as long as the court believes there is a reasonable possibility of obtaining voluntary compliance”).
181 Id. (providing that the period for obtaining voluntary compliance facilitated by the Community Relations Service
shall not be “for not more than sixty days,” and further providing that “upon expiration of such sixty -day period, the
court may extend such period for an additional perio d, not to exceed a cumulative total of one hundred and twenty
days, if it believes there then exists a reasonable possibility of securing voluntary compliance”).
182 See infra “T itle X: T he Community Relations Service.”
183 42 U.S.C. § 2000a-6(b).
184 Id.
185 390 U.S. 563 (1968).
186 See id. at 563-64.
187 Id. at 566-67.
188 Id. at 567 (stating that “the exclusive-remedy provision of s 207(b) was inserted only to make clear that the
substantive rights to public accommodation defined in s 201 and s 202 are to be enforced exclusively by injunction.
Proprietors and owners are not to be prosecuted criminally for mere refusal to serve Negroes.”).
189 Id. (stating that “the Act does not purport to deal with outsiders”).
190 See id. at 565 (stating that “no proprietor or owner is here involved. Outside hoodlums are charged with the
conspiracy.”).
191 See id. at 566-67 (stating that “[w]e refuse to believe that hoodlums operating in the fashion of the Ku Klux Klan,
were given protection by the 1964 Act for violating those ‘rights’ of the citizen that § 241 was designed to protect” and
that it could not “ imagine that Congress desired to give them a brand new immunity from prosecution under 18 U.S.C.
s 241—a statute that encompasses ‘all of the rights and privileges secured to citizens by all of the Constitution and all
of the laws of the United States’”) (internal quotation omitted).
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remaining text of Section 207, in the Court’s view, was also “evidence that it was not designed”
to preempt “every other mode of protecting a federal ‘right.’”192
Intervention or “Pattern or Practice” Enforcement Actions by the Attorney
General
Apart from a private right of action, Title II also authorizes the Attorney General to enforce Title
II in two ways: (1) intervening in a civil action filed by a private person al eging a violation of
Title II under Section 204;193 or (2) bringing a “pattern or practice” enforcement action under
Section 206 when “the Attorney General has reasonable cause to believe that any person or group
of persons is engaged in a pattern or practice of resistance to the ful enjoyment of any of the
rights” under Title II, and “the pattern or practice is of such a nature and is intended to deny the
full exercise of the rights.”194 The statute does not define what constitutes a “pattern or practice”
for the purposes of a Title II action.195
As with civil actions brought by private individuals under Title II, enforcement actions brought
by the Attorney General are limited to seeking injunctive relief.196
Expedited Judicial Review of “Pattern or Practice” Claims
If the Attorney General has filed a “pattern or practice” complaint, the Attorney General may
request that a three-judge district court panel be convened to hear the case.197 Much like the
procedures in Title I for the review of a voting rights claim, Section 206(b) of Title II provides
that upon request by the Attorney General, a panel of three judges (at least one circuit judge and
one district court judge) must be convened “at the earliest practicable date” to make a
determination on the claim and “to cause the case to be in every way expedited.”198 An appeal
from the final judgment of that three-judge panel goes directly to the Supreme Court.199
If the Attorney General has not requested a three-judge panel, a district court judge must
“immediately” be designated to hear the case,200 and if no district court judge is available, the

192 Id. at 566 (pointing to the remaining statutory text in Section] 207(b) providing that “ nothing in this title shall
preclude any individual or any State or local agency from asserting any right based on any other Federal or State law
not inconsistent with this title . . . or from pursuing any remedy, civil or criminal, which may be available for the
vindication or enforcement of such right ” as “ evidence that it was not designed as preempting every other mode of
protecting a federal ‘right’ or as granting immunity to those who had long been subject to the regime of [Section]
241.”).
193 42 U.S.C. § 2000a-3(a) (providing that “upon timely application, the court may, in its discretion, permit the
Attorney General to intervene in such civil action if he certifies that the case is of general public importance”).
194 Id. § 2000a-5(a).
195 See id. See generally, e.g., United States v. Jarrah, No. 16-02906, 2017 WL 1048123, at *2 (S.D. T ex. Mar. 20,
2017) (addressing T itle II pattern or practice action brought by the Department of Justice, and discussing and citing
cases reflecting that courts have “ reached different conclusions” regarding the evidence required in a “ pattern or
practice” claim, including “the relevance of frequency, numerosity or recency of discriminatory conduct”).
196 See 42 U.S.C. § 2000a-5(a) (providing that the Attorney General may request “preventive relief, including an
application for a permanent or temporary injunction, restraining order or other order against the person or persons
responsible for such pattern or practice”).
197 Id. § 2000a-5(b).
198 Id.
199 Id.
200 Id. (providing that “[i]n the event the Attorney General fails to file such a request in any such proceeding, it shall be
the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending
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chief judge of the circuit “shal then designate a district or circuit judge of the circuit to hear and
determine the case.”201 Whether a district or appel ate court judge, Title I makes it “the duty” of
the designated federal judge to “assign the case for hearing at the earliest practicable date and to
cause the case to be in every way expedited.”202
Title III: The Equal Protection Clause and De Jure
Segregated Public Facilities
Similar to Title II, Title III also concerns discrimination and segregation based on race, color,
religion, and national origin, but in “public facilities” rather than business establishments.203
Public facilities under Title III not only include facilities “owned” by a state or local subdivision,
but also those “operated” or “managed by or on behalf of” a state or local subdivision.204
Examples of public facilities include “parks, libraries, auditoriums, and prisons.”205
Despite their shared thematic focus on discrimination and segregation in certain public places,
Title III differs substantial y from Title II in its operation and enforcement. Unlike Title II, which
created interrelated statutory protections in the context of commercial businesses, the principal
thrust of Title III is the enforcement of constitutional protections against state actors.206 Rather
than create a new or complementary statutory right, al three sections of Title III207 relate to the
Attorney General’s enforcement of the Equal Protection Clause in the context of desegregating
public facilities.208 In addition, whereas Title II’s provisions addressing discrimination and

immediately to designate a judge in such district to hear and determine the case”).
201 Id. (providing that “[i]n the event that no judge in the district is available to hear and determine the case, the chief
judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit
(or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and
determine the case”). See also id. (stating that “[i] t shall be the duty of the judge designated pursuant to this section to
assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited”).
202 Id.
203 See id. § 2000b(a).
204 Id. § 2000b(a) (addressing the deprivation or threat of “the loss of [a person’s] right to the equal protection of the
laws, on account of his race, color, religion, or national origin, by being denied equal utilization of any public facility
which is owned, operated, or managed by or on behalf of any State or subdivision thereof, other than a public school or
public college as defined in section 2000c of this title”).
205 See Justice Manual (T itle 8-2.234), U.S. Dep’t of Justice, https://www.justice.gov/jm/jm-8-2000-enforcement-civil-
rights-civil-statutes#8-2.234, (describing the agency’s enforcement of T itle III of the 1964 Act and stating that the T itle
“prohibits discrimination on the basis of race, color, religion, or national origin in public facilities, such as parks,
libraries, auditoriums, and prisons”). At present, the Housing and Civil Enforcement Section within the Civil Rights
Division of the Department of Justice, enforces T itle III. See id.
206 See United States v. Guest, 383 U.S. 745, 781 (1966) (Brennan, J., concurring in part and dissenting in part)
(contrasting T itles III and IV of the 1964 Act, with T itle II, on the basis that T itles III and IV “ reflect the view that the
Fourteenth Amendment creates the right to equal utilization of state facilities. Congress did not preface those titles with
a provision comparable to that in T itle II explicitly creating the right to equal utilization of cert ain privately owned
facilities. Congress rightly assumed that a specific legislative declaration of the right was unnecessary, that the right
arose from the Fourteenth Amendment itself.”). See also, e.g., H. REP. NO. 914, pt. 1, at 18 (generally stating that
various parts of the bill that would become the 1964 Act “ would open additional avenues to deal with redress of denials
of equal protection of the laws on account of race, color, religion, or national origin by State or local authorities”).
207 See 42 U.S.C. §§ 2000b, 2000b-1, 2000b-2.
208 See H. REP. NO. 914, pt. 1, at 22 (generally describing T itle III in the following terms: “T his title would authorize
the Attorney General under certain circumstances to bring suit to desegregate public facilities (other t han schools)
which are owned or operated by State or local governmental units” and “ would also authorize the Attorney General to
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segregation in business establishments are rooted in Congress’s power to regulate interstate
commerce,209 legislative history reflects an understanding that Congress enacted Title III pursuant
to Section 5 of the Fourteenth Amendment,210 which grants Congress the “power to enforce, by
appropriate legislation,” the protections and guarantees of the Fourteenth Amendment.211
General Background: Racial Segregation in Public Park Systems,
Libraries, and Other Public Facilities
The enforced exclusion of black citizens from public facilities such as libraries, parks, and
museums was another common condition of racial segregation in the United States.212 As with
commercial establishments, when black citizens sought access or service at such public facilities,
they were sometimes subject to arrest, conviction, and criminal penalties.213
By the time the 1964 Act was enacted, the Supreme Court and lower courts had already held that
racial segregation in a state or local government-owned or operated facility—whether that be a
segregated court room, public library, or public park—violated the Equal Protection Clause of the

intervene in pending actions in the Federal courts seeking relief from discriminatory practices by State and local
governmental units or officers.”). T he Equal Protection Clause of the Fourteenth Amendment provides that: “ No
state… shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.
209 See supra notes 85-86.
210 See H. REP. NO. 914, pt. 2, at 15 (stating that Title III is “ a valid and necessary implementation of the 14th
amendment”).
211 U.S. CONST. amend. XIV, § 5.
212 See, e.g., Anderson v. City of Albany, 321 F.2d 649, 650, 653 -54 (5th Cir. 1963) (concluding that the evidence was
“clear” that the facilities owned and operated by the city, including the city’s library, auditorium, public parks, and
recreational facilities were segregated by race such that certain facilities excluded black patrons altogether or required
that patrons be seated or served based on their race); Cobb v. Montgomery Library Bd., 207 F.Supp. 880, 884 (M.D.
Ala. 1962) (concluding that the city defendants “ have in the past and are at the present time pursuing a policy, custom
or usage which provides for t he enforced exclusion of members of the Negro race in the use of the public library
system and in the public museum”); Shuttlesworth v. Gaylord, 202 F. Supp. 59, 61, 64 (N.D. Ala. 1961), aff’d sub nom.
Hanes v. Shuttlesworth, 310 F.2d 303 (5th Cir. 1962) (permanently enjoining city defendants from continuing its race-
based exclusion of and discrimination against black citizens in the city’s public park system, th e Birmingham Museum
of Art, the Municipal Auditorium of the City of Birmingham, city ball parks and golf courses, zoo grounds, tennis
courts, swimming pools, and playgrounds; observing that the “ separation of races in the use of parks, swimming pools,
tennis courts, golf courses and all the attending facilities located on these parks and playgrounds was so apparent that
each of the supervisors of the Park and Recreation Board could identify each park on the basis of race”). See also
Regents of Univ. of California v. Bakke, 438 U.S. 265, 394 (1978) (Marshall, J., concurring in part in the judgment)
(describing conditions of racial segregation in federal government buildings and stating that “ even the galleries of the
Congress were segregated.”).
213 See, e.g., Brown v. Louisiana, 383 U.S. 131, 135-39, 143 (1966) (where regional public library system did not allow
black patrons to use branch locations, but instead issued “Negro” library cards to be used exclusively at a
“bookmobile” designated for black patrons, reversing the convictions of black petitioners who went to a library branch
location, “ sat and stood in the room, quietly,” and were subsequently arrested by the local sheriff for refusing to leave;
noting “that petitioners’ presence in the library was unquestionably lawful. It was a public facility, open to the
public.”); Shuttlesworth, 202 F. Supp. at 61 (discussing evidence of “ city ordinances requiring the separation of races in
play as well as in the use of public recreational facilities,” and which “impose[d] criminal penalties upon both the
participants and the owner or supervisor of the facilities involved”).
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Fourteenth Amendment.214 In its 1963 decision Watson v. City of Memphis,215 for example, the
Supreme Court addressed the “unmistakable and pervasive” racial segregation of the city of
Memphis’ municipal public park and recreation system.216 That such racial segregation was
unconstitutional, the Court stated, was clear, pointing to its 1955 decision Dawson v. Mayor and
City Council of Baltimore in which “the constitutional proscription of state enforced racial
segregation was found to apply to public recreational facilities.”217
Though individuals may sue for constitutional violations, as was the case in Watson,218 legislative
history relating to Title III reflects a concern that such recourse was “only available to private
persons who are able through their own resources to obtain justice.” 219 Under this view,
“implementing legislation” such as Title III, which authorized the Attorney General to file such
suits, was “required if the Federal Government is to have the power to protect their rights,”220
particularly where an individual would be unable, or constrained, to bring litigation on his or her
own.221

214 See, e.g., Johnson v. Virginia, 373 U.S. 61, 62 (1963) (addressing an Equal Protection Clause challenge by a black
petitioner to his arrest and conviction for contempt, which was based solely on h is refusal to sit in the section of a
segregated traffic court room which had been designated for blacks; concluding that “ [s]uch a conviction cannot stand,
for it is no longer open to question that a State may not constitutionally require segregation of public facilities”); New
Orleans City Park Imp. Ass’n v. Detiege, 252 F.2d 122, 123 (5th Cir.), aff'd sub nom . New Orleans City Park
Improvement Ass’n v. Detiege, 358 U.S. 54 (1958) (holding that the race-based exclusion of black citizens from a
public park violated the Equal Protect ion Clause and stating that “ Courts have decided that the refusal of city and state
officials to make publicly supported facilities available on a non -segregated basis to Negro citizens deprives them of
equal protection under the laws in too many cases for us to take seriously a contention that such decisions are erroneous
and should be reversed”); Anderson, 321 F.2d at 653-54 (where district court dismissed claims of black petitioners
which challenged various forms of racial segregation in the city’s public facilities, including the public library and
auditorium, concluding that the record evidence “ so clearly convinces us that, upon application of the proper legal
principles,” the trial court had no discretion to deny the injunction sought by the petitioners”; stating that “ it has been
‘obvious that racial segregation in recreational activities can no longer be sustained as a proper exercise of the police
power of the State’”) (quoting Dawson v. Mayor & City Council of Baltimore City, 220 F.2d 386, 387 (4th Cir.), aff’d,
350 U.S. 877 (1955)).
215 373 U.S. 526 (1963).
216 Id. at 534-35 (reflecting that the city’s racially segregated park and recreation system consisted of approximately
131 parks, 61 playgrounds, 12 municipal communit y centers, and other facilities including a museum, seven city golf
courses, boating areas, and a zoo).
217 Id. at 529 (citing Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386 (4th Cir.), aff’ d, 350 U.S. 877
(1955), and Muir v. Louisville Park T heatrical Ass’n, 347 U.S. 971 (1954)).
218 See, e.g., id. at 528 (reflecting that the civil action was filed by black residents of Memphis for “ declaratory and
injunctive relief directing immediate desegregation of municipal parks and other city owned or operated recreational
facilities from which Negroes were then still excluded”).
219 H. REP. NO. 914, pt. 2, at 15-16.
220 See id. at 17 (adding that “No man should be forced to bear unwarranted discrimin ation and thus be denied the equal
protection of the law because he cannot fully invoke in a court of law the constitutional protections that are his by
right.”).
221 See id. at 15-16 (“[W]e have sought in T itle III to authorize the Attorney General to upho ld the rights of the
individual where he is unable to protect himself”). Accordingly, and as discussed in further detail in this report, the
Attorney General must certify, before filing a T itle III action, that the individual(s) for which relief is being sought are
either “unable . . . to bear the expense of the litigation or to obtain effective legal representation” or that “the institution
of such litigation [by such individuals] would jeopardize the personal safety, employment, or economic standing of
such person or persons, their families, or their property.” See 42 U.S.C. § 2000b(b).
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Title III: Provisions
Enforcement Actions by the Attorney General
Section 301222 of Title III authorizes the Attorney General to file a civil action “for or in the name
of the United States” upon receiving a written and signed complaint al eging that an individual is
“being denied equal utilization of any public facility which is owned, operated, or managed by or
on behalf of any State” or local subdivision based on race, color, religion, or national origin and is
thereby “being deprived of or threatened with the loss of his right to the equal protection of the
laws.”223 Title III concerns the threat of loss or denial of the “right to the equal protection of the
laws”224 and thus enforces the Equal Protection Clause.225
Prerequisites to Suit
Section 301 also identifies certain conditions that must be met before the Attorney General may
bring a Title III enforcement action. When these conditions are met, the Attorney General may
file suit directly “in any appropriate district court of the United States.”226
The first condition is the receipt of a written and signed complaint that al eges the denial of equal
use of or access to a public facility based on race, color, religion, or national origin.227 To file suit
pursuant to the complaint, the Attorney General must:
 “believe[] the complaint is meritorious”; and
 certify:
 “that the signer or signers of such complaint are unable, in his
judgment, to initiate and maintain appropriate legal proceedings for
relief”;228 and
 that filing a civil action “wil material y further the orderly progress
of desegregation in public facilities.”229

222 42 U.S.C. § 2000b(a).
223 See id.
224 See id. (excepting “a public school or public college as defined in section 2000c of this title” from the definition of
public facilities under T itle III).
225 See generally, e.g., H. REP. NO. 914, pt. 1, at 22 (describing the Attorney General’s ability to file suit upon receiving
a “signed complaint regarding a denial of equal protection of the laws”); United States v. Wyandotte County, Kan., 480
F.2d 969, 970 (10th Cir. 1973) (reflecting that the Attorney General challenged the race -based segregation of inmates
in a county jail as violations of both T itle III of the 1964 Act and the Equal Protection Clause of the Fourteenth
Amendment).
226 42 U.S.C. § 2000b(a) (additionally stating that federal district courts “shall have and shall exercise jurisdiction of
proceedings instituted pursuant to this section”).
227 Id. See also id. § 2000b-3 (defining “complaint” as “ a writing or document within the meaning of section 1001, title
18”).
228 See id. § 2000b(a). See also id. § 2000b(b) (“T he Attorney General may deem a person or persons unable to initiate
and maintain appropriate legal proceedings within the meaning of subsection (a) of this section when such person or
persons are unable, either directly or through other interested persons or organizations, to bear the expense of the
litigation or to obtain effective legal representation; or whenever he is satisfied that the institution of such litigation
would jeopardize the personal safety, employment, or economic standing of such person or persons, their families, or
their property.”).
229 See id. § 2000b(a). See also, e.g., H. REP. NO. 914, pt. 1, at 22 (describing this prong as certification by the Attorney
General “ that the initiation of a suit by the United States will further the national public policy favoring progress in
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Though there appears to be little case law addressing these conditions to file suit under Title III,
House Report No. 914 reflects the view that the determinations made by the Attorney General in
deciding to go forward with a suit were not intended to be reviewable.230
Remedies, Costs, and Private Litigation
Section 301(a) general y provides that the Attorney General may seek “such relief as may be
appropriate.”231 Because Title III concerns the Attorney General’s enforcement of the Equal
Protection Clause, it would appear that the remedies and relief for a Title III violation are the
same as those that a federal court may order for an Equal Protection Clause violation.232 That
relief might include, for example, an injunction ordering the halt of unconstitutional conduct or
mandating that specific actions be taken to effectuate or implement redress for the individuals
harmed by the unconstitutional conduct, among other relief that a federal court generally has
broad discretion to order.233
Should a defendant prevail in a Title III action, Section 302 provides that “[i]n any action or
proceeding under this subchapter the United States shal be liable for costs, including a
reasonable attorney’s fee, the same as a private person.”234
More general y, while Title III is enforced by the Attorney General, this federal enforcement does
not preclude or impede individuals from seeking relief for discrimination or segregation based on
race, color, religion, or national origin in public facilities. Section 303 provides that nothing in the

desegregation of public facilities”).
230 See H. REP. NO. 914, pt. 1, at 22. See also, e.g., id. at pt. 2, at 22. T he report also expressed the view of several
Members that these criteria were intended to “ circumscribe” the litigation of the Attorney General to avoid federal
enforcement in every case alleging an Equal Protection violation in the public facilities context. See id., pt. 2, at 16
(stating that “ in order to avoid the Attorney General from becoming a gratuitous public counsel for all who claim a
denial of equal protection of the laws, this provision is worded to circumscribe the Attorney General’s activities to only
these most necessitous of circumstances. Not only must the complainant be unable to initiate and maintain legal
proceedings for defined reasons, but the Attorney General must find that the institution of an action will materially
further the public policy of the United States.”).
231 42 U.S.C. § 2000b(a). Cf. id. § 2000a-3 (injunctive relief only) and § 2000a-6.
232 See, e.g., Wyandotte Cnty., 480 F.2d at 970-72 (in a case brought by the Attorney General alleging that a county
jail’s race-based assignment of inmates violated T itle III and Equal Protection Clause and seeking injunctive relief,
analyzing the claims without differentiating between the two).
233 See, e.g., Gates v. Collier, 501 F.2d 1291, 1295-96 (5th Cir. 1974) (where racially discriminatory and segregated
prison conditions, among other conditions, violated various constitutional rights including under the Eighth and
Fourteenth Amendments, upholding the district court’s order of injunctive relief, which included an order that the
defendants “ submit ‘a comprehensive plan for the elimination of all unconstitutional conditions in inmate housing,
inadequate inmate housing, inadequate water, sewer and utilities, inadequate firefighting equipment, inadequate
hospital and other structures condemned by this court ,’” among other ordered relief). See generally, Smith v. Young
Men’s Christian Ass’n of Montgomery, Inc., 462 F.2d 634 , 636, 643 (5th Cir. 1972) (where plaintiffs brought an Equal
Protection Clause challenge to various practices of race-based segregation and exclusion in branches of the YMCA,
affirming most aspects of district court’s order, including a prohibition of the construct ion of any new branches on a
site that “may tend to perpetuate the past policies and practices of racial segregation,” the requirement that the YMCA
notify by letter “‘each and every member’” that each YMCA branch, program, and activity “‘is open to members of all
races’”; the requirement that the YMCA include in “‘every advertisement, and in every brochure, pamphlet or poster,
publicizing the Montgomery YMCA or any of its activities a statement that such programs and activities are open to
members of all races,’” and the requirement that the YMCA submit a detailed plan on how it would eliminate its
segregated memberships and activities, including addressing representation of black citizens on YMCA’s city-wide
Board of Directors and other governing bodies).
234 42 U.S.C. § 2000b-1.
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title “shal affect adversely the right of any person to sue for or obtain relief in any court against
discrimination in any facility covered by this subchapter.”235
Title IV: The Equal Protection Clause and De Jure
Segregated Public Schools and Colleges
Title IV of the 1964 Act, like Title III, addresses federal enforcement of the Equal Protection
Clause. While Title III focuses on the desegregation of public facilities, Title IV addresses
desegregation in the context of public education. The Supreme Court has read the “language and
the history of Title IV” to show that Congress enacted it to define the federal government’s role in
implementing the mandate of the 1954 Brown v. Board of Education decision holding that racial y
segregated public schools violate the Equal Protection Clause.236 Thus, Title IV concerns
desegregation that dismantles state-imposed, or de jure, segregation, not “racial imbalance”
disconnected from “discriminatory action of state authorities.”237
More specifical y, Title IV authorizes litigation by the Attorney General to address the deprivation
of equal protection of the laws in public schools and colleges238 so as to further
“desegregation.”239 Title IV also provides for federal funding and technical assistance to facilitate
such school desegregation.240 “Desegregation,” for Title IV purposes, refers to “the assignment of
students to public schools and within such schools without regard to their race, color, religion, sex
or national origin.”241 As original y enacted, Title IV defined desegregation based on “race, color,
religion, or national origin,” and was amended in 1972 to add “sex” to the definition of

235 Id. § 2000b-2.
236 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (stating that T itle IV was enacted “to define
the role of the Federal Government in the implementation of the Brown I decision”). See also Brown v. Bd. of Educ.,
347 U.S. 483, 486-88, (1954) (addressing consolidated cases challenging the denial of “ admission to schools attended
by white children under laws requiring or permitting segregation according to race,” and holding that race-based
segregation in public education violates the Fourteenth Amendment’s Equal Protection Clause). See also H. REP . NO.
914, pt. 2, at 17 (discussing T itle VI as implementing the Supreme Court’s 1954 Brown v. Board of Education
decision).
237 See Swann, 402 U.S. at 17-18 (citing T itle IV provisions referring to racial balancing, and concluding that these
references were included to foreclose a reading of T itle IV “ as creating a right of action under the Fourteenth
Amendment in the situation of so-called ‘de facto segregation,’ where racial imbalance exists in the schools but with no
showing that this was brought about by discriminatory action of state authorities.”). See also 42 U.S.C. § 2000c(b) (for
T itle IV purposes, defining “desegregation” to not mean “the assignment of students to public schools in order to
overcome racial imbalance”).
238 See id. § 2000c-6.
239 See id. § 2000c-6(a) (including as a condition for filing suit that “the Attorney General believes . . . that the
institution of an action will materially further the orderly achievement of desegregation in public education”).
240 See e.g., id. § 2000c-2 (addressing technical assistance for desegregating schools); id. § 2000c-3 (providing for
training relating to desegregation); id. § 2000c-4 (authorizing grants for training relating to “ problems incident to
desegregation”).
241 See id. § 2000c(b). See also id. §2000c–9 (providing that “[n]othing in this subchapter shall prohibit classification
and assignment for reasons other than race, color, religion, sex or national origin”).
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desegregation.242 Federal courts have construed Title IV as an exercise of Congress’s authority
under Section 5 of the Fourteenth Amendment.243
General Background: “Dual” Systems of Public Education Based
on Race
As with other conditions of racial segregation, state or local laws often required or expressly
permitted the race-based exclusion of black students from white-only public education
institutions.244 State-imposed segregation commonly took the form of fully bifurcated, or
“dual,”245 public school systems—that is, one set of K-12 schools, colleges, and universities

242 Pub. L. No. 92-318, 86 Stat. 375, § 906(a) (“ Sections 401(b), 407(a) (2), 410, and 902 of the Civil Rights Act of
1964 (42 U.S.C. §§ 2000c(b), 2000c-6(a) (2), 2000c-9, and 2000h-2) are each amended by inserting the word ‘sex’
after the word ‘religion.’”). After the 1972 amendment adding “ sex,” it appears that the few cases that have reached
federal courts alleging a T itle IV violation on that basis have challenged admissions policies in the higher education
context. See United States v. Virginia, 518 U.S. 515, 519 -520 (1996) (in equal protection challenge to male-only
admissions policy at Virginia Military Institute (VMI), holding that VMI’s admission “ reserved exclusively to men”
violated “the Constitution’s equal prot ection guarantee”). See also id. at 523 (noting that the VMI lawsuit was
“prompted by a complaint filed with the Attorney General by a female high -school student seeking admission to
VMI”). See also United States v. Mass. Maritime Academy, 762 F.2d 142, 145, 147, 157-58 (1st Cir. 1985) (reflecting
that the Attorney General filed the T itle IV suit challenging the male-only admissions of the Massachusetts Maritime
Academy, which was followed by a bench trial resulting in a finding of intentional discriminatio n; and affirming the
district court order permanently enjoining defendants from sex discrimination in admissions and recruiting).
243 See, e.g., Hayes v. United States, 464 F.2d 1252, 1261 (5th Cir. 1972) (“ Enactment of T itle IV was a legitimate
exercise of Section 5 of the Fourteenth Amendment to the Constitution’s grant of Congressional power.”). See also,
e.g., United States v. Fruit, 507 F.2d 194, 195 (6th Cir. 1974) (referring to T itle IV as a “ statute Congress had the
authority to enact under Section 5 of the Fourteenth Amendment”).
244 See, e.g., Brown v. Board of Educ. of T opeka, Shawnee Cnty., Kan., 347 U.S. 483, 486 n.1 (1954) (reflecting that
the States of South Carolina, Delaware, and Virginia had st ate statutes or constitutional provisions that required the
segregation of white and black children in public schools, and that the State of Kansas had a statute expressly
permitting racially segregated public schools); Guey Heung Lee v. Johnson, 404 U.S. 1215 n.* (1971) (Douglas,
Circuit Justice) (observing that until 1947, the State of California permitted separate schools “ for children of Chinese,
Japanese, or Mongolian parentage” and Native Americans; also reflecting that where public school districts chose to
establish such racially segregated schools, state law prohibited the admission of Native American children and
“children of Chinese, Japanese, or Mongolian parentage” into “any other school”); Little Rock Sch . Dist. v. Pulaski
County Special Sch. Dist. No. 1, 778 F.2d 404, 412 (8th Cir. 1985) (describing the “ state’s role in the segregation of the
public schools of Arkansas,” beginning with the passage of a state law in 1867 requiring separate schools for black
children); United States v. DeSoto Parish Sch. Bd., 574 F.2d 804 (5th Cir. 1978) (reflecting that Louisiana state law
“required that the Louisiana public schools be operated on a segregated basis” through 1957, at which time those
provisions were repeated). In addition, the Supreme Court and federal courts of appeals have addressed state actions
that deliberately created or operated segregated public school systems by race, based on evidence other than a state law
or ordinance requiring or permitting racially segregated schools. See, e.g., Keyes v. Sch. Dist. No. 1, Denver, Colo.,
413 U.S. 189, 198-201 (1973) (holding that state-imposed segregation may be established apart from legislative
evidence of a statute or ordinance addressing racially segregated schools; stating that petitioners had proved that “ for
almost a decade after 1960 respondent School Board had engaged in an unconstitutional policy of deliberate racial
segregation in the Park Hill schools”); Morgan v. Kerrigan, 509 F.2d 580, 585, 588 -98 (1st Cir. 1974), cert denied, 421
U.S. 963 (1975) (where school board argued that the existing segregation in Boston public schools was not intentional
or state-imposed, discussing evidence of the district court’s findings regarding the intent to segregate black students
from white students in various ways; concluding that the “ actions of the Boston authorities are not distinguishable from
what the Supreme Court has termed the ‘classic pattern of building schools specifically intended for Negro or white
students’”).
245 Swann, 402 U.S. at 5-6 (describing the practice of “maintaining two sets of schools in a single school system
deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race,” and
the constitutional mandate to “ eliminate [such] dual systems and establish unitary systems at once”). See also id. at 22
(“T he constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in
public schools is discrimination that violates the Equal Protection Clause. T he remedy commanded was to dismantle
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created exclusively for white students, and another set of schools for black students, created to
preserve the white-only admissions at those institutions.246 Private schools that provided
instruction to black and white students together were at times prosecuted and subjected to state-
imposed penalties for doing so.247
Though the Supreme Court unanimously held, in 1954, that racial y segregated public schools
were unconstitutional,248 states and local school districts continued to operate intentional y
racial y segregated public school and university systems wel after that date.249 According to

dual school systems.”).
246 See, e.g., United States v. Fordice, 505 U.S. 717, 721-22 (1992) (describing the creation of Mississippi’s public
university system in 1848 with the establishment of “ the University of Mississippi, an institution dedicated to the
higher education exclusively of white persons” and the expansion of that system in subsequent decades during which
the state continued to establish public colleges for attendance by white students and other public colleges for attendance
by black students); United States v. Montgomery Cnty. Bd. of Educ., 395 U.S. 225, 227 (1969) (stating that “many”
states other than those at issue in the Court’s 1954 decision Brown v. Board of Education had “for many years
maintained a completely separate system of schools for whites and nonwhites, and the laws of these States, both civil
and criminal, had been written to keep this segregated system of schools inviolate. T he practices, habits, and customs
had for generations made this segregated school system a fixed part of the daily life and expectations of the people.”);
Brown I, 347 U.S. at 486-88 (stating that black petitioners in the consolidated case, from school districts in South
Carolina, Delaware, Virginia, and Kansas “ ha[d] been denied admission to schools attended by white children under
laws requiring or permitting segregation according to race”). See also, generally, Regents of Univ. of California v.
Bakke, 438 U.S. 265, 394 (1978) (Marshall, J., concurring in part and dissenting in part) (stating that “ the history of the
exclusion of Negro children from white public schools is too well known and recent to require repeating here. T hat
Negroes were deliberately excluded from public graduate and professional schools—and thereby denied the
opportunity to become doctors, lawyers, engineers, and the like—is also well established.”).
247 See, e.g., Berea College v. Kentucky, 211 U.S. 45, 51-53 (1908) (reflecting that a privately-incorporated college was
prosecuted, found guilty, and fined under a Kentucky state statute for admitting and providing instruction to black and
white students together).
248 Brown I, 347 U.S. at 494-95 (holding that state-imposed segregation of public schools based on race deprived black
students of the equal protection of the laws guaranteed by the Fourteenth Amendment). Following Brown I, the
Supreme Court repeatedly held that state or local entities have an “ affirmative duty” under the Equal Protection Clause
of the Fourteenth Amendment to eliminate “ all vestiges” of state-imposed racial segregation. See, e.g. Freeman v. Pitts,
503 U.S. 467, 485 (1992) (“The duty and responsibility of a school district once segregated by law is to take all steps
necessary to eliminate the vestiges of the unconstitutional de jure system. T his is required in order to ensure that the
principal wrong of the de jure system, the injuries and stigma inflicted upon the race disfavored by the violation, is no
longer present. T his was the rationale and the objective of Brown I and Brown II.”); Swann, 402 U.S. at 15 (stating that
the “objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation
was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. . .If school
authorities fail in their affirmative obligations under these holdings, judicial aut hority may be invoked.”). “ Each
instance of a failure or refusal to fulfill this affirmative duty ,” the Court has explained, “ continues the violation of the
Fourteenth Amendment.” Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459 (1979).
249 See, e.g., Fordice, 505 U.S. at 721-22 (describing the origin and development of Mississippi’s intentionally
segregated public university system from 1848 through 1950, and stating that “ [d]espite this Court’s decisions in
Brown I and Brown II, Mississippi’s policy of de jure segregation continued” thereafter; stating that the University of
Mississippi admitted its first black student in 1962, “ and then only by court order,” and that “ [f]or the next 12 years the
segregated public university system in the State remained largely intact”); Lau v. Nichols, 414 U.S. 563, 564 (1974)
(stating that the “ San Francisco, California, school system was integrated in 1971 as a result of a federal court decree”)
(citing Lee v. Johnson, 404 U.S. 1215 (1971)); Swann, 402 U.S. at 13 (observing that by 1968, when it considered the
case Green v. County Sch. Bd., 391 U.S. 430, “ very little progress had been made” with respect to desegregation in
“dual school systems [that] had historically been maintained by operation of state laws”); Little Rock Sch. Dist. v.
Pulaski Cnty. Special Sch. Dist. No. 1, 778 F.2d 404, 412 (8th Cir. 1985) (reflecting that up until 1983, Arkansas state
law continued to “ require[] the board of school directors in each district of the state to ‘establish separate schools for
white and colored persons,’”; stating that the statute, ARK. STAT. ANN. § 80–509(c), was repealed on November 1,
1983); Plaquemines Parish Sch. Bd. v. United States, 415 F.2d 817, 835 (5th Cir. 1969) (in a T itle IV case, discussing
actions taken by the school board to circumvent its constitutional obligation to racially desegregate its schools by
“deliberate[ly] attempt[ing] to subvert the public schools and to place in their stead a system of private schools
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House Report No. 914, though there had been initial success in some districts to transition to a
desegregated school system, “the crux of the matter is that…there are almost as many segregated
school districts in late 1963 as there were at the end of 1959.”250 The report also identified
methods that school districts were using to evade their constitutional obligation to dismantle
racial y segregated public schools.251 Without federal intervention, or otherwise hastening the
pace of desegregation, the report expressed the view that it would take another century—until the
year 2063—for al school districts to reach compliance with the Supreme Court’s Brown
decisions.252
For Title IV purposes, a public school not only includes “any elementary or secondary
educational institution” operated by a state, state subdivision, or agency, but also elementary or
secondary schools “operated whol y or predominantly from or through the use of governmental
funds or property, or funds or property derived from a governmental source.”253 Likewise, a
public college means “any institution of higher education or any technical or vocational school
above the secondary school level,” operated by a state entity or operated wholly or mainly
through government funds or property.254
Title IV Provisions: Federal Intervention by DOJ and ED
Under Title IV, federal intervention relating to the desegregation of public schools encompasses
both litigation by the Attorney General and technical assistance provided by the Department of
Education (ED),255 as discussed in more detail below.

supported by parish funds and property and attended solely by white student s. Such a scheme is constitutionally
intolerable”).
250 See H. REP. NO. 914, pt. 2, at 18-20.
251 See id. at 20-21 (discussing four methods of avoiding desegregation, including: 1) the assertion of legal arguments
such as justifying segregation as an exercise of a state’s police power; 2) attempts to disqualify plaintiffs from bringing
court actions to end segregation; 3) the promulgation of “pupil placement and assignment laws which alter the
theoretical basis of separation from a classification based on race” to separation based on other factors such as “ free
choice of pupil” and “home environment”; and 4) “various devices employed to separate the operation of the schools
from the state,” such as establishing “a ‘private-public’ school system as a means of circumventing desegregation and
in some cases the closing of schools”).
252 See id. at 20 (stating that “ at this pace, it will still take until the year 2063 before the compliance order of the 1955
Supreme Court decision which called for school desegregation in biracial school districts ‘with all deliberate speed’
will be carried out. T his must be remedied by affirmative congressional action.”). See generally Brown v. Bd. of Educ.
of T opeka, Shawnee County, Kan., 347 U.S. 483 (1954); Brown v. Bd. of Educ. of T opeka, Kan., 349 U.S. 294 (1955).
253 42 U.S.C. § 2000c(c) (stating that a “‘[p]ublic school’ means any elementary or secondary educational institution,
and ‘public college’ means any institution of higher education or any technical or vocational school above the
secondary school level, provided that such public school or public college is operated by a State, subdivision of a State,
or governmental agency within a State, or operated wholly or predominantly from or through the use of governmental
funds or property, or funds or property derived from a governmental source.”).
254 See id.
255 See H. REP. NO. 914, pt. 1, at 23 (describing the “two main purposes” of T itle IV as authorizing the Secretary of the
Department of Education to provide “ technical assistance and financial aid to assist in dealing with problems
incident to desegregation” and authorizing the “ Attorney General to institute suits seeking desegregation of public
schools where the students or parents involved are unable to bring suit and where he considers that a suit would
materially further the public policy favoring the orderly achievement of desegregation in public education ”).
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Enforcement Actions by the Attorney General
Section 407256 of Title IV authorizes the Attorney General to file a civil action “for or in the name
of the United States” upon receiving a written and signed complaint al eging one of two
conditions: either that “minor children...are being deprived by a school board of the equal
protection of the laws,” or that an individual “has been denied admission” to or continued
attendance at “a public college by reason of race, color, religion, sex or national origin.”257 Like
Title III, Title IV concerns the deprivation of “the equal protection of the laws”258 and has thus
been construed to address violations of the Equal Protection Clause.259
Prerequisites to Suit
Section 407 also identifies certain conditions that must be met before the Attorney General may
bring an enforcement action. When these conditions are met, the Attorney General may file suit
directly260 “in any appropriate district court of the United States.”261
The first condition is the Attorney General’s receipt of a written and signed complaint al eging
that a school board is depriving minor children of equal protection of the laws, or that a public
college has denied an individual admission based on “race, color, religion, sex or national
origin.”262
To file a civil action pursuant to the complaint, the Attorney General must also:
 “believe[] the complaint is meritorious”;263
 certify:
 “that the signer or signers of such complaint are unable, in his
judgment, to initiate and maintain appropriate legal proceedings for
relief”264; and

