Guardians Assn. v. Civil Serv. Comm'n of New York City , 103 S. Ct. 3221 ( 1983 )

Justice White

announced the judgment of the Court and delivered an opinion, in Parts I, III, IV, and V of which Justice Rehnquist joined.

The threshold issue before the Court is whether the private plaintiffs in this case need to prove discriminatory intent to establish a violation of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U. S. C. §2000d et seq.,¹ and administrative implementing regulations promulgated thereunder. I conclude, as do four other Justices, in separate opinions, that the Court of Appeals erred in requiring proof of discriminatory intent.² However, I conclude that the judgment below should be affirmed on other grounds, because, in the absence of proof of discriminatory animus, compensatory relief should not be awarded to private Title VI plaintiffs; unless discriminatory intent is shown, declaratory and limited injunctive relief should be the only available private remedies for Title VI violations. There being four other Justices who would affirm the judgment of the Court of Appeals, that judgment is accordingly affirmed.

This class action involves a challenge by black and Hispanic police officers, petitioners here,³ to several written examinations administered by New York City between 1968 and 1970 that were used to make entry-level appointments to the city’s Police Department (Department) through October 1974.⁴ The District Court found that the challenged examinations had a discriminatory impact on the scores and pass-rates of blacks and Hispanics and were not job-related. These findings were not disturbed in the Court of Appeals.

Each member of the plaintiff class seeking relief from discrimination achieved a passing score on one of the challenged examinations and was hired as a police officer. Since appointments were made in order of test scores, however, the examinations caused the class members to be hired later than similarly situated whites, which lessened the petitioners’ seniority and related benefits. Accordingly, when the Department laid off police officers in June 1975 on a “last-hired, first-fired” basis, those officers who had achieved the lowest scores on the examinations were laid off first, and the plaintiff black and Hispanic officers were disproportionately affected by the layoffs.

On April 30, 1976, petitioners filed the present suit⁵ against the Department and other New York City officials and entities, the respondents here. Petitioners’ amended complaint alleged that the June 1975 layoffs violated their rights under Titles VI and VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq., and § 2000e et seq., under 42 U. S. C. § 1983, and under various other state and federal laws.⁶ The primary allegation of the complaint was that but for the discriminatory impact of the challenged examinations upon minorities, petitioners would have been hired earlier and therefore would have accumulated sufficient seniority to withstand the layoffs.

After a hearing, the District Court held that, although petitioners had failed to prove that the respondents had acted with discriminatory intent, the use of the examinations violated Title VII, because the tests had a disparate impact upon minorities and were not proved by respondents to be job-related.⁷ The court therefore granted petitioners’ motion for a preliminary injunction restraining the Department from firing or recalling any police officers until seniority lists were reordered to accord petitioners the seniority they would have had but for respondents’ discriminatory practices. 431 P. Supp. 526 (SDNY 1977). In light of its holding under Title VII, the District Court deemed it unnecessary to decide the merits of petitioners’ claims under Title VI. Id., at 530, n. 2.

On respondents’ appeal, the Second Circuit vacated the District Court’s decision and remanded the case for reconsideration in light of our holding in Teamsters v. United States, 431 U. S. 324 (1977), in which we ruled that a bona fide seniority system that merely perpetuates the effects of pre-Title VII discrimination is protected by § 703(h) of that statute, 42 U. S. C. §2000e-2(h). 562 F. 2d 38 (1977). On remand, the District Court found that Teamsters had rendered its previous holding untenable to the extent that it granted relief with respect to discrimination occurring prior to March 24, 1972, the date on which Title VII became applicable to municipalities. See Pub. L. 92-261, § 2(1), 86 Stat. 103. This meant that, under Title VII, class members hired prior to the effective date were not entitled to any relief, and that the remaining members of the class were only entitled to back seniority awards that did not take into account time periods prior to that date. 466 F. Supp. 1273, 1280 (SDNY 1979).

