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Section IX- Private Right of Action & Individual Relief Through Agency Action

This is just a section of the larger revised Title VI Legal Manual.  Please click here to see the complete revised Manual.

Title VI Legal Manual

IX.       Private Rights of Action and Individual Relief Through Agency Action

A.        Private Right of Action

The Supreme Court has established “an implied private right of action” under Title VI, leaving it “beyond dispute that private individuals may sue” to address allegations of intentional discrimination. Barnes v. Gorman, 536 U.S. 181, 185 (2002) (quoting Alexander v. Sandoval, 532 U.S. 275, 280 (2001)). The Court previously has stated that it had “no doubt that Congress … understood Title VI as authorizing an implied private cause of action for victims of illegal discrimination.” Cannon v. Univ. of Chicago, 441 U.S. 677, 703 (1979) (holding that an individual has a private right of action under Title IX). In Sandoval, 532 U.S. at 284-85, the Supreme Court explained that the private right of action under Title VI exists only under Section 601, for cases of intentional discrimination. The Court held that individuals do not have a private right of action to enforce the discriminatory effects regulations implementing Section 602, because “[n]either as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602.” Id. at 293.

In Sandoval, the Court posited that if Congress intended for Section 602 to be enforced through a private cause of action, it would have to create an express individual right under that Section. Id. at 286-87. Looking at Title VI’s explicit language, the Court ruled that Section 601 only prohibits intentional discrimina­tion, and the “authorizing portion of § 602 reveals no congressional intent to create a private right of action.” Id. at 289.[1] Section 602, unlike Section 601, is focused on regulating the funded entity, not providing rights to individuals. Id. The Supreme Court held that “[s]tatutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’” Id. (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)). As a result, “Sandoval held that private parties may not invoke Title VI regulations to obtain redress for disparate-impact discrimination because Title VI itself prohibits only intentional discrimination.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005).[2]

The Supreme Court’s Sandoval decision left open the question whether an individual may bring an action under 42 U.S.C. § 1983 to enforce Section 602 regulations. Sandoval, 532 U.S. at 300–01 (Stevens, J., dissenting). A year later, the Supreme Court answered this question in a case brought under Section 1983 to enforce the Family Educational Rights and Privacy Act (FERPA), finding that there is no private cause of action via Section 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002). The issue before the Court was whether a plaintiff could bring an action under Section 1983 to enforce FERPA, even though FERPA created no private right of action. Id. The Supreme Court explained that there is no private right of action: “We have held that ‘[t]he question whether Congress … intended to create a private right of action [is] definitively answered in the negative’ where a statute by its terms grants no private rights to any identifiable class.” Id. at 283-84 (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 576 (1979)). Following Sandoval and Gonzaga, a majority of circuits have held that where a statute does not confer a private enforceable right, regulations promulgated under the statute cannot create a private right of action.[3] Therefore, the regulations promulgated under Section 602 are unenforceable via a private action under Section 1983.

The private right of action under Section 601 for intentional discrimination cannot be brought against individuals except in their official capacity. Wood v. Yordy, 753 F.3d 899, 903, 904 (9th Cir. 2014) (finding, consistent with the 3rd, 4th, 7th, and 10th Circuits, that Spending Clause statutes do “not authorize suits against a person in anything other than an official or governmental capacity”); see also Price ex rel. Price v. La. Dep’t of Educ., 329 F. App’x 559, 561 (5th Cir. 2009) (“[O]nly public and private entities can be held liable under Title VI.”); Shotz v. City of Plantation, 344 F.3d 1161, 1171 (11th Cir. 2003) (“It is beyond question … that individuals are not liable under Title VI”) (footnote omitted); Mwabira-Simera v. Howard Univ., 692 F. Supp. 2d 65, 70 (D.D.C. 2010) (“[N]one of the individual defendants is subject to suit under [Title VI]”).

Generally, Title VI does not provide a cause of action for private plaintiffs to sue the federal government directly or to address an allegation that the government has failed to perform its Title VI responsibilities.[4] See Maloney v. Soc. Sec. Admin., 517 F.3d 70, 75-76 (2d Cir. 2008) (concluding “that, as with Title VI, the Age Discrimination Act does not apply to a federal agency implementing a federal program”); Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 191 (4th Cir. 1999) (Title VI does not provide a cause of action against the United States); Wash. Legal Found. v. Alexander, 984 F.2d 483, 487-88 (D.C. Cir. 1993); Women’s Equity Action League v. Cavazos, 906 F.2d 742, 750 (D.C. Cir. 1990) [hereinafter WEAL II]; Cottrell v. Vilsack, 915 F. Supp. 2d 81, 91 (D.D.C.) (finding a nondiscrimination provision in a federal funding statute does not apply to programs “that are conducted directly by a federal agency ….”), aff’d, 2013 WL 4711683 (D.C. Cir. 2013), cert. denied, 134 S. Ct. 1553 (2014).