256 42 U.S.C. § 2000c-6.
257 See 42 U.S.C. § 2000c-6. As noted earlier, T itle IV was amended in 1972 to add “sex” to several statutory sections.
See supra note 242.
258 See id.
259 See, e.g., United States v. CRUCIAL, 722 F.2d 1182, 1185 (5th Cir. 1983) (reflecting that the Attorney General
brought suit against the county for its continued operation of an intentionally racially segregated public school system
in violation of both T itle IV of the 1964 Act and t he Fourteenth Amendment). See also id. at 1186-91 (addressing legal
issues on appeal without differentiating analytically between T itle IV and the Fourteenth Amendment).
260 42 U.S.C. § 2000c-6(a) (authorizing the Attorney General “to institute for or in the name of the United States a civil
action”). Cf. id. § 2000h-2 (authorizing the Attorney General to intervene in an action that has been commenced in any
federal court “ seeking relief from the denial of equal protection of the laws under the fourteenth ame ndment to the
Constitution on account of race, color, religion, sex or national origin ”).
261 42 U.S.C. § 2000c-6(a) (additionally stating that federal district courts “shall have and shall exercise jurisdiction of
proceedings instituted pursuant to this section, provided that nothing herein shall empower any official or court of the
United States to . . . enlarge the existing power of the court to insure compliance with constitutional standards”).
262 Id. (stating that with respect to a complaint relating to minor children, the complaint must be “signed by a parent or
group of parents” and with respect to an individual denied admission or continued attendance at a public college, the
complaint must be “signed by an individual, or his parent”). See also id. § 2000c-6(c) (for T itle IV purposes, defining
“parent” as “any person standing in loco parentis” and “complaint” as “a writing or document within the meaning of
section 1001, title 18”).
263 Id. § 2000c-6(a).
264 See id. See also id. § 2000c-6(b) (stating that the inability to initiate and maintain proceedings is shown “ when such
person or persons are unable, either directly or through other interested persons or organizations, to bear the expense of
the litigation or to obtain effective legal representation” or when “the institution of such litigation would jeopardize the
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 that filing a civil action “wil material y further the orderly
achievement of desegregation in public education”;265
 give notice “of such complaint to the appropriate school board or college
authority”;266 and
 certify that the Attorney General is “satisfied that such board or authority has had
a reasonable time to adjust the conditions al eged in such complaint.”267
House Report No. 914 reflects the view that, as with the preconditions for filing Title III actions,
the determinations upon which the Attorney General makes the requisite certifications for filing
Title IV actions were not intended to be “reviewable.”268 At least one federal court of appeals has
expressly held that the information giving rise to the Attorney General’s certifications under Title
IV are subject to neither judicial review nor disclosure to the defendant.269
Remedies, Costs, and Private Litigation
As for relief for Title IV violations, Section 407 provides that the Attorney General may seek
“such relief as may be appropriate.”270 Because Title IV concerns the Attorney General’s
enforcement of the Equal Protection Clause,271 the remedies and relief available for Title IV
violations appear to be the same as those that a federal court may order to address an Equal
Protection Clause violation.272 Though beyond the scope of this overview to comprehensively
discuss court-ordered remedies responsive to de jure segregation, as a general matter, courts have
broad discretion in fashioning relief to undo a state actor’s intentional, race-based separation of
students.273 Over the years, such judicial remedies have included, among other things, race-based

personal safety, employment, or economic standing of such person or persons, their families, or their property”).
265 See id. § 2000c-6(a). See United States v. Mass. Maritime Acad., 762 F.2d 142, 152 (1st Cir. 1985) (observing that
“[a] required purpose in all such [T itle IV] cases is to ‘materially further the orderly achievement of desegregation in
public education’”) (quoting 42 U.S.C. § 2000c–6(a)).
266 42 U.S.C. § 2000c-6(a).
267 Id.
268 See H. REP. NO. 914, pt. 1, at 24 (discussing preconditions to suit and stating “ [i]t is not intended that determinations
on which the certification was based should be reviewable”).
269 United States v. Greenwood Mun. Separate Sch. Dist., 406 F.2d 1086, 1090-91 (5th Cir. 1969), cert. denied, 395
U.S. 907 (1969) (“ [W]e hold that the [school] board has no right, nor have the courts any right, to examine the
information which triggered the Attorney General’s certificate”; also discussing the legislative history of T itle IV and
holding that defendants were not entitled to discovery of the identities of the individuals who submitted written
complaints to the Attorney General, as “ [s]eeing their names and the precise language of their complaints will not give
the board any information it cannot get by looking at conditions in the schools, specifically at the extent of
desegregation of students, teachers, and activities. T he progress of desegregation is what school cases are all about”).
See also Massachusetts Maritim e Academ y, 762 F.2d at 152 (“ Courts have held that neither the defendant school board
nor the courts have a right to examine the information which triggered the Attorney General’s certificate.”).
270 See 42 U.S.C. § 2000c-6 (a).
271 See generally Swann, 402 U.S. at 16 (stating that T itle IV was enacted “to define the role of the Federal Government
in the implementation of the Brown I decision”).
272 See generally, e.g., CRUCIAL, 722 F.2d at 1191 (in suit filed by the Attorney General alleging violations of T itle IV
and the Fourteenth Amendment, ordering the district court on remand, without noting any distinction between requisite
relief under T itle IV or the Equal Protection Clause, to hold a hearing on proposed desegregation plans and promptly
adopt a plan); Andrews v. Monroe City Sch. Bd., No. 65-11297, 2016 WL 1484506, at *1 (Apr. 14, 2016) (in a T itle IV
action, approving the terms of a consent decree setting out requirements to be met by the school board and concluding
that the decree was “ consistent with the Fourteenth Amendment to the United States Constitution and federal law, and
that such entry will further the orderly desegregation of the District”).
273 See generally Swann, 402 U.S. at 15-16 (discussing the equitable powers of a court in the context of a school
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student assignments, goals for balancing the racial composition of students,274 and mandatory
busing or transportation.275
Title IV, however, includes several references to racial balancing276 that could be read as a
restriction on dismantling segregation through such race-based measures.277 Section 407, for
example, provides that “nothing herein shal empower any official or court of the United States to
issue any order seeking to achieve a racial balance in any school by requiring the transportation of
pupils or students from one school to another … in order to achieve such racial balance.”278
Addressing this potential ambiguity in its 1971 Swann decision, the Court interpreted this
statutory text as reflecting Congress’s intent that Title IV only address segregation caused by state
action, not racial imbalance apart from discrimination by state authorities.279 Thus, Section 407
does not “restrict… or withdraw from courts their historic equitable remedial powers” for
redressing Equal Protection Clause violations.280

desegregation case, and observing that “[t]he task is to correct, by a balancing of the individual and collective interests,
the condition that offends the Constitution”). See also id. at 15 (“Once a right and a violation have been shown, the
scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in
equitable remedies.”).
274 See generally, e.g., North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 46 (1971) (“ Just as the race of
students must be considered in determining whether a constitutional violation has occurred, so also must race be
considered in formulating a remedy. T o forbid, at this stage, all assignments made on the basis of race would deprive
school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate
existing dual school systems.”); Swann, 402 U.S. at 19 (where the school board had operated an intentionally
segregated public school system through 1969, rejecting the school board’s contention that the district court’s remedial
order requiring a ratio of at least two black teachers out of every 12 teachers to desegregate school faculties was
unconstitutional); id. at 24-25 (upholding aspect of district court’s order set ting a target racial balance of black and
white students in each school and stating that the district court’s “ very limited use made of mathematical ratios was
within [its] equitable remedial discretion”; stating that “the use made of mathematical ratios was no more than a
starting point in the process of shaping a remedy, rather than an inflexible requirement” and adding that “[a]wareness
of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to
correct past constitutional violations.”). See also, generally, Freem an, 503 U.S. at 493 (“ In Swann we undertook to
discuss the objectives of a comprehensive desegregation plan and the powers and techniques available to a district court
in designing it at the outset. We confirmed that racial balance in school assignments was a necessary part of the remedy
in the circumstances there presented.”)
275 See North Carolina State Bd. of Educ., 402 U.S. at 44-46 (addressing a state statute that prohibited assigning
students to schools based on race, and “ involuntary” busing for that purpose; holding that the statute’s wholesale
prohibition against such measures “contravene[d]” Supreme Court precedent that “ all reasonable methods be available
to formulate an effective remedy” to state-imposed segregation and adding that “ bus transportation has long been an
integral part of all public educational systems, and it is unlikely that a truly effective remedy could be devised without
continued reliance upon it”).
276 See, e.g., 42 U.S.C. § 2000c(b)(“ ‘Desegregation’ means the assignment of students to public schools and within
such schools without regard to their race, color, religion, sex or national origin, but ‘desegregation’ shall not mean the
assignment of students to public schools in order to overcome racial im balance.”) (emphasis added).
277 See Swann, 402 U.S. at 16 (reflecting that the defendant school authorities had argued that T itle IV limited “the
equity powers of federal district courts”).
278 Id. § 2000c-6(a) (emphasis added).
279 Swann, 402 U.S. at 17-18 (pointing to Title IV’s references to racial balance in 42 U.S.C. §§ 2000c(b) and 2000c-6
and concluding that this language was intended to foreclose a reading T itle IV “ as creating a right of action under the
Fourteenth Amendment in the situation of so-called ‘de facto segregation,’ where racial imbalance exists in the schools
but with no showing that this was brought about by discriminatory action of state authorities.”).
280 See Swann, 402 U.S. at 17 (rejecting the argument raised by school authorities that T itle IV constrained or limited
“the equity powers of federal district courts” to mandate relief for state-imposed racial segregation in public schools;
stating that T itle IV’s various provisions reflected “no suggest ion of an intention to restrict those powers or withdraw
from courts their historic equitable remedial powers”). T he Supreme Court also rejected similar arguments in its 1971
decision McDaniel v. Barresi. See McDaniel, 402 U.S. 39, 40-42 (1971). McDaniel concerned a T itle IV and Equal
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Should a defendant prevail in a Title IV action, Section 408281 provides that “[i]n any action or
proceeding under this subchapter the United States shal be liable for costs the same as a private
person.”282
Though Title IV is enforced by the Attorney General, this federal enforcement does not interfere
with an individual’s right to seek relief against racial discrimination or segregation in the public
education context. Section 409283 provides that “[n]othing in this subchapter shal affect adversely
the right of any person to sue for or obtain relief in any court against discrimination in public
education.”284
Technical Assistance for Desegregating Public Schools
Besides authorizing enforcement litigation by the Attorney General, Title IV also authorizes the
Secretary of the Department of Education (ED) to provide technical assistance, training, and
grants to support public school desegregation.285 Addressing the focus of this technical assistance,
House Report No. 914 expressed the view that efforts should be directed at “overcom[ing] the
past deprivation caused by inferior schools” for black students by providing special counseling,
guidance, and instruction;286 supporting local administrators, teachers, and students in the
transition from one-race to integrated schools;287 and “disseminat[ing] information concerning
desegregation plans, problems, and possible solutions.”288 The statutory provisions setting out
ED’s responsibilities with respect to Title IV are discussed in more detail below.
Preparing, Adopting, and Implementing Desegregation Plans
Section 403289 authorizes the Secretary “to render technical assistance . . . in the preparation,
adoption, and implementation of plans for the desegregation of public schools,” to governmental

Protection Clause challenge to a Georgia county’s plan which considered students’ race in school assignments for the
purpose of desegregating the county’s intentionally segregated public school system. Id. at 40-41. T he Court held that
the county had properly taken students’ race into account because, having operated a racially segregated public school
system, the county was “ ‘clearly charged with the affirmative duty to take whatever steps might be necessary” to
eliminate it “ ‘root and branch.’” Id. at 41 (quoting Green v. Cnty. Sch. Bd., 391 U.S. 430, 437 (1968)). As the Court
explained, dismantling a public school system in which students had been intentionally separated by race “ almost
invariably require[s]” that a school board consider race when assigning students to new schools because “[a]ny other
approach would freeze the status quo that is the very target of all desegregation processes.” 402 U.S. at 41. In that
context, T itle IV, the Court concluded, “clearly does not restrict state school authorities in the exercise of their
discretionary powers to assign students within their school systems.” Id. at 42.
281 42 U.S.C. § 2000c-7.
282 Id.
283 Id. § 2000c-8.
284 Id.
285 See id. §§ 2000c-2–2000c-5.
286 See H. REP. NO. 914, pt. 2, at 21 (stating that the “gap in scholastic achievement of students is often considerable”
and that “[t]here is an obvious need to provide special counseling, guidance, and remedial instruction to overcome the
past deprivation caused by inferior schools”; expressing the view that “ public education may have been separate but it
was seldom equal”).
287 See id. (stating that the “transition from all-Negro to integrated schools is at best a difficult problem of adjustment
for teachers and students alike” and that the “hurdles that must be overcome in teaching biracial classes and in
administering biracial school systems are similarly tremendous”).
288 See id. (“It is clear then that the Congress must enact legislation empowering the Federal Government to
disseminate information concerning desegregation plans, problems, and possible solutions.”).
289 42 U.S.C. § 2000c-2.
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entities that are “legal y responsible for operating a public school or schools.”290 Technical
assistance may take the form of “information regarding effective methods of coping with special
educational problems occasioned by desegregation,” and assistance and advising by “personnel of
the Department of Education or other persons special y equipped to advise and assist” in such
matters,291 among other support.
Grants for Training Relating to Problems “Occasioned by Desegregation”
Apart from technical assistance, Section 404292 of Title IV also authorizes the Secretary to
provide grants, or contract with, higher education institutions to operate “short-term or regular
session institutes for special training designed to improve the ability of teachers, supervisors,
counselors, and other elementary or secondary school personnel to deal effectively with special
educational problems occasioned by desegregation.”293 Meanwhile, Section 405294 authorizes the
Secretary to issue grants to school boards, upon application, to pay for costs of training to
teachers and school personnel in “dealing with problems incident to desegregation” and hiring
specialists to advise on “problems incident to desegregation.”295 In issuing grants under Section
405, the statute requires that the Secretary consider the amount available for grants, other pending
applications, the “financial condition” of the applicant school board, “the nature, extent, and
gravity of its problems incident to desegregation; and such other factors as he finds relevant.”296
Payments for a grant or contract under Title IV may be made in advance or reimbursed, including
in instal ments, as determined by the Secretary.297
As a general matter, it appears unclear from the agency’s publicly available materials how it now
assists entities with desegregation. When ED revised its Title IV regulations in 2016,298 for
example, the agency created Equity Assistance Centers (EAC),299 formerly known as
Desegregation Assistance Centers,300 among other changes it made to its Title IV regulations.301

290 Id. (authorizing technical assistance upon application by “any school board, State, municipality, school district, or
other governmental unit legally responsible for operating a public school or schools”).
291 See id. See also 34 C.F.R. § 270.7 (defining “[s]pecial educational problems occasioned by desegregation” to mean
“those issues that arise in classrooms, schools, and communities in the course of desegregation efforts based on race,
national origin, sex, or religion. T he phrase does not refer to the provision of special education and related services for
students with disabilities as defined under the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.)”).
292 42 U.S.C. § 2000c-3.
293 Id. (also permitting stipends for individuals who attend a training institute on a full-time basis, “in amounts specified
by the Secretary in regulations, including allowances for travel to attend such institute”).
294 Id. § 2000c-4.
295 Id. (authorizing the Secretary, “ upon application of a school board, to make grants to such board”).
296 Id.
297 Id. § 2000c-5.
298 See generally Notice of Final T itle IV Regulations, 81 Fed. Reg. 46808 (July 18, 2016) (codified at 34 C.F.R. pt.
270).
299 34 C.F.R. § 270.1 (defining the “Equity Assistance Center Program as a “program [that] provides financial
assistance to operate regional Equity Assistance Centers (EACs), to enable them to provide technical assistance
(including training) at the request of school boards and other responsible governmental agencies in the preparation,
adoption, and implementation of plans for the desegregation of public schools, and in the development of effective
methods of coping with special educational problems occasioned by desegregation.”). See also 34 C.F.R. § 270.7
(defining Equity Assistance Center as “ a regional desegregation technical assistance and training center funded” by
ED).
300 See generally Notice of Final T itle IV Regulations, 81 Fed. Reg. 46808 (July 18, 2016) (codified at 34 C.F.R. pt.
270) (describing change from Desegregation Assistance Centers to Equity Assistance Centers).
301 Among changes to its T itle IV regulations, ED removed a previously-existing section, 34 C.F.R. § 271 et seq.,
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Through its Office of Elementary and Secondary Education, ED currently funds four such
EACs302 and describes their activities largely in terms of educational support services relating to
“nondiscrimination.”303 In its overview of the centers, ED does not specify what types of
technical assistance the centers provide to school districts relating directly to desegregation plans
or desegregation orders.304
Title V: Amendments concerning the U.S.
Commission for Civil Rights (USCCR)
Title V of the 1964 Act amended provisions of the 1957 Civil Rights Act which created the U.S.
Commission for Civil Rights (USCCR).305 The USCCR306 is a “purely investigative and fact-
finding body,”307 and under the 1957 Act, was responsible for: investigating al egations relating to

which addressed technical assistance for state educational agencies (SEA) regarding desegregation. See Notice of Final
T itle IV Regulations, 81 Fed. Reg. at 46809 (stating that ED chose to eliminate regulations addressing technical
assistance for SEAs, because “ Congress has not funded the SEA Desegregation program in more than 20 years, and as
a result, the Department no longer administers this program. Given these circumstances, the Department believes that
retaining the SEA Desegregation program regulations under part 271 is not in the public interest, and could only result
in public confusion. T hus, the Department will move forward in removing 34 CFR part 271, and consolidating current
part 272 into part 270”).
302 See Contacts for Equity Assistance Centers, U.S. Dep’t of Educ., Office of Elementary and Secondary Educ.,
https://www2.ed.gov/programs/equitycenters/contacts.html, (last visited Sept. 1, 2020) (identifying four Equity
Assistance Centers presently “ funded by the U.S. Department of Education under T itle IV of the 1964 Civil Rights
Act” and stating that the “Equity Assistance Center (EAC) Program is administered by the Office of Program and
Grantee Support Services (PGSS) in the Office of Elementary and Secondary Education”).
303 See Training and Advisory Services–Equity Assistance Centers, U.S. Dep’t of Educ., Office of Elementary and
Secondary Education, https://oese.ed.gov/offices/office-of-formula-grants/program-and-grantee-support-
services/training-and-advisory-services-equity-assistance-centers/, (last visited Sept. 1, 2020) (stating that “typical
activities include: (1) technical assistance in the identification and selection of appropriate education programs to meet
the needs of English Learners (ELs); and (2) training designed to develop educators’ skills in specific areas, such as the
dissemination of information on successful education practices and the legal requirements related to nondiscrimination
on the basis of race, sex, national origin, and religion in education programs. Projects include technical assistance and
training for education issues occasioned by school desegregation. T he centers work with schools in the areas of
harassment, bullying, and prejudice reduction. Centers also develop materials, strategies, and professional development
activities to assist schools and communities in preventing and countering harassment based on ethnicity, gender, or
religious background.”).
304 See id. (not discussing or referring to public schools or school districts regarding desegregation plans or court -
ordered desegregation). A number of schools or school districts in the United States, however, remain subject to court
desegregation orders. See generally U.S. Gov’t Accountability Off., GAO-16-345, Better Use of Information Could
Help Agencies Identify Disparities and Address Racial Discrimination (201 6), at 40 (stating that “ as of November 2015
there were 178” open school desegregation cases). See also id. at n. 65 (stating that the Department of “ Justice is not a
party in all of the cases in which a court has ordered a district to desegregate. As a consequence, the 178 cases cited
above do not include all of the open desegregation orders—only those to which Justice is a party to the case.”). See,
e.g., Stout by Stout v. Jefferson Cnty. Bd. of Educ., 882 F.3d 988, 1009-10 (11th Cir. 2018) (rejecting school board’s
contention that it had been deemed “unitary” and holding that precedent addressing the Jefferson County sc hool district
“makes clear that Jefferson County has not fully fulfilled its desegregation obligations and remains subject to judicial
oversight”).
305 See Pub. L. No. 88-352, 78 Stat. 241, 249-52 (1964) (amending the 1957 Civil Rights Act with respect to the
USCCR).
306 T he USCCR is currently defined in statute as an eight -member body, with no more than four members of any
political party at a given time. 42 U.S.C. § 1975(b) (“ T he Commission shall be composed of 8 members. Not more than
4 of the members shall at any one time be of the same political party”).
307 Hannah v. Larche, 363 U.S. 420, 441 (1960) (describing the USCCR and stating that “its function is purely
investigative and fact -finding. It does not adjudicate. It does not hold trials or determine an yone’s civil or criminal
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the deprivation of the right to vote; studying and collecting information of legal developments
relating to Equal Protection Clause violations; and submitting findings and recommendations to
the President of the United States and Congress.308 Through Title V of the 1964 Act, Congress
further defined the USCCR’s responsibilities and procedures.309 The Supreme Court has
understood the 1957 Act, which created the USCCR, as a valid exercise of Congress’s authority
to enforce the Fifteenth Amendment.310
Through Title V, Congress reauthorized the Commission through 1968,311 and thereafter
reauthorized or extended authorization for the Commission several times.312 Although its most
recent reauthorization expired in 1996,313 Congress has continued to fund the Commission
through the annual appropriations process,314 and the USSCR maintains a number of the major
functions set out in Title V.315
General Background
Leading up to the 1964 Act, the USCCR was a temporary body316 subject to uncertainty over its
continued operation.317 From 1959 through 1963, the Commission was twice funded through
“11th hour” appropriation riders that posed logistical and staffing chal enges for the USCCR.318

liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make
determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take a ny
affirmative action which will affect an individual’s legal rights. T he only purpose of its existence is to find facts which
may subsequently be used as the basis for legislative or executive action.”).
308 See Pub. L. No. 85-315, 71 Stat. 634, 635 (1957) (describing duties of the USCCR). See generally, Jocelyn C. Frye,
Robert S. Gerber, Robert H. Pees, & Arthur W. Richardson, Comment, The Rise and Fall of the United States
Com m ission on Civil Rights, 22 HARV. C.R.-C.L. L. REV. 449, 454-62 (1987) [hereinafter Frye et al., Rise and Fall]
(stating that the USCCR was created under Part I of the 1957 Civil Rights Act and discussing the early years of the
USCCR and its work leading up to the 1964 Act).
309 See Paulette Brown, The Civil Rights Act of 1964, 92 WASH. U. L. REV. 527, 536 (2014) [hereinafter Brown, The
Civil Rights Act of 1964] (stating that “ under the T itle V of the Civil Rights Act of 1964, procedures of the Commission
were more clearly laid out or established and the duties of the Commission were expanded”).
310 Hannah, 363 U.S. at 452 (addressing various legal arguments relating to the operation and procedures of the
USCCR and stating that “ [t]he respondents have also contended that the Civil Rights Act of 1957 is inappropriate
legislation under the Fifteenth Amendment. We have considered this argument, and we find it to be without merit”).
311 Pub. L. No. 88-352, 78 Stat. 241, 251 (1964) See id. See also Brown, The Civil Rights Act of 1964, supra note 309,
at 536 (“T he Act authorized the Commission through January 1968.”).
312 Congress has since “reauthorized or extended the legislation creating the Commission several times; the last
reauthorization was in 1994 by the Civil Rights Commission Amendments Act of 1994.” About USCCR, USCCR,
Mission, https://www.usccr.gov/about/. See also Civil Rights Commission Amendments Act of 1994 , Pub. L. No. 103-
419; 108 Stat. 4338; United States Commission on Civil Rights Act of 1983, Pub. L. No. 98-183, 97 Stat. 1301.
313 T he 1994 legislation provided that the USCCR “terminate on September 30, 1996,” but the agency has continued
operations thereafter “pursuant to annual appropriations.” See United States v. Wilson, 290 F.3d 347, 351 (D.C. Cir.
2002) (citing 42 U.S.C. § 1975d).42 U.S.C. § 1975d.
314 See id.
315 See, e.g., About USCCR, USCCR, Powers, https://www.usccr.gov/about/powers.php (stating that, among other
functions, the USCCR “ conduct[s] hearings on critically important civil rights issues, including issuing subpoenas for
the production of documents and the attendance of witnesses”).
316 Frye et al., Rise and Fall, supra note 308, at 454 (stating that the USCCR was created under Part I of the 1957 Civil
Rights Act as “ a temporary, bipartisan” body “ within the ex ecutive branch of the federal government”).
317 See H. REP. NO. 914, pt. 2, at 22 (stating that the USCCR “has labored constantly in a climate of uncertainty over its
future”).
318 See id. (describing “11th hour reprieve[s]” to the USCCR’s continued operation through “riders to appropriations
bills in 1959 and 1961,” which granted “ 2-year extensions of the Commission’s life. T his year through an amendment
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The USCCR’s activities during that time included regional fact-finding hearings319 that addressed
“voting rights, denials of equal opportunity and protection in housing, education, employment,
and the administration of justice.”320 In those years, the USCCR’s investigative efforts, including
through written requests for information or interrogatories to state or local officials, were often
met with refusals to cooperate.321 In the context of such refusals to cooperate, the USCCR’s
hearings, and subpoenas for witness testimony and evidence, were investigative tools that enabled
the entity to gather information relevant to its statutory mandate.322
Title V Provisions
Title V changed the USCCR in several ways,323 including further defining and expanding its
responsibilities.324 With respect to the USCCR’s investigations regarding voting, for example,
Title V added a mandate that USCCR investigate “any patterns or practice of fraud or

to a private bill Congress gave the Commission an additional year of life.”). See also id. (expressing the view that until
the USCCR is made permanent, it would continue to have “serious difficulties in recruiting and retaining the services
of top caliber personnel,” and describing low morale evidenced by “a rash of resignations” each time “the Commission
draws nearer to its demise”).
319 See, e.g., Frye et al., Rise and Fall, supra note 308, at 463-64 (discussing hearings that the USCCR held in 1962,
including in Los Angeles, San Francisco, and Memphis; at the Los Angeles and San Francisco hearings, the USCCR
“received testimony on education, housing and police misconduct” and in Memphis, “the Commission investigated
discrimination in public health facilities and discovered that many hospital facilities in Memphis were not admit ting
blacks.”).
320 See H. REP. NO. 914, pt. 2, at 22 (describing the activities of the USCCR as having “ engaged in intensive research
and investigations in the areas of voting rights, denials of equal opportunity and protection in housing, education,
employment, and the administration of justice”).
321 See, e.g., Hannah, 363 U.S. at 423-27 (discussing responses to the Commission’s fact -finding efforts relating to
allegations of voting rights violations in Louisiana; describing the agency’s int erviews of several local voting registrars,
which yielded “little relevant information” and prompted one of the registrars to seek perjury charges against the
individuals who had reported voting rights violations, and the Commission’s 315 interrogatories directed at the voting
registrars of 19 Louisiana parishes, which—through letters prepared by the Attorney General of Louisiana—the
registrars refused to answer).
322 See generally, e.g., Frye et al., Rise and Fall, supra note 308, at 456-57 (recounting the Commission’s first public
hearing in Montgomery, Alabama in 1958 and stating that through its hearing, the USCCR “ began to uncover serious
voting rights violations”; also describing how “state officials directly flouted [the Commission’s] subpoena power” by
refusing to provide voting records, that “their defiance was officially supported by state authorities in several counties,”
and that the U.S. Attorney General had to file a lawsuit to enforce the Commission’s subpoena, which resulted in a
district court order “ requiring state officials in three counties to make their voting records available to the
Commission.”).
323 See generally, e.g., Frye et al., Rise and Fall, supra note 308, at 465 (describing provisions in the 1964 Act that
concerned the USCCR and stating that the Act “ established a number of new procedural requirements designed to
strengthen protections for witnesses appearing at Commission hearings”; “ introduced a requirement that the
Commission ‘serve as a national clearinghouse for information in respect to denial of equal protection of the laws
because of race, color, religion or national origin ’”; “ barred any investigation of the membership of fraternal
organizations, college fraternities or sororities, private clubs or religious organization s”; and “ extended the life of the
Commission for another four years, requiring the submission of a fin al report before its expiration”). It should be noted
that this overview only addresses the changes made to the USCCR through T itle V, and does not address subsequent
changes to the USCCR.
324 See Pub. L. No. 88-352, § 504, 78 Stat. 241, 251 (1964) (amending provisions defining the duties of the USCCR,
codified at 42 U.S.C. § 1975(a)). See also H. REP . NO. 914, pt. 1, at 24 (“Title V, in addition to effecting minor
procedural and technical changes, would . . . give the Commission new authority (1) to serve as a national
clearinghouse for information concerning denials of the equal protection of the laws, and (2) to investigate allegations
as to patterns or practices of fraud or discrimination in Federal elections”).
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discrimination” in the conduct of an election.325 Title V also provided that the USCCR is to
“serve as a national clearinghouse for information” for Equal Protection Clause violations
“because of race, color, religion or national origin, including but not limited to the fields of
voting, education, housing, employment, the use of public facilities, and transportation, or in the
administration of justice.”326 Furthermore, though the USCCR was already charged with studying
legal developments relating to certain Equal Protection Clause violations, and “apprais[ing] the
laws and policies of the Federal Government with respect to” such violations, Title V additionally
mandated that the USCCR study legal developments, and appraise federal laws and policies, with
respect to “the administration of justice.”327
Title V also addressed procedures for Commission hearings,328 the subpoena of witnesses,329 and
provisions relating to compensation for the commissioners,330 among other operational matters. It
conferred upon the USCCR the authority to “make such rules and regulations as are necessary to
carry out the purposes of this Act.”331 As noted above, through Title V, Congress reauthorized the
Commission through 1968,332 and more recently, continues to appropriate funds to support the
USSCR’s operations.333
Title VI: Race Discrimination in Federally Funded
Programs
Title VI addresses discrimination based on race, color, or national origin in the context of
federal y funded programs.334 Though Title VI might appear “deceptively simple,” as discussed in
more detail in this section, the case law “giving content” to and interpreting the statute’s broadly

325 See Pub. L. No. 88-352, § 504, 78 Stat. 241, 251 (1964).
326 Id. See also 42 U.S.C. § 1975a(a) (describing the USCCR’s current duties).
327 See supra note 326.
328 See Pub. L. No. 88-352, § 501, 78 Stat. 241, 249-50 (1964) (reflecting, among other amendments, provisions
requiring the public announcement of Commission hearings in the Federal Register 30 days before they occur,
addressing the right of a witness compelled to testify to “ be accompanied and advised by counsel,” and mandating that
the USCCR receive evidence or testimony in “executive session,” if it “determines that evidence or testimony at any
hearing may tend to defame, degrade, or incriminate any person”). See also 45 C.F.R. §§ 702.3, 702.6 (current USCCR
regulations relating to notices for hearings and executive session, respectively).
329 See Pub. L. No. 88-352, § 501, 78 Stat. 241, 249-50 (1964). See generally, H. REP. NO. 914, pt. 1, at 24 (stating that
T itle V “would effect minor amendments” to the USCCR’s procedural rules for hearings, such as increasing witness
fees and allowance to amounts “generally allowed to witnesses in other proceedings,” and with respect to subpoenaing
witnesses, allowing the USCCR to “ to subpoena a witness to testify within the State in which he has appointed an agent
for service of process and to testify outside the State if the hearing is to be held within 50 miles of the place in which he
is found, resides or is domiciled, does business, or has appointed an agent for service of process”). See also 42 U.S.C. §
1975a(e)(2) (current statutory provision addressing USCCR’s subpoena power).
330 Pub. L. No. 88-352, §§ 502, 503, 78 Stat. 241, 250-51 (1964).
331 Id. at 252. For federal regulations concerning the USCCR, including its organizational structure and staff, see 45
C.F.R. pt. 701.
332 See Brown, The Civil Rights Act of 1964, supra note 309, at 536 (“The Act authorized the Commission through
January 1968.”).
333 See Wilson, 290 F.3d at 351 (citing 42 U.S.C. § 1975d).
334 See 42 U.S.C. § 2000d et seq.
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worded prohibition335 reflects continuing disagreement over the prohibition’s scope and
application.336
In addition to the judicial debate over its requirements, Title VI is also unique among the titles in
the 1964 Act in at least several other respects: the breadth of its applicability, the administrative
methods of enforcing the statute, and the constitutional basis for its enactment. Indeed, because
the federal government, through its full array of departments and agencies, disburses considerable
amounts of funding to an exceedingly broad range of recipients,337 Title VI—which applies to al
such recipients—has an accordingly far reach.338 Moreover, every department and agency that
distributes federal financial assistance is responsible for ensuring that recipients comply with Title
VI’s requirements.339 Though House Report No. 914 does not refer to the constitutional authority
that Congress relied on to enact Title VI, the Supreme Court has repeatedly interpreted Title VI as
having been enacted pursuant to Congress’s power under the Spending Clause.340

335 See Alexander v. Sandoval, 532 U.S. 275, 303 (2001) (Stevens, J., dissenting) (describing T itle VI as “ a deceptively
simple statute,” but stating that “[]in the context of federal civil rights law, however, nothing is ever so simple. As
actions to enforce § 601’s antidiscrimination principle have worked their way through the courts, we have developed a
body of law giving content to § 601’s broadly worded commitment.”).
336 See “A Backdrop of “Fractured” T itle VI Decisions.”
337 See, e.g., The Department of Transportation Title VI Program , Dep’t of T ransp. (DOT ),
https://www.transportation.gov/mission/department-transportation-title-vi-program (stating that DOT gives federal
financial assistance “ each year for thousands of programs and activities (programs) conducted by diverse entities,
including but not limited to State and local governments”); Education and Title VI, U.S. Dep’t of Educ., Office for
Civil Rights, https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html, (last visited Sept. 1, 2020) (identifying as
DOE funding recipients: “ 50 state education agencies, their subrecipients, and vocational rehabilitation agencies; the
education and vocational rehabilitation agencies of the District of Columbia and of the territories and possessions of the
United States; 17,000 local education systems; 4,700 colleges and universities; 10,000 proprietary institutions; and
other institutions, such as libraries and museums”); Non-Discrim ination in Housing and Com m unity Developm ent
Program s, U.S. Dep’t of Housing and Urban Development (HUD),
https://www.hud.gov/program_offices/fair_housing_equal_opp/non_discrimination_housing_and_community_develop
ment_0#_Filing_a_Complaint , (last visited Sept. 1, 2020) (listing examples of common HUD funding recipients,
including Community Development Block Grants, Public Housing, and Housing Choice Vouchers (Section 8), among
others); Press Release, Dep’t of Def., Fiscal Year 2020 University Research Funding Awards, (Feb. 25, 2020) (on file
with author) (“ T he Department of Defense (DoD) announced $185 million in multidisciplinary university research
initiative (MURI) awards to 26 research teams pursuing basic research spanning multiple scientific disc iplines. T hese
five-year grants will be provided to teams located across 52 U.S. academic institutions, subject to satisfactory research
progress and the availability of funds.”).
338 See supra note 337. See also, e.g., HHS Grants, U.S. Dep’t of Health and Human Servs.,
https://www.hhs.gov/grants/grants/index.html, (last visited Sept. 1, 2020) (stating that “HHS is the largest grant -making
agency in the US. Most HHS grant s are provided directly to states, territories, tribes, and educational and community
organizations, then given to people and organizations who are eligible to receive funding”); Press Release, HUD Public
Affairs, Pandem ic Underscores Need for HUD’s Foster Youth Housing Program , Departm ent Allocates New Funding
to Six States (May 4, 2020) (on file with author) (announcing “ $100,000 in the latest installation of grants for HUD's
new Foster Youth to Independence (FYI) Initiative”),
https://www.hud.gov/press/press_releases_media_advisories/HUD_No_20_059 , (last visited Sept. 1, 2020).
339 See 42 U.S.C. § 2000d-1. See also “Federal Agencies: Administrative Enforcement and T itle VI Regulations.”
340 See Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274, 287 (1998) (observing that “ Congress attache[d]
conditions to the award of federal funds under its spending power, U.S. CONST., art. I, § 8, cl. 1” in T itle VI of the 1964
Act, as well as T itle IX of the Education Amendments of 1972); Guardians Ass’n v. Civil Service Com’n of City of
New York, 463 U.S. 582, 599 (1983) (White, J.) (citing examples from the 1964 Congressional Record and stating that
“legislative history clearly shows that Congress intended T itle VI to be a typical ‘contractual’ spending power
provision” and that “T itle VI is Spending Clause legislation”). Notably, under that reading, T itle VI and any later
amendments to it would require considerations not applicable to other titles of the 1964 Act, as legislation enacted on
that basis must meet certain requirements to be a valid exercise of Congress’s spending power. See, e.g., Pennhurst
State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 -18 (1981) (describing “ legislation enacted pursuant to the spending
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General Background: Race-Based Segregation and Discrimination
in Hospitals, Schools, and Other Federally Funded Programs
Legislative history reflects at least two related motivations for enacting Title VI. One aim was to
address the denial of equal access to and discrimination in the full range of federal y-funded
programs or activities based on citizens’ race341—from discrimination and exclusion in school
lunch programs to vocational rehabilitation programs to the receipt of surplus agricultural
commodities by the U.S. Department of Agriculture.342 Title VI was also responsive to the federal
government’s distribution of bil ions of dollars to institutions such as hospitals and medical care
centers,343 as wel as private universities and other research centers,344 which continued to racialy
segregate their facilities, staff, patients, or students, or otherwise excluded black citizens
altogether.345
Racial segregation and discrimination in hospitals drew particular legislative attention in the lead-
up to the 1964 Act,346 in light of a 1963 Fourth Circuit en banc decision, Simkins v. Moses H.