The court then turned to Title VI, which has been applicable to municipalities since its enactment in 1964, to see if it would provide relief for the time periods prior to March 24, 1972. After considering Cort v. Ash, 422 U. S. 66 (1975), and the various opinions in University of California Regents v. Bakke, 438 U. S. 265 (1978), the District Court concluded that an implied private right of action exists under Title VI. 466 F. Supp., at 1281-1285. Then, citing Lau v. Nichols, 414 U. S. 563 (1974), and Title VI administrative interpretative regulations adopted by several federal agencies, the court reasoned that proof of discriminatory effect is enough to establish a violation of Title VI in a private action, thereby rejecting respondents’ contention that only proof of discriminatory intent could suffice. 466 F. Supp., at 1285-1287. Finally, turning to the question of relief, the court held that the same remedies available under Title VII should be available under Title VI, unless they would conflict with some purpose peculiar to Title VI. “In the instant case, back seniority, approved as a Title VII remedy in Franks v. Bowman Transportation Co., 424 U. S. 747 . . . (1976), is just as necessary to make discriminatees ‘whole’ under Title VI.” Id., at 1287.

Accordingly, relief was granted to the entire class pursuant to Title VI. In a subsequent order, the court set forth a detailed plan for the determination of the constructive seniority to which each individual member of the class would be entitled, and the corresponding monetary and nonmonetary entitlements that would be derived therefrom. The court also ordered respondents to meet and consult with petitioners on the preparation and use of future examinations. App. A99-A107.

Respondents appealed once again to the Second Circuit, which affirmed the relief under Title VII but reversed as to Title VI. 633 F. 2d 232 (1980). All three members of the panel agreed that the award of Title VI relief could not be sustained, but the panel divided on the rationale for this conclusion. Two judges held that the trial court erred by concluding that Title VI does not require proof of discriminatory intent. They believed that this Court’s decision in Lau v. Nichols, supra, which held that proof of discriminatory impact could suffice to establish a Title VI violation, had been implicitly overruled by the judgment and supporting opinions in Bakke, supra. 633 F. 2d, at 270 (Kelleher, J.); id., at 274-275 (Coffrin, J.).

The third member of the panel, Judge Meskill, declined to reach the question whether Title VI requires proof of discriminatory intent. Instead, he concluded that the “compensatory remedies sought by and awarded to plaintiffs in the case at bar are not available to private litigants under Title VI.” Id., at 255. Nothing in the legislative history, Judge Meskill observed, indicated that Title VI was intended to compensate individuals excluded from the benefits of a program receiving federal assistance, and in his view a compensatory private remedy would work at cross-purposes with the administrative enforcement mechanism expressly provided by §602 of Title VI, 42 U. S. C. §2000d-l, and with the objectives of the federal assistance statutes. 633 F. 2d, at 255-262.⁸

After the Second Circuit denied petitions for rehearing from both sides, 633 F. 2d 232 (1980), we granted the plaintiffs’ petition for certiorari, 454 U. S. 1140,⁹ which claimed error solely on the basis that proof of discriminatory intent is not required to establish a Title VI violation.

r-H HH

The Court squarely held m Lau v. Nichols, supra, that Title 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. The Court of Appeals recognized this but was of the view, as are respondents, that University of California Regents v. Bakke, supra, had confined the reach of Title VI to those programs that are operated in an intentionally discriminatory manner. For two reasons, I disagree with this reading of Bakke.

A

First, I recognize that in Bakke five Justices, including myself, declared that Title VI on its own bottom reaches no further than the Constitution,¹⁰ which suggests that, in light of Washington v. Davis, 426 U. S. 229 (1976), Title VI does not of its own force proscribe unintentional racial discrimination. The Court of Appeals thought these declarations were inconsistent with Lau’s holding that Title VI contains its own prohibition of disparate-impact racial discrimination. The issue in Bakke, however, was whether Title VI forbids intentional discrimination in the form of affirmative action intended to remedy past discrimination, even though such affirmative action is permitted by the Constitution. Holding that Title VI does not bar such affirmative action if the Constitution does not is plainly not determinative of whether Title VI proscribes unintentional discrimination in addition to the intentional discrimination that the Constitution forbids.