In Jersey Heights, African-American landowners filed suit against the U.S. Department of Transportation, among others, claiming that it abdicated its duties under Section 602 by not terminating funding to a recipient not in compliance with Title VI. Jersey Heights, 174 F.3d at 191. The Fourth Circuit found that Title VI provides two avenues of recourse to address discrimination: private right of action against recipients and petition or complaint to the federal funding agency to secure voluntary compliance by its recipients. Id. After reviewing Title VI’s legislative history, the court concluded that Congress did not intend for aggrieved parties “to circumvent that very administrative scheme through direct litigation against federal agencies.” Id.

Similarly, the court in WEAL II ruled that, absent congressional authorization, individuals do not have a private right of action under Title VI, Title IX, or Section 504 against the federal government for failing to enforce those statutes against its funding recipients.[5] WEAL II, 906 F.2d at 748-50.

1. Injunctive Relief[6]

The most common form of relief sought and obtained through a Title VI private right of action is an injunction ordering a recipient to do or to stop doing something. See, e.g., Sandoval, 532 U.S. at 279 (“[P]rivate individuals may sue to enforce § 601 of Title VI and obtain both injunctive relief and damages.”).[7] To obtain a permanent injunction, the moving party must demonstrate:

(1) that it has suffered an irreparable injury; (2) that remedies avail­able at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, L.L. C., 547 U.S. 388, 391 (2010); see also Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 422-23 (2d Cir. 2013).

The factors for a preliminary injunction vary by circuit, but are similar to those considered for a permanent injunction. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (moving party must show “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its favor, and that an injunction is in the public interest”); Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013); Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012); In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012); EEOC v. KarenKim, Inc., 698 F.3d 92, 100 (2d Cir. 2012).

2. Monetary Damages for Intentional Discrimination[8]

The law is well-settled that private individuals may obtain monetary damages for claims of intentional discrimination under Section 601 of Title VI. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 272 (3d Cir. 2014); Yakin v. Univ. of Ill., 508 F. Supp. 848, 852 (N.D. Ill. 1981), aff’d, 760 F.2d 270 (7th Cir. 1985).

Throughout its opinion in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), a case brought under Title IX, the Supreme Court broadly referred to the relief being sanctioned as “monetary damages” or “monetary awards.” Id. at 74-76. Although the Court did not define these terms, it specifically rejected limiting Title IX plaintiffs to monetary relief that is equitable in nature, such as backpay. See id. at 75-76. In these circumstances, a recipient of federal funds is “subject to suit for compensatory damages,” Barnes v. Gorman, 536 U.S. 181, 186–87 (2002), which traditionally includes damages for both pecuniary and nonpecuniary injuries.[9]

Similarly, in Barnes, the Supreme Court has held that individuals may obtain monetary damages from recipients for claims of intentional discrimination under Title IX. Barnes, 536 U.S. at 186-87 (citing Franklin v. Gwinett, 503 U.S. 60, 74-75 (1990));[10] Sandoval, 532 U.S. at 282-83 (“In Guardians, the Court held that private individuals could not recover compensatory damages under Title VI except for intentional discrimina­tion.”) (citing Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 611 n.5 (1983) (Powell, J., concurring in judgment)); Consol. Rail Corp. v. Darrone, 465 U.S. 624, 630-31 (1984).

Courts applying Barnes and Franklin generally have interpreted these decisions to permit the award of the full range of compensatory damages, including damages for emotional distress, as available remedies under Spending Clause legislation. Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1198-1204 (11th Cir. 2007) (discussing Barnes and Franklin and concluding that emotional damages are a form of compensatory damages available for intentional discrimination claims); Tyler v. City of Manhattan, 118 F.3d 1400, 1409-14 (10th Cir. 1997) (collecting cases, analyzing Franklin, and concluding that compensatory damages, including emotional distress, are appropriate remedies); Doe v. District of Columbia, 796 F. Supp. 559, 571 (D.D.C. 1992) (finding compensatory damages are available under Section 504); Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332, 383-84 (W.D. Pa. 2008) (concluding emotional distress damages are available under Title IX); see also DeLeo v. City of Stamford, 919 F. Supp. 70 (D. Conn. 1995) (citing cases equating monetary damages with compensatory damages).

Punitive damages are not an available remedy. In Barnes, 536 U.S. at 189, the Court explained:

When a federal-funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is “made good” when the recipient compensates the Federal Government or a third-party beneficiary (as in this case) for the loss caused by that failure.