power” as “much in the nature of a contract ” and stating that “[t]he legitimacy of Congress’ power to legislate under
the spending power thus rests on whether the State voluntarily and knowingly accepts the terms”; “Accordingly, if
Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”) See also, e.g.,
Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 300 -03 (2006) (applying Pennhurst to evaluate a
fee-shifting provision in the Individuals with Disabilities Education Act (IDEA); Guardians, 463 U.S. at 596-603
(White, J.) (applying Pennhurst to analysis of whether and to what extent T itle VI permits relief for disparate impact
discrimination in a private right of action).
341 See H. REP. NO. 914, pt. 2, at 24 (“ Testimony before the House Judiciary Subcommittee and data gathered by the
Civil Rights Commission is available which demonstrates that in many regions of the country, citizens are denied the
equal benefits from Federal financial assistance programs because of their color.”).
342 Id. at 25 (stating that “ testimony presented before our committee reveals that Negro children have been denied free
lunches on the unfounded claim that their parents could afford to buy their noontime meals. Similarly, Negro families
have been denied access to or eliminated from receiving surplus agricultural commodities which are distributed by the
U.S. Department of Agriculture . . . Many additional examples can be cited where Negroes are continuing to be denied
equal protection and equal benefits under Federal assistance programs. Vocational and technical assistance, public
employment services, manpower development and training, vocational rehabilitation are only a few of the examples
which can be cited.”).
343 See id. at 24 (stating that as of May 1963, $2 billion in federal funding had been dedicated to hospital construction,
equipment, and the establishment of “ other forms of medical care facilities such as nursing phones and public health
centers” under the Hill-Burton Act; discussing “example after example” of how, “[d]espite the extent of this Federal
contribution,” “ Negroes are denied equal treatment under the act. Negro patients are denied access to hospitals or are
segregated within such facilities. Negro doctors are denied staff privileges—thereby precluding them from properly
caring for their patients. Qualified Negro nurses, medical technicians, and other health personnel are discriminated
against in employment opportunities. T he result is that the health standards of Negroes and, t hereby, the Nation are
impaired . . . In a related fashion, racial discrimination has been found to exist in vendor payment programs for medical
care of public assistance recipients. Hospitals, nursing homes, and clinics in all parts of the country participate in these
programs, and, in some, Negro recipients have received less than equal advantage.”).
344 See id. at 25 (“Billions of dollars of Federal money is expended annually on research. T his money which primarily
goes to universities and research centers for scientific and educational investigation is granted regularly by such
agencies as NASA, AEC, the Department of Defense, NIH, Office of Education, and National Science Foundation.
Regrettable as it may seem, a number of universities and other recipients of these grants continue to segregate their
facilities to the detriment of Negro education and the Nation’s welfare.”).
345 See supra notes 343-44. See generally Regents of Univ. of California v. Bakke, 438 U.S. 265, 413, n. 11 (1978)
(Stevens, concurring in the judgment in part and dissent ing in part, joined by Chief Justice Burger, Justice Stewart, and
Justice Rehnquist) (“ It is apparent from the legislative history that the immediate object of T itle VI was to prevent
federal funding of segregated facilities.”) (citing 110 CONG. REC. 1521 (1964) (remarks of Rep. Celler); id., at 6544
(remarks of Sen. Humphrey)).
346 See supra note 345. See also H. REP. NO. 914, pt. 2, at 24 (stating that “[t]estimony before the House Judiciary
Subcommittee . . . demonstrates that in many regions of the country, citizens are denied the equal benefits from Federal
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Cone Memorial Hospital.347 Simkins involved two private hospitals that received extensive
federal funding under the Hil -Burton Act,348 and which operated on a racial y-segregated basis
such that both hospitals refused to admit black physicians and patients.349 In their applications for
federal funding, which were approved, the hospitals had “openly stated” that “certain persons in
the area wil be denied admission to the proposed facilities as patients because of race, creed or
color.”350 With evidence of discrimination “‘clearly established,’”351 the court of appeals held that
there was sufficient evidence of state action to conclude that the hospitals were subject to the
Fifth and Fourteenth Amendments.352 The court also held that sections of the Hil -Burton Act353—
and its implementing regulations permitting separate facilities for white and black patients354—

financial assistance programs because of their color,” and pointing to the Hill-Burton Act, and racial segregation and
discrimination committed by hospitals that received federal funding under that statute, as “ a relevant case in point”).
347 See generally Regents of Univ. of California v. Bakke, 438 U.S. 265, 384 (1978) (White, J.) (discussing T itle VI and
stating that “ there was frequent reference to Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (C.A.4 1963),
cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), throughout the congressional deliberations”). See also
Sidney D. Watson, Race, Ethnicity and Quality of Care: Inequalities and Incentives, 27 AM. J.L. & MED. 203, 213-14
(2001) (describing the Fourth Circuit’s decision in Simkins as “health care’s Brown v. Board of Education” and
asserting that it “ played a significant role in shaping the 1964 Civil Rights Act,” in part because the Simkins decision
“deflated the opposition’s criticism [to Title VI] and helped assure passage of T itle VI”).
348 See Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959, 963 (4th Cir. 1963) (stating that “[a]s a result of their
involvement in the Hill-Burton hospital construction program, both hospitals have received large amounts of public
funds, paid by the United States” and reflecting that the “United States had appropriated $1,269,950.00 to the Cone
Hospital and $1,948,800.00 to the Long Hospital”).
349 See id. at 961-62 (describing the hospitals’ practices and stating that one hospital “ completely excludes Negro
patients and professionals” while the other “excludes all but a select few Negro patients, who are admitted on special
conditions not applied to whites” and which “ did not admit Negro doctors and dentists to staff privilege” at the time the
complaint was filed).
350 Id. at 962 (also stating that “[t]hese applications were approved by the North Carolina Medical Care Commission, a
state agency, and the Surgeon General of the United States under his statutory authorization.”).
351 Id. (“T he claims of racial discrimination were, as the District Court found, ‘clearly established.’”).
352 Id. at 960-61, 967-68 (on the issue of whether the hospitals’ activities were “sufficiently imbued with ‘state action’
to bring them within the Fifth and Fourteenth Amendment prohibitions against racial discrimination,” stating that
though “[n]ot every subvention by the federal or state government automatically involves the beneficiary in ‘state
action,’” “the Hill-Burton program, and examination of its functioning leads to the conclusion that we have state action
here”; finding it “significant here that the defendant hospitals operate as integral parts of comprehensive joint or
intermeshing state and federal plans or programs designed to effect a proper allocation of available medical and
hospital resources for the best possible promotion and maintenance of public health.”). See also id. at 963-65
(describing the operation of the Hill-Burton program at the federal and state levels).
353 Id. at 961, n.1 (reflecting that the Hill Burton Act contained an antidiscrimination provision that prohibited race
discrimination, but expressly excepted and allowed “ cases where separate hospital facilities are provided for separate
population groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality
for each such group”) (citing 42 U.S.C. § 291e(f)).
354 Id. at 961, n.2 (quoting the implementing regulation 42 C.F.R. § 53.112, which permitted recipients to operate
“separate hospital, diagnostic or treatment center, rehabilitation or nursing home facilities” for “separate population
groups” if the recipients’ plan “otherwise makes equitable provision on the basis of need for facilities and services of
like quality for each such population group in the area”).
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were unconstitutional.355 The Supreme Court’s denial of a petition for certiorari in Simkins356
closely preceded Senate debate on Title VI.357
In that context, Title VI declared that it is “the policy of the United States that discrimination on
the ground of race, color, or national origin shal not occur in connection with programs and
activities receiving Federal financial assistance.”358 The Supreme Court has described the two
objectives of Title VI as (1) to “avoid the use of federal resources to support discriminatory
practices;” (2) “to provide individual citizens effective protection against those practices.”359
More colloquial y, the operation of Title VI has been described in the following way: “Stop the
discrimination, get the money; continue the discrimination, do not get the money.”360
“Discrimination” Prohibited by Title VI Under Sections 601 and 602
Section 601 of Title VI: Addressing Intentional Discrimination
Section 601 of Title VI requires that, as a condition for receiving federal dollars, recipients
comply with the mandate that “[n]o person in the United States shal , 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.”361
As reflected above, the text of Section 601 is notably phrased in general terms—a prohibition
against “discrimination,” without specifying what kinds of actions constitute unlawful
discrimination under Title VI.362 This ambiguity363 has led to intense judicial debate regarding

355 Id. at 969-70 (“These federal provisions undertaking to authorize segregation by state-connected institutions are
unconstitutional”; also holding that “[u]nconstitutional as well under the Due Process Clause of the Fifth Amendment
and the Equal Protection Clause of the Fourteenth are the relevant regulations implementing this passage in the
statute”).
356 See Moses H Cone Mem’l Hosp. v. Simkins, 376 U.S. 938 (1964) (denying p etition for writ of certiorari on March
2, 1964).
357 See David Barton Smith, Health Care’s Hidden Civil Rights Legacy, 48 ST. LOUIS U. L.J. 37, 49 (2003) (stating that
the bill proposing the 1964 Act “ worked its way through Congress shadowing the Sim kins case in the courts” and that
the Supreme Court’s denial of certiorari “came just days before the debate regarding the civil rights bill was to begin in
the Senate”; expressing the view that the Simkins case, and the Supreme Court’s denial of certiorari, “transformed a
vague and controversial section of the bill into something that now seemed like almost a redundant detail” and stating
that President Johnson signed the Civil Rights Act into law on July 2, 1964, with T itle VI essentially unaltered.”).
358 See H. REP. NO. 914, pt. 1, at. 25.
359 See Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (adding that “[b]oth of these purposes were repeatedly
identified in the debates” on both T itle VI of the 1964 Act, and T itle IX of the Education Amendments of 1972). See
also id. n. 36 (quoting excerpts from the Congressional Record discussing T itle VI and T itle IX).
360 See Guardians, 463 U.S. at 599 (White, J.) (statement of Rep. Lindsay on T itle VI) (citing 110 CONG. REC. 1542
(1964)).
361 42 U.S.C. § 2000d. But see id. § 2000d-3 (“Nothing contained in this subchapter shall be construed to authorize
action under this subchapter by any department or agency with resp ect to any employment practice of any employer,
employment agency, or labor organization except where a primary objective of the Federal financial assistance is to
provide employment.”).
362 Compare id. (prohibiting, “on the ground of race, color, or national origin,” “discrimination under any program or
activity receiving Federal financial assistance”) with id. § 2000e-2(a) (identifying various practices that constitute
unlawful discrimination under T itle VII of the 1964 Act, including failing or refusing to hire an individual because of a
protected trait, firing an individual, and discriminating against an individual in compensation, terms, conditions or
privileges of employment, among other enumerated actions).
363 See generally Guardians, 463 U.S. at 592 (White, J., announcing the judgment of the Court) (in a T itle VI analysis,
observing that “the word ‘discrimination’ is inherently” ambiguous); Regents of Univ. of California v. Bakke, 438 U.S.
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exactly what Congress intended to outlaw. More specifical y, the Justices of the Supreme Court
have debated whether, as a matter of statutory interpretation, Section 601 prohibits only
intentional discrimination, or whether it also prohibits policies or practices that, though facial y
neutral, disproportionately and negatively impact a protected group without sufficient
justification.364 This latter form of discrimination is often referred to as “disparate impact”
discrimination,365 and does not require evidence of discriminatory motive.366
Though the debate among the Justices is discussed in further detail below, the Supreme Court has
settled for now on reading Section 601 to bar discriminatory conduct that violates the Equal
Protection Clause, with respect to race, color, or national origin.367 Under that reading, Section
601 prohibits intentional discrimination only,368 while permitting the use of racial classifications
only when they are narrowly tailored to further a compel ing government interest.369 Thus,
individuals suing to enforce Section 601 may chal enge only intentional, and not disparate
impact, discrimination.370

265, 284 (1978) (opinion of Powell, J.) (quoting Section 601 and observing that “ the concept of ‘discrimination,’ like
the phrase ‘equal protection of the laws,’ is susceptible of varying interpretations”).
364 See generally Alexander v. Choate, 469 U.S. 287, 292-93 (1985) (explaining that in the Court’s 1983 Guardians
decision, “Members of the Court offered widely varying interpretations of T itle VI” on the issue of whether it reached
both intentional and disparate impact discrimination).
365 See generally T exas Dep’t of Housing and Community Affairs v. Inclusive Communities Project, Inc., et al., 135
S.Ct. 2507, 2513 (2015) (“In contrast to a disparate-treatment case, where a ‘plaintiff must establish that the defendant
had a discriminatory intent or motive,’ a plaint iff bringing a disparate-impact claim challenges practices that have a
‘disproportionately adverse effect on minorities’ and are otherwise unjustified by a legitimate rationale.”) (quoting
Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
366 See generally Int’l Broth. of T eamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (“Claims of disparate
treatment may be distinguished from claims that stress ‘disparate impact ’… Proof of discriminatory motive, we have
held, is not required under a disparate-impact theory”) (internal citation omitted). As a general matter, and though
beyond the scope of this overview, it should be noted that a distinction between disparate impact discr imination and
evidence of discriminatory intent may not be entirely clear. See generally Inclusive Com m unities, 135 S.Ct. at 2522
(observing, in the context of the Fair Housing Act, that disparate impact liability “ plays a role in uncovering
discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy
classification as disparate treatment.”); Washington v. Davis, 426 U.S. 229, 254 (1976) (Stevens, J., concurring)
(suggesting “that the line between discriminatory purpose and discriminatory impact is not nearly as bright, and
perhaps not quite as critical, as the reader of the Court’s opinion might assume”; though agreeing “ that a constitutional
issue does not arise every time some disproportionate impact is shown,” stating that when the “disproportion is as
dramatic” as demonstrated in some of the Court’s earlier decisions, “it really does not matter whether the standard is
phrased in terms of purpose or effect. T herefore, although I accept the statement of the general rule in the Court’s
opinion, I am not yet prepared to indicate how that standard should be applied in the many cases which have
formulated the governing standard in different language.”).
367 See infra note 411. See also Guardians, 463 U.S. at 641-42 (Stevens, J., dissenting, joined by Justices Brennan and
Blackmun) (reading the Court’s precedent interpreting T itle VI as confirming that “ [t] oday, proof of invidious purpose
is a necessary component of a valid T itle VI claim” and stating that “[i]f a statute is to be amended after it has been
authoritatively construed by this Court, that task should almost always be performed by Congress”).
368 See Sandoval, 532 U.S.at 280-81 (citing Bakke and Guardians as precedent that “made clear” that Title VI prohibits
“only intentional discrimination”).
369 See, e.g., Fisher v. Univ. of T exas at Austin, 570 U.S. 297, 310 (2013) (stating that “Grutter made clear that racial
‘classifications are constitutional only if they are narrowly tailored to further co mpelling governmental interests’”)
(citing 539 U.S., at 326).
370 See Sandoval, 532 U.S. at 279-80 (explaining that “private individuals may sue to enforce § 601 of T it le VI and
obtain both injunctive relief and damages,” and that “ § 601 prohibits only intentional discrimination”). See also id. at
293 (holding that no private right of action exists to enforce Title VI regulations prohibiting disparate impact
discrimination).
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Section 602: Addressing Discrimination including Disparate Impact
Discrimination
Though the Supreme Court interprets Section 601 as coextensive with the Equal Protection
Clause, disparate impact discrimination remains within the purview of Title VI through Section
602, the statute’s administrative enforcement provision.371 Section 602 directs each federal
department or agency that extends federal financial assistance to “effectuate” Section 601,
including by issuing regulations “consistent with achievement of the objectives of the statute,”372
To that end, federal agencies have long interpreted and enforced Title VI to prohibit disparate
impact discrimination373—that is, actions that disproportionately harm members of a protected
group without justification.374
Addressing Section 602 in its 1983 decision Guardians Association v. Civil Service Commission
of the City of New York,375 five Justices adopted the view that federal regulations implementing
Title VI may validly prohibit disparate impact discrimination.376 Several Justices reasoned that,
while Section 601 reached only intentional discrimination,377 federal agencies had “acted in a
reasonable manner to further the purposes of Title VI” by issuing regulations under Section 602
that prohibited practices with a racial y disparate impact.378 Thus, a regulatory prohibition against

371 42 U.S.C. § 2000d-1.
372 See id.
373 See generally Guardians, 463 U.S. at 619 (Marshall, J., dissenting) (“Following the initial promulgation of
regulations adopting an impact standard, every Cabinet department and about forty federal agencies adopted standards
interpreting T itle VI to bar programs with a discriminatory impact.”). See id., n. 7 (citing and listing agencies’ T itle VI
disparate impact regulations). See also Sandoval, 532 U.S. at 294 (Stevens, J., dissenting) (stating that pursuant to
“powers expressly delegated by [the 1964] Act, the federal agencies and departments responsible for awarding and
administering federal contracts immediately adopted regulations prohibiting federal contractees from adopting policies
that have the ‘effect’ of discriminating on those bases.”). See generally, Title VI Overview, Civil Rights Division,
Federal Coordination and Compliance Section, Dep’t of Justice, https://www.justice.gov/crt/fcs/T itleVI-Overview, (last
visited Sept. 1, 2020) (“ Title VI itself prohibits intentional discrimination. However, most funding agencies have
regulations implementing T itle VI that prohibit recipient practices that have the effect of discrimination on the basis of
race, color, or national origin.”). T hough beyond the scope of this overview to address developments relating to T itle
VI, last year the Departments of Justice and Education appeared to depart from this view by rescinding guidance
relating to disparate impact discrimination under T itle VI. For more information, see CRS Legal Sidebar LSB10254, Is
the Trum p Adm inistration Rethinking Title VI?, by JD S. Hsin.
374 See generally supra note 365.
375 463 U.S. 582 (1983).
376 See Guardians, 463 U.S. at 584, n. 2 (White, J., announcing the judgment of the Court) (describing the Justices’
separate opinions and stating that “ Justice Stevens, joined by Justice Brennan and Justice Blackmun, reasons that,
although T itle VI itself requires proof of discriminatory intent , the administrative regulations incorporating a disparate
impact standard are valid. Post, at 3249. Justice Marshall would hold that, under T itle VI itself, proof of disparate
impact discrimination is all that is necessary. Post, at 3239. I agree with Justice Marshall that discriminatory animus is
not an essential element of a violation of T itle VI. I also believe that the regulations are valid, even assuming arguendo
that T itle VI, in and of itself, does not proscribe disparate impact discrimination.”). See Guardians, 463 U.S at 623, n.
15 (opinion of Marshall, J.) (“ I also agree with Justice White . . . that the administrative regulations are valid even
assuming arguendo that T itle VI itself does not proscribe disparate impact discrimination.”). See also Choate, 469 U.S.
at 293-94 (summarizing the holdings in the Court’s Guardians decision); Sandoval, 532 U.S. at 282-83 (stating that in
Guardians, “ [f]ive Justices in addition voted to uphold the disparate-impact regulations”).
377 See Guardians, 463 U.S. at 641-42 (Stevens, J., dissenting, joined by Justices Brennan and Blackmun) (discussing
the Court’s precedent interpreting section 601 and concluding that “ regardless of what some of us may have thought it
meant before this Court spoke,” “[t]oday, proof of invidious purpose is a necessary component of a valid T itle VI
claim”).
378 See id. at 642-45 (Stevens, J., dissenting, joined by Justices Brennan and Blackmun) (explaining that the Court has
“repeatedly upheld the validity” of regulations that “require recipients to administer the grants in a manner that has no
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disparate impact discrimination in federal y-funded programs and activities remains, at least for
now,379 legal y valid.
Notably as wel , the Court has held that individuals cannot bring a private right of action al eging
disparate impact discrimination in violation of Title VI regulations.380 Thus, the enforcement of
Title VI disparate impact regulations lies exclusively with and at the discretion of federal
agencies.381
The Supreme Court and “Discrimination” Prohibited by Title VI
As mentioned above, the Supreme Court has questioned how to interpret Section 601. Did
Congress intend for Section 601 to address racial discrimination that is unlawful under the Equal
Protection Clause of the Fourteenth Amendment? 382 Or did Congress intend to reach beyond the
requirements of the Equal Protection Clause to address other forms of racial discrimination?383

racially discriminatory effects” because “ T itle VI explicitly authorizes” federal agencies to effectuate § 601 and
“[n]othing in the regulations is inconsistent with any of the statutes authorizing the disbursement of the grants that the
respondent received”; also explaining that it is “well settled that when Congress explicitly authorizes an administrative
agency to promulgate regulations implementing a federal statute that governs completely private conduct, those
regulations have the force of law so long as they are ‘reasonably related to the purposes of the enabling legislation’;
further stating that [t]he presumption of validity must be at least as strong when a regulation . . . merely defines the
terms on which someone may seek federal money. By prohibiting grant r ecipients from adopting procedures that deny
program benefits to members of any racial group, the administrative agencies have acted in a reasonable manner to
further the purposes of T itle VI”) (internal citations omitted) (emphasis in original). See also Choate, 469 U.S. at 293-
94 (stating that the Court held in Guardians “ that actions having an unjustifiable disparate impact on minorities could
be redressed through agency regulations designed to implement the purposes of T itle VI” and that “[i]n essence, then,
we held that T itle VI had delegated to the agencies in the first instance the complex determination of what sorts of
disparate impacts upon minorities constituted sufficiently significant social problems, and were readily enough
remediable, to warrant altering the practices of t he federal grantees that had produced those impacts”).
379 T he Court has not, since Guardians, addressed the legal validity of T itle VI disparate impact regulations. See
Sandoval, 532 U.S. at 282 (stating that because the petitioners challenged the private of right action based on T itle VI
disparate impact regulations, but not the regulations themselves, “[w]e therefore assume for the purposes of deciding
this case that the DOJ and DOT regulations proscribing activities that have a disparate impact on the basis of race are
valid.”). T he Court, however, has later noted in dicta some skepticism with regulations promulgated under Section 602
addressing conduct that Section 601 does not expressly prohibit, see Sandoval, 532 U.S. at 279, 286, n. 6 (though the
only question presented before the Court was “whether there is a private cause of action to enforce” a T itle VI disparate
impact regulation, and the Court was “not inquir[ing]” as to whether t he regulation was “authorized by § 602,”
nonetheless noting in dicta that “[w]e cannot help observing, however, how strange it is to say that disparate -impact
regulations are ‘inspired by, at the service of, and inseparably intertwined with’ § 601, when § 601 permits the very
behavior that the regulations forbid.”) (internal citation omitted).
380 Sandoval, 532 U.S. at 278, 293 (addressing “ the question whether private individuals may sue to enforce disparate-
impact regulations promulgated under T itle VI of the Civil Rights Act of 1964” and holding “ that no such right of
action exists”).
381 See supra notes 373, 376 and 380. See, e.g., South Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d
771, 774-76 (3d Cir. 2001) (where plaintiffs originally brought suit alleging that a state agency violated the
Environmental Protection Agency’s T itle VI disparate impact regulations by granting a permit for a cement facility in a
predominantly minority neighborhood that already contained contaminated industrial sites, discussing the Supreme
Court’s 2001 Sandoval decision, which came down as the litigation was ongoing, and stating that “[o]bviously,
Sandoval eliminated the basis for the court’s injunction” granting relief on that T itle VI claim.).
382 See, e.g., Bakke, 438 U.S. at 284 (Powell, J., announcing judgment of the Court) (“In view of the clear legislative
intent, T itle VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause
or the Fifth Amendment.”).
383 See id. at 416-17 (Stevens, J., concurring in part and dissenting in part) (expressing the view that “[t]he statutory
prohibition against discrimination in federally funded projects contained in § 601 is more than a simple paraphrasing of
what the Fifth or Fourt eenth Amendment would require” and that “ § 601 has independent force, with language and
emphasis in addition to that found in the Constitution”; explaining that “[a]s with other provisions of the Civil Rights
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The following discussion provides an overview of the Court’s decisions reflecting the debate over
Section 601’s prohibition. While the Court now applies Section 601 coextensively with the Equal
Protection Clause, it has taken this approach only after a series of fractured opinions concerning
the scope of Section 601.
A Backdrop of “Fractured” Title VI Decisions
Harmonizing the Supreme Court’s decisions interpreting the reach of Title VI, in the words of
Justice John Paul Stevens, “is not an easy task.”384 The Court has observed that “[a]lthough Title
VI has often come to this Court, it is fair to say (indeed, perhaps an understatement) that our
opinions have not eliminated al uncertainty regarding its commands.”385
When addressing Title VI in its 1974 decision Lau v. Nichols,386 for example, a unanimous
Court387 recognized disparate impact liability under the statute.388 In Lau, non-English speaking
Chinese students al eged that the San Francisco public school system’s refusal to provide English
language or bilingual instruction denied them equal educational opportunities in violation of Title
VI and the Equal Protection Clause.389 Relying “solely on § 601” in its analysis, the majority
opinion emphasized the school district’s receipt of federal funding, and Title VI regulations
requiring recipients to address the English language needs of national origin-minority students.390
Stating that “[d]iscrimination is barred which has that effect even though no purposeful design is
present,”391 the Court concluded that the school district had violated Title VI’s requirements392

Act, Congress’ expression of its policy to end racial discrimination may independently proscribe conduct that the
Constitution does not”). Justice Stevens, with Chief Justice Burger, Justice Stewart, and Justice Rehnquist would have
read T itle VI, however, to prohibit any consideration of race in any circumstance, including in the context of an
admissions program designed to diversify a student body). See id. at 414 (rejecting the contention “ that exclusion of
applicants on the basis of race does not violate T itle VI if the exclusion carries with it no racial stigma”).
384 Guardians Ass’n v. Civil Service Com’n of City of New York, 463 U.S. 582, 635 (1983) (Stevens, J., dissenting).
See also Grutter, 539 U.S. at 325 (describing the Court’s Bakke decision, which addressed T itle VI and the Equal
Protection Clause, as “ fractured”); Alexander v. Sandoval, 532 U.S. 275, 298 (2001) (Stevens, J.) (dissenting)
(describing the Court’s T itle VI Guardians decision as “ fractured”).
385 Sandoval, 532 U.S. at 279.
386 414 U.S. 563 (1974).
387 T hough the Justices in Lau were unanimous in granting relief to the plaintiffs on their T itle VI disparate impact
claim, they did so on different grounds. Cf. Lau, 414 U.S. at 566-69 (majority opinion holding that Section 601
prohibited disparate impact discrimination); id. at 569-71 (Stewart, J., concurring) (expressing the view that while it
was “not entirely clear” that Section 601 “standing alone” rendered the school district’s conduct unlawful, concluding
that the school district had violated T itle VI regulations prohibiting disparate impact discrimination). See also
Guardians, 463 U.S. at 591 (opinion of White, J.) (discussing the Court’s unanimous holding in Lau that the school
district was prohibited “ by T itle VI from practicing unintentional as well as intentional discrimination against racial
minorities”; explaining that “[f]ive Justices were of the view that T itle VI itself forbade impact discrimination,” while
three Justices concurred in the result, but on the basis that the conduct violated “Title VI implementing regulations,
which explicitly forbade impact discrimination,” and which were valid because they were “not inconsistent with the
purposes of T itle VI”).
388 Lau, 414 U.S. at 566-69 (addressing T itle VI claim challenging discriminatory effects of a public school system’s
failure to provide English language instruction to students who did not speak English, and reversing the court of
appeals’ dismissal of that claim).
389 Lau, 414 U.S. at 564-65.
390 Id. at 566-59.
391 Id. at 568 (emphasis added).
392 See id. (concluding that “[i]t seems obvious that the Chinese-speaking minority receive fewer benefits than the
English-speaking majority from respondents’ school system which denies them a mean ingful opportunity to participate
in the educational program”).
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and ordered the “fashioning of appropriate relief” on remand.393 As the petitioners’ Title VI claim
did not rely on evidence of discriminatory intent, but chal enged the effects of the school district’s
practices, the Court appeared to endorse a reading of Section 601 as prohibiting disparate impact
discrimination.394
A few years later, however, the Court took a markedly different approach when addressing Title
VI in its 1978 decision Regents of Univ. of California v. Bakke,395 a case that chal enged the
admissions process at the University of California’s medical school.396 Producing no majority
opinion,397 the Bakke decision nonetheless introduced an interpretation of Title VI, adopted by
five Justices, reading Section 601 to prohibit conduct that is unlawful under the Equal Protection
Clause.398 Importantly, under that view, and the Court’s Equal Protection Clause precedent,399
Title VI claims would require at least some evidence of a racial y discriminatory motive.400
Following its “splintered” decision in Bakke,401 the Justices debated, in the 1983 decision
Guardians Association v. Civil Service Commission of the City of New York, how to square Lau—
which recognized disparate impact liability under Section 601402—with Bakke, which read
Section 601 to require evidence of discriminatory intent.403 Guardians, however, resulted in

393 Id. at 569.
394 See id. at 568-69. See also Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (stating that “ the Court in Lau
interpreted § 601 itself to proscribe disparate-impact discrimination”) (citing Lau, 414 U.S. at 568); Guardians, 463
U.S. at 589 (White, J., announcing the judgment of the Court) (“ T he Court squarely held in Lau v. Nichols that T itle VI
forbids the use of federal funds not only in programs that intentionally discriminate on racial grounds but also in those
endeavors that have a disparate impact on racial minorities.”); id. at 615 (O’Connor, J., concurring in judgment) (“I
acknowledge that in Lau v. Nichols, the Court approved liability under T itle VI for conduct having only a
discriminatory impact.”).
395 438 U.S. 265 (1978).
396 Id. at 272-73.
397 See Grutter v. Bollinger, 539 U.S. 306, 322 (2003) (“ The [Bakke] decision produced six separate opinions, none of
which commanded a majority of the Court.”)
398 See Bakke, 438 U.S. at 287 (expressing the view that “ T itle VI must be held to proscribe only those racial
classifications that would violate the Equal Protection Clause or the Fifth Amendment”). See also id. at 325 (Brennan,
J., concurring in part and dissenting in part) (expressing the dissenters’ “ agree[ment] with Mr. Justice Powell that, as
applied to the case before us, T itle VI goes no further in prohibiting the use of race than the Equal Protection Clause of
the Fourteenth Amendment itself.”). Justices White, Marshall, and Blackmun joined Justice Brennan’s dissenting
opinion. See id. at 324.
399 See generally Village of Arlington Heights v. Metro Housing Devel. Corp., 429 U.S. 252, 265 (1977) (stating that
under its 1976 decision Washington v. Davis, 426 U.S. 229, an Equal Protection Clause violation requires evidence of
“racially discriminatory intent or purpose,” but “does not require a plaintiff to prove that the challenged action rested
solely on racially discriminatory purposes”; also reading Davis as “ mak[ing] it clear that official action will not be held
unconstitutional solely because it results in a racially disproportionate impact”) (emphases added). Cf. id. at 266
(identifying types of evidence that may support an inference of discriminatory intent, including “ a clear pattern,
unexplainable on grounds other than race, [that] emerges from the effect of the state action even when the governing
legislation appears neutral on its face”).
400 See supra note 399.
401 See Grutter, 539 U.S. at 322-23 (discussing the Court’s 1978 Bakke decision, the six separate opinions produced in
that case, and describing that decision as “splintered”).
402 See supra note 394.
403 Cf. Guardians, 463 U.S. at 589-90 (White, J., announcing the judgment of the Court) (stating that because Bakke
concerned whether “ T itle VI forbids intentional discrimination in the form of affirmative action intended to remedy
past discrimination,” a holding in Bakke that T itle VI permits such intentional discrimination to the extent permitted by
the Constitution “is plainly not determinative of whether” T itle VI also prohibits disparate impact discrimination;
expressing the view that the “holdings in Bakke and Lau are entirely consistent”); id. at 610-11 (Powell, J., concurring
in the judgment) (expressing the view that as five Justices in Bakke adopted a “ construction” of T itle VI as coextensive
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another “fractured” decision,404 producing “widely varying interpretations” on the scope of Title
VI.405 Though no opinion commanded a majority, the Court read Guardians to produce two
holdings: that (1) “Title VI itself directly reached only instances of intentional discrimination”406
and (2) “actions having an unjustifiable disparate impact on minorities could be redressed through
agency regulations” promulgated under Section 602.407
A question of disparate impact liability next reached the Court in 2001, on whether a private
plaintiff could sue to enforce Title VI disparate impact regulations. In Alexander v. Sandoval,408
the Court held that, absent congressional intent to create a private right to enforce Title VI
regulations promulgated under Section 602, individuals could only sue to enforce Section 601.409
In the context of discussing Section 601, a majority of the Court construed its precedent as
“ma[king] clear” and “beyond dispute” that it reached “only intentional discrimination” that
violates the Equal Protection Clause.410
After Sandoval, the Court has since applied Section 601 to bar intentional discrimination that
violates the Equal Protection Clause.411 Thus, the Court’s Title VI decisions, taken and read

with equal protection, that reading “ necessarily requires rejection of the prior decision in Lau v. Nichols, 414 U.S. 563,
94 S.Ct. 786, 39 L.Ed.2d 1 (1974), that discriminatory impact suffices to establish liability under T itle VI.”).
404 See Sandoval, 532 U.S. at 298 (Stevens, J.) (dissenting) (describing the Court’s T itle VI Guardians decision as
“fractured”).
405 See Alexander v. Choate, 469 U.S. 287, 292-93 (1985).
406 Id. at 293 and n. 8 (noting the adoption of that view by seven Justices in three separate opinions in Guardians).
407 Id. at 293 and n. 9 (noting the adoption of that view by five Justices in three separate opinions in Guardians).
408 532 U.S. 275 (2001).
409 Id. at 293 (“ Neither as originally enacted nor as later amended does T itle VI display an intent to create a
freestanding private right of action to enforce regulations promulgated under § 602. We therefore hold that no such
right of action exists.”).
410 See Sandoval, 532 U.S. at 280-81 (citing Bakke and Guardians as precedent that “made clear” that T itle VI prohibits
“only intentional discrimination,” and stating that it was “beyond dispute” that “§ 601 prohibits only intentional
discrimination”; also stating that essential to the Court’s reversal of the state court decision in Bakke “was the
determination that § 601” prohibits discrimination that would violate the Equal Protection Clause or the Fifth
Amendment). T he majority opinion also stated that “we have since rejected Lau’s interpretation of § 601 as reaching
beyond intentional discrimination.” Id. at 285 (citing its own discussion, id. at 280-81, of Bakke and Guardians). T he
majority opinion elicited a dissent by Justice Stevens, in which Justices Souter, Ginsburg, and Breyer joined,
expressing disagreement with the majority’s characterization of the Court’s T itle VI precedent. See Sandoval, 532 U.S.
at 294-302 (Stevens, J., dissenting) (asserting that the majority opinion provided a “ muddled account ” of the Court’s
decisions addressing a private right of action under T itle VI; discussing the Court’s precedent, including its Guardians
decision, in which “a clear majority of the Court expressly stated that private parties may seek injunctive relief against
governmental practices” that disparately impact “racial and ethnic minorities” and stating that “[t]hough the holding in
Guardians does not compel the conclusion that a private right of action exists to enforce the T itle VI regulations
against private parties, the rationales of the relevant opinions strongly imply that result.”). See also id. at 308 (Stevens,
J., dissenting) (discussing the Court’s T itle VI precedent and stating that “ the question whether § 601 applies to
disparate-impact claims has never been analyzed by this Court on the merits”).
411 See Grutter, 539 U.S. at 343 (holding that the petitioner failed to prove an Equal Protection Clause violation;
concluding that “ [c]onsequently,” the petitioner’s T itle VI claim failed, in reliance on Justice Powell’s opinion in Bakke
reading T itle VI to “proscribe only those racial classifications that would violate the Equal Protection Clause”) (citing
Bakke, 438 U.S. at 287); Gratz v. Bollinger, 539 U.S. 244, 275-76 n.23 (2003) (“ We have explained that discrimination
that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal
funds also constitutes a violation of T itle VI.”) (citing Sandoval, 532 U.S. 275, 281 (2001); United States v. Fordice,
505 U.S. 717, 732, n. 7 (1992); Alexander v. Choate, 469 U.S. 287, 293 (1985)). See also Sandoval, 532 U.S. at 280-81
(stating that “essential” to the Court’s holding in its 1978 Bakke decision “ was the determination that § 601
‘proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment’”)
(citing Bakke, 438 U.S. at 287 (opinion of Powell, J.); id. at 325, 328, 352 (opinion of Brennan, White, Marshall, and
Blackmun, JJ.)).
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together, now foreclose private suits al eging disparate impact discrimination and permit only
private suits chal enging intentional discrimination under Section 601.412 Meanwhile, with respect
to Section 602, federal agencies may continue to enforce, at least for now,413 a prohibition of
disparate impact discrimination through Title VI regulations.414
Federal Agencies: Administrative Enforcement and Title VI
Regulations
In contrast to other titles of the 1964 Act, which are typical y enforced by one or several federal
entities,415 Title VI’s antidiscrimination mandate is enforced by every “Federal department and
agency” that “is empowered to extend Federal financial assistance to any program or activity, by
way of grant, loan, or contract.”416 Accordingly, numerous federal agencies—from the
Departments of Transportation417 to the Treasury,418 the Environmental Protection Agency419 to
the Federal Emergency Management Agency (FEMA)420—enforce Title VI with regard to their

