2d Circuit expands the scope of Title VI of the Civil Rights Act

In this case, the Second Circuit takes a close look at Title VI of the Civil Rights Act of 1964 and clarifies its scope and, in particular, when an employee can sue for retaliation under this statute, which prohibits racial discrimination by public schools.

The case is Bloomberg v. New York City Dept. of Educ., issued on Oct. 3. Plaintiff was a school principal in the New York City school system and complained about racially-segregated sports teams at her school. Shortly thereafter, the DOE investigated plaintiff for alleged misconduct: someone had accused her of trying to recruit students for a communist organization. The charges could not substantiated and were ultimately dropped. Plaintiff alleges the investigation was retaliatory.

Here are the issues:

1. Does Title VI allow for a private right of action? You would think this issue would have been squared away years ago, as Title VI discrimination lawsuits are commonplace. But the Second Circuit notes it has never conclusively held as such and that it has only assumed you can sue for discrimination under Title VI. The Court finally holds that Title VI authorizes such lawsuits. Other Circuit Courts have held the same. This means plaintiff can proceed with her lawsuit provided she survives the second issue.

2. Issue number two: can you sue under Title VI for retaliation? The statute prohibits discrimination but does not say you can sue for retaliation. But the Supreme Court and Second Circuit have held that retaliation is in fact discrimination, and that statutes that prohibit discrimination without referencing retaliation allow for such claims. The Fourth Circuit agrees with this analysis, though other Circuits have agreed in non-precedential summary rulings. 

3. The third issue is whether plaintiff's complaint about discrimination on the sports teams is actionable under Title VI. This statute, which conditions federal educational money on nondiscrimination in public education, says you cannot sue over racially-discriminatory employment practices unless "a primary objective of the federal financial assistance is to provide employment." No one in this case argues that a primary objective of the DOE's federal funds is to provide employment. The Court of Appeals holds that "a Title VI retaliation claim is an action 'with respect to an employment practice' only if the underlying protected activity concerns opposing unlawful employment discrimination." 

Plaintiff prevails on appeal with respect to the third issue. While the district court held that Bloomberg’s retaliation claim challenged an “employment practice” under Title VI because it arose from her employer’s investigation of her as an employee, the Second Circuit sees it differently:

We disagree that Bloomberg’s retaliation claim is an action “with respect to any employment practice” under Section 604. Bloomberg alleges retaliation for opposing race discrimination in the allocation of sports teams, not for opposing any employment practice. We therefore conclude that Bloomberg’s Title VI retaliation claim is not barred by Section 604.