It is sensible to construe Title VI, a statute intended to protect racial minorities, as not forbidding those intentional, but benign, racial classifications that are permitted by the Constitution, yet as proscribing burdensome, nonbenign discriminations of a kind not contrary to the Constitution. Although some of the language in the Bakke opinions has a broader sweep, the holdings in Bakke and Lau are entirely consistent. Absent some more telling indication in the Bakke opinions that Lau was being overruled, I would not so hold.¹¹

B

Even if I am wrong in concluding that Bakke did not overrule Lau, as so many of my colleagues believe, there is another reason for holding that disproportionate-impact discrimination is subject to the Title VI regime. In Lau, the Court was unanimous in affirming a holding that the school district there involved was forbidden by Title VI to practice unintentional as well as intentional discrimination against racial minorities. Five Justices were of the view that Title VI itself forbade impact discrimination. Lau, 414 U. S., at 566-569. Justice Stewart, joined by The Chief Justice and Justice Blackmun, concurred in the result. The concurrence stated that it was not at all clear that Title VI, standing alone, would prohibit unintentional discrimination, but that the Title VI implementing regulations, which explicitly forbade impact discrimination, were valid because not inconsistent with the purposes of Title VI. Id., at 569-571.¹² Even if Bakke must be taken as overruling Lau’s holding that the statute itself does not reach disparate impact, none of the five Justices whose opinions arguably compel this result considered whether the statute would permit regulations that clearly reached such discrimination. And no Justice in Bakke took issue with the view of the three concurring Justices in Lau, who concluded that even if Title VI itself did not proscribe unintentional racial discrimination, it nevertheless permitted federal agencies to promulgate valid regulations with such effect. The upshot of Justice Stewart’s opinion was that those charged with enforcing Title VI had sufficient discretion to enforce the statute by forbidding unintentional as well as intentional discrimination. Nothing that was said in Bakke is to the contrary.

Of course, this leaves the question whether The Chief Justice, Justice Stewart, and Justice Blackmun were correct in their reading of the statute. I am convinced that they were. The language of Title VI on its face is ambiguous; the word “discrimination” is inherently so. It is surely subject to the construction given the antidiscrimination proscription of Title VII in Griggs v. Duke Power Co., 401 U. S. 424 (1971), at least to the extent of permitting, if not requiring, regulations that reach disparate-impact discrimination. As Justice Stewart pointed out, the federal agency given enforcement authority had consistently construed Title VI in that manner. Lau, supra, at 570 (opinion concurring in result). Moreover, soon after the passage of Title VI, the Department of Justice, which had helped draft the legislation, assisted seven agencies in the preparation of regulations incorporating the disparate-impact standard of discrimination.¹³ These regulations were early interpretations of the statute by the agencies charged with its enforcement, and we should not reject them absent clear inconsistency with the face or structure of the statute, or with the unmistakable mandate of the legislative history. Zenith Radio Corp. v. United States, 437 U. S. 443, 450 (1978). I discern nothing in the legislative history of Title VI, and nothing has been presented by respondents, that is at odds with the administrative construction of the statutory terms. The Title, furthermore, has been consistently administered in this manner for almost two decades without interference by Congress.¹⁴ Under these circumstances, it must be concluded that Title VI reaches unintentional, disparate-impact discrimination as well as deliberate racial discrimination.

I — I I — I

Although the Court of Appeals erred in construing Title VI, it does not necessarily follow that its judgment should be reversed. As an alternative ground for affirmance, respondents defend the judgment on the basis that there is no private right of action available under Title VI that will afford petitioners the relief that they seek.¹⁵ I agree that the relief denied petitioners under Title VII is unavailable to them under Title VI, at least where no intentional discrimination has been proved, as is the case here.

A

I deal first with the matter of a private cause of action under Title VI. In Lau v. Nichols, non-English-speaking Chinese students sought relief against the San Francisco School District, claiming that they should be taught the English language, that instruction should proceed in Chinese, or that some other way should be provided to afford them equal educational opportunity. This Court, reversing the Court of Appeals, gave relief under Title VI. The existence of a private cause of action under that Title, however, was not disputed in that case.