412 See supra notes 380 and 410.
413 As noted earlier, the Court, in dicta, has expressed some skepticism that regulations promulgated under Section 602
can address conduct that Section 601 does not expressly prohibit. See supra note 379.
414 See “Section 602: Addressing Discrimination including Disparate Impact Discrimination .”
415 For example, T itles III and IV grant the Attorney General authority to initiate enforcement actions in court. See
“Enforcement Actions by the Attorney General” under T itle III, and “ Enforcement Actions by the Attorney General”
under T itle IV.
416 See 42 U.S.C. § 2000d-1. A “contract of insurance or guaranty,” however, does not constitute federal financial
assistance for T itle VI purposes. See id. (referring to “ Federal financial assistance to any program or activity, by way of
grant, loan, or contract other than a contract of insurance or guaranty”). See, e.g., Title VI of the Civil Rights Act,
Program Description, Dep’t of Housing and Urban Development (HUD),
https://www.hud.gov/programdescription/title6 , (last visited Sept. 1, 2020) (“ T itle VI covers all HUD housing
programs except for its mortgage insurance and loan guarantee programs.”).
417 See generally The Department of Transportation Title VI Program, U.S. Dep’t of T ransp. (DOT ),
https://www.transportation.gov/mission/department-transportation-title-vi-program, (last visited Sept. 1, 2020) (stating
that DOT “distributes substantial Federal financial assistance each year for thousands of programs and activities
(programs) conducted by diverse entities, including but not limited to State and local governments”).
418 See generally Federally Assisted Programs and Federally Conducted Programs, U.S. Dep’t of T reasury (T reasury),
https://home.treasury.gov/about/offices/management/civil-rights-and-diversity/federally-assisted-programs-and-
federally-conducted-programs, (last visited Sept. 1, 2020) (“ Any person eligible to receive benefits or services from the
Department of the T reasury or its recipients is entitled to those benefits or services without being subject to prohibited
discrimination. T he Office of Civil Rights and Diversity enforces various federal statutes and regulations that prohibit
discrimination in T reasury financially assisted and conducted programs or activities. If a person believes s/he has been
subjected to discrimination and/or reprisal because of membership in a protected group then that person may file a
complaint with the Office of Civil Rights and Diversity.”).
419 See generally, Title VI and Environmental Justice at EPA, Programs and Projects of the Office of General Counsel
(OGC), Environmental Protection Agency (EPA), https://www.epa.gov/ogc/title-vi-and-environmental-justice-epa,
(last visited Sept. 1, 2020) (“ Under T itle VI, EPA has a responsibility to ensure that its funds are not being used to
subsidize discrimination based on race, color, or national origin. T his prohibition against discrimination under T itle VI
has been a statutory mandate since 1964 and EPA has had T itle VI regulations since 1973.”). See also generally EPA's
Title VI - Policies, Guidance, Settlem ents, Laws and Regulations, Programs and Projects of the OGC, EPA,
https://www.epa.gov/ogc/epas-title-vi-policies-guidance-settlements-laws-and-regulations, (last visited Sept. 1, 2020).
420 See generally Civil Rights Title VI in Federally Assisted Programs, Federal Emergency Management Agency
(FEMA), https://www.fema.gov/media-library/assets/documents/26070, (last visited Sept. 1, 2020) (“ T he Department
of Homeland Security (DHS), Federal Emergency Management Agency (FEMA) is committed to ensuring that the
Civil Rights of all persons receiving services or benefits from the Agency’s programs and activities are protected. T his
directive describes the policies, procedures, requirements and responsibilities of an Agency-wide program that adheres
to such protection.”).
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respective funding recipients.421 When a program or activity receiving federal financial assistance
commits race discrimination in violation of Title VI’s requirements, the federal agency that
disbursed the funds may terminate or withhold funding to that recipient, among other agency
actions discussed in further detail below.422
Methods of “Effectuating” Title VI’s Antidiscrimination Mandate
Federal Regulations Interpreting and Implementing Title VI
Section 602 directs funding departments and agencies to issue “rules, regulations, or orders of
general applicability which shal be consistent with achievement of the objectives of the statute
authorizing the financial assistance in connection with which the action is taken.”423 Though
Section 602 states that no regulation “shal become effective unless and until approved by the
President,”424 that authority has, since 1980, been delegated to the Attorney General by executive
order.425 The DOJ is also responsible for coordinating other federal agencies with respect to
interpreting and implementing Title VI.426
Numerous departments and agencies have issued Title VI regulations,427 as wel as guidance
documents to provide technical assistance to funding recipients on Title VI compliance.428 As
discussed earlier, in addition to forms of intentional discrimination,429 Title VI regulations issued

421 See, e.g., supra notes 417-20. Given the range of funding agencies and recipients, as well as the forms in which race,
color, or national origin discrimination may take shape in these varied contexts, it is beyond the scope of this overview
to examine each agency’s specific operations with respect to enforcing T itle VI. For more information on T itle VI
procedures and enforcement by the Department of Education, for example, see CRS Report R45665, Civil Rights at
School: Agency Enforcem ent of Title VI of the Civil Rights Act of 1964 , coordinated by Jared P. Cole (Apr. 4, 2019).
See also, e.g., U.S. Commission on Civil Rights, Examining the Environmental Protection Agency’s Compliance and
Enforcement of T itle VI and Executive Order 12,898 (Sept. 2016).
422 42 U.S.C. § 2000d-1.
423 Id.
424 See id.
425 See Exec. Order No. 12250, Leadership and Coordination of Nondiscrimination Laws (Nov. 2, 1980),
https://www.justice.gov/crt/executive-order-12250 (“The function vested in the President by Section 602 of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-1), relating to the approval of rules, regulations, and orders of general
applicability, is hereby delegated to the Attorney General.”).
426 See id. at 1-201(a) (“The Attorney General shall coordinate the implementation and enforcement by Executive
agencies of . . . T itle VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)”).
427 See, e.g., infra notes 429-30.
428 See, e.g., Final Guidance to Federal Financial Assistance Recipients Regarding T itle VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient Persons, 72 Fed. Reg. 2732 (published Jan. 22,
2007), https://www.federalregister.gov/documents/2007/01/22/07 -217/final-guidance-to-federal-financial-assistance-
recipients-regarding-title-vi-prohibition-against , (last visited Sept. 1, 2020); Guidance to State and Local Governments
and Other Federally Assisted Recipients Engaged in Emergency Preparedness, Response, Mitigation, and Recovery
Activities on Compliance with T itle VI of the Civil Rights Act of 1964 ,
https://www.justice.gov/crt/fcs/EmergenciesGuidance, (last visited Sept. 1, 2020) (reflecting that the Title VI guidance
was issued by the Departments of Justice, Homeland Security, Housing and Urban Development, Health and Human
Services, and T ransportation).
429 See, e.g., 28 C.F.R. § 42.104(b) (DOJ regulation identifying unlawful actions under T itle VI, such as providing a
service or benefit “to an individual which is different, or is provided in a different manner, from that provided to others
under the program” on the ground of race, color, or national origin); 24 C.F.R. § 1.4(b) (Dep’t of Housing and Urban
Development T itle VI regulation enumerating forms of discrimination prohibited by T itle VI, including “ [d]eny[ing] a
person any housing, accommodations, facilities, services, financial aid, or other benefits provided under the program or
activity” on the ground of race, color, or national origin).
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by the DOJ and other entities prohibit funding recipients from actions that have a disparate
impact or “effect” based on race, color, or national origin.430
Title VI Investigations, Voluntary Resolutions, and Fund Terminations
To ensure that funding recipients are complying with Title VI and regulations, Section 602 sets
out a framework by which funding departments and agencies are to enforce those requirements.431
The “primary”432 method for administratively enforcing the requirements of Title VI is through a
funding department or agency’s termination, suspension, or refusal to grant funding to a recipient
when it finds that a recipient has violated Title VI or its implementing regulations.433 Before
terminating, suspending, or refusing to grant funds, however, the statute requires that the funding
department or agency undertake certain steps, including providing an “opportunity for a hearing,”
“advis[ing] the appropriate person or persons of the failure to comply with the requirement” at
issue, and determining that “compliance cannot be secured by voluntary means.”434 Such

430 See, e.g., 28 C.F.R. § 42.104(b)(2) (DOJ regulation stating that a funding recipient “ may not, directly or through
contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race,
color, or national origin”) (emphases added). See also CRS Report R45665, Civil Rights at School: Agency
Enforcem ent of Title VI of the Civil Rights Act of 1964 , coordinated by Jared P. Cole, at 10, n. 80 (Apr. 4, 2019)
(providing a non-exhaustive list of federal regulations prohibiting disparate impact discrimination) (citing 7 C.F.R. Part
15 (Agriculture); 15 C.F.R. Part 8 (Commerce); 32 C.F.R. Part 195 (Defense); 34 C.F.R. Part 100 (Education); 10
C.F.R. Part 1040 (Energy); 40 C.F.R. Part 7 (Environmental Protection Agency); 45 C.F.R. Part 80 (Health and Human
Services); 6 C.F.R. Part 21 (Homeland Security); 24 C.F.R. Part 1 (Housing and Urban Development); 43 C.F.R. Part
17, Subpart A (Interior); 28 C.F.R. Part 42, Subpart C (Justice); 29 C.F.R. Part 31 (Labor); 22 C.F.R. Part 141 (1982)
(State); 49 C.F.R. Part 21 (T ransportation); 31 C.F.R. Part 22 (T reasury); 38 C.F.R. Part 18 , Subpart A (Veterans
Affairs)).
431 See 42 U.S.C. § 2000d-1. See generally Schlafly v. Volpe, 495 F.2d 273, 282 (7th Cir. 1974) (“42 U.S.C. § 2000d-1
provides both the authority for and the conditions precedent to the suspension of federal assistance.”). 42 U.S.C. §
2000d-3, however, identifies an exception to federal department or agency action implementing T itle VI: “ Nothing
contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency
with respect to any employment practice of any employer, employment agency, or labor organization ex cept where a
primary objective of the Federal financial assistance is to provide employment.” Id.
432 See Nat’l Black Police Ass’n, Inc. v. Velde, 712 F.2d 569, 575 (D.C. Cir. 1983) (explaining that “fund termination
was envisioned as the primary means of enforcement under T itle VI,” but that “ Title VI clearly tolerates other
enforcement schemes" including the “ referral of cases to the Attorney General, who may bring an action against the
recipient ”). See also Guidelines for the Enforcem ent of Title VI, Civil Rights Act of 1964, 28 C.F.R. § 50.3 at I(A)
(stating that “ [t]he ultimate sanctions under title VI are the refusal to grant an application for assistance and the
termination of assistance being rendered”).
433 See 42 U.S.C. § 2000d-1 (“Compliance with any requirement adopted pursuant to this section may be effected (1)
by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to
whom there has been an express finding on the record, after opp ortunity for hearing, of a failure to comply with such
requirement”).
434 See id. § 2000d-1 (providing that “no such action shall be taken until the department or agency concerned has
advised the appropriate person or persons of the failure to comply with t he requirement and has determined that
compliance cannot be secured by voluntary means”). See also Guidelines for the Enforcement of Title VI, Civil Rights
Act of 1964, 28 C.F.R. § 50.3 at I(A) (stating that “[b]efore these sanctions may be invoked, the Act requires
completion of the procedures called for by section 602. T hat section require the department or agency concerned (1) to
determine that compliance cannot be secured by voluntary means, (2) to consider alternative courses of action
consistent with achievement of the objectives of the statutes authorizing the particular financial assistance, (3) to afford
the applicant an opportunity for a hearing, and (4) to complete the other procedural steps outlined in section 602,
including notification to the appropriate committees of the Congress”). See generally, e.g., Education and Title VI,
Office for Civ. Rights, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html
(“T erminations are made only after the recipient has had an opportunity for a hearing before an administrative law
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procedural steps often include an investigation conducted by the department or agency to
determine whether a Title VI violation has occurred.435
As a matter of practice, academics and practitioners have observed that though some departments
and agencies have used fund terminations, or the threat of terminating funds, as an effective
enforcement tool in the past,436 other agencies have never or rarely ordered the withdrawal or
termination of a recipient’s funding.437 Agencies far more commonly resolve a Title VI violation
through “voluntary means”438—that is, a settlement or resolution agreement in which the recipient
agrees to take certain actions to address the Title VI violation(s), including changes or reforms to
its practices.439

judge, and after all other appeals have been exhausted.”).
435 See, e.g., 28 C.F.R. § 42.107 (DOJ regulation implementing T itle VI and discussing investigations and compliance
reviews).
436 See generally, e.g., Nat’l Black Police Ass’n, 712 F.2d at 575, n. 32 (discussing the “ [e]arly use of the sanction” of
fund termination by the Department of Health, Education, and Welfare (HEW) and stating that “ [b]etween July, 1964
and March, 1970, HEW initiated approximately 600 administrative proceedings against school districts found not to be
in compliance with section 601 standards. In 400 of these cases, HEW found that the districts came into compliance
following threat of termination, with no need for actual termination. Among the 200 cases in which funds were actually
cut off, HEW subsequently determined that compliance had been achieved, and federal assistance was resumed in all
but 4 districts.”). See also, generally, Marianne Engelman Lado, Towards Civil Rights Enforcement in the
Environm ental Justice Context: Step One: Acknowledging the Problem , 29 FORDHAM ENVTL. L. REV. 1, 22-23 (2017)
(stating that “ [h]istorically, the threat of withholding federal funds created significant leverage in the struggle to
address discriminatory policies and practices”; as an illustration, discussing the desegregation of racially segregated
hospitals following the creation of Medicare in 1966, and stating that “ [m]ore than one thousand hospitals integrated
their medical staffs, patient floors and waiting rooms in a matter of months, and, faced with the loss of a significant
portion of promised funding, additional facilities subsequently also changed policies and practices.”) (footnotes
omitted).
437 See, e.g., Jerett Yan, Rousing the Sleeping Giant: Administrative Enforcement of Title VI and New Routes to Equity
in Transit Planning, 101 CALIF. L. REV. 1131, 1170 (2013) (“In the nearly sixty-year history of T itle VI, neither the
Department of Housing and Urban Development nor the Environmental Protection Agency (“EPA”) has ever withheld
or revoked funding for a T itle VI violation.”) (footnote omitted); Note, Enforcing a Congressional Mandate: LEAA and
Civil Rights, 85 YALE L. J. 721, 725 (1976) (“Although fund termination was envisioned as the primary means of
enforcement under T itle VI, and although it has proven the surest deterrent to discrimination, it has been given a low
priority in the Justice Department guidelines for enforcing T itle VI and is now hardly ever used.”) (footnotes omitted).
438 See 42 U.S.C. § 2000d-1 (providing that a funding agency or department must determine “that compliance cannot be
secured by voluntary means” before it initiates fund termination or suspension proceedings).
439 See generally, e.g., Education and Title VI, Office for Civ. Rights, U.S. Dep’t of Educ.,
https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html (“ T he principal enforcement activity is the investigation
and resolution of complaints filed by people alleging discrimination on the basis of race, color or national origin.”);
Inform al Resolution and Voluntary Com pliance, Fair Housing and Equal Opportunity (FHEO), U.S. Dep’t of Housing
and Urban Dev., https://www.hud.gov/program_offices/fair_housing_equal_opp/complaint -
process#_Informal_Resolution_and, (last visited Sept. 1, 2020) (“ A Voluntary Compliance Agreement will obtain
assurances from the Program to remedy any violations and ensure that the Program will not violate the rights of other
persons under fair housing or civil rights authorities.”). See, e.g., Agency Title VI Investigations and Resolutions, T itle
VI Civil Rights News, Civil Rights Division, Dep’t of Justice,
https://www.justice.gov/crt/fcs/newsletters/Winter2017/Investigationsandresolutions, (last visited Sept. 1, 2020)
(summarizing several T itle VI investigations and resolutions, with copies of resolution letters and settlement
agreements for each case); Case Resolutions Regarding Race and National Origin Discrim ination , Office of Civ.
Rights, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/frontpage/caseresolutions/race-origin-cr.html,
(last visited Sept. 1, 2020) (providing “ partial, illustrative list” of T itle VI resolutions, with text of resolution letters and
agreements); Recent Civil Rights Resolution Agreem ents & Com pliance Reviews, Dep’t of Health and Human Servs.,
https://www.hhs.gov/civil-rights/for-providers/compliance-enforcement/agreements/index.html, (last visited Sept. 1,
2020) (listing examples of voluntary resolutions, including of T itle VI violations, with copies of the agreements
reached in these cases).
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When an agency does terminate, suspend, or refuse to grant funding, Title VI requires notice from
the “head of the Federal department or agency” to “the committees of the House and Senate
having legislative jurisdiction over the program or activity involved a full written report of the
circumstances and the grounds for such action.”440 Section 602 further provides that no
termination, suspension, or refusal to grant funding “shal become effective until thirty days have
elapsed after the filing of such report.”441 Title VI also permits a funding recipient to seek judicial
review of such agency action in federal court.442
Meanwhile, the DOJ, as part of its coordinating role relating to federal agencies’ Title VI
implementation,443 has issued regulations setting out the minimum components of an agency’s
Title VI enforcement apparatus.444 Under these DOJ regulations, “any federal department or
agency which extends federal financial assistance of the type subject to title VI”445 must, for
example, establish “procedures for the prompt processing and disposition of complaints,446
maintain “a log of title VI complaints filed with it” and report such information to the DOJ,447
collect certain data and information from its funding recipients,448 and issue Title VI guidelines,449

440 42 U.S.C. § 2000d-1.
441 Id.
442 Id. § 2000d-2 (“Any department or agency action taken pursuant to section 2000d–1 of this title shall be subject to
such judicial review as may otherwise be provided by law for similar action taken by such department or agency on
other grounds. In the case of action, not otherwise subject to judicial review, terminating or refusing to grant or to
continue financial assistance upon a finding of failure to comply with any requirement imposed pursuant to section
2000d–1 of this title, any person aggrieved (including any Stat e or political subdivision thereof and any agency of
either) may obtain judicial review of such action in accordance with chapter 7 of title 5, and such action shall not be
deemed committed to unreviewable agency discretion within the meaning of that chapt er.”). See generally Schlafly v.
Volpe, 495 F.2d 273, 282 (7th Cir. 1974) (describing 42 U.S.C. § 2000d-2 as providing that “ ‘any person aggrieved . . .
may obtain judicial review’ of agency action which results in the suspension of federal financial assistance, in
accordance with the provisions of the [Administrative Procedure Act]”) (quoting 42 U.S.C. § 2000d-2). See also, e.g.,
Bd. of Public Instruction of T aylor Cnty., Fla. v. Finch, 414 F.2d 1068, 1070-71 (5th Cir. 1969) (reflecting that federal
funding recipient, a county school district, sought judicial review of a Department of Education T itle VI fund
termination order based on the department’s findings that the school district’s desegregation efforts were deficient).
443 See 28 C.F.R. § 42.401 (“Responsibility for enforcing title VI rests with the federal agencies which extend financial
assistance. In accord with the authority granted the Attorney General under Executive Order 12250, this subpart shall
govern the respective obligations of federal agencies regarding enforcement of title VI.”).
444 See generally 28 C.F.R. § 42.401 et seq. See, e.g., id. § 42.415 (“Each federal agency subject to title VI shall
develop a written plan for enforcement which sets out its priorities and procedures. T his plan shall be available to the
public and shall address matters such as the method for selecting recipients for compliance reviews, the establishment
of timetables and controls for such reviews, the procedure for handling complaints, the allocation of its staff to different
compliance functions, the development of guidelines, the determination as to when guidelines are not appropriate, and
the provision of civil rights training for its staff.”).
445 See 28 C.F.R. § 42.402(b) (defining agency or federal agency within the meaning of DOJ T itle VI coordinating
regulations).
446 See id. § 42.408(a) (“ Federal agencies shall establish and publish in their guidelines procedures for the prompt
processing and disposition of complaints”).
447 See id. § 42.408(d) (“Each federal agency shall maintain a log of title VI complaints filed with it, and with its
recipients, identifying each complainant by race, color, or national origin; the recipient; the nature of the compla int; the
dates the complaint was filed and the investigation completed; the disposition; the date of disposition; and other
pertinent information. Each recipient processing title VI complaints shall be required to maintain a similar log. Federal
agencies shall report to the Assistant Attorney General on January 1, 1977, and each six months thereafter, the receipt,
nature and disposition of all such title VI complaints.”).
448 See id. § 42.406.
449 Id. § 42.404(a) (“ Federal agencies shall publish title VI guidelines for each type of program to which they extend
financial assistance, where such guidelines would be appropriate to provide detailed information o n the requirements of
title VI . . . T he guidelines shall describe the nature of title VI coverage, methods of enforcement, examples of
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among other requirements. Accordingly, agencies general y have their own processes for
receiving discrimination complaints relating to a federal y-funded program,450 and investigating
them to determine whether the recipient has failed to comply with Title VI’s requirements.451 The
DOJ has also issued guidance for federal agencies with respect to “exercising their statutory
discretion and in selecting, for each noncompliance situation, a course of action that fully
conforms to the letter and spirit of Section 602 of the Act and to the implementing regulations
promulgated thereunder.”452
“By Any Other Means Authorized by Law”
As discussed above, the primary method of Title VI enforcement is through an agency’s
investigation of complaints, which can resolve in a recipient’s voluntary agreement to comply
with Title VI, or—in the case of continued noncompliance—in proceedings to terminate, suspend,
or refuse to grant federal funding to the recipient. Title VI, however, also provides that agencies
may enforce compliance with Title VI requirements “by any other means authorized by law.”453
This “other means,” as interpreted by federal agencies454 and courts,455 is now commonly
understood to refer to an agency’s referral of Title VI noncompliance to the DOJ for litigation in
federal court.456 DOJ’s Title VI Guidance also identifies other possible means for enforcing

prohibited practices in the context of the particular type of program, required or suggested remedial action, and the
nature of requirements relating to covered employment, data collection, complaints and public information.”).
450 See generally, e.g., How to Submit a Report, Civil Rights Division, Dep’t of Justice,
https://www.justice.gov/crt/how-submit-report , (last visited Sept, 1, 2020) (setting out various methods for reporting
discrimination, including to its Federal Coordination and Compliance Section, which addresses discrimination in
federally-funded programs or activities); How to File a Civil Rights Com plaint, U.S. Dep’t of Health and Human
Services, https://www.hhs.gov/civil-rights/filing-a-complaint/complaint-process/index.html, (last visited Sept. 1, 2020);
Education and Title VI, U.S. Dep’t of Educ., Office for Civ. Rights,
https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html (describing the complaint process for reporting
discrimination based on “ race, color or national origin, against any person or group, in a program or activity that
receives ED financial assistance”); Filing a Discrimination Complaint Against a Recipient of EPA Funds, External
Civil Rights Compliance Office, Environmental Protection Agency, https://www.epa.gov/ogc/external-civil-rights-
compliance-office-title-vi#complaint, (last visited Sept. 1, 2020).
451 See generally, e.g., What to Expect: How OCR Investigates a Civil Rights Complaint, U.S. Dep’t of Health and
Human Services, https://www.hhs.gov/civil-rights/filing-a-complaint/what -to-expect/index.html, (last visited Sept. 1,
2020).; Case Resolution Manual, External Civil Rights Compliance Office, Office of General Counsel, Environmental
Protection Agency, https://www.epa.gov/ogc/case-resolution-manual.
452 See Guidelines for the Enforcement of Title VI, Civil Rights Act of 1964, 28 C.F.R. § 50.3.
453 42 U.S.C. § 2000d-1.
454 See, e.g., Title VI Overview, Federal Coordination and Compliance Section, Civil Rights Division, U.S. Dep’t of
Justice, https://www.justice.gov/crt/fcs/T itleVI-Overview (stating that “ [i]f a recipient of federal assistance is found to
have discriminated and voluntary compliance cannot be achieved, the federal agency providing the assistance should
either initiate fund termination proceedings or refer the matter to the Department of Justice for appropriate legal
action.”).
455 See Nat’l Black Police Ass’n, 712 F.2d at 575 (stating that “Title VI clearly tolerates other enforcement schemes.
Prominent among these other means of enforcement is referral of cases to the Attorney General, who may bring an
action against the recipient. T he choice of enforcement methods was intended to allo w funding agencies flexibility in
responding to instances of discrimination.”).
456 See Guidelines for the Enforcement of Title VI, Civil Rights Act of 1964, 28 C.F.R. § 50.3 at I(B)(1) (identifying
several “ [p]ossibilities of judicial enforcement,” including “ a suit to obtain specific enforcement of assurances,
covenants running with federally provided property, statements or compliance or desegregation plans filed pursuant to
agency regulations” and “initiation of, or intervention or other participation in, a suit for other relief designed to secure
compliance.”).
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compliance, including seeking assistance from and working with other federal, state or local
agencies.457
Judicially-Implied Private Right of Action
Title VI does not contain a provision that expressly permits an individual to bring a private right
of action in federal court against a funding recipient to seek relief for unlawful race, color, or
national origin discrimination.458 Rather, the Supreme Court has implied that right under Section
601, based on its reading of congressional intent,459 and permits private individuals to “sue to
enforce § 601 of Title VI and obtain both injunctive relief and damages.”460 Thus, individuals may
sue a federal funding recipient directly in an action al eging unlawful discrimination under Title
VI.461 As discussed earlier, however, the Supreme Court has held that individuals may not bring
suit al eging a violation of Title VI disparate impact regulations.462 Instead, those regulations are
enforced by federal agencies.463
Title VII: Discrimination in Employment
Title VII of the 1964 Civil Rights Act, as amended, is comprised of seventeen separate
sections,464 and is perhaps the most wel -known of the titles in the Act.465 Described as “central to
the federal policy of prohibiting wrongful discrimination in the Nation’s workplaces and in al
sectors of economic endeavor,”466 Title VII established new and specific prohibitions of

457 See id. § 50.3 (I)(B)(2) (listing several “effective alternative courses not involving litigation” that agencies could
possibly use for addressing non-compliance by a recipient, including “ consulting with or seeking assistance from other
Federal agencies;” “consulting with or seeking assistance from State or local agencies”; and “bypassing all recalcitrant
non-Federal agencies and providing assistance directly to the complying ultimate beneficiaries. T he possibility of
utilizing such administrative alternatives should be considered at all stages of enforcement and used as appropriate or
feasible.”).
458 See Guardians, 463 U.S. at 600 (White, J., announcing the judgment of the Court) (“ T itle VI does not explicitly
allow for any form of a private right of action.”) (emphasis in original).
459 See id. at 597; Sandoval, 532 U.S. at 279-80 (discussing the Court’s 1979 decision Cannon v. University of
Chicago, 441 U.S. 677, and explaining that “ [t]he reasoning of that decision embraced the existence of a private right to
enforce T itle VI”)..
460 Sandoval, 532 U.S. at 279.
461 See, e.g., Grutter, 539 U.S. at 316-17 (reflecting that a white law school applicant filed a lawsuit against the
University of Michigan law school, alleging, inter alia, that the school had violated T itle VI by discriminating against
her on the basis of race when it rejected her application for admission); Erie CPR v. Pa. Dep’t of T ransp., 343
F.Supp.3d 531, 537-543 (W.D.Pa. 2018) (reflecting that plaintiffs filed a T itle VI suit alleging intentional
discrimination relating to the city’s decision-making process and plans for demolishing a bridge in an area comprised
of “ethnically mixed” neighborhoods).
462 See “Section 602: Addressing Discrimination including Disparate Impact Discrimination .”
463 Id.
464 See 42 U.S.C. §§ 2000e -2000e-17.
465 See generally, e.g., Robert Belton, The Unfinished Agenda of the Civil Rights Act of 1991, 45 RUTGERS L. REV. 921
(1993) (“ Of the various titles in the 1964 Act, T itle VII has been called one of the most significant pieces of civil rights
legislation ever enacted by Congress”) (footnotes omitted); Berta E. Hernandez, Title VII v. Seniority: The Supreme
Court Giveth and the Suprem e Court Taketh Away, 35 AM. U. L. REV. 339, 343 (1986) (“The Civil Right s Act of 1964
is considered the most important civil rights legislation of the century, and title VII, the antidiscrimination in
employment section, its most important section.”) (footnotes omitted).
466 See Univ. of T exas Southwestern Med. Center v. Nassar, 570 U.S. 338, 342 (2013).
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discrimination in the workplace based on “race, color, religion, sex, or national origin”;467 created
a detailed federal enforcement apparatus for receiving, investigating, and addressing
discrimination complaints;468 and established a federal commission, the Equal Employment
Opportunity Commission (EEOC), to enforce Title VII’s requirements.469 Title VII is frequently
looked to as a model, both by Congress,470 and by federal courts,471 when considering
discrimination in other contexts. Final y, Title VII is unique among the titles of the 1964 Act in
that Congress has substantively amended it over the decades, including in 1972, 1978, 1991, and
2009,472 at times in direct response to Supreme Court interpretations of Title VII.473 Federal courts
commonly recognize Title VII as an exercise of Congress’s Commerce Clause power.474
The legal issues that arise under Title VII are considerable and wide-ranging. As a result, this
overview addresses certain aspects of Title VII in general terms. Following a brief discussion of
the context of Title VII’s enactment, this overview then discusses the private and federal
employers subject to its requirements, intentional and disparate impact discrimination prohibited
under Title VII, the title’s enforcement in the private and federal sector, and available remedies.

467 See, e.g., 42 U.S.C. § 2000e-2(a)-(d).
468 See id. § 2000e-5.
469 See id. § 2000e-4.
470 See generally George Rutherglen, Title VII as Precedent: Past and Prologue for Future Legislation , 10 STAN. J. CIV.
RTS. & CIV. LIBERTIES 159, 166-67 (2014) (stating that “ [s]tatutes patterned on T itle VII were enacted as early as the
Age Discrimination in Employment Act of 1967, which was based on a report commissioned by Congress in the 1964
Act, and as late as the Americans with Disabilities Act of 1990”) (footnote omitted).
471 For example, the Supreme Court has sometimes analyzed questions arising under the Age Discrimination in
Employment Act (ADEA) in reference to or against the backdrop of its T itle VII precedent. See generally, e.g., Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 173-75 (2009) (addressing the question of requisite causation for an ADEA
claim and differentiating its analysis from its T itle VII precedent); id. at 180-85 (St evens, J., dissenting) (expressing the
view that its T itle VII precedent was applicable to resolving the legal question presented under the ADEA; discussing
earlier decisions and stating that they “ underscore[] that ADEA standards are generally understood to conform to T itle
VII standards”); Smith v. City of Jackson, Miss., 544 U.S. 228, 233-40 (2005) (analyzing the question of disparate
impact liability under the ADEA in light of its T itle VII disparate impact precedent ).
472 See generally, e.g., George Rutherglen, Title VII as Precedent: Past and Prologue for Future Legislation , 10 STAN.
J. CIV. RTS. & CIV. LIBERTIES 159, 169, 171-74 (2014) (discussing amendments to T itle VII enacted through the Equal
Employment Opportunity Act of 1972, the Pregnancy Discrimination Act of 1978, the Civil Rights Act of 1991,
“which superseded or modified a long list of the Supreme Court decisions,” and the Lilly Ledbetter Fair Pay Act of
2009). See also, e.g., Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 411 -12 (1985) (comparing a statutory
exception in the ADEA with a statutory exception in T itle VII, and observing that Congress “ borrow[ed] a concept and
statutory language from T itle VII” when creating that exception).
473 See, e.g., Newport News Shipbuilding and Dry Dock Co. v. EEOC., 462 U.S. 669, 670 (1983) (“In 1978 Congress
decided to overrule our decision in General Electric Co. v. Gilbert, 429 U.S. 125, (1976), by amending T itle VII of the
Civil Rights Act of 1964 ‘to prohibit sex discrimination on the basis of pregnancy.’”) (citing Pub.L. No. 95-555, 92
Stat. 2076).
474 See generally, e.g., United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 206 n.6 (1979)
(contrasting T itle VI of the 1964 Act with T itle VII of the Act , on the basis that T itle VII “ was enacted pursuant to the
commerce power to regulate purely private decisionmaking and was not intended to incorporate and particularize the
commands of the Fifth and Fourteent h Amendments.”);Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 311 ( 6th
Cir. 1991) (“ T itle VII and the ADEA were both enacted under Congress' power to regulate commerce under the
commerce clause of the United States Const itution.”); Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 81 (3d Cir. 2003)
(“ Because Congress enacted T itle VII under its Commerce Clause power, EEOC v. Ratliff, 906 F.2d 1314, 1315–16
(9th Cir.1990), the requirement that an employer be ‘in an industry affecting commerce’ is the statute’s constitutional
basis.”).
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General Background: Underemployment, Income Disparities, and
the Removal of Discriminatory Practices that Favor White
Employees
“The objective of Congress in the enactment of Title VII,” the Supreme Court stated in its 1971
decision Griggs v. Duke Power Company, “is plain from the language of the statute. It was to
achieve equality of employment opportunities and remove barriers that have operated in the past
to favor an identifiable group of white employees over other employees.”475
Discussing the evidence presented before Congress in the lead-up to the 1964 Act, including
data476 prepared by the Department of Labor,477 House Report No. 914 stated that “[t]estimony
supporting the fact of discrimination in employment is overwhelming.”478 This data reflected,
among other things, that the unemployment rate of “nonwhites” was more than twice the rate of
white workers in 1962,479 and showed “even more striking” disparities when examining data on
occupation types reflecting that black employees were “largely concentrated among the
semiskil ed and unskil ed occupations.”480 With respect to disparities in median annual income,
the data reflected that in 1960, “nonwhite” male workers earned 59% less than white male
workers.481 Discussing the “effects of this severe inequality,” the report stated that “an entire
segment of our society is forced into a condition of marginal existence,” and referred to “a higher
infant mortality rate, a higher incidence of tuberculosis, and a lower life expectancy” experienced
by black citizens.482
Though Title VII also prohibits discrimination based on sex, religion, and national origin, the
discussion of evidence relating to discrimination in employment in House Report No. 914 focuses
on racial disparities.483 As a general matter, there is little legislative history relating to the
prohibition of discrimination based on “sex,” which, unlike the other protected traits under Title

475 Griggs v. Duke Power Co., 401 U.S. 424, 429-430 (1971). For a detailed discussion of the legislative history of T itle
VII specifically, including proposed amendments, excerpts from the congressional record, and House and Senate
hearings and debates, see Francis J. Vaas, Title VII: Legislative History, 7 B.C.L. REV. 431 (1966),
http://lawdigitalcommons.bc.edu/bclr/vol7/iss3/3, (last visited Sept. 2, 2020).
476 See H. REP. NO.914, pt. 2, at 27-30 (reflecting and discussing several data tables).
477 See, e.g., id. at 26-27 (with respect to the first data table reflecting unemployment rates, stating that it was
“contained in the Manpower Report of the President, 1963, prepared by the Department of Labor”).
478 See id. at 26.
479 See id. at 27.
480 See id. at 28 and table 3 (also stating that the concentration of black employees in semiskilled or unskilled
occupations “heightens the chance of early and long duration layoffs”).
481 See id. (stating that the data on income levels “reveals the economic straitjacket in which the Negro has been
confined”). T he data compared median annual incomes from 1939 to 1960, which showed an increasing percentage gap
over that time between the earnings of white and “nonwhite” male workers. See id. T he data also compared “nonwhite”
and white female workers, and reflected that in 1960, “nonwhite” female employees earned 50.3% less than white
female employees. See id.
482 See id. Part II of the House Report also expressed the view that “[t]he effect of this is to deny to the Nation the full
benefit of the skills, intelligence, cultural endeavor, and general excellence which the Negro will contribute if afforded
the rights of first-class citizenship.” See id. (adding that increased “ [n]ational prosperity” will result “ through the proper
training of Negroes for more skilled employment together with the removal of barriers for obtaining such employment.
T hrough toleration of discriminatory practices, American industry is not obtaining the quantity of skilled workers it
needs.”).
483 See generally H. REP. NO. 914, pt. 1, at 26-32 (generally discussing proposed T itle VII provisions without specific
discussion of evidence or hearings relating to discrimination); pt. 2, at 26 -30 (discussing evidence relating to race
discrimination in employment).
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VII, was added as a “last-minute” amendment to H.R. 7152.484 In the years following Title VII’s
enactment, however, claims al eging discrimination on grounds other than race, including based
on sex, have been widely litigated.
Title VII: General Coverage and Scope
The following section offers a general discussion of Title VII’s provisions defining the employers
subject to Title VII’s requirements, and the traits or categories protected under Title VII from
discriminatory employment actions.
Private and Federal Employers Subject to Title VII’s Requirements
Title VII has separate sections prohibiting discrimination by private sector and federal employers,
and correspondingly, separately identifies which private and federal employers are subject to its
requirements.
With respect to private industry, Title VII applies to “a person engaged in an industry affecting
commerce,” with at least fifteen or more employees “for each working day in each of twenty or
more calendar weeks in the current or preceding calendar year.” 485 Notably, a private sector
employer for Title VII purposes also includes “any agent of such a person.”486 Accordingly, for
Title VII liability purposes, an employer may general y be held legal y responsible for the
discriminatory acts of its employees.487
With respect to federal employers, Congress amended Title VII in 1972 to add provisions
prohibiting discrimination against federal employees.488 Title VII applies to federal executive