The Court also stated that recipients generally are not on notice that they may be subject to a recovery of punitive damages and, more significantly, likely would not seek or agree to receiving federal financial assistance if punitive damages were available. Id. at 188 (“Not only is it doubtful that funding recipients would have agreed to exposure to such unorthodox and indeterminate liability; it is doubtful whether they would even have accepted the funding if punitive damages liability was a required condition.”) (emphasis in original); see also Moreno v. Consol. Rail Corp., 99 F.3d 782, 790-92 (6th Cir. 1996) (collecting cases).

3. Availability of Individual Monetary Damages through Agency Action

Compensatory damages are also an available remedy in agency administrative compliance activities. However, compensatory damages are generally unavailable for claims based solely on an agency’s disparate impact regulations. Sandoval, 532 U.S. at 282–83; Barnes, 536 U.S. at 187. The Supreme Court has stated, “where discrimination is unintentional, ‘it is surely not obvious that the grantee was aware that it was administering the program in violation of the [condition].’” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998) (quoting Guardians, 463 U.S. at 598). In Franklin, the Court explained, “[t]he point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award.” Franklin, 503 U.S. at 74 (citing Pennhurst State Sch. and Hosp. v. Halderman, 451 US 1, 17 (1981)); See also Davis, 526 U.S. at 640; Guardians, 463 U.S. at 598.[11]

4. No Administrative Exhaustion Requirement

There is no requirement that a plaintiff exhaust administrative remedies prior to bringing a private Title VI civil action. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009) (“Title IX has no administrative exhaustion requirement…. Plaintiffs can file directly in court under its implied private right of action and can obtain the full range of remedies.”); Cannon, 441 U.S. at 706-07 n.41 (“[W]e are not persuaded that individual suits are inappropriate in advance of exhaustion of administrative remedies.”).[12] Though Fitzgerald and Cannon addressed Title IX, courts have applied the same analysis to Title VI and Section 504 claims and held that litigants need not exhaust administrative remedies prior to bringing a Title VI claim in federal court. See, e.g., Wade v. Knoxville Util. Bd., 259 F.3d 452, 460 (6th Cir. 2001) (“[P]laintiff was not required to exhaust administrative remedies before bringing a Title VI claim ….”). First, “nothing in the language of [ ] Title VI requires administrative exhaustion.” Freed v. Consol. Rail Corp., 201 F.3d 188, 194 (3d Cir. 2000). Second, as the Court noted in Cannon, “[t]he award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with-and in some cases even necessary to-the orderly enforcement of the statute.” Cannon, 441 U.S. at 705-06.

B.        States Do Not Have Eleventh Amendment Immunity under Title VI

The Eleventh Amendment reflects a broad principle of sovereign immunity.[13]  Since 1890, the Supreme Court consistently has held that this Amendment protects a state from being sued in federal court without the state’s consent. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 n.7 (1996) (citing cases). However, federal courts have jurisdiction over a state if the state has either waived its immunity or Congress has abrogated unequivocally a state’s immunity pursuant to valid powers. See id. at 68. Congress has unequivocally done so with respect to Title VI and related statutes.

In 1986, Congress enacted 42 U.S.C. § 2000d-7 as part of the Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003, 100 Stat. 1845 (1986), to abrogate states’ immunity from suit for violations of Section 504, Title VI, Title IX, the Age Discrimination Act, and similar nondiscrimination statutes. See Sossamon v. Texas, 131 S. Ct. 1651, 1662 (2011); Sandoval, 532 U.S. at 280; Lane v. Peña, 518 U.S. 187, 199 (1996). Section 2000d-7(a) states:

(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of … title VI of the Civil Rights Act of 1964, … or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.

42 U.S.C. § 2000d-7 (internal citations omitted). Section 2000d-7 is an unambiguous abrogation that gives states express notice that a condition for receiving federal funds is the requirement that they consent to suit in federal court for alleged violations of Title VI and the other statutes enumerated. Sossamon, 131 S. Ct. at 1662.


[1]The Sandoval Court stated:

Whereas § 601 decrees that “[n]o person ... shall ... be subjected to discrimination,” 42 U.S.C. § 2000d, the text of § 602 provides that “[e]ach Federal department and agency … is authorized and directed to effectuate the provisions of [§ 601],” 42 U.S.C. § 2000d-1. Far from displaying congressional intent to create new rights, § 602 limits agencies to “effectuat[ing]” rights already created by § 601. And the focus of § 602 is twice removed from the individuals who will ultimately benefit from Title VI’s protection.

Sandoval, 532 U.S. at 288-89.

[2] Following the Court’s Sandoval decision, the Civil Rights Division made clear that federal agencies retained the right to address and remedy disparate impact discrimination. See Civil Rights Division, Memorandum for Heads of Departments and Agencies General Counsels and Civil Rights Directors, Executive Order 13166 (Improving Access to Services for Persons with Limited English Proficiency), (Oct. 26, 2001), (last visited Apr. 12, 2016).