Four years later, the Court decided University of California Regents v. Bakke, which also involved a private suit seeking relief under Title VI against state educational authorities. Four Justices assumed, but did not decide, that a private action was available under Title VI.¹⁶ A fifth Justice was of the view that no private cause of action could be implied under the Title.¹⁷ The four remaining Justices concluded that a private action was available.¹⁸

Still later, in Cannon v. University of Chicago, 441 U. S. 677 (1979), the Court, applying the factors specified in Cort v. Ash, 422 U. S. 66 (1975), held that private parties could sue to enforce the prohibitions of Title IX of the Education Amendments of 1972, 20 U. S. C. § 1681 et seq., against gender-based discrimination in any educational program supported by federal funds. A major part of the analysis was that Title IX had been derived from Title VI, that Congress understood that private remedies were available under Title VI, and that Congress intended similar remedies to be available under Title IX. 441 U. S., at 694-703. Furthermore, it was the unmistakable thrust of the Cannon Court’s opinion that the congressional view was correct as to the availability of private actions to enforce Title VI. Id., set 710-716. Two Justices, in dissent, were of the view that private remedies under Title VI itself were not available and that the same was true under Title IX. Those Justices, however, asserted that 42 U. S. C. § 1983 was available to enforce the proscriptions of Title VI and Title IX where the alleged discriminatory practices were being carried on under the color of state law. Id., at 717-730 (White, J., dissenting, joined by Blackmun, J.). Thus at least eight Justices in Cannon were of the view that Title VI and Title IX could be enforced in a private action against a state or local agency receiving federal funds, such as the respondent Department.¹⁹ See also Maine v. Thiboutot, 448 U. S. 1 (1980).

B

Petitioners, however, are not entitled to a “make whole” remedy for respondents’ Title VI violations. Whether a litigant has a cause of action “is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.” Davis v. Passman, 442 U. S. 228, 239 (1979). The usual rule is that where legal rights have been invaded and a cause of action is available, a federal court may use any available remedy to afford full relief. Bell v. Hood, 327 U. S. 678, 684 (1946). The general rule nevertheless yields where necessary to carry out the intent of Congress or to avoid frustrating the purposes of the statute involved.

For example, in Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11 (1979), the Court found that a private right of action for only limited relief could be implied under the Investment Advisers Act of 1940, 15 U. S. C. §80b-l et seq., which prohibits certain practices in connection with investment advisory contracts. Section 215 of the Act declared that contracts whose formation or performance would violate the Act were void, and the Court concluded that Congress intended “that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract.” 444 U. S., at 19. But the Court refused to allow recovery of monetary relief in a private suit alleging violations of the Act, stating that, in the absence of a contrary legislative intent, “where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Ibid.

We have also indicated that “make whole” remedies are not ordinarily appropriate in private actions seeking relief for violations of statutes passed by Congress pursuant to its “power under the Spending Clause to place conditions on the grant of federal funds.” Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 15 (1981). This is because the receipt of federal funds under typical Spending Clause legislation is a consensual matter: the State or other grantee weighs the benefits and burdens before accepting the funds and agreeing to comply with the conditions attached to their receipt. Typically, before funds are advanced, the appropriate federal official will determine whether the grantee’s plan, proposal, or program will satisfy the conditions of the grant or other extension of federal funds, and the grantee will have in mind what its obligations will be. When in a later private suit brought by those for whose benefit the federal money was intended to be used it is determined, contrary to the State’s position, that the conditions attached to the fluids are not being complied with, it may be that the recipient would rather terminate its receipt of federal money than assume the unanticipated burdens.

Thus, the Court has more than once announced that in fashioning remedies for violations of Spending Clause statutes by recipients of federal funds, the courts must recognize that the recipient has “alternative choices of assuming the additional costs” of complying with what a court has announced is necessary to conform to federal law or of “not using federal funds” and withdrawing from the federal program entirely. Rosado v. Wyman, 397 U. S. 397, 420-421 (1970). Although a court may identify the violation and enjoin its continuance or order recipients of federal funds prospectively to perform their duties incident to the receipt of federal money, the recipient has the option of withdrawing and hence terminating the prospective force of the injunction. Pennhurst State School and Hospital v. Halderman, supra, reiterated the Rosado approach: Remedies to enforce spending power statutes must respect the privilege of the recipient of federal funds to withdraw and terminate its receipt of federal money rather than assume the further obligations and duties that a court has declared are necessary for compliance. 451 U. S., at 29-30, 30, n. 23; id., at 53-55 (White, J., dissenting in part). The Court noted that “in no [Spending Clause] case . . . have we required a State to provide money to plaintiffs, much less required” a State to assume more burdensome obligations. Id., at 29.