484 See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-64 (1986) (stating that because “[t]he prohibition against
discrimination based on sex was added to T itle VII at the last minute on the floor of the House of Representatives,” and
“the bill quickly passed as amended,” “we are left with little legislative history to guide us in interpreting the Act’s
prohibition against discrimination based on ‘sex.’”) (citing 110 CONG. REC. 2577–2584 (1964)). See also 422 U.S. at
63-64 (stating that “ [t] he principal argument in opposition to the amendment was that ‘sex discrimination’ was
sufficiently different from other types of discrimination that it ought to receive separate legislative treatment”) (citing
110 CONG. REC. 2577 and 2584). See also, generally, Francis J. Vaas, Title VII: Legislative History, 7 B.C.L. REV. 431,
439-42 and n. 48 (1966) (discussing the proposed amendment to add “ sex” and stating that “ [i]t was proposed and
quickly adopted after hasty debate in the House under the ‘five-minute’ rule which had been approved for House
consideration of possible amendments to H.R. 7152. T he House debate thereon covers no more than nine pages of the
Congressional Record.”) (citing 110 CONG. REC. 2577-84 (1964)).
485 See 42 U.S.C. § 2000e(b).
486 See id.
487 See id.
488 See generally Chandler v. Roudebush, 425 U.S. 840, 841 (1976) (discussing Congress’s 1972 amendments, which
“extended the protection of Title VII of the Civil Rights Act of 1964 . . . to employees of the Federal Government”;
stating that a “principal goal” of those amendments “was to eradicate ‘entrenched discrimination in the Federal
service’”) (internal citations omitted). See 42 U.S.C. § 2000e-16(a).
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branch agencies,489 military departments,490 the U.S. Postal Service and Postal Regulatory
Commission, and “units of the Government of the District of Columbia having positions in the
competitive service,” among others entities.491 Concerning military departments, a number of
federal courts have read Title VII’s federal sector provision to apply only to the military’s civilian
workforce, not uniformed members.492
Though Title VII itself does not address Congress or various other legislative branch offices, the
Congressional Accountability Act of 1995 (CAA)493 makes certain federal antidiscrimination laws
applicable to the legislative branch, including Title VII.494 Under the CAA, “employing offices”
subject to Title VII through the CAA include personal offices of a Member of the House of
Representatives or of a Senator, and House and Senate Committees, among other legislative
branch employers.495
As for individuals covered by Title VII’s protections, Title VII’s private sector provision defines a
covered “employee” as “an individual employed by an employer,” with certain specific
exceptions (such as elected state officials, among others),496 while also protecting applicants for

489 42 U.S.C. § 2000e-16(a) (listing covered employers to include “executive agencies as defined in section 105 of title
5”). Section 105 of T itle 5, in turn, defines executive agencies as an “Executive department, a Government corporation,
and an independent establishment.”). T hose terms are then further defined in 5 U.S.C §§ 101, 103, and 104. E xecutive
departments include the Departments of State, T reasury, Defense, Justice, the Interior, Agriculture, Commerce, Labor,
Health and Human Services, Housing and Urban Development, T ransportation, Energy, Education, Veterans Affairs,
and Homeland Security. See 5 U.S.C. § 101. A government corporation “ means a corporation owned or controlled by
the Government of the United States.” Id. § 103(a). An independent establishment includes the Government
Accountability Office and “an establishment in the executive branch (other than the United States Postal Service or the
Postal Regulatory Commission) which is not an Executive department, military department, Government corporation,
or part thereof, or part of an independent establishment.” Id. § 105.
490 42 U.S.C. § 2000e-16(a) (identifying covered employers to include “military departments as defined in section 102
of title 5”). Section 102 of T itle 5, in turn, defines military departments as: the Departments of the Army, the Navy, and
the Air Force. 5 U.S.C. § 102.
491 See 42 U.S.C. § 2000e-16(a) (also listing “units of the judicial branch of the Federal Government having positions in
the competitive service, in the Smithsonian Institution, and in the Government Publishing Office, the Government
Accountability Office, and the Library of Congress”). It should be noted that though this text refers to “ units of the
judicial branch . . . having positions in the competitive service,” it is unclear whether any such “ competitive service”
positions remain in the judicial branch today. See generally, e.g., T he Administrative Office of the United States Courts
Personnel Act of 1990, Pub. L. No. 101-474, 104 Stat. 1097, § 3(a) (authorizing the Director of the Administrative
Office of the U.S. Courts to establish a personnel management system concerning compensation, assignments, and
other personnel actions of employees “without regard to the provisions of title 5, United States Code, governing
appointments and other personnel actions in the com petitive service.”) (emphasis added). T hus, it appears that the
present organization of positions within the judicial branch may no longer correspond with the statutory language in
T itle VII setting out its applicability to units of the judicial branch having “ positions in the competitive service.” Cf. 42
U.S.C. § 2000e-16(a).
492 See generally Jackson v. Modly, 949 F.3d 763, 767-68 (D.C. Cir. 2020) (addressing the issue of whether T itle VII’s
federal sector provision “ applies to uniformed members of the armed forces of the United States military” a nd noting
that “every one of our sister circuits to address this question has concluded—albeit based on varying rationales and
depths of analysis—that the answer is no”) (citing cases). See also id. at 765 (stating that “we join the unanimous
rulings of our sister circuits, concluding that T itle VII does not apply to uniformed members of the armed forces”).
493 2 U.S.C. § 1301 et seq. For more information on the Congressional Accountability Act, including recent
amendments to that Act, see CRS Legal Sidebar LSB10384, The Congressional Accountability Act of 1995 Reform Act:
An Overview, by Christine J. Back (Dec. 11, 2019).
494 See id. § 1302(a)(2).
495 Id. § 1301(a)(9).
496 42 U.S.C. § 2000e(f) (stating that “that the term ‘employee’ shall not include any person elected to public office in
any State or political subdivision of any State by the qualified voters thereof, or any person chosen by suc h officer to be
on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the
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employment from discriminatory hiring and certain other practices.497 Title VII’s federal sector
provision also protects “employees or applicants for employment”498 of covered employers, as
does the CAA.499
Protected Categories Under Title VII
The text of Title VII’s antidiscrimination provisions prohibit discrimination based on an
“individual’s race, color, religion, sex, or national origin.”500 While Title VII did not, when
enacted in 1964, contain definitions of any protected trait,501 it now contains two—of religion and
sex—which came by way of subsequent amendments in 1972 and 1978, respectively. When
amending Title VII in 1972, Congress defined “religion” to include “al aspects of religious
observance and practice, as wel as belief.”502 Several years later, in 1978, Congress amended
Title VII503 to define “because of sex” or “on the basis of sex” to include “because of or on the
basis of pregnancy, childbirth, or related medical conditions.”504
More recently, the Supreme Court resolved a significant and debated question of coverage among
federal courts of appeals with respect to Title VII’s application to discrimination based on sexual
orientation or gender identity.505 The Court interpreted Title VII’s prohibition of discrimination

exercise of the constitutional or legal powers of the office. T he exemption set forth in the preceding sentence shall not
include employees subject to the civil service laws of a State government, governmental agency or political
subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the
United States.”).
497 See, e.g., id. § 2000e-2(a)(1) (prohibiting an employer from refusing to hire any individual based on a protected
trait); id. § 2000e-2(a)(2) (prohibiting an employer from limiting, segregating, or classifying employees or “ applicants
for employment”).
498 See id. § 2000e-16(a) (“All personnel actions affecting employees or applicants for employment . . . shall be made
free from any discrimination based on race, color, religion, sex, or national origin.”).
499 More specifically, the CAA defines a “covered employee” as “any employee” of a specifically enumerated
legislative branch entity. See 2 U.S.C. § 1301(a)(3) (defining a “ covered employee,” for example, as “ any employee” of
“the House of Representatives,” “the Senate,” among other legislative branch entities). T he CAA also provides that an
“employee” includes “an applicant for employment and a former employee.” Id. § 1301(a)(4).
500 See, e.g., 42 U.S.C. §§ 2000e-2(a)(1) and (a)(2). See also id. § 2000e-16(a) (mandating that “[a]ll personnel actions
affecting employees or applicants for employment . . . shall be made free from any discrimination based on race, color,
religion, sex, or national origin.”).
501 See Pub. L. No. 88-352, 78 Stat. 241, 253-55 (enacting Section 701, the definitions section of T itle VII).
502 42 U.S.C. § 2000e(j) (“T he term ‘religion’ includes all aspects of religious observance and practice, as well as
belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective
employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”). See
generally T rans World Airlines, Inc. v. Hardison, 432 U.S. 63, 72 -75 (1977) (discussing the context for amending T itle
VII in 1972 to define religion, and stating that the “ intent and effect of this definition was to make it an unlawful
employment practice under s 703(a)(1) for an employer not to make reasonable accommodations, short of undue
hardship, for the religious practices of his employees and prospective employees”).
503 See generally Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 670 and n.1 (1983) (“ In
1978 Congress decided to overrule our decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), by amending
T itle VII of the Civil Rights Act of 1964 “ to prohibit sex discrimination on the basis of pregnancy”; further noting that
Congress amended T itle VII through the Pregnancy Discrimination Act, which added a new subsection to the
definitions section of T itle VII, 42 U.S.C. 2000e, addressing T itle VII’s applicability to pregnancy).
504 42 U.S.C. § 2000e(k) (also providing that “women affected by pregnancy, childbirth, or related medical conditions
shall be treated t he same for all employment -related purposes, including receipt of benefits under fringe benefit
programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e–
2(h) of this title shall be interpreted to permit otherwise.”).
505 See Bostock v. Clayton Cnty., Georgia, 140 S.Ct. 1731, 1738 (2020) (stating that “we granted certiorari in these
matters to resolve at last the disagreement among the courts of appeals over the scope of T itle VII’s protections for
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“because of . . . sex”506 to prohibit discrimination based on sexual orientation or gender
identity.507
Prohibitions Against Intentional and Disparate Impact
Discrimination
Title VII expressly prohibits both intentional and disparate impact discrimination.508 As a general
matter, an intentional discrimination claim requires some evidence of a discriminatory intent or
motive.509 A claim al eging “disparate impact” does not require evidence of such “intent”510 and
general y involves a legal chal enge to a policy or practice that has a disproportionate and
negative effect on a particular group without sufficient justification.511 Title VII sets out in
specific detail the actions that constitute unlawful forms of intentional and disparate impact
discrimination under the statute, as discussed in further detail below.
Intentional Discrimination Under Title VII
With respect to prohibited conduct by private sector employers, Title VII enumerates specific
acts512 that constitute “unlawful employment practices” when taken against an individual
“because of such individual’s race, color, religion, sex, or national origin.”513 These include:

homosexual and transgender persons”).
506 See 42 U.S.C. § 2000e-2(a)(1) (making it an unlawful employment practice for an employer to discriminate against
an individual “because of such individual’s . . . sex”).
507 See Bostock, 140 S.Ct. at 1737, 1754 (reasoning that because “[a]n employer who fires an individual for being
homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different
sex,” “[s]ex plays a necessary and undisguisable role in the decision, exactly what T itle VII forbids”; interpreting T itle
VII’s prohibition of discrimination because of sex to thus prohibit discriminatory employment actions taken because an
individual’s sexual orientation or gender identity). For more information on the Supreme Court’s Bostock decision, see
CRS Legal Sidebar LSB10496, Suprem e Court Rules Title VII Bars Discrim ination Against Gay and Transgender
Em ployees: Potential Im plications, by Jared P. Cole (June 17, 2020).
508 See generally EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 2031-32 (2015) (discussing T itle VII’s
provisions prohibiting “ ‘disparate treatment’ (or ‘intentional discrimination’),” and its “ ‘disparate impact ’ provision,”
and stating that they “are the only causes of action under T itle VII”).
509 See generally Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (stating that for intentional discrimination claims under
T itle VII, also referred to as “disparate treatment” claims, “[a] disparate-treatment plaintiff must establish ‘that the
defendant had a discriminatory intent or motive’ for taking a job-related action.”) (quoting Watson v. Fort Worth Bank
& T rust , 487 U.S. 977, 986 (1988).
510 As noted earlier, however, the distinction between disparate impact discrimination and evidence of discriminatory
intent may not be “ nearly as bright, and perhaps not quite as critical” as one might assume. See supra note 366.
511 See generally Int’l Broth. of T eamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (“Claims of disparate
treatment may be distinguished from claims that st ress ‘disparate impact.’ T he latter involve employment practices that
are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and
cannot be justified by business necessity. Proof of discrimin atory motive, we have held, is not required under a
disparate-impact theory.”) (internal citation omitted).
512 See generally Nassar, 570 U.S. at 376 (stating that “Title VII is a detailed statutory scheme” that “enumerates
specific unlawful employment practices”; pointing to T itle VII provisions addressing “ status-based discrimination by
employers, employment agencies, labor organizations, and training programs, respectively”; “ status-based
discrimination in employment -related testing”; “ retaliation for opposing, or making or supporting a complaint about,
unlawful employment actions”; and “advertising a preference for applicants of a particular race, color, religion, sex, or
national origin”) (citing 42 U.S.C. § 2000e–2(a)(1), (b), (c)(1), (d), (l); id. at § 2000e–3(a); id. at § 2000e–3(b)).
513 See 42 U.S.C. § 2000e-2(a)(1).
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 the failure or refusal to hire an individual;514
 firing an individual;515
 “otherwise” discriminating with respect to an individual’s “compensation, terms,
conditions, or privileges of employment”;516
 denying a reasonable workplace accommodation for an individual’s religious
observance or practice in the absence of “undue hardship”;517
 the segregation of employees or applicants for employment; the limiting of
employees or applicants for employment; or the classifying of “employees or
applicants for employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s race, color, religion, sex, or
national origin”;518
 discrimination relating to the “admission to, or employment in, any program
established to provide apprenticeship or other training”;519
 the discriminatory alteration or manipulation of scores or results of employment-
related tests;520 and
 notices or advertising for employment that “indicat[e] any preference, limitation,
specification, or discrimination, based on race, color, religion, sex, or national
origin.”521
Though some general y applicable Title VII requirements apply to labor organizations and
staffing agencies,522 Title VII also contains certain prohibitions which exclusively apply to those
entities.523

514 Id.
515 Id.
516 Id.
517 See id. § 2000e(j) (making it unlawful for an employer to refuse to accommodate an individual’s religious
observance or practice “unless an employer demonstrates t hat he is unable to reasonably accommodate [] an
employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the
employer’s business.”). See generally, e.g., EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 2031 (2015)
(“T itle VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order
to avoid accommodating a religious practice that it could accommodate without undue hardship.”).
518 See 42 U.S.C. § 2000e-2(a)(2).
519 Id. § 2000e-2(d) (“It shall be an unlawful employment practice for any employer, labor organization, or joint labor -
management committee controlling apprenticeship or other training or retraining, including on -the-job training
programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission
to, or employment in, any program established to provide apprenticeship or other training. ”).
520 Id. § 2000e-2l (“It shall be an unlawful employment practice for a respondent, in connection with the selection or
referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for,
or otherwise alter the results of, employment related tests o n the basis of race, color, religion, sex, or national origin.”).
521 Id. § 2000e-3(b). See also id. (allowing a notice or advertisement to “indicate a preference, limitation, specification,
or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide
occupational qualification for employment”).
522 See, e.g., id. § 2000e-3(a) (reflecting that employment agencies and labor organizations are subject to T itle VII’s
antiretaliation provision); id. § 2000e-3(b) (prohibiting, among other actions, discriminatory advertising by “ an
employer, labor organization, employment agency, or joint labor -management committee controlling apprenticeship or
other training or retraining”).
523 Id. § 2000e-2(c) (making it “ an unlawful employment practice for a labor organization” to: “ (1) to exclude or to
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Meanwhile, Title VII’s prohibition applicable to federal employers is phrased differently and in
more general terms: “Al personnel actions affecting employees or applicants for employment
(except with regard to aliens employed outside the limits of the United States)… shal be made
free from any discrimination based on race, color, religion, sex, or national origin.”524
Other Prohibited Forms of Discrimination including Harassment
As discussed above, Title VII’s private sector provisions expressly identify certain acts that are
unlawful under the statute. Those enumerated acts, however, are not exhaustive of the conduct
that may violate Title VII. The statute also prohibit acts that “otherwise [] discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.”525 In interpreting and
applying this more broadly-phrased text to other circumstances, the Supreme Court and federal
appel ate courts have held, for example, that harassment can constitute unlawful discrimination
under Title VII. 526 Federal courts have also addressed other discriminatory acts, including
al egations of diminished job responsibilities,527 discriminatory working conditions,528 and

expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex,
or national origin; (2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail
or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of
employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an
employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin;
or (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section”); id. §
2000e-2(b) (“ It shall be an unlawful employment practice for an em ployment agency to fail or refuse to refer for
em ploym ent, or otherwise to discriminate against, any individual because of his race, color, religion, se x, or national
origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national
origin.”) (emphasis added). See generally id. § 2000e(d) (defining “labor organization” for T itle VII purposes); id. §
2000e(c) (defining employment agency as “any person regularly undertaking with or without compensation to procure
employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of
such a person.”).
524 See id. § 2000e-16(a).
525 See id. § 2000e-2(a)(1).
526 See generally, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 73 (1986) (recognizing sexual
harassment as a violation of T itle VII and expressly holding that such claims are actionable under T it le VII); See, e.g.,
Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 -60 (8th Cir. 2004) (evaluating plaintiff’s T itle VII claim
alleging race-based harassment and holding that the evidence was insufficient to show “ that the harassment at [the his
workplace] was so severe or pervasive that it altered the terms or conditions of his employment”). For more
information on the Title VII harassment claims, and legal standards that currently apply for analyzing such claims, see
CRS Report R45155, Sexual Harassm ent and Title VII: Selected Legal Issues, by Christine J. Back (Apr. 9, 2018).
527 See, e.g., T hompson v. City of Waco, T exas, 764 F.3d 500, 502-06 (5th Cir. 2014) (analyzing T itle VII claim
brought by police detective alleging that the police department discriminated against him on the basis of race by
restricting his work duties such that he was prohibited from searching for evidence without supervision, working in an
undercover capacity, being the evidence officer at a crime scene, or being a lead investigator on an investigation,
among other restrictions).
528 See, e.g., Peterson v. Linear Controls, Inc., 757 F. App’x. 370, 373 (5th Cir. 2019) (where black offshore electrician
alleged that black team members were assigned to work outside without access to water while white team members
worked inside with air conditioning, affirming the lower court’s holding that “ these working conditions are not adverse
employment actions because they do not concern ultimate employment decisions”). A petition for certiorari was filed in
this case, No. 18-1401 (filed May 7, 2019), but the parties settled in late June 2020, before the Supreme Court acted on
the petition. See Erin Mulvaney, Race Bias Case Over Outdoor Work Settles, Bypassing High Court, BLOOMBERG LAW
NEWS (June 22, 2020), https://news.bloomberglaw.com/daily-labor-report/race-bias-case-over-outdoor-work-settles-
bypassing-high-court?context=search&index=2, (last visited Sept. 1, 2020). Relatedly, another petition for certiorari is
currently pending before the Court on the issue of whether a denial of a lateral transfer may constitute an adverse action
under T itle VII in under certain circumstances. See Forgus v. Mattis, 753 F. App’x. 150 (4th Cir. 2018), petition for
cert. pending, No. 18-942 (filed Jan. 15, 2019).
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involuntary reassignments.529 As a general matter, in cases such as these, federal courts often
analyze whether the chal enged conduct is “material y adverse”530 so as to constitute an “adverse
employment action”531 that violates Title VII. In addressing such questions, federal courts have
sometimes differed in their conclusions as to which discriminatory acts are sufficiently “adverse”
to be unlawful under Title VII.532
Causation Standards for Proving Intentional Discrimination
To prevail on a Title VII intentional discrimination claim, a plaintiff must show that the
chal enged employment action was taken on account of his or her “race, color, religion, sex, or
national origin”533 (rather than for a legitimate, non-discriminatory reason). To that end, Title VII
general y provides at least two methods of showing causation sufficient to establish a violation of
the statute.534
The first causation standard is rooted in the statutory text “because of” in Sections 703(a)(1) and
(a)(2), Title VII’s antidiscrimination provisions applicable to private sector employers.535 While

529 See, e.g., Daniels v. United Parcel Service, Inc., 701 F.3d 620, 635-36 (10th Cir. 2012) (where plaintiff alleged that
her employer permanently reassigned her from the day shift to the night shift because of her sex, holding that the
reassignment was not “ sufficiently material to constitute a significant change in employment status or responsibilities”
and thus not an “ adverse employment action” for T itle VII purposes) (emphasis in original); Collins v. Meike, 52 F.
App’x 835, 837 (7th Cir. 2002) (where plaintiff alleged that her employer inv oluntary reassigned her from teaching to
substitute teaching, and then later, reassigned her from sixth grade to fourth grade, a position for which she had no
experience, holding that she had failed to establish her T itle VII race discrimination claim on t he basis that neither
reassignment constituted an “adverse employment action”). Cf. Alvarado v. T exas Rangers, 492 F.3d 605, 612-14 (5th
Cir. 2007) (discussing several decisions in which the court of appeals had previously held that “ a transfer was the
equivalent of a demotion and, hence, qualified as an adverse employment action”; stating that a transfer need not result
“‘in a decrease in pay, title, or grade’” where the new position “ ‘proves objectively worse—such as being less
prestigious or less interesting or providing less room for advancement ’”) (citations omitted).
530 See generally Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir. 2014) (stating that “ [i]n the context of a T itle VII
discrimination claim, an adverse employment action is defined as a ‘materially adverse change in the terms or
conditions’ of employment” and discussing some common indicia of adverse employment actions) (internal citation
omitted); Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) ( “ ‘A plaintiff sustains an adverse employment
action if he or she endures a materially adverse change in the terms and conditions of employment.’”) (quoting Joseph
v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006)).
531 See generally Thompson, 764 F.3d at 503 (stating that to establish a T itle VII violation, “a plaintiff must prove that
he or she was subject to an ‘adverse employment action’—a judicially-coined term referring to an employment decision
that affects the terms and conditions of employment”); Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000)
(explaining that though T itle VII makes no reference to an “adverse employment action,” the phrase is “judicial
shorthand” for federal courts’ interpretation as to which employment actions T itle VII prohibits). See also, e.g., Lewis
v. City of Chicago, 496 F.3d 645, 653 (7th Cir. 2007) (stating that “ ‘[f]or an employment action to be actionable, it
must be a significant change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibility, or a decision causing a significant change in benefits’”; discussing three
categories of employment actions that the Seventh Circuit has held to constitute “ adverse employment actions”)
(internal citations omitted).
532 See, e.g., supra note 529.
533 Cf., e.g., 42 U.S.C. § 2000e-2(a)(1) and (a)(2); id. § 2000e-2(m).
534 See generally Ponce v. Billington, 679 F.3d 840, 844-45 (D.C. Cir. 2012) (stating that “Title VII provides two
separate ways for plaintiffs to establish liability”; describing the first as addressing discrimination “because of” a
protected trait, and the second as addressing when a protected trait is “ a motivating factor”).
535 See 42 U.S.C. § 2000e-2(a)(1) (making it an “unlawful employment practice” for an employer to take cert ain
employment -related actions against an individual “ because of such individual's race, color, religion, sex, or national
origin”) (emphasis added); id. § 2000e-2(a)(2) (making it an “unlawful employment practice” for an employer “to limit,
segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such
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federal courts have construed this Title VII text differently over the years,536 the Supreme Court
has recently applied “because of” in Title VII’s antidiscrimination provision to incorporate a “but
for” causation standard.537 Under that standard, a plaintiff is general y required to show that the
harm being al eged “‘would not have occurred’ in the absence of—that is, but for—the
defendant’s” discriminatory motive.538 Put another way, the evidence must show that the
defendant’s adverse or negative treatment of a person would not have occurred but for the
person’s protected trait.539 Importantly, the “but for” standard as applied to Title VII’s
antidiscrimination provision does not require a showing that a person’s protected trait was the
sole reason for the chal enged employment action.540
Liability for intentional discrimination may also be established under Title VII’s “motivating
factor” provision, Section 703(m),541 which Congress added to Title VII in 1991.542 A claim
brought under this provision, sometimes referred to as a “mixed motive” claim,543 requires
evidence that a protected trait was “a motivating factor” for an employer’s action against an

individual's race, color, religion, sex, or national origin”) (emphasis added). See generally EEOC v. Abercrombie &
Fitch Stores, Inc., 135 S.Ct. 2028, 2031-32 (2015) (quoting 42 U.S.C. § 2000e-2(a)(1) and (a)(2) and stating that these
“two proscriptions [are] often referred to as the ‘disparate treatment’ (or ‘intentional discrimination’) provision”).
536 See generally McQuillen v. Wisconsin Educ. Ass’n Council, 485 U.S. 914, 914-15 (1988) (White, J., dissenting
from a denial of a petition for a writ of certiorari on the question of whether a T itle VII intentional discrimination claim
requires a showing of “but for” causation). See id. at 915 (discussing the “the divergent positions taken by the Federal
Courts of Appeals with regard to the standard of causation ”; stating that “ [t]wo Circuits have indicated that the
discriminatory motive must be a ‘significant’ or ‘substantial’ factor, but not necessarily the determinative factor, before
liability may be imposed on an employer under T itle VII” while four circuits had adopted the view that “T itle VII
liability is established only when an unlawful motive was the ‘but for’ cause of the challenged employment action”).
See also, e.g., Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (describing the causation standard as requiring that a
plaintiff show that her protected trait “ was a determ inative factor in the adverse employment decision, that is, that but
for the protected characteristic, the plaintiff would have been hired (or promoted)”) (emphasis in original).
537 See Bostock, 140 S.Ct. at 1739 (pointing to “because of” in T itle VII’s antidiscrimination provision, 42 U.S.C. §
2000e-2(a)(1), and stating that its “ ‘because of’ test incorporates the ‘simple’ and ‘traditional’ standard of but -for
causation”).
538 Univ. of T ex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47 (2013) (describing “but for” causation and stating that
“[i]n the usual course, this standard requires the plaintiff to show “that the harm would not have occurred” in the
absence of—that is, but for—the defendant’s conduct”) (citations omitted).
539 See id. See also, generally, Bostock, 140 S.Ct. at 1739 (stating that “causation is established whenever a particular
outcome would not have happened ‘but for’ the purported cause. In other words, a but -for test directs us to change one
thing at a time and see if the outcome changes. If it does, we have found a but -for cause.”).
540 See Bostock, 140 S.Ct. at 1739 (stating that “[o]ften, events have multiple but -for causes” and “[s]o long as the
plaintiff’s [protected trait] was one but -for cause of that decision, that is enough to trigger the law”); Price Waterhouse
v. Hopkins, 490 U.S. 228, 241, n.7 (1989) (noting that “ Congress specifically rejected an amendment that would have
placed the word ‘solely’ in front of the words ‘because of’) (citing 110 CONG. REC. 2728, 13837 (1964)); Ponce, 679
F.3d at 846 (stating that “ nothing in T itle VII requires a plaintiff to show that illegal discrimination was the sole cause
of an adverse employment action”); Fuentes, 32 F.3d at 764 (stating that the plaintiff need not prove “ that the
illegitimate factor was the sole reason for the decision,” but rather that “ but for the protected characteristic, the plaintiff
would have been hired (or promoted)”).
541 42 U.S.C. § 2000e-2(m).
542 See generally Desert Palace, Inc. v. Costa, 539 U.S. 90, 93-95 (2003) (discussing the Court’s analysis in its 1989
Price Waterhouse decision which, among other things, would have permitted a defendant who satisfied the requisite
showing to avoid liability for a T itle VII “ mixed motive” claim; stating that Congress “ ‘respond[ed]’ to Price
Waterhouse by ‘setting forth standards applicable in ‘mixed motive’ cases’ in two new statutory provisions” in T itle
VII, which it added through the 1991 Civil Rights Act). See also, e.g., Comcast Corp. v. Nat ’l Ass’n of African
American-Owned Media, 140 S.Ct. 1009, 1017 (2020) (discussing Con gress’s response to the Court’s Price
Waterhouse decision by amending T itle VII through the Civil Rights Act of 1991).
543 See supra note 542. See also, e.g., Connelly v. Lane Const. Corp., 809 F.3d 780, 788 (3d Cir. 2016) (stating that “ in
a ‘mixed-motive’ case, the plaintiff must ultimately prove that her protected status was a ‘motivating’ factor”).
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individual, “even though other factors also motivated the practice.”544 Notably, if a plaintiff
proves that an employer violated Title VII’s “motivating factor” provision, but the employer
shows that it “would have taken the same action in the absence of the impermissible motivating
factor,”545 the plaintiff’s remedies are limited to “only declaratory relief, certain types of
injunctive relief, and attorney’s fees and costs.”546
Title VII’s federal sector provision, Section 717,547 offers yet another formulation using the
phrase “based on.” 548 Specifical y, Section 717(a) mandates that “[a]l personnel actions affecting
employees or applicants for employment … shal be made free from any discrimination based on
race, color, religion, sex, or national origin.”549 The Supreme Court has not addressed the
causation standard relating to Title VII’s federal sector provision.550
Disparate Impact Discrimination Under Title VII
As discussed above, while an intentional discrimination claim requires evidence of discriminatory
intent,551 the focus of a Title VII disparate impact claim is “an observed disparity caused by a
particular employment practice [that] cannot be justified as necessary to the employer’s
business.”552 As the U.S. Court of Appeals for the D.C. Circuit recently observed, “[t]he purpose
of disparate impact analysis under Title VII is to permit plaintiffs to chal enge ‘practices,
procedures, or tests’ that may be ‘neutral on their face, and even neutral in terms of intent,’ but
that disproportionately harm members of a protected class.”553
Claims brought under Title VII’s disparate impact provision have tended to chal enge facial y
neutral hiring, transfer, or promotion criteria that lack job-relatedness yet disproportionately

544 42 U.S.C. § 2000e-2(m) (“Except as otherwise provided in this subchapter, an unlawful employment practice is
established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other factors also motivated the practice.”).
545 Id. § 2000e–5(g)(2)(B)).
546 Desert Palace, 539 U.S. at 94 (citing 42 U.S.C. § 2000e–5(g)(2)(B)).
547 42 U.S.C. § 2000e-16.
548 Id. § 2000e-16(a).
549 See id.
550 T hough beyond the scope of this overview to discuss other federal antidiscrimination statutes, the Court has recently
addressed the question of causation with respect to a similarly -phrased federal sector provision in the Age
Discrimination in Employment Act (ADEA). See Babb v. Wilkie, 140 S.Ct. 1168, 1171 (2020). That ADEA provision
states that “ [a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age
. . . shall be made free from any discrimination based o n age.” 29 U.S.C. § 633a(a). In Babb, the Court addressed
whether the ADEA’s federal sector provision, 29 U.S.C. § 633a(a), “imposes liability only when age is a ‘but -for
cause’ of the personnel action in question.” See Babb, 140 S.Ct. at 1171. T he Court construed what it viewed as the
“critical statutory language”—“made free from any discrimination based on age”—to require that “personnel actions be
untainted by any consideration of age.” Id. T he Court then interpreted the ADEA’s federal sector provision t o implicate
two causation standards with different remedies. Id. If a plaintiff shows that a personnel action was tainted by
consideration of age, but fails to show “that age was a but -for cause of the challenged employment decision,” the Court
held that t he plaintiff is foreclosed from relief “ generally available for a violation of § 633a(a), including hiring,
reinstatement, backpay, and compensatory damages.” Id. Instead, such a plaintiff is limited to “ injunctive or other
forward-looking relief.” Id. at 1178. Meanwhile, reading the provision’s text to also incorporate a but -for standard, the
Court held that a plaintiff who establishes but -for causation may obtain any relief available under the ADEA. Id. at
1171.
551 See “Prohibitions Against Intentional and Disparate Impact Discrimination.”
552 See Davis v. District of Columbia, 925 F.3d 1240, 1248 (D.C. Cir. 2019) .
553 Id. (quoting Griggs v. Duke Power Company, 401 U.S. 424, 430 (1971).
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exclude or adversely affect candidates within a protected group.554 By way of il ustration, courts
have addressed disparate impact chal enges to height or weight requirements,555 recruiting
practices,556 physical tests,557 written exams,558 minimum test score thresholds,559 and residency
requirements,560 among other practices al eged to have disproportionately rendered applicants in
protected groups ineligible for getting hired or promoted without adequate business justification.
Other Title VII claims have al eged a disproportionate impact on a protected group in relation to
terminations or reductions-in-force.561

554 See, e.g., Ernst v. City of Chicago, 837 F.3d 788, 804 (7th Cir. 2016) (in a T itle VII claim alleging that a physical
entrance exam for paramedics had a disparate impact on women, explaining that “ in itself, there is nothing unfair about
women characteristically obtaining lower physical-skills scores than men. But the law clearly requires that this
difference in score must correlate with a difference in job performance. T o guard against this unfairness, the law
requires that the physical exam must validly test job-related skills.”).
555 See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 323-332 (1977) (where female plaintiff applied for but was denied a
position as a prison guard based on her failure to meet the state’s minimum weight requirement, analyzing her claim
that the state’s minimum height (5 feet 2 inches) and weight (120-pound minimum) requirements had a
disproportionate impact on female applicants in violation of T itle VII); United States v. Lee Way Motor Freight, Inc.,
625 F.2d 918, 941-43 (10th Cir. 1979) (addressing T itle VII disparate impact claim alleging that a company’s 5’7
minimum height requirement for truckers had a disparate impact on “ Spanish surnamed Americans”; reflecting that the
plaintiffs had presented evidence that the company had hired “at least 16 white men who were less than 5’7 tall,” one of
whom was 5 feet 4 ½ inches, who stated “ that his height had never been a handicap in operating the equipment” and
“had years of accident-free driving and had received safe driving awards”).
556 See, e.g., United States v. City of Warren, Mich., 138 F.3d 1083, 1092-94 (6th Cir. 1998) (addressing T itle VII
claim alleging that city’s recruiting practices for certain municipal positions had disparate impact on black applicants).
557 See, e.g., Lanning v. Southeastern Pennsylvania T ransp. Authority, 181 F.3d 478, 482-84 (3d Cir. 1999) (reflecting
that plaintiffs brought a T itle VII disparate impact claim alleging that the transit police department’s physical fitness
screening requirement had a disparate impact on female applicants).
558 See, e.g., Lopez v. City of Lawrence, Mass., 823 F.3d 102, 107-111 (1st Cir. 2016) (reflecting that plaintiffs, black
and Hispanic police officers seeking promotion to Sergeant in municipal or state police departments, brought a T itle
VII claim alleging that the competitive written exam required by the st ate for promotion had an unjustified disparate
impact on black and Hispanic officers).
559 See, e.g., Lewis v. City of Chicago, Ill., 560 U.S. 205, 208-09 (2010) (reflecting that plaintiffs, who had passed the
written entrance exam required for eligibility to become firefighters, alleged that the city’s practice of advancing only
those applicants who scored an 89 out of 100 had a disparate impact on black applican ts; also reflecting that the district
court certified a class of more than 6,000 black applicants who had scored in the city’s “qualified” test score range but
had not been hired). In Lewis, the Court considered the question of whether “ a plaintiff who does not file a timely
[EEOC] charge challenging the adoption of a practice—here, an employer’s decision to exclude employment
applicants who did not achieve a certain score on an examination—may assert a disparate-impact claim in a timely
charge challenging the employer’s later application of that practice.” Id. at 208. The Court held that the plaintiffs
presented a cognizable disparate impact claim. Id. at 211-12 (stating “ no one disputes that the conduct petitioners
challenge occurred within the charging period. T he real question, then, is not whether a claim predicated on that
conduct is tim ely, but whether the practice thus defined can be the basis for a disparate-impact claim at all. We
conclude that it can.”).
560 See, e.g., N.A.A.C.P. v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 485 ( 3d Cir. 2011) (affirming grant
of summary judgment to the plaintiffs on their T itle VII claim alleging that the fire department’s “residency
requirement cause[d] a disparate impact by excluding well-qualified African–Americans who would otherwise be
eligible for available firefighter positions” and stating that “North Hudson failed to present evidence to create any
genuine dispute regarding this disparate impact or adduce a valid business necessity for the residency requirement.”) ;
United States v. City of Warren, Mich., 138 F.3d 1083 , 1088-89 (6th Cir. 1998) (discussing Department of Justice’s
T itle VII action alleging that the city’s requirement that applicants for city municipal jobs be city residents at the time
of their application had a disparate impact on black applicants).
561 See, e.g., Davis, 925 F.3d at 1249-1254 (analyzing T itle VII claim challenging two criteria that the city agency used
to identify positions for elimination in a large-scale reduction-in-force, which plaintiffs alleged had a disparate impact
on black employees; discussing record evidence, including that “ the termination rate was 444% higher for the African
American employees than Caucasians”). See also id. at 1250 (discussing and citing decisions from other federal
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General Background on Disparate Impact under Title VII
Though Title VII as original y enacted did not expressly refer to “disparate impact,” Title VII has
long been understood to prohibit this type of discrimination—since 1971, when the Supreme
Court interpreted Title VII to prohibit disparate impact discrimination in its decision Griggs v.
Duke Power Company.562
In Griggs, the Supreme Court addressed a claim brought by a group of black employees who
al eged that the company had violated the Title VII provision563 which prohibits employers from
limiting, classifying, or segregating employees based on race, “in any way which would …
adversely affect his status as an employee.”564 The evidence in Griggs reflected that before the
1964 Act became effective, the employer had “openly discriminated on the basis of race” by
limiting al and only black employees to one department in the company (the labor department),
which also received the lowest pay of al the other departments comprised exclusively of white
employees.565 After the 1964 Act became effective, the employer conditioned transfers out of the
labor or coal handling departments on a high school education, or by passing two tests.566 It is
these requirements which the plaintiffs chal enged as unlawful under Title VII because they
“operated to render ineligible a markedly disproportionate number of Negroes,” without relating
to the job.567 The evidence in Griggs showed that neither the tests nor high school education
requirement were related to performing the job functions in the other departments.568
The courts of appeals had held there was no Title VII violation based on the absence of evidence
that the employer had acted with discriminatory intent when instituting the transfer criteria,569 and