[3] See, e.g., Caswell v. City of Detroit Hous. Comm’n, 418 F.3d 615, 618-20 (6th Cir. 2005) (Section 1983); Three Rivers Ctr. for Indep. Living v. Hous. Auth. of City of Pittsburgh, 382 F.3d 412, 423-25 (3d Cir. 2004) (Section 1983 and Section 504); Save Our Valley v. Sound Transit, 335 F.3d 932, 936-39 (9th Cir. 2003) (Section 1983).

[4] There may be other causes of action available to private plaintiffs seeking to challenge a federal agency’s administration of its responsibilities under Title VI, such as the Administrative Procedures Act. This section addresses only claims brought under Title VI.

[5] The WEAL II decision brought to a close the twenty-year history of litigation that began in 1970 alleging that the Department of Health, Education, and Welfare failed adequately to enforce Title VI. See Adams v. Richardson, 356 F. Supp. 92 (D.D.C. 1973).

[6] The availability of remedies may depend on the timing of an entity’s receipt of federal financial assistance. Past funding alone may not support prospective relief such as an injunction, but it may support a claim for backward-looking relief, such as back pay, restitution, or damages. See Huber v. Howard Cty., 849 F. Supp. 407, 415 (D. Md. 1994) (Section 504 matter, finding that the recipient received federal financial assistance during the time of plaintiff’s employment and discharge); James v. Jones, 148 F.R.D. 196, 201 (W.D. Ky. 1993) (state “does not presently receive [federal] funds, but … has appealed its suspension from the program and it maintains its hope of receiving future funds”).

[7] Not all monetary relief is automatically treated as compensatory or punitive in nature by the courts. In some instances monetary relief is equitable in nature and therefore may not require proof of intentional discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-18 (1975)

[8] As discussed in Section VIII, retaliation is a form of intentional discrimination. A person proving retaliation thus would be entitled to compensatory damages on the same basis as a person alleging a violation involving one of the specifically identified bases.

[9] Section 903 of the Restatement (Second) of Torts (1979) defines “compensatory damages” as “the damages awarded to a person as compensation, indemnity or restitution for harm sustained.” See also Pro-Pac, Inc. v. WOW Logistics Co., 721 F.3d 781, 788 (7th Cir. 2013) (quoting Section 903). ‘Non-pecuniary’ compensatory damages include “compensation for bodily harm and emotional distress ….” Restatement (Second) of Torts §§ 905-906; Barati v. Metro-N. R.R., 939 F. Supp. 2d 143, 151 (D. Conn. 2013) (quoting Sections 904–906). Section 904 states that damages for nonpecuniary harm include damages for bodily harm and emotional distress. See generally id., §§ 901-932.

[10] The Court stated, “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” Franklin, 503 U.S. at 70-71.

[11] See also Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009) (Section 504 permits “all remedies available under Title VI of the Civil Rights Act of 1964, including monetary damages. However, monetary damages are recoverable only upon a showing of an intentional violation.”) (citation omitted); Horner v. Ky. High Sch. Athletic Ass’n, 206 F.3d 685, 690 (6th Cir. 2000) (requiring proof of intentional discrimination to obtain monetary damages under Title IX where facially neutral policy is challenged because of its disparate impact); Davoll v. Webb, 194 F.3d 1116, 1142 (10th Cir. 1999) (“[S]tatutes enacted by Congress pursuant to its spending power should not expose funding recipients to compensatory damages liability for unintentional violations.”); Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998) (compensatory damages are not available under Section 504 absent a showing of discriminatory intent); Wood v. President & Trustees of Spring Hill Coll., 978 F.2d 1214, 1219-20 (11th Cir. 1992) (compensatory damages are not available absent proof of intent under Section 504); Carter v. Orleans Parish Pub. Schs., 725 F.2d 261, 264 (5th Cir. 1984) (finding compensatory damages are not available for unintentional violations of the Rehabilitation Act).

[12] See also Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 919 (7th Cir. 2012) (finding Title IX claimants “need not exhaust administrative remedies before bringing suit directly in court”); Brennan v. King, 139 F.3d 258, 268 n.12 (1st Cir. 1998) (“[Section 504] derives its procedural requirements from Title VI, which does not have an exhaustion requirement.”); Kling v. Los Angeles County, 633 F.2d 876, 879 (9th Cir. 1980) (concluding “the exhaustion of Title IX administrative remedies is not required before one files a private action”).

[13] U.S. Const. Amend. XI states: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State.” See Hans v. Louisiana, 134 U.S. 1 (1890).