> HH

Since the private cause of action under Title VI is one implied by the judiciary rather than expressly created by Congress, we should respect the foregoing considerations applicable in Spending Clause cases and take care in defining the limits of this cause of action and the remedies available thereunder. Because it was found that there was no proof of intentional discrimination by respondents, I put aside for present purposes those situations involving a private plaintiff who is entitled to the benefits of a federal program but who has been intentionally discriminated against by the administrators of the program. In cases where intentional discrimination has been shown, there can be no question as to what the recipient’s obligation under the program was and no question that the recipient was aware of that obligation. In such situations, it may be that the victim of the intentional discrimination should be entitled to a compensatory award, as well as to prospective relief in the event the State continues with the program.²⁰

However that may be, the Court of Appeals in this case did not disturb the District Court’s finding that there was no intentional discrimination on racial grounds. The discrimination was unintentional and resulted from the disproportionate impact of the entry-level tests on racial minorities. In this and similar situations, it is not immediately obvious what the grantee’s obligations under the federal program were and it is surely not obvious that the grantee was aware that it was administering the program in violation of the statute or regulations. In such cases, proof of discriminatory impact does not end the matter. If the grantee can bear the burden of proving some “business necessity” for practices that have discriminatory impact, it has a complete affirmative defense to claims of violation. Griggs v. Duke Power Co., 401 U. S., at 431. In the typical case where deliberate discrimination on racial grounds is not shown, the recipient will have at least colorable defenses to charges of illegal disparate-impact discrimination, and it often will be the case that, prior to judgment, the grantee will not have known or have had compelling reason to know that it had been violating the federal standards. Hence, absent clear congressional intent or guidance to the contrary, the relief in private actions should be limited to declaratory and injunctive relief ordering future compliance with the declared statutory and regulatory obligations. Additional relief in the form of money or otherwise based on past unintentional violations should be withheld.

The foregoing considerations control decision in this case. I note first that Title VI is spending-power legislation:

“It is not a regulatory measure, but an exercise of the unquestioned power of the Federal Government to ‘fix the terms on which Federal funds shall be disbursed.’ Oklahoma v. Civil Service Commission, 330 U. S. 127, 143 (1947). No recipient is required to accept Federal aid. If he does so voluntarily, he must take it on the conditions on which it is offered.” 110 Cong. Rec. 6546 (1964) (Sen. Humphrey).

Accord, id., at 1527 (memorandum by Rep. Celler) (validity of Title VI “rests on the power of Congress to fix the terms on which Federal funds will be made available”); id., at 6562 (Sen. Kuchel); id., at 7063 (Sen. Pastore). Title VI rests on the principle that “taxpayers’ money, which is collected without discrimination, shall be spent without discrimination.” Id., at 7064 (Sen. Ribicoff). Accord, id., at 7054-7055, 7062 (Sen. Pastore); id., at 7102 (Sen. Javits); id., at 6566 (memorandum by the Republican Members of the House Committee on the Judiciary). The mandate of Title VI is “[v]ery simple. Stop the discrimination, get the money; continue the discrimination, do not get the money.” Id., at 1542 (Rep. Lindsay). Title VI imposes no obligations but simply “ ‘extends an option’” that potential recipients are free to accept or reject. Id., at 1527 (memorandum by Rep. Celler) (quoting Massachusetts v. Mellon, 262 U. S. 447, 480 (1923)). This legislative history clearly shows that Congress intended Title VI to be a typical “contractual” spending-power provision.

Since Title VI is Spending Clause legislation, it is presumed that private litigants seeking to enforce compliance with its terms are entitled to no more than the limited remedy deemed available to the plaintiffs in Pennhurst. The inquiry is not at this point complete, however, because, like all rules of statutory construction, the Pennhurst presumption must “yield ... to persuasive evidence of contrary legislative intent.” Transamerica, 444 U. S., at 20. As in Trans-america, however, the relevant legislative history of Title VI reveals that “what evidence of intent exists in this case, circumstantial though it may be, weighs against the implication of a private right of action for a monetary award in a case such as this,” ibid., at least absent proof of intentional discrimination.