appellate courts analyzing T itle VII disparate impact claims challenging a specific practice or criteria that an employer
used in a reduction-in-force).
562 401 U.S. 424 (1971).
563 See id. at 426, n. 1 (reflecting that petitioners sought relief under 42 U.S.C. § 2000e-2(a)(2)).
564 See 42 U.S.C. § 2000e-2(a)(2) (making it an unlawful employment practice “to limit, segregate, or classify his
employees or applicants for employment in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race,
color, religion, sex, or national origin.”).
565 See id. at 426-27 (describing the district court’s findings that “ prior to July 2, 1965, the effective date of the Civil
Rights Act of 1964, the Company openly discriminated on the basis of race in the hiring and assigning of employees at
its Dan River plant”; also stating that “ [n]egroes were employed only in the Labor Department where the highest
paying jobs paid less than the lowest paying jobs in the other four ‘operating’ departments in which only whites were
employed”).
566 Id. at 427-28 (reflecting that for incumbent employees, a transfer out of the labor department was contingent on a
high school education, and then later in 1965, a transfer out of the labor or coal handling departments was permitted
upon the passage of two tests, in the absence of a high school education). See also id. (reflecting that from “ July 2,
1965, the date on which T itle VII became effective,” the company began requiring any new employee “ to register
satisfactory scores on two professionally prepared aptitude tests, as well as to have a high scho ol education” to be
eligible for a position in any of the four departments but labor).
567 Id. at 429 (reflecting that the plaintiffs had argued that “ because these two requirements operated to render ineligible
a markedly disproportionate number of Negroes, they were unlawful under T itle VII unless shown to be job related.”).
568 Id. (discussing, with respect to the high school education requirement, the district court’s uncontested findings that
“white employees hired before the time of the high school education requirement continued to perform satisfactorily
and achieve promotions” in the other departments; with respect to the tests for incumbent employees, stating that
“[n]either was directed or intended to measure the ability to learn to perform a particular job or category of jobs”). See
also id. at 431-32 (concluding that the evidence “ shows that employees who have not completed high school or taken
the tests have continued to perform satisfactorily and make progress in departments for which the high school and test
criteria are now used”).
569 Id. at 428 (discussing the lower court’s conclusion that “there was no showing of a discriminatory purpose in the
adoption of the diploma and test requirements,” and that “ [o]n this basis, the Court of Appeals concluded there was no
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thus rejected the plaintiff’s disparate impact argument.570 Reversing,571 the Supreme Court held
that a showing of intent was not required for the plaintiffs to prevail,572 thereby interpreting the
statute to provide for disparate impact liability subject to certain requirements.573
Two decades after the Griggs decision, in 1991, Congress codified the availability of disparate
impact liability574 in response to the 1989 Supreme Court decision in Wards Cove Packing Co.,
Inc. v. Atonio,575 which had altered the legal framework first introduced in Griggs for disparate
impact claims.576 Title VII has thus, since 1991, expressly provided that a Title VII violation may
be established based on “disparate impact,” and set out the burden of proof required in such
cases.577

violation of the Act”).
570 Id. at 429 (explaining that the court of appeals “ held that, in the absence of a discriminatory purpose,” the
challenged requirements were permitted under T itle VII and in so holding, had necessarily rejected the plaintiff’s
disparate impact argument).
571 Id. at 436.
572 Id. at 431 (“ T he Act proscribes not only overt discrimination but also practices that are fair in form, but
discriminatory in operation. T he touchstone is business necessity. If an employment practice which operates to exclude
Negroes cannot be shown to be related to job performance, the practice is prohibited.”). See also id. at 432 (stating that
“good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that
operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability”). See also Smith v.
City of Jackson, Miss., 544 U.S. 228, 235 (2005) (discussing the Court’s analysis in Griggs and stating that “[w]e thus
squarely held that § 703(a)(2) of T itle VII did not require a showing of discr iminatory intent”).
573 See supra note 572. See also Griggs, 401 U.S. at 432 (“ Congress directed the thrust of the Act to the consequences
of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden
of showing that any given requirement must have a manifest relationship to the employment in question.”). See
generally, e.g., T exas Dep’t of Housing and Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507,
2516-18 (2015) (discussing the Court’s analysis in Griggs and describing the “ business necessity defense” derived
from Griggs, which provides that “ in a disparate-impact case, § 703(a)(2) does not prohibit hiring criteria with a
‘manifest relationship’ to job performance”).
574 See generally Ricci, 557 U.S. at 578 (“ T wenty years after Griggs, the Civil Rights Act of 1991, 105 Stat. 1071, was
enacted. T he Act included a provision codifying the prohibition on disparate-impact discrimination.”).
575 See T he Civil Rights Act of 1991, Pub. L. No. 102-166, § 3(2-3), 105 Stat. 1071 (stating that the purposes of the Act
included: “to codify the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs
v. Duke Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v.
Atonio, 490 U.S. 642 (1989)”; and “ to confirm statutory authority and provide statutory guidelines for the adjudication
of disparate impact suits under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)”). See generally
Ricci, 557 U.S. at 623-24 (Ginsburg, J., dissenting) (discussing Wards Cove, 490 U.S. 642 (1989), and legislative
history relating to the Civil Rights Act of 1991 ; stating that Congress enacted the 1991 Act “ [i]n response to Wards
Cove and ‘a number of [other] recent decisions by the United States Supreme Court that sharply cut back on the scope
and effectiveness of [civil rights] laws’”) (quoting H.R. REP. NO. 102–40, pt. 2, p. 2 (1991)); Allen v. Entergy Corp.,
Inc., 193 F.3d 1010, 1015 (1999) (“The 1991 Civil Rights Act expressly amended T itle VII to overrule the Wards Cove
analysis.”); id. at 1019-20 (Judge Heaney, dissenting) (stating that “[d]iscontent with the Court’s narro w construction
of T itle VII led Congress to pass the 1991 Civil Rights Act to overrule Wards Cove,” and discussing excerpts from the
congressional record reflecting this intent).
576 See Ricci, 557 U.S. at 623-24 (Ginsburg, J., dissenting, joined by Justices Stevens, Souter, and Breyer) (describing
the Wards Cove decision as having “ significantly modified the Griggs–Albem arle delineation of T itle VII’s disparate-
impact proscription” by holding that “the employer bears only the burden of production, not the burden of persuasion”
and replacing Griggs’ instruction “ that the challenged practice ‘must have a manifest relationship to the employment in
question’” with the rule that a challenged practice is permissible “as long as it ‘serve[d], in a significan t way, the
legitimate employment goals of the employer’”) (quoting Wards Cove, 490 U.S., at 659) (internal citations omitted).
577 T he Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 ST AT . 1071 (providing for liability under T itle VII
for “[a]n unlawful employment practice based on disparate impact” and specifying requisite burdens of proof). See 42
U.S.C. § 2000e-2(k) (Title VII’s disparate impact provision).
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Burden of Proof in Disparate Impact Cases, and Business Necessity Defense
There are a broad range of interpretive578 and evidentiary579 legal issues that arise relating to
disparate impact liability under Title VII. As a general matter, however, Title VII sets out a three-
step framework for the analysis of such claims.580
First, a plaintiff must demonstrate that an employment practice “causes a disparate impact on the
basis of race, color, religion, sex, or national origin.”581 If a plaintiff demonstrates that an
employment practice causes a disparate impact on a protected group, Title VII makes an
employer liable for such a practice unless it can “demonstrate that the chal enged practice is job
related for the position in question and consistent with business necessity.”582 In other words, at
this second stage, an employer has the burden of showing that the chal enged practice is justified
on business necessity grounds.583 If the employer fails to make that showing, then it is liable
under Title VII for the discriminatory practice.584 If it satisfies that showing, however, the burden

578 See, e.g., Ricci, 557 U.S. at 579-80, 582-85 (splitting 5-4 on the issue of whether the city had violated T itle VII’s
ban against intentional race-based discrimination when it abandoned a test used for the fire department’s captain and
lieutenant selection and did not certify the test results because it had a disparate impact on black firefighters; as a matter
of statutory construction, adopting a “strong basis in evidence” standard requiring that an employer who rescinds a test
on disparate impact grounds must, to avoid liability for intentional discrimination, show it had “ a strong basis in
evidence to believe it w[ould] be subject to disparate-impact liability if it fail[ed] to take the race-conscious,
discriminatory action”).
579 See, e.g., Ernst v. City of Chicago, 837 F.3d 788, 796-805 (7th Cir. 2016) (discussing “validity studies” that
examine whether a test or other selection procedure is job related in the context of T itle VII disparate impact claims,
and examining validity studies presented in T itle VII case in light of federal regulation 29 C.F.R. § 1607.5(B)); Howe
v. City of Akron, 801 F.3d 718, 743 (6th Cir. 2015) (referring to the “ four -fifths rule” in 29 C.F.R. § 1607.4(D) and
stating that “we have used the four-fifths rule as the starting point to determine whether plaintiffs alleging disparate
impact have met their prima facie burden, although we have used other statistical tests as well”). See also 29 C.F.R. §
1607 et seq. (EEOC guidelines addressing tests or other employment selection tools with respect to disparate impact on
a protected group).
580 See, e.g., N.A.A.C.P. v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011) (“Disparate-
impact litigation proceeds in three steps.”).
581 42 U.S.C. § 2000e-2(k)(1)(A)(i) (providing that to establish disparate impact liability under T itle VII, “a
complaining party [must] demonstrate[] that a respondent uses a particular employment practice that causes a disparate
impact on the basis of race, color, religion, sex, or national origin ”). See also id. § 2000e-2(k)(1)(B)(i) (“With respect
to demonstrating that a particular employment practice causes a disparate impact ,” providing that “ the complaining
party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if
the complaining party can demonstrate to the court that the elements of a respondent's decision making process are not
capable of separation for analysis, the decision making process may be analyzed as one employment practice.”).
582 Id. § 2000e-2(k)(1)(A)(i) (providing that upon a showing of disparate impact, an unlawful employment practice
under T itle VII is established if the “ respondent fails to demonstrate that the challenged practice is job related for the
position in question and consistent with business necessity”).
583 See id. See generally Ricci, 557 U.S. at 578 (“ An employer may defend against liability by demonstrating that the
practice is ‘job related for the position in question and consistent with business necessity.’”).
584 See generally Ernst, 837 F.3d at 805 (concluding that the “lack of connection between real job skills and tested job
skills is, in the end, fatal to [the employer]’s case. T hus, the plaintiffs should have prevailed on their T itle VII
disparate-impact claims”).
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then shifts back to the plaintiff585 to show, at this third stage, that there is a less discriminatory,
“alternative employment practice”586 that “serves the employer’s legitimate needs.”587
If an employer shows that the chal enged practice does not cause disparate impact,588 however,
the employer need not justify the practice as being required by business necessity.589
More general y, while Title VII prohibits practices that have an unjustified disparate impact, the
statute does not mandate that employers “grant preferential treatment to any individual or to any
group… on account of an imbalance which may exist with respect to the total number or
percentage of persons of any race, color, religion, sex, or national origin employed by any
employer … in comparison with the total number or percentage of [such] persons … in any
community, State, section, or other area, or in the available work force in any community, State,
section, or other area.”590 In other words, Title VII does not require that employers maintain a

585 See, e.g., M.O.C.H.A. Society, Inc. v. City of Buffalo, 689 F.3d 263, 274 (2d Cir. 2012) (in T itle VII claim alleging
that test required for fire lieutenant promotions disparately impacted black firefighters, stating that once the city had
showed that the test was job related and consistent with business necessity, “ [t]his returned the burden to [the plaintiff]
to show that a different test or selection mechanism would have served the employer’s legitimate interests ‘without a
similarly undesirable racial effect’”) (citing Watson v. Fort Worth Bank and T rust, 487 U.S. 977, 998 (1988));
N.A.A.C.P. v. North Hudson, 665 F.3d at 477 (stating that “a plaintiff can overcome an employer’s business-necessity
defense by showing that alternative practices would have less discriminatory effects while ensuring that candidates are
duly qualified” and that “[p]roving a less discriminatory, viable alternative requires supporting evidence”).
586 T itle VII’s disparate impact provisions governing this third stage, 42 U.S.C. §§ 2000e–2(k)(1)(A)(ii) and (C),
provide that the complaining party must demonstrate “an alternative employment practice,” and “the respondent refuses
to adopt such alternative employment practice.” Id. § 2000e–2(k)(1)(A)(ii). T he statute further provides that this
showing “with respect to the concept of ‘alternative employment practice’” “shall be in accordance with the law as it
existed on June 4, 1989.” See id. § 2000e–2(k)(1)(C). This reference to “the law as it existed on June 4, 1989” appears
to refer to case law preceding the Supreme Court’s Wards Cove decision, which was decided on June 5, 1989. See
Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989).
587 See Ricci, 557 U.S. at 578 (citing 42 U.S.C. §§ 2000e–2(k)(1)(A)(ii) and (C)). See also Watson v. Fort Worth Bank
and T rust, 487 U.S. 977, 998 (1988) (with respect to an alternative employment practice, stating that “ the plaintiff must
‘show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the
employer’s legitimate interest in efficient and trustworthy workmanship’”) (quoting Albemarle Paper Co. v. Moody,
422 U.S. 405, 425 (1975). See also Watson, 487 U.S. at 998 (adding that “ [f]actors such as the cost or other burdens of
proposed alternative selection devices” would be relevant for “determining whether they would be equally as effective
as the challenged practice in serving the employer’s legitimate business goals”).
588 See, e.g., Watson, 487 U.S. at 996-97 (discussing a defendant’s ability to challenge a plaintiff’s statistical evidence
of disparate impact, and the various possible bases to rebut the data; stating that “[w] ithout attempting to catalog all the
weaknesses that may be found in such evidence, we may note that typical examples include small or incomplete data
sets and inadequate statistical techniques”).
589 Id. § 2000e-2(k)(1)(B)(ii) (“If the respondent demonstrates that a specific employment practice does not cause the
disparate impact, the respondent shall not be required to demonstrate that such practice is required by business
necessity.”).
590 See 42 U.S.C. § 2000e-2(j)). See generally Local 28 of Sheet Metal Workers’ Intern. Ass’n v. E.E.O.C., 478 U.S.
421, 452-62 (1986) (discussing the legislative history of § 2000e-2(j) and stating that the provision was added to
respond to employer and labor union concerns that T itle VII would be interpreted to require them to achieve racial
balance in their workforces by granting preferential treatment to a member or members of a protected group). See id. at
461 (quoting Senator Humphrey’s statements explaining that § 2000e-2(j) was “ ‘added to deal with the problem of
racial balance among employees. T he proponents of this bill have carefully stated on numerous occasions that title VII
does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to
any individual or group. Since doubts have persisted, subsection (j) is added to state this point expressly.’”) (citing 110
CONG. REC., at 12723). See also id. at 462 (stating that “ Section 703(j) apparently calmed the fears of most opponents,
for complaints of ‘racial balance’ and ‘quotas’ died down considerably after its adoption.”).
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particular racial balance in their workforce591 nor that they grant preferential treatment toward a
racial group to achieve a particular racial balance.592
Unlawful Retaliation
In addition to prohibiting discrimination based on a particular trait, Title VII also prohibits
retaliation against an individual for reporting such acts of discrimination.593 Describing the
relationship between Title VII’s antidiscrimination and antiretaliation provisions, the Supreme
Court has explained that “[t]he antidiscrimination provision seeks a workplace where individuals
are not discriminated against because of their racial, ethnic, religious, or gender-based status. The
antiretaliation provision seeks to secure that primary objective” by protecting “an employee’s
efforts to secure or advance enforcement of the Act’s basic guarantees.”594 The Court has
explained, “Title VII depends for its enforcement upon the cooperation of employees who are
wil ing to file complaints and act as witnesses.”595
Comprised of two clauses, Section 704(a), Title VII’s antiretaliation provision, more specifical y
prohibits an employer from “discriminat[ing]” against an employee or applicant for employment
“because he has opposed any practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.”596 The first clause is commonly
referred to as “the opposition clause” and the second clause as “the participation clause.”597
As a general matter, federal courts have interpreted Title VII’s opposition clause to protect
conduct such as an employee’s report of al eged discrimination to supervisors or managers.598

591 See supra note 590. See Ricci v. DeStefano, 557 U.S. 557, 582 (2009) (stating that “Title VII is express in
disclaiming any interpretation of its requirements as callin g for outright racial balancing”) (citing 42 U.S.C. § 2000e–
2(j)); Int’l Broth. of T eamsters v. United States, 431 U.S. 324, 339 n. 20 (1977) (noting that “ 703(j) makes clear that
T itle VII imposes no requirement that a work force mirror the general population”).
592 See generally T exas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981) (stating that T itle VII “does not
demand that an employer give preferential treatment to minorities or women”) (citing 42 U.S. C. § 2000e-2(j)); United
Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 205-08 (1979) (discussing the legislative history of
§ 2000e-2(j) and stating that while T itle VII does not require that employers grant preferential treatment to members of
a protected group to address “ a de facto racial imbalance in the employer’s work force,” T itle VII nonetheless permits
employers to take “voluntary race-conscious” actions in certain circumstances). See also supra note 591.
593 See 42 U.S.C. § 2000e-3(a). See generally, e.g., Metro. Gov’t of Nashville and Davidson Cty., T enn., 555 U.S. 271,
273 (2009) (“ Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (2000 Educ.
and Supp. V), forbids retaliation by employers against employees who report workplac e race or gender
discrimination.”).
594 Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006) (stating that “Title VII depends for its
enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses”).
595 Id. at 67. See also, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (in the context of interpreting T itle
VII’s antiretaliation provision, describing the purpose of antiretaliation provisions generally as “[m]aintaining
unfettered access to statut ory remedial mechanisms”).
596 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of
his employees or applicants for employment, for an employment agency, or joint labor -management committee
controlling apprenticeship or other training or retraining, including on -the-job training programs, to discriminate
against any individual, or for a labor organization to discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter”) (emphasis added).
597 See Crawford, 555 U.S. at 274 (explaining that T itle VII’s anti-retaliation provision has two clauses known as the
opposition clause and participation clause) (citing 42 U.S.C. § 2000e-3(a)).
598 See, e.g., Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2 014) (“ The opposition clause protects not only
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With respect to the participation clause, federal courts have interpreted and applied it to protect
conduct such as an employee’s participation in a Title VII legal proceeding as a witness.599
Meanwhile, the Supreme Court has interpreted Section 704(a) to not only prohibit employers
from taking actions such as firing an employee for protected opposition or participation, but also
other actions that “could wel dissuade a reasonable worker from making or supporting a charge
of discrimination.”600
Title VII Exemptions and Permitted Practices
In addition to identifying practices that are unlawful, Title VII also specifies certain practices that
it permits.601 Among such practices are employment actions that consider the religion, sex, or
national origin of an individual in narrow circumstances.602 The following Title VII provisions,

the filing of formal discrimination charges with the EEOC, but also complaints to management and less formal protests
of discriminatory employment practices.”); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015-16 (10th Cir. 2004)
(“Protected opposition can range from filing formal charges to voicing informal complaints t o superiors.”). See also,
e.g., Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481, 485 (7th Cir. 2015) (describing filing an EEOC charge as
“‘the most obvious form of statutorily protected activity.’”) (quoting Silverman v. Bd. of Educ. of City of Chicago, 637
F.3d 729, 740 (7th Cir.2011)).
599 See, e.g., Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997) (holding that plaintiff, by giving
deposition testimony in a T itle VII proceeding, engaged in protected participation under T itle VII). Cf. T ownsend v.
Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir. 2012) (“Every Court of Appeals to have considered this issue squarely
has held that participation in an internal employer investigation not connected with a formal EEOC proceeding does not
qualify as protected activity under the participation clause.”).
600 Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 , 57 (2006) (concluding that “ the antiretaliation
provision does not confine the actions and harms it forbids to those that are related to employment or occur at the
workplace,” but employer actions that “could well dissuade a reasonable worker from making or supporting a charge of
discrimination”). See, e.g., Greengrass, 776 F.3d at 485 (analyzing a T itle VII case in which the plaintiff alleged that
her employer, a publicly-traded company, retaliated against her for filing an EEOC charge by identifying her in a filing
with the Securities and Exchange Commission; concluding that “ naming EEOC claimants in publicly available SEC
filings could ‘dissuade[ ] a reasonable worker from making or supporting a charge of discrimination’ ”); EEOC v. Go
Daddy Software, Inc., 581 F.3d 951, 954-59 (2009) (reflecting jury verdict in favor of plaintiff in T itle VII retaliation
claim alleging that an employee was fired in retaliation for reporting comments made by supervisors relating to hi s
Moroccan national origin and Muslim religion; affirming the district court’s denial of the defendant’s motions seeking
judgment as a matter of law and a new trial). For a more detailed discussion of the Supreme Court’s analysis in
Burlington Northern and Santa Fe Ry. Co. v. White, see CRS Report R45155, Sexual Harassm ent and Title VII:
Selected Legal Issues, by Christine J. Back (Apr. 9, 2018).
601 See, e.g., 42 U.S.C. § 2000e-1(b) (providing that “[i]t shall not be unlawful under section 2000e–2 or 2000e–3 of
this title for an employer . . . to take any action otherwise prohibited by such section, with respect to an employee in a
workplace in a foreign country if compliance with such section would cause such employer . . . to violate the law of the
foreign country in which such workplace is located.”); id. § 2000e-2(f) (discussing inapplicability of T itle VII to
actions taken “ with respect to an individual who is a member of the Communist Party of the United States”); id. §
2000e-2(g) (addressing T itle VII with respect to positions “ subject to any requirement imposed in the interest of the
national security of the United States under any security program in effect pursuant to or administered under any statute
of the United States or any Executive order of the President ”); id. § 2000e-2(h) (addressing T itle VII with respect to
seniority or merit systems, “professionally developed ability test[s],” and wage differentiation in certain
circumstances); id. § 2000e-2(i) (permitting “ preferential treatment” “ to any individual because he is an Indian living
on or near a reservation” in certain circumstances). See also id. § 2000e-11 (“Nothing contained in this subchapter shall
be construed to repeal or modify any Federal, State, territorial, or local law creating special rights or preference for
veterans.”).
602 See generally Int’l Union, United Auto., Aerospace and Agricultural Implement Workers of America v. Johnson
Controls, Inc., 499 U.S. 187, 200 (1991) (“Under § 703(e)(1) of T itle VII, an employer may discriminate on the basis
of ‘religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide
occupational qualification reasonably necessary to the normal operation of that particular business or enterprise’”)
(quoting 42 U.S.C. § 2000e–2(e)(1)). See also id. at 201 (“ T he BFOQ defense is written narrowly, and this Court has
read it narrowly.”).
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for example, set forth exemptions or permit practices that would otherwise give rise to a
discrimination claim.
Bona Fide Occupational Qualification (BFOQ): Sex, Religion, National Origin
In narrow circumstances, Section 703(e)(1) permits employers to make hiring decisions based on
an individual’s religion, sex, or national origin “in those certain instances where religion, sex, or
national origin is a bona fide occupational qualification reasonably necessary to the normal
operation of that particular business or enterprise.”603 Put another way, if the requirements or
essential nature of a particular job reasonably necessitate an individual of a particular sex, for
example, a sex-based hiring decision may be permitted under Title VII.604 In interpreting this
statutory provision, the Supreme Court has highlighted the term “occupational” to indicate that
“objective, verifiable requirements must concern job-related skil s and aptitudes,” so as to prevent
employers from relying on general, subjective standards.605 With respect to sex-based job
requirements, the Court has stated that the BFOQ provision is “meant to be an extremely narrow
exception to the general prohibition of discrimination on the basis of sex” under Title VII.606
Religious Employers and Educational Institutions
In addition to the BFOQ provision briefly discussed above, which applies to religion,607 Title VII
contains two other provisions that permit religious-based employment decisions by a religious
educational institution608 or a “religious corporation, association, educational institution, or
society,”609 under certain circumstances. Though federal courts have questioned how to apply
these provisions,610 as a general matter, Title VII permits employers who fal within one of Title

603 42 U.S.C. § 2000e-2(e)(1). See also supra note 602.
604 See generally, e.g., Dothard v. Rawlinson, 433 U.S. 321, 333-37 (1977) (analyzing T itle VII’s BFOQ provision in
the context of a T itle VII claim raised by a female applicant for a prison guard position at a maximum -security male
prison; concluding that “ in the particular factual circumstances of this case,” the state’s regulation limiting such
positions to male prison guards “falls within the narrow ambit of the bfoq exception”); T eamsters Local Union No. 117
v. Wash. Dep’t of Corr., 789 F.3d 979, 982 (9th Cir. 2015) (addressing T itle VII claim brought by male correctional
officers challenging the defendant’s designation of certain positions at female prisons as female-only; holding that the
policy was a justified use of sex under T itle VII’s bona fide occupational requirement provision, in light of documented
sexual abuse by male prison guards of female inmates and other evidence).
605 See Johnson Controls, 499 U.S. at 201 (also stating that the statutory terms “certain, normal, [and] particular” in
T itle VII’s BFOQ provision “prevent the use of general subjective standards”).
606 See Dothard, 433 U.S. at 334 (“ We are persuaded by the restrictive language of § 703(e), the relevant legislative
history, and the consistent interpretation of the Equal Employment Opportunity Commission that the bfoq exception
was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of
sex.”).
607 See, e.g., Pime v. Loyola Univ. of Chicago, 803 F.2d 351, 351-54 (7th Cir. 1986) (addressing a BFOQ defense
raised by a university with a Jesuit tradition with respect to its denial of a faculty position to a non -Jesuit applicant on
the basis of religion).
608 42 U.S.C. § 2000e-2(e)(2) (providing that “it shall not be an unlawful employment practice for a school, college,
university, or other educational institution or institution of learning to hire and employ employees of a particular
religion if such school, college, university, or other educational institution or institution of learning is, in whole or in
substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious
corporation, association, or society, or if the curriculum of such school, college, university, or other educational
institution or institution of learning is directed toward the propagation of a particular religion.”).
609 Id. § 2000e-1(a) (“This subchapter shall not apply . . . to a religious corporation, association, educational institution,
or society with respect to the employment of individuals of a particular religion to perform work connected with the
carrying on by such corporation, association, educational institution, or society of its activities.”).
610 See, e.g., LeBoon v. Lancaster Jewish Community Center Ass’n, 503 F.3d 217 , 226-27 (3d Cir. 2007) (discussing
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VII’s religious exemptions to consider an individual’s religious beliefs or practices in certain
circumstances.611
Concerning religious employers general y, Section 702(a) permits a “religious corporation,
association, educational institution, or society” to hire and employ individuals of a particular
religion “to perform work connected with the carrying on by such corporation, association,
educational institution, or society of its activities.”612 For religious educational institutions more
specifical y, Section 703(e)(2) provides that “a school, college, university, or other educational
institution or institution of learning” may hire and employ individuals of a particular religion only
if such institution “is, in whole or in substantial part, owned, supported, controlled, or managed
by a particular religion or by a particular religious corporation, association, or society,” or if the
institution’s “curriculum … is directed toward the propagation of a particular religion.”613
In short, while Title VII general y prohibits employers from discrimination on the basis of an
individual’s religion,614 and requires employers to reasonably accommodate an individual’s
religious beliefs,615 the statute also contains several exemptions specifical y addressing
employment decisions by religious entities.616 By enacting general prohibitions against religious
discrimination, and these exemptions, the U.S. Court of Appeals for the Third Circuit observed
that Congress both “intended Title VII to free individual workers from religious prejudice” while
“enabl[ing] religious organizations to create and maintain communities composed solely of
individuals faithful to their doctrinal practices.”617

decisions from other circuits and factors that federal courts have considered to evaluate whether an employer is
sufficiently “religious” so as to fall under T itle VII’s exemption in 42 U.S.C. § 2000e-1(a)). It is beyond the scope of
this general overview to address the various legal questions that have arisen with respect to the operation of T itle VII’s
religious exceptions.
611 See, e.g., Spencer v. World Vision, Inc., 633 F.3d 723, 725 (9th Cir. 2011) (“Religious discrimination is, of course,
barred by T itle VII of the Civil Rights Act. T hat bar, however , does not apply to ‘a religious corporation, association,
educational institution, or society with respect to the employment of individuals of a particular religion to perform work
connected with the carrying on by such [entity] of its activities.’”) (citing 42 U.S.C. §§ 2000e–1(a) and 2000e–2(a)).
See also, e.g., Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000) (“The decision to employ
individuals ‘of a particular religion’ under § 2000e–1(a) and § 2000e–2(e)(2) has been interpreted to include the
decision to terminate an employee whose conduct or religious beliefs are inconsist ent with those of its employer.”)
612 42 U.S.C. § 2000e-1(a). See, e.g., LeBoon v. Lancaster Jewish Community Center Ass’n, 503 F.3d 217 , 221, 226
(3d. 2007) (where plaintiff alleged that she fired from her employer based on religion, holding that the emplo yer, a non-
profit Jewish Community Center constituted a religious organization falling under T itle VII’s exemption in 42 U.S.C. §
2000e–1(a)).
613 42 U.S.C. § 2000e-2(e)(2). See, e.g., Hall, 215 F.3d at 624-25 (discussing evidence relating to religious character of
college and holding that the institution qualified for the T itle VII exemption in § 2000e–2(e)(2)).
614 See 42 U.S.C. §§ 2000e-2(a) and (b).
615 See id.§ 2000e(j).
616 Id. §§ 2000e-1(a), 2000e-2(e)(1) and (e)(2).
617 Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991). See also id. at 949 (“ In enacting T itle VII, Congress clearly
asserted a strong government interest in eliminating religio us discrimination in employment . . . But Congress also
recognized that religious groups have a constitutionally protected interest in applying religious criteria to at least some
of their employees”).
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Title VII Enforcement: Private Sector, Federal, and State Employers
To enforce Title VII’s requirements, Title VII of the 1964 Act established the Equal Employment
Opportunity Commission (EEOC).618 The EEOC is led by a 5-member commission,619 and is also
comprised of an Office of General Counsel620 and 53 field offices621 (as part of its Title VII
enforcement with respect to private employers); and an Office of Federal Operations622 (relating
to its Title VII enforcement with respect to federal employers), among other units within the
agency.
The EEOC’s enforcement role as it exists today is different from when it was created in 1964. As
original y enacted in 1964, Title VII had limited the agency’s enforcement methods to seeking
“cooperation and voluntary compliance”623 with employers to address Title VII violations. In
other words, if “the EEOC could not convince employers to voluntarily comply with Title VII,”
the agency had no additional methods for enforcing the statute’s requirements.624 Rather, the 1964
Act had authorized the DOJ to bring civil actions al eging a “pattern or practice” of
discrimination under Title VII,625 and provided for a private right of action for individuals to bring
a Title VII suit in federal court.626 Congress, however, substantial y changed the enforcement
schema through its 1972 amendments to Title VII, upon concluding that the methods of seeking
cooperation and voluntary compliance had proven ineffective in addressing workplace
discrimination.627 Thus, Congress authorized the EEOC to bring civil actions against private

618 See 42 U.S.C. § 2000e-4(a) (“There is hereby created a Commission to be known as the Equal Employment
Opportunity Commission, which shall be composed of five members, not more than three of whom shall be members
of the same political party. Members of the Commission shall be appointed by the President by and with the advice and
consent of the Senate for a t erm of five years.”).
619 See id. See generally, The Commission and the General Counsel, EEOC, https://www.eeoc.gov/commission, (last
visited Sept. 2, 2020).
620 See id. § 2000e-4(b) (“There shall be a General Counsel of the Commission appointed by the President, by and with
the advice and consent of the Senate, for a term of four years. T he General Counsel shall have responsibility for the
conduct of litigation as provided in sections 2000e–5 and 2000e–6 of this title. T he General Counsel shall have such
other duties as the Commission may prescribe or as may be provided by law and shall concur with the Chairman of the
Commission on the appointment and supervision of regional attorneys”).
621 See Overview, EEOC, https://www.eeoc.gov/overview, (last visited Sept. 2, 2020) (stating that the EEOC has “53
field offices serving every part of the nation”). See generally 42 U.S.C. § 2000e-4(f) (“The principal office of the
Commission shall be in or near the District of Columbia, but it may meet or exercise any or all its powers at any other
place. T he Commission may establish such regional or State offices as it deems nec essary to accomplish the purpose of
this subchapter.”).
622 See generally 29 C.F.R. §§ 1614.403-405.
623 See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (stating that when Congress enacted T itle VII,
“[c]ooperation and voluntary compliance were selected as the preferred means” to secure compliance with T itle VII’s
requirements). See also Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 358 -59 (1977) (“As enacted in
1964, T itle VII limited the EEOC’s function to investigation of employment discrimination charges and informal
methods of conciliation and persuasion. T he failure of conciliation efforts terminated the involvement of the EEOC.”).
624 See EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 457 (6th Cir. 1999) (stating that this enforcement
schema “ left the task of eradicating unlawful employment practices largely to the private initiative of the victims”).
625 See Gen. T el. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 327 (1980) (“Prior to 1972, the only civil actions
authorized other than private lawsuits were actions by the Attorney General upon reasonable cause to suspect ‘a pattern
or practice’ of discrimination.”).
626 See 42 U.S.C. § 2000e-5(f)(1).
627 See Gen. Tel. Co., 446 U.S. at 325 (stating that “ Congress became convinced, however, that the ‘failure to grant the
EEOC meaningful enforcement powers ha[d] proven to be a major flaw in the operation of T itle VII’; explaining that
the 1972 amendments “accordingly expanded the EEOC’s enforcement powers by authorizing the EEOC to br ing a
civil action in federal district court against private employers reasonably suspected of violating T itle VII”); Frank’s
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sector employers for Title VII violations,628 and transferred the authority to bring Title VII
“pattern or practice” cases to the EEOC.629 In addition, as the 1972 amendments made Title VII’s
requirements applicable to federal employers,630 the amendments also vested the EEOC with
certain responsibilities relating to federal agencies’ Title VII compliance.631
As a general matter, the agency’s Title VII enforcement encompasses two broad areas: (1) the
investigation, conciliation, and litigation of discrimination claims against private sector
employers632 and (2) Title VII coordination and enforcement with respect to federal agencies in
their capacity as employers.633 The EEOC’s enforcement634 in these two contexts differ
substantial y and is discussed briefly below. Meanwhile, the DOJ enforces Title VII’s
requirements with respect to state and local government employers.635

Nursery, 177 F.3d at 457 (stating that “ Congress resolved to remedy the failure of the Civil Rights Act of 1964 to
include effective enforcement powers by amending T itle VII” through its 1972 amendments, and that “ [s]ignificantly,
members of Congress debating the amendments agreed that the EEOC needed additional enforcement powers” and
rather “differed on ‘what procedures [would] insure the most effective enforcement of the substantive provisions of
T itle VII’”) (citations omitted). See also id. (“Indeed, Congress expressed its concern that ‘in the most profound cases,’
employers had ‘more often than not shrugged off the [EEOC’s] entreaties and relied upon the unlikelihood of the
parties suing them’”).
628 See supra note 627. See also Gen. Tel. Co., 446 U.S. at 326 (“ In so doing, Congress sought to implement the public
interest as well as to bring about more effective enforcement of private rights.”).
629 Id. at 328 (“ T he 1972 amendments, in addition to providing for a § 706 suit by the EEOC pursuant to a charge filed
by a private party, transferred to the EEOC the Attorney General’s authority to bring pattern-or-practice suits on his
own motion.”). See also 42 U.S.C. § 2000e-6(a)–(e). T he Attorney General, however, has authority to bring “pattern-
or-practice” suits against state or local government employers. See generally Overview of Em ploym ent Litigation
Section, Civil Rights Division, Dep’t of Justice, https://www.justice.gov/crt/overview-employment -litigation, (last
visited Sept. 2, 2020) (stating that the Dep’t of Justice initiates T itle VII litigation in on e of two ways, by either
bringing “suit against a state or local government employer where there is reason to believe that a ‘pattern or practice’
of discrimination exists” pursuant to its authority under Section 707 of T itle VII, or filing suit “pursuant to Section 706
of T itle VII, against a state or local government employer based upon an individual charge of discrimination referred to
the Section by the Equal Employment Opportunity Commission”).
630 See Chandler v. Roudebush, 425 U.S. 840, 841 (1976) (“In 1972 Congress extended the protection of T itle VII of
the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 Educ. and Supp. IV), to
employees of the Federal Government.”). See generally “Private and Federal Employers Subject to T itle VII’s
Requirements.”
631 See 42 U.S.C. § 2000e-16(b).
632 See generally id. §§ 2000e-2–2000e-6.
633 See generally id. § 2000e-16.
634 It is beyond the scope of this overview to discuss all of the EEOC’s T itle VII and other statutory enforcement
activities. See, e.g., id. § 2000e-12(a) (authorizing the EEOC to “ issue, amend, or rescind suitable procedural
regulations to carry out the provisions of this subchapter,” “ in conformity with the standards and limitations of
subchapter II of chapter 5 of title 5”); id. § 2000e-4(h) (directing the EEOC to carry out educational and outreach
activities); id. § 2000e-4(j) (directing the EEOC to provide “ technical assistance and training regarding the laws and
regulations enforced by the Commission”); id. § 2000e-8(c) (addressing data collection by the EEOC).
635 See id. §§ 2000e-5(f), 2000e-6. See also supra note 629.
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EEOC Title VII Enforcement: Private Sector Employers
Investigations, Conciliation Efforts, and Litigation
Title VII establishes “an integrated, multistep enforcement procedure culminating in the EEOC’s
authority to bring a civil action in a federal court.”636 In general terms,637 this multistep process
begins with the EEOC’s receipt and investigation of al egations or “charges” of discrimination
(EEOC charge) filed by individuals against private sector employers.638 Following an
investigation,639 the EEOC makes a determination as to “whether there is reasonable cause to
believe” that discrimination occurred.640 If there is reasonable cause, EEOC must first “endeavor
to eliminate any such al eged unlawful employment practice by informal methods of conference,
conciliation, and persuasion”641 before it can bring a civil action against an employer for an
al eged Title VII violation.642 The EEOC’s civil actions, the Supreme Court has stated, are
intended to “implement the public interest as wel as to bring about more effective enforcement of
private rights.”643 In addition to filing suit pursuant to an EEOC charge, the EEOC may also file
suit on the basis of an EEOC Commissioner’s charge.644
Private Right of Action and Intervention
Title VII also expressly provides for a private right of action and al ows an individual to file suit
after exhausting various administrative requirements, including filing a timely EEOC charge.645
When individuals file a civil action in federal court seeking relief under Title VII, the EEOC may

636 Occidental Life Ins. Co. of California v. E.E.O.C., 432 U.S. 355, 359 (1977).
637 It is beyond the scope of this overview to discuss the various legal issues or questions that have arisen in relation to
this administrative process, such as with regard to the timeliness and content of EEOC c harges, the agency’s efforts to
conciliate before filing suit, and coordination with state agencies which enforce state antidiscrimination laws.
638 See Occidental Life, 432 U.S. at 359 (“T hat procedure begins when a charge is filed with the EEOC alleging t hat an
employer has engaged in an unlawful employment practice. A charge must be filed within 180 days after the
occurrence of the allegedly unlawful practice, and the EEOC is directed to serve notice of the charge on the employer
within 10 days of filing”). See also Frank’s Nursery, 177 F.3d at 455-56 (discussing the EEOC’s private sector
administrative process).
639 See 42 U.S.C. § 2000e-5(b).
640 See id.
641 See id. (“If the Commission determines after such investigation that there is reasonable cause to believe that the
charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion.”).
642 See id. § 2000e-5(f) (“If . . . the Commission has been unable to secure from the respondent a conciliation
agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a
government, governmental agency, or political subdivision n amed in the charge.”).
643 See Gen. Tel. Co., 446 U.S. at 326 (also observing that “[t]he EEOC’s civil suit was intended to supplement, not
replace, the private action,” but that “[t]he EEOC was to bear the primary burden of litigation”).
644 See 42 U.S.C. § 2000e-5(b) (reflecting that a charge may be “filed by or on behalf of a person claiming to be
aggrieved, or by a member of the Commission, alleging that an employer . . . has engaged in an unlawful employment
practice”); 29 C.F.R. §§ 1601.27-28 (discussing civil actions brought by the EEOC and related procedures). See
generally Com m issioner Charges and Directed Investigations, EEOC, https://www.eeoc.gov/commissioner-charges-
and-directed-investigations, (last visited Sept. 2, 2020) (discussing Commissioner charges and related processes).
645 See generally 42 U.S.C. § 2000e-5(e), (f).
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intervene in such actions at the court’s discretion.646 Relatedly, Title VII provides that an
aggrieved individual may intervene in a Title VII action initiated by the Commission.647
EEOC Coordination of Title VII Compliance by Federal Employers
Distinct from its private sector enforcement, the EEOC also coordinates and directs federal
agencies’ with respect to their Title VII obligations.648 For example, Title VII directs the EEOC to
“issue such rules, regulations, orders and instructions as it deems necessary and appropriate to
carry out its responsibilities” with respect to federal sector employers.649 Title also makes the
EEOC, among other things, “responsible for the review and evaluation of the operation of all
[federal] agency equal employment opportunity programs.”650 The heads of departments or
agencies must “comply with such rules, regulations, orders, and instructions,” and submit plans to
the EEOC describing the personnel and resources allocated for carrying out an agency’s
antidiscrimination obligations with respect to employment.651 Meanwhile, Executive Order 12067
directs the EEOC to “provide leadership and coordination to the efforts of Federal departments
and agencies to enforce al Federal statutes, Executive orders, regulations, and policies which
require equal employment opportunity without regard to race, color, religion, sex, national origin,
age or handicap.”652 To that end, EEOC regulations,653 as wel as EEOC guidance documents and
directives,654 direct federal agencies on Title VII compliance and enforcement matters.
Meanwhile, the administrative process655 for federal employees seeking relief under Title VII, and
the EEOC’s methods of enforcement in the federal employment context differ substantial y from
the private sector process. For example, federal employees do not file EEOC charges, nor does
the EEOC investigate Title VII claims filed by federal employees.656 Rather, under EEOC
regulations, federal employees report discrimination to their respective agencies,657 and their

646 Id. § 2000e-5(f)(1) (“Upon timely application, the court may, in its discretion, permit the Commission, or the
Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such
civil action upon certification that the case is of general public importance.”).
647 Id. (“T he person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission
or the Attorney General in a case involving a government, governmental agency, or political subdivision.”).
648 See generally, EEOC Coordination of Federal Government Equal Employment Opportunity, Federal Sector, EEOC,
https://www.eeoc.gov/federal-sector/eeoc-coordination-federal-government-equal-employment -opportunity, (last
visited Sept. 2, 2020) (“ Federal laws concerning workplace discrimination are enforced by different Federal agencies
. . . T he EEOC is responsible for coordinating the Federal government’s employment non -discrimination effort.”).
649 See 42 U.S.C. § 2000e-16(b).
650 See id.
651 See id.
652 See Exec. Order No. 12067, Providing for Coordination of Federal Equal Employment Opportunity Programs (June
30, 1978), at 1-201, https://www.eeoc.gov/federal-sector/executive-order-12067. See also id. at 1-301 (stating that the
EEOC shall, “where feasible,” “develop uniform standards, guidelines, and policies defining the nature of employment
discrimination on the ground of race, color, religion, sex, national origin, age or handicap under all Federal statutes,
Executive orders, regulations, and policies which require equal employment opportunity” and “develop un iform
standards and procedures for investigations and compliance reviews to be conducted by Federal departments and
agencies under any Federal statute, Executive order, regulation or policy requiring equal employment opportunity”).
653 See 29 C.F.R. Part 1614 (regulations addressing Federal Sector Equal Employment Opportunity).
654 See generally, e.g., U.S. Equal Emp. Opportunity Comm’n, Management Directive 110 (as revised, Aug. 15, 2015),
https://www.eeoc.gov/federal-sector/management -directive/management-directive-110, (last visited Sept. 2, 2020).
655 See generally Overview of Federal Sector EEO Complaint Process, Federal Sector, EEOC,
https://www.eeoc.gov/federal-sector/overview-federal-sector-eeo-complaint-process, (last visited Sept. 2, 2020).
656 See id.
657 See id. § 1614.105-106 (setting forth time frames and procedures for individuals to report alleged discrimination to
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federal employers in turn receive, investigate, and may make findings on such claims.658
Relatedly, EEOC regulations set out the requirements for federal agency investigations and
resolutions of discrimination claims brought by an agency’s employees.659 In addition, and in
contrast to the EEOC’s private sector Title VII enforcement, the EEOC’s involvement in a Title
VII claim brought by federal employees arises later in the process and at the request of the
employee, through a hearing by an EEOC administrative law judge,660 or an appeal to the
EEOC’s Office of Federal Operations.661 Subject to certain requirements and time frames unique
to federal sector discrimination claims, federal employees may file a civil action seeking relief
under Title VII in federal court.662
Remedies for Title VII Violations
As a general matter, the relief available for Title VII violations is addressed in two statutory
provisions: Section 706(g), which provides for the availability of back pay and various forms of
equitable relief,663 and 42 U.S.C. §1981a, which provides for compensatory and punitive
damages.664 Congress made compensatory and punitive damages available for Title VII violations
through the Civil Rights Act of 1991.665

their employing agency).
658 29 C.F.R. § 1614.106(a) (“A complaint must be filed with the agency that allegedly discriminated against the
complainant.”); id. § 1614.108(a) (“The investigation of complaints shall be conducted by the agency against which the
complaint has been filed.”); id. § 1614.110(b) (stating that a final decision by an agency “shall consist of findings by
the agency on the merits of each issue in the complain t, or, as appropriate, the rationale for dismissing any claims in the
complaint and, when discrimination is found, appropriate remedies and relief in accordance with subpart E of this
part”).
659 See id. § 1614.101-110 (setting forth requirements regarding federal agencies’ receipt and resolution of
discrimination claims brought by federal employees).
660 See id. § 1614.109 (discussing a hearing at the request of the complainant, and conducted by EEOC administrative
law judges). See id. §1614.108(f)-(h) (reflecting that “ the complainant may request a hearing by submitting a written
request for a hearing directly to the EEOC,” after receiving specific notification from the employing agency of the right
to request a hearing or a final agency decision under section (f), “ or at any time after 180 days have elapsed from the
filing of the complaint”).
661 See id. § 1614.401-405 (addressing the availability of an appeal to the EEOC’s Office of Federal Operations by a
complainant, of final agency actions or dismissals, or the decision of an administrative law judge). See also id. §
1614.402 (discussing time frames by which an individual may appeal such actions or decisions).
662 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407 (among other things, providing that a federal employee may file a
civil action in federal court: “ (a) [w]ithin 90 days of receipt of the agency final action on an individual or class
complaint; (b) [a]fter 180 days from the date of filing an individual or class complaint if agency final action has not
been taken; (c) [w]ithin 90 days of receipt of the Commission's final decision on an appeal; or (d) [a]fter 180 days from
the date of filing an appeal with the Commission if there has been no final decision by the Commission. ”). See also id.
§ 1614.105-106 (discussing time frames and procedures for reporting alleged discrimination to their employing
agency).
663 See 42 U.S.C. § 2000e-5(g) (authorizing courts to issue injunctions and order various other forms of relief).
664 See id. §1981a(a)(1) (providing for compensatory and punitive damages).
665 See generally West v. Gibson, 527 U.S. 212, 215 (1999) (“ In 1991 Congress again amended T itle VII. T he
amendment relevant here permits victims of intentional employment discrimination (whether within the private sector
or the Federal Government) to recover compensatory damages.”) (citing Civil Rights Act of 1991, 105 Stat. 1072, 42
U.S.C. § 1981a(a)(1)); Landgraf v. USI Film Products, 511 U.S. 244, 247 (1994) (“ The Civil Rights Act of 1991 . . .
creates a right to recover compensatory and punitive damages for certain violations of T itle VII of the Civil Rights Act
of 1964”).
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In cases of intentional discrimination, Section 706(g) provides that a court may order injunctive
relief,666 and “such affirmative action as may be appropriate,” including but not limited to
ordering back pay,667 the reinstatement or hiring of employees, or “any other equitable relief as
the court deems appropriate.”668 The general purpose of equitable relief under Title VII, the
Supreme Court has stated, is “to make persons whole for injuries suffered on account of unlawful
employment discrimination.”669
Apart from and in addition to the relief available under Section 706(g),670 individuals who prevail
on Title VII intentional discrimination claims671 may also recover compensatory damages “for
future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other nonpecuniary losses”;672 and punitive damages, where “the
respondent engaged in a discriminatory practice or discriminatory practices with malice or with
reckless indifference to the federal y protected rights of an aggrieved individual.”673 The statute
explicitly limits the total combined amount of compensatory and punitive damages according to

666 See 42 U.S.C. § 2000e-5(g)(1) (“If the court finds that the respondent has intentionally engaged in or is intentionaly
engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from
engaging in such unlawful employment practice”). See, e.g., EEOC v. Gurnee Inn Corp., 914 F.2d 815, 816 -17 (7th
Cir. 1990) (in a T itle VII sexual harassment case, affirming the district court’s order of injunctive relief prohibiting the
employer “ from engaging in future discriminat ion and order[ing] [it] to adopt both a policy banning sexual harassment
and a procedure to enforce that policy”; stating that “courts are given wide discretion in T itle VII cases to fashion a
complete remedy, which may include injunctive relief, in order to make whole victims of employment discrimination”).
667 See 42 U.S.C. § 2000e-5(g)(1). See generally Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (holding
that “given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally,
would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making
persons whole for injuries suffered through past discrimination”) (quoting 118 Cong. Rec. 7168 (1972)). As a general
matter, back pay is a form of monetary relief that compensates an individual for lost wages resulting from a
discriminatory termination or denial of promotion.
668 See 42 U.S.C. § 2000e-5(g)(1). See also id. § 2000e-5(g)(2)(A) (providing that “[n]o order of the court shall require
. . . the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if
such individual . . . was refused employment or advancement or was suspended or discharged for any reaso n other than
discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e–3(a) of this
title”).
669 See Albemarle, 422 U.S. at 418. See also id. at 421 (stating that “Congress’ purpose in vesting a variety of
‘discretionary’ powers in the courts was not to . . . invite inconsistency and caprice, but rather to make possible the
‘fashion(ing) (of) the most complete relief possible’”).
670 See Landgraf, 511 U.S. at 253 (stating that the “compensatory damages provision of the 1991 Act is ‘in addition to,’
and does not replace or duplicate, the backpay remedy allowed under prior law”). See also 42 U.S.C. § 1981a(a)(1)
(stating that “ the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in
addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent”).
671 See 42 U.S.C. §1981a(a)(1) (making compensatory and punitive damages available in a T itle VII action “against a
respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because
of its disparate impact) prohibited under section 703, 704, or 717 of the Act [ 42 U.S.C. 2000e–2, 2000e–3, 2000e–16]”)
(emphasis added).
672 See 42 U.S.C. § 1981a(b)(3) (referring to compensatory damages as the sum of the amount for “future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary
losses”).
673 See id. §1981a(b)(1) (making recovery of punitive damage available “if the complaining party demonstrates that the
respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to
the federally protected rights of an aggrieved individual”). See generally Kolstad v. Am. Dental Ass’n, 527 U.S. 526,
530, 546 (1999) (addressing the “ circumstances under which punitive damages may be awarded in an action under T itle
VII” and concluding that “an employer’s conduct need not be independently ‘egregious’ to satisfy § 1981a’s
requirements for a punitive damages award, although evidence of egregious misconduct may be used to meet the
plaintiff’s burden of proof”).
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employer size, with a maximum cap of $300,000.674 In the case of an employer with over 500
employees, for example, the statute provides that a plaintiff's combined compensatory and
punitive damages cannot exceed $300,000.675
While these remedies are general y available to Title VII plaintiffs who prevail on intentional
discrimination claims, this relief is subject to specific limitations in a “mixed motive” claim
brought under Section 703(m).676 In a “mixed motive” case, if the employer shows that it “would
have taken the same action in the absence of the impermissible motivating factor,”677 the statute
limits the plaintiff’s remedies to “declaratory relief, certain types of injunctive relief, and
attorney’s fees and costs.”678 Meanwhile, though beyond the scope of this overview to address
legal issues relating to relief for disparate impact discrimination under Title VII, as a general
matter, “[e]quitable remedies are available for disparate impact violations,679 as wel as injunctive
relief.680
More general y, the prevailing party to a Title VII claim, plaintiff or defendant, may also recover
“a reasonable attorney’s fee (including expert fees) as part of the costs.”681
Title VIII: Voting and Voter Registration Statistics
Title VIII of the 1964 Act, codified at 42 U.S.C. § 2000f, is a standalone statutory provision that
directs the Secretary of Commerce to conduct a survey of registration and voting statistics
capturing data relating to race, color, and national origin, to be “collected and compiled in

674 See id. § 1981a(b)(3) (providing that the “sum of the amount of compensatory damages awarded under this section
. . . and the amount of punitive damages awarded under this section, shall not exceed” various amounts set out in the
statute according to employer size, and capped at its maximum at $300,000).
675 See id. § 1981a(b)(3)(D). See id. at (b)(3)(C) (in a case against an employer with 201 to 500 employees, providing
that a plaintiff’s combined compensatory and punitive damages cannot exceed $200,000); id. at (b)(3)(B) (in a case
against an employer with 101 to 200 employees, limiting such total damages to no more than $100,000); id. at
(b)(3)(A) (in a case against an employer with 15 to 100 employees, limiting such total damages to no more than
$50,000).
676 See id. § 2000e–5(g)(2)(B)) (providing that on a claim in which “a respondent demonstrates that the respondent
would have taken the same action in the absence of the impermissible motivating factor, the court” may “grant
declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be
directly attributable only to the pursuit of a claim under section 2000e–2(m) of this title” but “ shall not award damages
or issue an order requiring any admission, reinstatement, hiring, promotion, or payment”) (emphasis added). See, e.g.,
Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344 , 1351 (7th Cir. 1995) (rejecting defendant’s argument that
the plaintiff was required to prove “but for” causation to obtain back pay available under 42 U.S. § 2000e–5(g)(2)(A),
and stating that T itle VII, as amended by the 1991 Civil Rights Act, limits a plaintiff’s remedies in a mixed motive case
only “[i]f an employer proves that the same employment decision would have been made absent an illegal motivation, a
plaintiff’s remedies are limited”) (citing 42 U.S.C. § 2000e–5(g)(2)(B)).
677 Id.
678 Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003) (citing 42 U.S.C. § 2000e–5(g)(2)(B)).
679 See Kolstad, 527 U.S. at 547-48 (“Equitable remedies are available for disparate impact violations; compensatory
damages for intentional disparate treatment; and punitive damages for intentional discrimination ‘with malice or with
reckless indifference to the federally protected rights of an aggrieved individual.’”).
680 See, e.g., NAACP v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 485 -86 (3d Cir. 2011) (in a T itle VII
disparate impact case challenging the employer’s use of a residency requirement, affirming the district court’s
“permanent injunction against use of the Residents–Only List,” as the injunction was “properly circumscribed to
eliminate the employment practice that the expert reports establish is causing the disparate impact”; also observing that
“district courts are afforded substantial discretion in fashioning injunctive relief”).
681 42 U.S.C. § 2000e-5(k) (“In any action or proceeding under this subchapter the court, in its discretion, may allow
the prevailing party, other than the Commission or the United Stat es, a reasonable attorney’s fee (including expert fees)
as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.”).
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connection with the Nineteenth Decennial Census,” or the 1970 census.682 This provision also
directs the Secretary to conduct such a survey at “other times as the Congress may prescribe.”683
House Report No. 914 does not specify the constitutional basis for enacting Title VIII, but
expressed that “[t]here is no question as to the constitutionality, necessity, and potential value of
this census.”684 As a general matter, the U.S. Census Bureau continues to collect data on voting
and registration,685 and has done so since 1964.686
General Background: “Fragmentary” Voting and Registration Data
Legislative history reflects that at the time leading up to the 1964 Act, there was a concern over
the “urgent need” for state-by-state, county-by-county voter registration data.687 The data
available at the time, according to House Report No. 914, was derived from “[f]ragmentary
material” and did not sufficiently capture “voting turnout by race, color, or national origin
particularly on a comparative basis for States, counties, or congressional districts.”688 Though “it
was not possible to gather such information in conjunction with the 1960 census,” the USCCR
had urged Congress to authorize the collection of these statistics and consider “the feasibility of
having a supplementary census.”689
It was believed that such “complete and accurate” voting registration statistics could facilitate the
registration of eligible voters who had not yet registered,690 and remove a “severe handicap” to
the federal enforcement of voting protections through litigation by the DOJ and fact-finding by
the USCCR.691
Title VIII Provision
Title VIII directed the Secretary of Commerce to “conduct a survey to compile registration and
voting statistics in such geographic areas as may be recommended by the Commission on Civil
Rights,” to determine “a count of persons of voting age by race, color, and national origin,”692 and
whether “such persons are registered to vote, and have voted in any statewide primary or general
election in which the Members of the United States House of Representatives are nominated or

682 See id. § 2000f. See also Presidential Proclamation No. 3973, 35 Fed. Reg. 5079 (March 26, 1970) (reflecting that
the Nineteenth Decennial Census was to be taken beginning April 1, 1970),
https://www.presidency.ucsb.edu/documents/proclamation -3973-nineteenth-decennial-census-the-united-states.
683 See 42 U.S.C. § 2000f.
684 See H. REP. NO. 914, pt. 2, at 31.
685 See Voting and Registration, U.S. Census Bureau, https://www.census.gov/topics/public-sector/voting.html, (last
visited Sept. 2, 2020) (“ [T]he Current Population Survey collects data on reported voting and registration”).
686 See FAQs, U.S. Census Bureau, https://www.census.gov/topics/public-sector/voting/about/faqs.html, (last visited
Sept. 2, 2020) (stating that the Census Bureau “ has collected voting and registration data since 1964” and has data
“available for every national election since 1964”).
687 See H. REP. NO. 914, pt. 2, at 31.
688 Id. at 30 (also describing the methods of measuring nonvoting used at the time as “highly unreliable”).
689 Id. at 31.
690 Id. (“With this information, more complete and accurate statistics can be made available to the general public to
help eligible citizens register who have neglected to do so.”).
691 Id. (“Lacking this information, the Commission on Civil Rights has labored under a severe handicap in its fact
finding functions. T he Department of Justice has also been hindered in its litigation efforts by not having complete and
reliable registration and voting statistics.”).
692 42 U.S.C. § 2000f.
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elected, since January 1, 1960.”693 With respect to frequency of such data, Title VIII directed that
the information “be collected and compiled in connection with the Nineteenth Decennial Census,
and at such other times as the Congress may prescribe.”694
Title VIII also provides that individual participation in the survey(s) is voluntary, stating that “no
person shal be compel ed to disclose his race, color, national origin, or questioned about his
political party affiliation, how he voted, or the reasons therefore, nor shal any penalty be imposed
for his failure or refusal to make such disclosure.”695 Relatedly, the statute requires that “[e]very
person,” questioned “oral y, by written survey or questionnaire or by any other means,” “shal be
fully advised with respect to his right to fail or refuse to furnish such information.”696
Title IX: Appeals and Attorney General Intervention
Title IX of the 1964 Civil Rights Act concerns the adjudication of certain civil rights cases in
federal court, and litigation by the Attorney General.697 Despite addressing altogether different
matters, Title IX of the 1964 Act is sometimes confused698 with Title IX of the Education
Amendments of 1972, the federal statute which prohibits discrimination based on sex in federal y
funded education programs or activities.699
Title IX of the 1964 Act, however, enacted two distinct provisions unrelated to that later statute.
Its first provision, Section 901, amended 28 U.S.C. § 1447(d) to permit individuals to appeal
district court orders denying a petition requesting the removal of a civil rights case from state to
federal court.700 The second provision, Section 902, authorizes the Attorney General to intervene
in any civil action al eging an Equal Protection Clause violation based on race, color, religion, or
national origin.701 In 1972, Congress amended this latter intervention provision to also authorize
the Attorney General to intervene as a party in cases al eging a denial of equal protection based
on sex.702 Both of these provisions are discussed in further detail below.

693 Id.
694 Id. (also stating that the “provisions of section 9 and chapter 7 of title 13 shall apply to any survey, collection, or
compilation of registration and voting statistics carried out under this subchapter”).
695 Id.
696 Id.
697 See T he Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 266 (reflecting that T itle IX enacted Sections 901
and 902, which amended 28 U.S.C. § 1447(d), and created a new provision addressing intervention in certain cases by
the Attorney General, respectively).
698 See, e.g., The 14th Amendment and the Evolution of Title IX, UNITED STATES COURTS,
https://www.uscourts.gov/educational-resources/educational-activities/14th-amendment -and-evolution-title-ix (last
visited Aug. 25, 2020) (quoting the statutory text of T itle IX of the Education Amendments of 1972, and then stating
that “T itle IX of the Civil Rights Act was signed into law on June 23, 1972 by President Richard M. Nixon.”) (emphasis
added).
699 See 20 U.S.C. § 1681 et seq.
700 See generally Georgia. v. Rachel, 384 U.S. 780, 787, n.7 (1966) (“Section 901 of the Civil Rights Act of 1964
established an exception to the nonreviewability rule of 28 U.S.C. s 1447(d) for cases removed pursuant to 28 U.S.C. s
1443”). 28 U.S.C. § 1443, in turn, concerns certain types of civil rights cases. See 28 U.S.C. § 1443.
701 See T he Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 266 (reflecting that as originally enacted, Section
902 authorized intervent ion by the Attorney General in civil actions seeking relief for the denial of equal protection of
the laws on account of race, color, religion, or national origin).
702 See generally Fitzgerald v. Barnstable Sch. Cmty., 555 U.S. 246, 258 (2009) (stating that when enacting T itle IX of
the Education Amendments of 1972, Congress at that time also amended Section 902 of the 1964 Act “ to authorize the
Attorney General to intervene in private suits alleging discrimination on the basis of sex in violation of the Equal
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General Background: State Prosecutions for Exercising Civil Rights
While Title IX’s first provision permitting the appeal of a district court’s remand order might
appear technical or unrelated to civil rights protections, legislative history reflects that its
enactment was responsive to state criminal prosecutions brought against black citizens and others
in connection with exercising constitutional or statutorily-protected rights.703
As noted earlier, black citizens were at times prosecuted under state trespassing or other laws for
conduct such as sitting in a white-only section of a racial y segregated court room704 or seeking
service at a similarly designated establishment.705 Individuals registering to vote,706 or who
peaceably gathered to protest conditions of racial segregation,707 were also at times prosecuted
under state laws for doing so. When such state prosecutions were initiated, the individuals
charged under those laws would sometimes seek removal of the cases to federal court708 under 28
U.S.C. § 1443.709 Explaining the need for the removal of certain civil rights cases, Senator

Protection Clause”; citing 86 Stat. 375 and describing the amendment as “adding the term ‘sex’ to the listed grounds,
which already included race, color, religion, or national origin”). See also 42 U.S.C. § 2000h-2 (“Whenever an action
has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws
under the fourteenth amendment to the Constitution on account of race, color, religion, sex or nati onal origin, the
Attorney General for or in the name of the United States may intervene in such action”). See also supra note 242.
703 See H. REP. NO. 914, pt. 2, at 31-32.
704 See, e.g., Johnson v. Virginia., 373 U.S. 61, 62 (1963) (addressing an Equal Protection Clause challenge by a black
petitioner to his arrest and conviction for contempt, which “ rested entirely on [his] refusal to comply with the
segregated seating requirements imposed in this particular courtroom” and reversing the conviction; concluding that
“[s]tate-compelled segregation in a court of justice is a manifest violation of the State’s duty to deny no one the equal
protection of its laws”).
705 See, e.g., supra notes 94 and 213.
706 See, e.g., Cooper v. Alabama, 353 F.2d 729, 730 (5th Cir. 1965) (reflecting that while appellant and others with him
were waiting in a voter registration line at the Dallas County Courthouse, the local sheriff arrested and charged them
with “remaining present at the place of an unlawful assembly after having been warned to disperse by a public
officer”).
707 See, e.g., Cox v. Louisiana, , 379 U.S. 536, 537-38, 545-50 (1965) (reflecting that the appellant was arrested,
charged, and convicted under Louisiana laws for disturbing the peace, obstructing public passages and picketing before
a courthouse, sentenced to jail time and fined over $5,000, for leading “a group of young college students who wished
‘to protest segregation’ and discrimination against Negroes and the arrest of 23 fellow students”; and concluding that
the record evidence did not support the state’s assertions that the gathering was disruptive or disorderly and stating that
“[o]ur conclusion that the entire meeting from the beginning until its dispersal by tear gas was orderly and not riotous is
confirmed by a film of the events taken by a television news photographer, which was offered in evidence as a state
exhibit. We have viewed the film, and it reveals that the students, though they undoubtedly cheered and clapped, were
well-behaved throughout.”); Edwards v. South Carolina, 372 U.S. 229, 230 -34, 236-38 (1963) (reflecting that 187
individuals, black high school and college students, were convicted under a South Carolina breach of the peace law, for
gathering on two city blocks open to the public to protest racial discrimination, with “ no violence or threat of violence
on their part, or on the part of any member of the crowd watching them”; concluding that the evidence did not support
the convictions and reversing).
708 See, e.g., Georgia v. Rachel, 384 U.S. 780, 782-84 (1966) (addressing a case in which 20 defendants were “ arrested
on various dates in the spring of 1963” for seeking service at restaurants in Atlanta, Georgia and were indicted under a
state statute “ making it a misdemeanor to refuse to leave the premises of another when requested to do so by the owner
or the person in charge”; reflecting that petitioners alleged that their arrests were made to enforce the race -based
exclusion of black patrons from places of public accommodation and that they sought removal of their prosecutions
from state court to federal district court under 28 U.S.C. § 1443).
709 28 U.S.C. § 1443 generally provides that “ the following civil actions or criminal prosecutions, commenced in a
State court may be removed by the defendant to the district court of the United States for the district and division
embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such
State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within
the jurisdict ion thereof; (2) For any act under color of authority derived from any law providing for equal rights, or for
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Thomas Dodd, the floor manager for Title’s IX remand provision, pointed to examples of “‘cases
to be tried in State courts in communities where there is a pervasive hostility to civil rights, and
cases involving efforts to use the court process as a means of intimidation.’”710
Although removal was already permitted under 28 U.S.C. § 1443, Section 901 was adopted to
address the ability of an individual to appeal a federal court order denying a removal petition and
remanding a case to state court.711 Legislative history of the 1964 Act reflects the concern that
some federal judges were denying removal petitions without just cause and summarily remanding
the cases to state court.712 Such remand orders, however, were not appealable under 28 U.S.C. §
1447(d).713 According to House Report No. 914, this led to a circumstance in which “many
southern Federal judges” used § 1447(d) “with extraordinary effectiveness” to “deny judicial
relief for citizens who have been prosecuted in the State courts for exercising their rights
guaranteed by the Constitution.”714 In that context, Section 901 amended 28 U.S.C. § 1447(d) to
al ow individuals to appeal a district court’s remand order in certain civil rights cases.715
Title IX’s other provision addressing intervention by the Attorney General in equal protection
cases is not discussed in either the sectional analysis in Part I of House Report No. 914, or Part
II.716 As discussed earlier, however, other titles of the 1964 Civil Rights Act authorize the
Attorney General to file a civil action directly in certain cases al eging violations of Titles I, II,
III, IV, VI, and VII of the Act.717

refusing to do any act on the ground that it would be inconsistent with such law.” See id.
710 See City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 842 and n.7 (1966) (quoting 110 CONG. REC. 6955 (1964)).
711 See H. REP. NO. 914, pt. 2, at 32 (“The committee, therefore, adopted a provision (title IX) which makes the remand
of a civil rights case to a State court by a Federal court after the case had been removed to the Federal court reviewable
by appeal.”).
712 See H. REP. NO. 914, pt. 2, at 31-32 (discussing the use of 28 U.S.C. § 1447(d) and describing federal courts’ denials
of removal petitions and the related inability to appeal such orders as “ a severe and unjustified encumbrance on citizens
engaged in the struggle for equal rights”).
713 See id.
714 Id. at 32.
715 See H. REP. NO. 914, pt. 2, at 32 (“The committee, therefore, adopted a provision (title IX) which makes the remand
of a civil rights case to a State court by a Federal court after the case had been removed to the Federal court reviewable
by appeal.”). See generally Kircher v. Putnam Funds T rust, 547 U.S. 633, 640 and n.7 (2006) (explaining that various
federal statutes over the years have “ limited the power of federal appellate courts to review orders remanding cases
removed by defendants from state to federal court” and identifying 28 U.S.C. § 1447(d) as “[t] he current incarnation”;
stating that 1447(d) provides “ that an ‘order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise’” but noting that the provision “specifically excepts certain civil rights actions from
its bar”).
716 See H. REP. NO. 914, pt. 1, at 32 (with respect to Title IX of the 1964 Act, discussing only its provision concerning
remand orders); id. at pt. 2, at 31-32 (same).
717 See, e.g., “Expedited Judicial Review of Cases Brought by the Attorney General,” “Intervention or “Pattern or
Practice” Enforcement Actions by the Attorney General,” “ Enforcement Actions by the Attorney General,” and “ By
Any Other Means Authorized by Law”
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Title IX Provisions
Section 901: Allowing Appeal of Remand Orders in § 1443 Civil Rights Cases
Section 901 of the 1964 Act amended an existing statutory provision that had general y barred
any appel ate review of a district court order remanding a case to state court, and created a limited
exception for the review of such orders in certain civil rights cases.
More specifical y, Section 901 amended 28 U.S.C. § 1447(d) to add the italicized text: “An order
remanding a case to the State court from which it was removed is not reviewable on appeal or
otherwise, except that an order remanding a case to the State court from which it was removed
pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.”718 As the
Supreme Court stated in its 1966 decision Georgia v. Rachel,719 “Congress specifical y provided
for appeals from remand orders in § 1443 cases” through § 901 of the Civil Rights Act of 1964.720
“We have no doubt,” the Court added, “that Congress thereby intended to open the way for
immediate appeal.”721
Section 901 thus created an exception permitting review specifical y of remand orders where
removal petitions had been sought under 28 U.S.C. § 1443.722 That section, in turn, provides for
the availability of removal by a defendant to federal district court in two types of civil or criminal
actions original y brought in state court: those
(1) [a]gainst any person who is denied or cannot enforce in the courts of such State a right
under any law providing for the equal civil rights of citizens of the United States, or of all
persons within the jurisdiction thereof; (2) For any act under color of authority derived
from any law providing for equal rights, or for refusing to do any act on the ground that it
would be inconsistent with such law.”723
Following the enactment of Section 901, federal courts of appeals had occasion to evaluate, and
at times reverse, district court orders that had denied such removal petitions and had remanded
civil rights cases to state court.724

718 See T he Civil Rights Act of 1964, Pub. L. No. 88-352, § 901, 78 Stat. 266 (stating that “ Title 28 of the United States
Code, section 1447(d), is amended to read as follows: ‘An order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which
it was removed pursuant to section 1443 of this t itle shall be reviewable by appeal or otherwise.’”).
719 Georgia. v. Rachel, 384 U.S. 780 (1966).
720 Id. at 786-87. See generally id. at 787, n.7 (discussing an earlier proposal to amend § 1443 directly, and two views
of the final bill making remand orders appealable under T itle IX; reflecting that some lawmakers would have preferred
amending § 1443 and § 1447 directly over amending only § 1447(d) with respect to appellate review, and discussing
the rationales offered to support those views) (quoting remarks by Rep. Kastenmeier, 109 CONG. REC. 13126, 13128
and 110 CONG. REC. 2773; and Sen. Dodd, 110 CONG. REC. 6956).
721 Rachel, 384 U.S. at 787, n.7 (citing the remarks of: Rep. Kastenmeier, 110 CONG. REC. 2770; Sen. Humphrey, 110
CONG.REC. 6551; Sen. Kuchel, 110 CONG. REC. 6564; Sen. Dodd, 110 CONG. REC. 6955-6956).
722 See 28 U.S.C. § 1447(d).
723 See id. § 1443.
724 See, e.g., City of Baton Rouge v. Douglas, 446 F.2d 874, 875 (5th Cir. 1971) (where appellant alleged that his arre st
and criminal prosecution for disturbing the peace under local law was a pretext and based solely “ because he attempted
to exercise his civil rights by seeking service in a public restaurant,” reversing the district court’s remand of the
prosecution to state court); Whatley v. City of Vidalia, 399 F.2d 521, 522, 526 (5th Cir. 1968) ( addressing the appeal of
a district court’s remand order on a removal petition concerning seventeen individuals alleging that they were arrested
by the police “ while peacefully engaged in activity that was designed to encourage voter registration,” and concluding
that the “order of remand was in error” and reversing the judgment and remanding the case to district court); Cooper,
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Section 902: Intervention by the Attorney General in Equal Protection Clause
Cases
Section 902725 authorizes the Attorney General to intervene “for or in the name of the United
States” in a civil action “commenced in any court of the United States,” which al eges the denial
of equal protection of the laws under the Fourteenth Amendment based on race, color, religion,
sex, or national origin.726 Section 902 further provides that intervention in such action may be
granted “upon timely application” by the Attorney General, and requires that the Attorney
General certify “that the case is of general public importance.”727 With respect to remedies, the
provision states that “the United States shal be entitled to the same relief as if it had instituted the
action.” Following the enactment of Section 902, the Attorney General has intervened in equal
protection cases in a range of contexts, including, for example, cases involving racial segregation
in public university728 and K-12 school systems,729 racial segregation and discrimination in state
prison,730 and race-based exclusion on county jury rolls,731 among other areas.732

353 F.2d at 729-31 (addressing appeal of a district court’s remand of criminal prosecutions to state court, in a case
involving the arrest of appellants while they waited in line to register to vote; concluding that the allegations in the
removal petition stated “ a good claim for removal under section 1443(1)” and reversing the district court order). See
also Whatley, 399 F.2d at 522, n.1 (noting that “ although the Supreme Court commented in the Rachel case on the great
load of removal cases that would flow from an interpretation of the removal statute in the manner in which this court
had construed it,” stating that “[m]ost of the removal cases appealed to this court” concern numerous individuals, but
are generally resolved in a single opinion or judgment and accordingly, that “[t]he total docket numbers in this court
representing” such appeals, “ instead of amounting to 1079 in the Fifth Circuit, constituted a much smaller load,” in the
“tens rather than the hundreds”); Cf. Rachel, 384 U.S. at 788, n. 8 (describing statistics on the number of criminal cases
removed from state to federal courts as “ revealing” and stating that “ [f]or the fiscal years 1962, 1963, 1964, and 1965,
there were 18, 14, 43, and 1,192 such cases, respectively. Of the total removed criminal cases for 1965, 1,079 were in
the Fifth Circuit.”).
725 42 U.S.C. § 2000h-2.
726 See 42 U.S.C. § 2000h-2. As noted earlier, Section 902, as originally enacted, authorized intervention by the
Attorney General in civil actions seeking relief for the denial of equal protection of the laws on account of race, color,
religion, or national origin. See Civil Rights Act of 1964, Pub. L. No. 88-352, § 902, 78 Stat. 241, 266-67 (1964).
Congress amended Section 902 in 1972 to also authorize the Attorney General’s intervention in civil actions addressing
denials of equal protection based on sex. See supra note 702.
727 42 U.S.C. § 2000h-2 (stating that “the Attorney General for or in the name of the United States may intervene in
such action upon timely application if the Attorney General certifies that the case is of general public importance”).
728 See, e.g., Geier v. Alexander, 801 F.2d 799, 800 (6th Cir. 1986) (in a civil action concerning the desegregation of
T ennessee’s formerly-segregated public university system, reflecting that the Attorney General intervened as a plaintiff
under 42 U.S.C. § 2000h-2).
729 See, e.g., Fisher v. T ucson Unified Sch. Dist., 652 F.3d 1131, 1134, 1137 (9th Cir. 2011) (in a civil action brought
by black and Mexican-American students alleging intentional and unconstitutional segregation and discrimination in
the T ucson, Arizona, school system based on race and national origin, reflecting that the Attorney General intervened
after the action was filed).
730 See, e.g., Gates v. Collier, 501 F.2d 1291, 1295-96 (5th Cir. 1974) (in a case brought by two classes of inmates at
Mississippi state penitentiary, including one class comprised of black inmates alleging unconstitutional racial
discrimination and segregation, reflecting that “[a] motion by the United States to intervene in this suit pursuant to 42
U.S.C.A. § 2000h-2” had been granted).
731 See, e.g., Black v. Curb, 422 F.2d 656, 657 (5th Cir. 1970) (in civil action brought by black residents of two
counties in Alabama alleging “systematic exclusion” of black citizens from county juror rolls in violation of the Equal
Protection and Due Process Clauses, reflecting that the Attorney General intervened as a plaintiff under “ § 902 of the
Civil Rights Act of 1964, 42 U.S.C. § 2000h-2”).
732 In addition, and relatedly to the Attorney General’s authority to intervene, Section 1103 of Title XI of the 1964 Act,
provides that “[n]othing in this Act shall be construed to deny, impair, or otherwise affect any right or authority of the
Attorney General or of the United States or any agency or officer thereof under existing law to institute or intervene in
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Title X: The Community Relations Service
Title X of the 1964 Act established the Community Relations Service (CRS), a federal entity
created to assist communities with “resolving disputes, disagreements, or difficulties” relating to
discrimination based on race, color, or national origin.733 CRS is led by a Director appointed by
the President, with the advice and consent of the Senate, for a four-year term,734 and is currently
headquartered in Washington, D.C., with regional and field offices in different parts of the
country.735 CRS was original y a unit within the Department of Commerce,736 with the
expectation that one of its primary activities would be resolving disputes “arising out of the
public accommodations title.”737 It was transferred to the DOJ in 1966,738 including for the
purpose of more closely coordinating mediation and conciliation activities with other DOJ
entities, including its Civil Rights Division.739
General Background
House Report No. 914 general y refers to the Community Relations Service, without specific
mention of the concerns or context that prompted Congress to establish it. Legislative history
reflects, however, that an earlier iteration of the Community Relations Service was proposed in
1959 by then-Senator Lyndon B. Johnson.740 That bil , S. 499, referred to “disagreements in
communities in the various States disruptive to peaceful relations among the citizens of such
communities”741 and proposed establishing a federal service cal ed the Community Relations

any action or proceeding.” 42 U.S.C. § 2000h-3.
733 Id. § 2000g-1.
734 Id. § 2000g (“T here is hereby established in and as a part of the Department of Commerce a Community Relations
Service (hereinafter referred to as the ‘Service’), which shall be headed by a Director who shall be appointed by the
President with the advice and consent of the Senate for a term of four years.”).
735 See Our Reach, Community Relations Service, https://www.justice.gov/crs/crs-our-reach, (last visited Sept. 2, 2020)
(stating that its “ regional and field offices are strategically located throughout the country to maximize the availability
of CRS’s services, meet the unique needs of the communities they serve, and enable staff to deploy to communities
quickly in times of crisis”).
736 See 42 U.S.C. § 2000g (“T here is hereby established in and as a part of the Department of Commerce a Community
Relations Service”).
737 See Message of President Lyndon B. Johnson to Congress to accompany Reorganization Plan No. 1 of 1966 (Feb.
10, 1966) [hereinafter Message of the President] (stating that “ [t]he Community Relations Service was located in the
Department of Commerce by the Congress on the assumption that a primary need would be the conciliat ion of disputes
arising out of the public accommodations title of the act. T hat decision was appropriate on the basis of information
available at that time. T he need for conciliation in this area has not been as great as anticipated because of the voluntary
progress that has been made by businessmen and business organizations.”).
738 Reorganization Plan No. 1 of 1966, Eff. Apr. 22, 1966, 31 F.R. 6187, 80 Stat. 1607, § 1 (“Subject to the provisions
of this reorganization plan, the Community Relations Service n ow existing in the Department of Commerce under the
Civil Rights Act of 1964 . . . is hereby transferred to the Department of Justice.”).
739 See Message of the President, supra note 737 (stating that “assistance to communities in the identification and
conciliation of disputes should be closely and tightly coordinated. T hus, in any particular situation that arises within a
community, representatives of Federal agencies whose programs are involved should coordinate their efforts through a
single agency. In recent years, the Civil Rights Division of the Justice Department has played such a coordinating role
in many situations, and has done so with great effectiveness. Placing the Community Relations Service within the
Justice Department will enhance the ability of the Justice Department to mediate and conciliate and will insure that the
Federal Government speaks with a unified voice in those tense situations where the good offices of the Federal
Government are called upon to assist.”).
740 S. 499, 86th Cong. (1959).
741 Id. § 101 (also stating that “[t]he use of force in any manner as a means of trying to solve these disagreements not
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Service, “to provide assistance in conciliating these disagreements and in eliminating the
problems ensuing therefrom.”742 Title X of the 1964 Act enacted various features like those in the
1959 bil .743
Title X Provisions: Functions and Role of Community Relations
Service
CRS is required to provide “assistance to communities and persons therein in resolving disputes,
disagreements, or difficulties relating to discriminatory practices based on race, color, or national
origin which impair the rights of persons in such communities under the Constitution or laws of
the United States or which affect or may affect interstate commerce.”744 Put another way, CRS’s
mandate involves assisting communities with resolving conflict relating to discrimination based
on race, color, or national origin, which impairs constitutional or federal statutory rights, or
affects or could affect interstate commerce.745
Title X also grants CRS discretion regarding which cases, among those meeting the statutory
criteria described above, it chooses to conciliate. It may act “whenever, in its judgment, peaceful
relations among the citizens of the community involved are threatened thereby.”746 CRS “may
offer its services either upon its own motion or upon the request of an appropriate State or local
official or other interested person.”747
Though CRS’s original mandate focused on discrimination based on race, color, or national
origin, its activities expanded in 2009, through a funding provision enacted as part of the
Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act.748 As a result, CRS’s

only fails to produce satisfactory solutions but also tends to aggravate the disagreements and to create new problems.
Frequently the citizens who are involved in or affected by any such disagreement lack a satisfactory means of
communicating with one another and of expressing their views directly to citizens of opposing views. As a result, a
mutually satisfactory solution to the problems caused by the disagreement is made difficult, and sometimes impossible,
of attainment ”).
742 Id. § 102(a) (proposing the establishment of “an independent agency of the Government a Community Relations
Service”).
743 Compare, e.g., 42 U.S.C. § 2000g-1 (establishing the Service to “ provide assistance to communities and persons
therein in resolving disputes, disagreements, or difficulties relating to discriminatory practices based on race, color, or
national origin which impair the rights of persons in such communities under the Constitution or laws of the United
States or which affect or may affect interstate commerce”), with S. 499 § 102(a) (proposing that the Service provide
conciliation assistance in communities with respect to “ disagreements or difficulties regarding the laws or Constitution
of the United States” or “disagreements or difficulties which affect or may affect interstate commerce” ).
744 42 U.S.C. § 2000g-1.
745 See id.
746 Id.
747 Id.
748 See About CRS, Our History, Community Relations Service, https://www.justice.gov/crs/about , (last visited Sept, 2,
2020) (“ CRS’s mandate expanded in 2009 under the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention
Act to include working with communities to prevent and respond to alleged hate crimes based on actual or perceived
race, color, national origin, gender, gender identity, sexual orientation, religion, or disability.”). More specifically, a
provision enacted as part of the Hate Crimes Prevention Act authorized funding, including to CRS, for increased
personnel “to prevent and respond to alleged violations” of the Act. See Pub. L. No. 111-84, § 4706, 123 Stat. 2190
(2009) (“ There are authorized to be appropriated to the Department of Justice, including the Community Relations
Service, for fiscal years 2010, 2011, and 2012 such sums as are necessary to increase the number of personnel to
prevent and respond to alleged violations of section 249 of title 18”). With respect to protected bases, the Hate Crimes
Prevention Act addresses certain conduct committed “ because of the actual or perceived race, color, religion, or
national origin of any person,” see 18 U.S.C. § 249(a)(1), as well as certain conduct committed “because of the actual
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activities now also include “working with communities to prevent and respond to al eged hate
crimes based on actual or perceived race, color, national origin, gender, gender identity, sexual
orientation, religion, or disability.”749
Unique Functions Relating to Title II of the 1964 Act
Title X general y excludes litigation-related activities from CRS’s functions, such as certain
“investigative or prosecuting functions.”750 However, CRS has unique responsibilities, including
the authority to conduct investigations and hearings, when resolving public accommodation
claims arising under Title II of the 1964 Act.751
More specifical y, Title II of the 1964 Act provides that a federal district court may, after any Title
II claim has been filed, refer the matter to CRS for the purpose of obtaining “voluntary
compliance.”752 Upon such referral of a Title II claim under Section 204(d),753 CRS may “make a
full investigation” of such a complaint and “hold such hearings with respect thereto as may be
necessary,” “in executive session” and in confidence, unless al parties involved in the complaint
agree to the release of any testimony, with the permission of the court.754 With respect to these
Title II claims, CRS “shal endeavor to bring about a voluntary settlement between the parties.”755
CRS Activities: Conciliation and Cooperation
Apart from its functions unique to Title II, CRS describes its work as “provid[ing] facilitation,
mediation, training, and consultation services that improve communities’ abilities to problem
solve and build capacity to prevent and respond to conflict, tension, and hate crimes.”756 To that
end, CRS’s work has included responding to incidents with the potential for prompting strife or
unrest, through engagement with local communities including local leaders and law

or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.” See id. at
(a)(2)(A).
749 See About CRS, Our History, Community Relations Service, https://www.justice.gov/crs/about, (last visited Sept, 2,
2020).
750 42 U.S.C. § 2000g-2(b) (providing that “[n]o officer or employee of the Service shall engage in the performance of
investigative or prosecuting functions of any department or agency in any litigation arising out of a dispute in which he
acted on behalf of the Service”).
751 See id. §2000a-4 (“T he Service is authorized to make a full investigation of any complaint referred to it by the court
under section 2000a–3(d) of this title and may hold such hearings with respect thereto as may be necessary”).
752 See id. § 2000a-3(d) (providing that a “court may refer the matter to t he Community Relations Service . . . for as
long as the court believes there is a reasonable possibility of obtaining voluntary compliance, but for not more than
sixty days: Provided further, T hat upon expiration of such sixty-day period, the court may extend such period for an
additional period, not to exceed a cumulative total of one hundred and twenty days, if it believes there then exists a
reasonable possibility of securing voluntary compliance.”).
753 Id.
754 Id. § 2000a–4 (authorizing CRS to “make a full investigation of any complaint referred to it by the court under
section 2000a–3(d) of this title and [to] hold such hearings with respect thereto as may be necessary. T he Service shall
conduct any hearings with respect to any such complaint in executive session, and shall not release any testimony given
therein except by agreement of all parties involved in the complaint with the permission of the court, and the Service
shall endeavor to bring about a voluntary settlement between the parties”).
755 Id.
756 See Our Work, Community Relation Service, https://www.justice.gov/crs/our-work, (last visited Sept. 2, 2020) (also
providing links to examples and further discussion of its activities).
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enforcement.757CRS also conducts specific programming,758 including to facilitate dialogue on
“police-community partnerships.”759 In addition, case law reflects that CRS has been cal ed upon
to assist in settlements or consent decrees in civil rights litigation.760
Title X requires that CRS collaborate with “appropriate State or local, public, or private
agencies,” “whenever possible.”761 In addition, CRS is required to provide its assistance “in
confidence and without publicity,” and must “hold confidential any information acquired in the
regular performance of its duties upon the understanding that it would be so held.”762 Disclosure
of such information by an officer or employee of CRS constitutes a “misdemeanor and, upon
conviction thereof,” results in a fine “not more than $1,000 or imprisoned not more than one
year.”763
More detailed discussion of CRS’s activities may be found in its annual reports to Congress,
which it is required to submit on or before January 31 of each year.764

757 T he Community Relations Service’s publicly available materials reflect that its work in recent years has involved
responding to high-profile, race-related incidents, including the shooting deaths of Michael Brown in Ferguson,
Missouri and T rayvon Martin in Sanford, Florida; the death of Eric Garner in Staten Island, New York; violence
against Arab, Muslim, and Sikh communities following the September 11, 2001, attacks on the World T rade Center;
the murder of Vincent Chin in Detroit, Michigan in 1982; and earlier on in the agency’s history, the assassination of
Reverend Dr. Martin Luther King, Jr. in 1968. See Shooting Death of Michael Brown, Community Relations Service,
https://www.justice.gov/crs/timeline-event/shooting-death-michael-brown-ferguson-mo, (last visited Sept. 2, 2020)
(describing CRS’s various activities, including “establish[ing] a coalition of local elected and government agency
officials, community leaders, law enforcement, school administrators, and faith leaders from the greater St. Louis area
to discuss the underlying issues of the conflict and begin the process of developing long-term solutions to the
community tension”); Shooting of Trayvon Martin by George Zimmerman, CRS Highlights T imeline, Community
Relations Service, https://www.justice.gov/crs/about -crs/historical-timeline#event -646431, (last visited Sept. 2, 2020);
Death of Eric Garner – Staten Island, NY, CRS Highlights T imeline, Community Relations Service,
https://www.justice.gov/crs/about -crs/historical-timeline#event -646446, (last visited Sept. 2, 2020); Post Septem ber
11th Terrorist Attacks Backlash Against Arab, Muslim , and Sikh Com m unities, CRS Highlights T imeline, Community
Relations Service, https://www.justice.gov/crs/about -crs/historical-timeline#event -646396, (last visited Sept. 2, 2020)
(describing CRS’s activities following the attacks); Murder of Vincent Chin – Detroit, MI, CRS Highlights T imeline,
Community Relations Service, https://www.justice.gov/crs/about -crs/historical-timeline#event -646381, (last visited
Sept. 2, 2020); Assassination of the Reverend Dr. Martin Luther King, Jr., CRS Highlights T imeline, Community
Relations Service, https://www.justice.gov/crs/about -crs/historical-timeline#event -645831, (last visited Sept. 2, 2020)
(describing CRS’s efforts, including to minimize a violent response in Memphis, T ennessee, where Rev. Dr. King was
assassinated).
758 See generally, e.g., Facilitation, Community Relations Service, https://www.justice.gov/crs/our-work/facilitation,
(last visited Sept. 2, 2020) (“ CRS facilitation services include both structured programs and customized facilitated
dialogues that are led by a CRS Conciliation Specialist or co-facilitated by a local, CRS-trained volunteer.”).
759 See, e.g., Strengthening Police and Community Partnerships (SPCP), Community Relations Service,
https://www.justice.gov/crs/our-work/facilitation/strengthening-police-community-partnerships, (last visited Sept. 2,
2020).
760 See, e.g., Smith v. Bd. of Educ. of Palestine-Wheatley Sch. Dist., 769 F.3d 566, 568-69 (8th Cir. 2014) (in a case
alleging racial discrimination and continued segregation of faculty and student activities in violation of the Fourteenth
Amendment, and dilution of the votes of black plaintiffs in violation of the Voting Rights Act, reflecting t hat “ the court
ordered the parties to mediate the dispute with assistance from the United States Department of Justice Community
Relations Service,” which resulted in “a settlement that the court approved as a consent decree”).
761 42 U.S.C. §2000g-2(a) (“T he Service shall, whenever possible, in performing its functions, seek and utilize the
cooperation of appropriate State or local, public, or private agencies.”).
762 Id. § 2000g-2(b).
763 Id. (“Any officer or other employee of the Service, who shall make public in any manner whatever any information
in violation of this subsection, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not
more than $1,000 or imprisoned not more than one year”).
764 Id. § 2000g-3. See also Resource Center, Community Relations Service, https://www.justice.gov/crs/crs-resource-
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Title XI: Miscellaneous Provisions
Title XI of the 1964 Act contains various miscel aneous provisions,765 including two relating to
criminal contempt in connection to cases arising under Titles II through VII of the 1964 Act, and
a provision addressing preemption. House Report No. 914 does not address these provisions, and
there is limited federal case law addressing them.
Criminal Contempt Arising Under the Act
As a general matter, criminal and civil contempt766 arise from a party’s refusal to comply with a
court order or directive.767 Of these two forms of contempt, Section 1101 specifical y addresses
“any proceeding for criminal contempt arising under title II, III, IV, V, VI, or VII of this Act.”768
In such criminal contempt proceedings, Section 1101 entitles the accused to a jury trial, “upon
demand therefor,” “which shal conform as near as may be to the practice in criminal cases,”769
and sets penalties for a contempt conviction to a fine not exceeding $1,000, or imprisonment not
exceeding six months.770
This provision does not apply to “contempts committed in the presence of the court, or so near
thereto as to obstruct the administration of justice, nor to the misbehavior, misconduct, or
disobedience of any officer of the court in respect to writs, orders, or process of the court.”771
Section 1101 further provides that nothing in the provision shal “be construed to deprive courts
of their power, by civil contempt proceedings, without a jury, to secure compliance with or to
prevent obstruction of, as distinguished from punishment for violations of, any lawful writ,

center, (last visited Sept. 2, 2020) (providing links to CRS’s annual reports from 2010 to 2018, among other
publications).
765 See 42 U.S.C. §§ 2000h-2, 2000h-3 (addressing intervention by the Attorney General in certain equal protection
clause cases); id. § 2000h-4 (discussing the Act’s interaction with state law); id. § 2000h-5 (an appropriations
provision); id. § 2000h-6 (severability clause).
766 See generally Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-29 (1994) (discussing its
precedent addressing contempt, and the various substantive and procedural distinctions the Court has recognized
between criminal and civil contempt; observing that “[a]lthough the procedural contours of the two forms of contempt
are well established, the distinguishing characteristics of civil versus criminal contempts are somewhat less clear ”).
767 See 18 U.S.C. § 401 (“ A court of the United States shall have power to punish by fine or imprisonment, or both, at
its discretion, such contempt of its authority,” as to the “ [m]isbehavior of any person in its presence or so near thereto
as to obstruct the administration of justice”; the “ [m]isbehavior of any of its officers in their official transactions”; or
“[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command”). See generally Int’l Union,
512 U.S. at 831 (stating that “[t]he traditional justification for the relative breadth of the contempt power” has focused
on the necessity of a court to impose compliance with its mandates and maintain orderly proceedings) (internal citation
omitted).
768 42 U.S.C. § 2000h. In what appears to be one of the few federal appellate decisions interpreting this provision, the
U.S. Court of Appeals for the D.C. Circuit held that a criminal contempt proceeding was one “arising under” T itle VII
of the 1964 Act, where a district court had issued an order to protect participants from retaliation in litigation alleging
unlawful sexual harassment under T itle VII, and the defendant was accused of violating that court order. See Rapone,
131 F.3d at 195.
769 42 U.S.C. § 2000h.
770 Id. (“Upon conviction, the accused shall not be fined more than $1,000 or imprisoned for more than six months.”).
Section 1101 also provides that “ [n]o person shall be convicted of criminal contempt hereunder unless the act or
omission constituting such cont empt shall have been intentional, as required in other cases of criminal contempt .” Id.
771 Id.
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process, order, rule, decree, or command of the court in accordance with the prevailing usages of
law and equity, including the power of detention.”772
Double Jeopardy Relating to Criminal Contempt
Title XI of the 1964 Act also includes a double jeopardy773 provision relating to criminal
contempt convictions arising under the Act. Section 1102774 general y provides that “[n]o person
should be put twice in jeopardy under the laws of the United States for the same act or
omission,”775 and then specifical y prohibits duplicative criminal prosecutions or criminal
contempt proceedings for the same “act or omission” which arises under the 1964 Act.776
Section 1102 for example, provides that “an acquittal or conviction in a prosecution for a specific
crime under the laws of the United States shal bar a proceeding for criminal contempt, which is
based upon the same act or omission and which arises under the provisions of this Act.”777
Likewise, this Title XI provision states that “an acquittal or conviction in a proceeding for
criminal contempt, which arises under the provisions of this Act, shal bar a prosecution for a
specific crime under the laws of the United States based upon the same act or omission.”778
Preemption of Conflicting State Laws
Various provisions of the 1964 Act, including in Titles II779 and VII,780 expressly contemplate the
existence of state or local antidiscrimination laws that provide paral el or overlapping
protections.781 Addressing the interaction between such laws and the requirements of the 1964

772 Id.
773 T his overview does not address the legal principles relating to double jeopardy, or Supreme Court jurisprudence
relating to the Double Jeopardy Clause of the Fifth Amendment of the Constitution, which provides that no person shall
“be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V.
774 42 U.S.C. § 2000h-1.
775 Id. (“No person should be put twice in jeopardy under the laws of the United States for the same act or omission.
For this reason, an acquittal or conviction in a prosecution for a specific crime under the laws of the United States shall
bar a proceeding for criminal contempt, which is based upon the same act or omission and which arises under the
provisions of this Act; and an acquittal or conviction in a proceeding for criminal contempt, which arises unde r the
provisions of this Act, shall bar a prosecution for a specific crime under the laws of the United States based upon the
same act or omission.”).
776 See id.
777 Id.
778 Id.
779 See id. § 2000a-3(c) (requiring that an individual seeking relief for a T itle II violation, before filing a civil action,
must, among other things, provide “written notice of such alleged act or practice” “to the appropriate State or local
authority,” in cases where the “alleged act or practice prohibited . . . occurs in a State, or political subdivision of a
State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local
authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon
receiving notice thereof”).
780 See id. § 2000e-5(c)-(e) (discussing several procedural or other requirements relating to circumstances where the
practice alleged to be unlawful under T itle VII occurred “ in a State, or political subdivision of a State, which has a
State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local
authority to grant or seek relief from such practice o r to institute criminal proceedings with respect thereto upon
receiving notice thereof”).
781 See supra notes 779-80. See also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 101 (1983) (“ State laws obviously play
a significant role in the enforcement of T itle VII.”); Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49 (1974)
(interpreting the legislative history of T itle VII as “ manifest[ing] a congressional intent to allow an individual to pursue
independently his rights under both T itle VII and other applicable state and federal statutes”; also stating that “ [t]he
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Act, two provisions in the 1964 Act—one in Title VII,782 the other in Title XI783—expressly
permit state and local antidiscrimination laws784 so long as their provisions are not “inconsistent
with any of the purposes of this Act, or any provision thereof.”785 Put another way, state laws may
address “the same subject matter” as any title of the 1964 Act,786 and wil be preempted or
invalidated only when “inconsistent” with the purposes or provisions of the Act.787
The broader of the two provisions, Section 1104788 of Title XI, states that “[n]othing contained in
any title … shal be construed as indicating an intent on the part of Congress to occupy the field
in which any such title operates to the exclusion of State laws on the same subject matter.”789
Meanwhile, Section 708 of Title VII specifical y refers to Title VII’s protections and provides that
nothing in that title “shal be deemed to exempt or relieve any person from any liability, duty,
penalty, or punishment provided by any present or future law of any State or political subdivision
of a State, other than any such law which purports to require or permit the doing of any act which
would be an unlawful employment practice under this subchapter.”790
In light of the above provisions, when addressing claims al eging that the 1964 Act has preempted
a state or local antidiscrimination provision, federal courts have analyzed whether the chal enged
state provision conflicts with the requirements of a title of the Act.791 In its 1987 decision

clear inference is that T itle VII was designed to supplement rather than supplant, existing laws and institutions relating
to employment discrimination”).
782 42 U.S.C. § 2000e-7 (“Nothing in this subchapter shall be deemed to exempt or relieve any person from any
liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a
State, other than any such law which purports to require or permit the doing of any act which would be an unlawful
employment practice under this subchapter.”).
783 Id. § 2000h-4 (“Nothing contained in any title of this Act shall be construed as indicating an intent on the part of
Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter,
nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is
inconsistent with any of the purposes of this Act, or any provision thereof.”).
784 See United States v. City of Philadelphia, 798 F.2d 81, 86 n. 5 (3d Cir. 1986) (noting that with respect to
employment discrimination, it is “ readily apparent that Congress has not ‘occupied the field,’ leaving no room for state
or local regulat ion of employment discrimination. Quite to the contrary, Congress expressly contemplated that the
states would exercise their traditional regulatory powers to prohibit employment discrimination”) (citing 42 U.S.C. §§
2000e–7 and 2000h-4; New York Gas Light Club v. Carey, 447 U.S. 54, 67(1980)).
785 See 42 U.S.C. § 2000h-4 (stating that no “provision of this Act [shall] be construed as invalidating any provision of
State law unless such provision is inconsistent with any of the purposes of this Act, or any pro vision thereof”).
786 Id. (stating that “ [n]othing contained in any title of this Act shall be construed as indicating an intent on the part of
Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject
matter”). See also Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9, 15 (1st Cir. 1973)
(describing the “congressional policy” expressed in T itle VII as one that clearly “encourag[es] state cooperation and
initiative in remedying racial discrimination” and reading 42 U.S.C. § 2000h -4 to “ expressly disclaim[] any intent to
preempt state action”).
787 Id. See California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281 (1987) (plurality opinion) (“In two sections
of the 1964 Civil Rights Act, §§ 708 and 1104, Congress has indicated that state laws will be pre -empted only if they
actually conflict with federal law.”). See also id. at 282-83 (citing excerpts from the congressional record and stating
that “§ 1104 was intended primarily to ‘assert the intention of Congress to preserve existing civil rights laws’” and
referring to the “scope of pre-emption available under §§ 708 and 1104” as “narrow”).
788 42 U.S.C. § 2000h-4.
789 Id.
790 Id. § 2000e-7. See also Shaw, 463 U.S. at 101 (“T itle VII expressly preserves nonconflicting state laws in its § 708”)
(citing and quoting 42 U.S.C. § 2000e–7).
791 See Coal. to Def. Affirmative Action v. Granholm, 473 F.3d 237, 239, 251-52 (6th Cir. 2006) (addressing plaintiffs’
argument that a state constitutional amendment, enacted by a statewide ballot initiative, was preempted by T itle VI of
the 1964 Act, and stating that to prevail on their claim, the “ plaintiffs must establish a form of ‘conflict preemption,’
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California Federal Savings and Loan Association v. Guerra,792 for example, the Supreme Court
addressed a chal enge to a state law requiring employers to grant up to four months of unpaid
pregnancy disability leave and reinstate those employees to the positions they had held, unless the
positions were no longer available due to business necessity.793 Characterizing the state provision
as mandating preferential treatment to pregnant employees, the petitioners argued that providing
such “special treatment” conflicted with, and was thus preempted by, Title VII’s provisions
addressing pregnancy discrimination.794 In analyzing the chal enge, the Court first compared the
purpose of Title VII with that of the state provision,795 and then considered whether an employer’s
compliance with the state provision would require it to violate a requirement in Title VII.796
Concluding that the purposes of the state provision aligned with that of Title VII,797 and that the

which is to say they must show either that ‘compliance with both federal and state regulations is a physical
impossibility’ or that ‘state law stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress’”) (citing Guerra, 479 U.S. at 281 and quoting from its internal citations); Coalition for
Economic Equity v. Wilson, 122 F.3d 692, 709 -10 (9th Cir. 1997) (where plaintiffs argued that a state law enacted by
proposition was preempted by T itle VII, explaining that § 1104 of T itle XI “ would operate to pre-empt Proposition 209
only if Proposition 209 were inconsistent with any purpose or provision of the 1964 Civil Rights Act” and concluding
that because the proposition did not conflict with the Act, the district court had erred in concluding that the pl aintiffs
were likely to succeed on the merits of their preemption claims); Hays v. Potlatch Forests, Inc., 465 F.2d 1081, 1082
(8th Cir. 1972) (“ We agree with the District Court that Congress expressly disclaimed any general preemptive intent in
enacting T itle VII, and that the Arkansas statute can be held invalid only if it is in conflict with the Civil Rights Act”)
(citing 42 U.S.C. §§ 2000e-7 and 2000h-4).
792 479 U.S. 272 (1987).
793 Id. at 276 (describing the provision’s text, and application and interpretation of that provision by the relevant state
authority, as requiring employers to “ provide female employees an unpaid pregnancy disability leave of up to four
months,” and “ reinstate an employee returning from such pregnancy leave to the job she previously held, unless it is no
longer available due to business necessity”; also stating that in “the latter case,” the state provision required an
employer to “make a reasonable, good-faith effort to place the employee in a substantially similar job”).
794 Id. at 284 (reflecting that the petitioners argued that the second clause of T itle VII’s provision addressing pregnancy
discrimination, 42 U.S.C. § 2000e(k), “ unambiguously rejects California’s ‘special treatment’ approach to pregnancy
discrimination” because the second clause, in the petitioners’ view, “forbids an employer to treat pregnant employees
any differently than other disabled employees”). T he second clause of T itle VII’s pregnancy discrimination provision
states: “ women affected by pregnancy, childbirt h, or related medical conditions shall be treated the same for all
employment -related purposes, including receipt of benefits under fringe benefit programs, as other persons not so
affected but similar in their ability or inability to work, and nothing in section 2000e–2(h) of this title shall be
interpreted to permit otherwise.” 42 U.S.C. § 2000e(k).
795 Guerra, 479 U.S at 284-88 (discussing the context and legislative history relating to Congress’s amendment of T itle
VII to add protections against pregnancy discrimination, noting excerpts of the congressional record “ repeatedly
acknowledg[ing] the existence of state antidiscrimination laws that prohibit sex discrimination on the basis of
pregnancy” and expressing its general agreement with the court of appeals’ “conclusion that Congress intended the
PDA to be ‘a floor beneath which pregnancy disability benefits may not drop —not a ceiling above which they may not
rise’”) (internal citations omitted).
796 Id. at 290-92 (addressing the petitioner’s argument that the California provision would require employers to violate
T itle VII).
797 Id. at 288 (concluding that “ T itle VII, as amended by the [Pregnancy Discrimination Act], and California’s
pregnancy disabilit y leave statute share a common goal” relating to equal opportunities for women in the workplace).
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petitioner’s compliance would not require it to discriminate against non-pregnant employees,798
the Court held that the provision was “not pre-empted by Title VII.”799
Conclusion and Considerations for Congress
The Civil Rights Act of 1964, comprised of eleven distinct titles, addresses various forms of
discrimination in a broad range of contexts. The Act enacted new prohibitions and protections—
from the voting to employment contexts—and established distinct methods for enforcing them.
The Act, among other things, also authorized the federal enforcement of guarantees under the
Equal Protection Clause in certain circumstances. While al the titles in some way relate
thematical y to preventing or deterring discrimination, as discussed in this report, each title’s
provisions substantial y differ in scope and application, and have given rise to unique
considerations, debates, and questions.800
Over the years, Congress has amended provisions of certain titles of the 1964 Civil Rights Act,
often to respond to or address specific questions of scope, application, interpretation, or
enforcement.801 Thus far, amendments to the Act have mostly concerned one title in particular—
Title VII.802 As a matter of legislative precedent, these amendments general y reflect a context-
specific approach that has focused on discrete issues particular to that title.

798 Id. at 290-91 (explaining that rather than “compel[ling] California employers to treat pregnant workers better than
other disabled employees,” the state provision “merely establishes benefits that employers must, at a minimum, provide
to pregnant workers”; concluding that complying with the state provision did not conflict with T itle VII’s requirements,
as “[e]mployers are free to give comparable benefits to other disabled employees, thereby treating ‘women affected by
pregnancy’ no better than ‘other persons not so affected but similar in their ability or inability to work’”) (internal
citations omitted).
799 Id. at 292 (“ T he statute is not pre-empted by T itle VII, as amended by the PDA, because it is not inconsistent with
the purposes of the federal statute, nor does it require the doing of an act which is unlawful under T itle VII.”).
800 Compare “Immaterial Errors or Omissions on Voting Applications, Registrations, or Records” (discussing
questions of interpretation and application with respect to T itle I’s materiality provision); “ Retail and Other
Establishments or Services” (discussing how federal courts have applied T itle II to conclude that certain establishments
are, or are not, subject to its requirements); “ T he Supreme Court and “ Discrimination” Prohibited by T itle VI”
(discussing Supreme Court precedent reflecting contrasting approaches to interpreting the statutory text of Section
601); “Protected Categories Under T itle VII” (discussing the Supreme Court’s interpretation of T itle VII’s prohibition
of sex discrimination to prohibit discrimination based on sexual orientation and gender identity).
801 See Pub. L. No. 92-318, 86 Stat. 375, § 906(a) (1972) (enacting amendments to provisions in T itles IV and IX of the
1964 Act to insert the word “ sex” after the word “ religion,” in 42 U.S.C. §§ 2000c(b), 2000c-6(a)(2), 2000c-9, and
2000h-2). T hese provisions generally relate to the Attorney General’s enforcement of Equal Protection Clause
violations, and the amendments expanded the Atto rney General’s authority to enforce constitutional protections in the
context of public education based on sex, and intervene in other cases alleging equal protection violations based on sex.
See 42 U.S.C. § 2000c(b) (defining desegregation to include “ the assignment of students to public schools and within
such schools without regard to … sex”); id. § 2000c-6(a)(2) (authorizing the Attorney General to act upon a written
complaint “ signed by an individual, or his parent, to the effect that he has been denied admission to or not permitted to
continue in attendance at a public college by reason of … sex”); id. § 2000h-2 (“Whenever an action has been
commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the
fourteenth amendment to the Constitution on account of … sex,” stating that “the Attorney General … may intervene in
such action”). Meanwhile, 42 U.S.C. § 2000c-9 was amended to provide that “ [n]othing in [T itle IV] shall prohibit
classification and assignment for reasons other than … sex”).
802 As discussed in this report, Congress has amended T itle VII over the years to respond to a range of specific matters,
including: to grant the EEOC independent litigating authority and change aspects of enforcement with respect to private
sector employers; to clarify definitions (as they relate to religious accommodation and pregnancy discrimination); to
codify disparate impact liability and the legal standard to be applied; and to make compensatory and punitive damages
available for intentional discriminat ion. Most recently, Congress amended T itle VII to respond to the Supreme Court’s
decision Ledbetter v. Goodyear T ire & Rubber Co., Inc., 550 U.S. 618 (2007), and address the timeliness of
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As legal debates and issues continue to arise under the various titles of the Civil Rights Act of
1964,803 Congress may choose to amend aspects of the Act to resolve such uncertainties or
address new or changed circumstances. To the extent there is legislative interest in amending the
Act, potential considerations may include the substantive differences among the titles’
prohibitions and their enforcement. Amendments to one title, for example, may have unique
implications or effects, depending on its operation, context, prohibition(s), or the method of
enforcement at issue. Amendments to the 1964 Act may also have implications for other statutes,
including those which involve similar protections or protected characteristics, address related or
overlapping contexts, or which federal courts have interpreted in relation to a title of the 1964
Act.804
Meanwhile, and particularly where proposed legislation seeks to amend multiple titles at once,
another consideration may include the different constitutional authorities Congress relied upon
when enacting the titles of the Civil Rights Act of 1964. As discussed in this report, Titles II and
VII are commonly understood as exercises of Congress’s power to regulate interstate
commerce,805 while other titles were enacted to enforce provisions of the Fourteenth and Fifteenth
Amendments,806 or may be supported by multiple constitutional bases. The constitutional basis
for a title’s enactment, however, may have implications for the requirements that certain
amendments may have to conform to. The Supreme Court, for example, has interpreted Title VI
as enacted pursuant to Congress’s power under the Spending Clause.807 Under that reading,
amendments to Title VI would have to satisfy certain criteria unique to legislation enacted on that

compensation discrimination claims. See “Title VII: Discrim ination in Em ploym ent”; T he Lilly Ledbetter Fair Pay Act
of 2009, Pub. L. No. 111-2, 123 Stat. 5, 6) (amending 42 U.S.C. § 2000e–5(e) to provide that discrimination in
compensation occurs “ when a discriminatory compensation decision or other practice is adopted, when an individual
becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by
application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a decision or other practice”; and adding a provision
addressing available relief for such claims). See also id. § 2, 5 (reflecting that the amendments were enacted in response
to the Supreme Court’s Ledbetter decision). T he Ledbetter Act also amended or addressed provisions in other statutes
with respect to discrimination in compensation, including the Age Discrimination in Employment Act, the Americans
with Disabilities Act , and the Rehabilitation Act. See 123 Stat. 6-7.
803 T he Department of Justice, for example, has recently taken the view that the undergraduate admissions policy at
Yale University violates T itle VI of the Civil Rights Act. See Justice Departm ent Finds Yale Illegally Discrim inates
Against Asians and Whites in Undergraduate Adm issions in Violation of Federal Civil-Rights Laws, Office of Public
Affairs, Dep’t of Justice, https://www.justice.gov/opa/pr/justice-department-finds-yale-illegally-discriminates-against-
asians-and-whites-undergraduate.
804 Federal courts, for example, have analyzed T itle IX of the Education Amendments of 1972 in relation to both T itle
VI and T itle VII of the 1964 Civil Rights Act. T he Supreme Court has repeatedly interpreted T itle IX in relation to
T itle VI of the 1964 Act. See, e.g., Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274, 286 (1998) (referring to
T itle VI as Congress’s model for enacting T itle IX of the Education Amendments of 1972 and observing various
similarities between the two statutes, including that they “ operate in the same manner”). In addition, federal courts have
looked to their T itle VII precedent interpreting and applying that statute’s prohibition against discrimination “ because
of … sex” to analyze claims arising under T itle IX of the Education Amendments of 1972, which prohibits
discrimination “on the basis of sex” in federally funded education programs or activities. See 20 U.S.C. § 1681(a). For
additional discussion of how courts have interpreted T itle IX in light of its T itle VII precedent, see CRS Legal Sidebar
LSB10531, Title IX’s Application to Transgender Athletes: Recent Developm ents, by Jared P. Cole (Aug. 12, 2020).
805 See “T itle II: Addressing discrimination and segregation in business establishments” and “T itle VII: Discrimination
in Employment .”
806 See “T itle III: T he Equal Protection Clause and De Jure Segregated Public Facilities,” “T itle IV: T he Equal
Protection Clause and De Jure Segregated Public Schools and Colleges,” and “ T itle V: Amendments concerning the
U.S. Commission for Civil Rights (USCCR).”
807 See “General Background: Race-Based Segregation and Discrimination in Hospitals, Schools, and Other Federally
Funded Programs.”
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basis.808 A title’s constitutional basis may also shape or limit the content or parameters of
subsequent legislative amendments, and how courts or agencies interpret them. Thus, Congress
may wish to consider a title’s distinct constitutional basis when evaluating proposed amendments,
including in light of any potential y applicable legal standards, and for other purposes.

Author Information

Christine J. Back

Legislative Attorney

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This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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808 See generally, e.g., South Dakota v. Dole, 483 U.S. 203, 207–08 (1987) (discussing limitations on Congress’s
spending power); Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17-18 (1981). For more discussion on
constitutional authorities, see CRS Report R45323, Federalism -Based Lim itations on Congressional Power: An
Overview, coordinated by Andrew Nolan and Kevin M. Lewis (Sept. 27, 2018).
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