Title VI does not explicitly allow for any form of a private right of action. This fact did not go unnoticed by Senators Keating and Ribicoff, who unsuccessfully proposed an amendment adding to Title VI a provision expressly allowing the institution of “a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, . . . by the person aggrieved.” 109 Cong. Rec. 15375 (1963). Senator Keating explained that, under this proposal, if someone violated Title VI, funds could be denied or “a suit for specific performance of the nondiscrimination requirement could be brought... by the victim of the discrimination.” Id., at 15376. The relevant language of the proposed amendment was identical to that of § 204(a) of the Civil Rights Act of 1964, 42 U. S. C. § 2000a-3(a), the provision creating a private right of action to enforce Title II of the Act, which deals with discrimination in public accommodations. Suits under § 204(a) are “private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a ‘private attorney general/ vindicating a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, 390 U. S. 400, 401-402 (1968). Senator Keating thought that elementary fairness required that victims of Title VI-proscribed discrimination be accorded the same private right of action as allowed in the “proposed education and public accommodations titles of the [Civil Rights] bill.”²¹

The Keating-Ribicoff proposal was not included in Title VI, but the important point for present purposes is that even the most ardent advocates of private enforcement of Title VI contemplated that private plaintiffs would only be awarded “preventive relief.” Like the drafters of Title II, they did not intend to allow private plaintiffs to recover monetary awards. Although the expressed intent of Senators Keating and Ribicoff is alone not determinative of whether a compensatory remedy may be obtained in a private action to enforce Title VI, “it is one more piece of evidence that Congress did not intend to authorize a cause, of action for anything beyond limited equitable relief.” Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 22. Surely, it did not intend to do so where intentional discrimination is not shown.

The remaining indications of congressional intent are also circumstantial, but they all militate in favor of the conclusion that only prospective relief ordering compliance with the terms of the grant is appropriate as a private remedy for Title VI violations in cases such as this. The “greatest possible emphasis” was given to the fact that the “real objective” of Title VI was “the elimination of discrimination in the use and receipt of Federal funds.” 110 Cong. Rec. 6544 (1964) (Sen. Humphrey). See also id., at 7062 (Sen. Pastore). The remedy of termination of assistance was regarded as “a last resort, to be used only if all else fails,” because “cutoffs of Federal funds would defeat important objectives of Federal legislation, without commensurate gains in eliminating racial discrimination or segregation.” Id., at 6544, 6546 (Sen. Humphrey).²²

To ensure that this intent would be respected, Congress included an explicit provision in § 602 of Title VI that requires that any administrative enforcement action be “consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” 42 U. S. C. §2000d-l. Although an award of damages would not be as drastic a remedy as a cutoff of funds, the possibility of large monetary liability for unintended discrimination might well dissuade potential nondiscriminating recipients from participating in federal programs, thereby hindering the objectives of the funding statutes. See 633 F. 2d, at 261-262 (opinion of Meskill, J.).

In summary, there is no legislative history that in any way rebuts the Pennhurst presumption that only limited injunc-tive relief should be granted as a remedy for unintended violations of statutes passed pursuant to the spending power. What little evidence there is evinces an intent not to allow any greater relief.²³ I conclude that compensatory relief, or other relief based on past violations of the conditions attached to the use of federal funds, is not available as a private remedy for Title VI violations not involving intentional discrimination.²⁴

V

If the relief unavailable under Title VII and ordered under Title VI is the kind of relief that should be withheld in enforcing a Spending Clause statute, the Court should affirm the judgment of the Court of Appeals without more. Only if all or some of this relief is the kind of declaratory or prospective relief that private enforcement of Title VI properly contemplates should the Court of Appeals be reversed in whole or in part. To resolve this matter, I now consider the items of relief ordered by the District Court to determine if any element is a permissible injunctive remedy.

Although the Eleventh Amendment cases are not dispos-itive here, in holding that only prospective relief is available to remedy violations of federal law by state officials, the Court in Edelman v. Jordan, 415 U. S. 651, 667 (1974), observed that the difference between permissible and impermissible relief “will not in many instances be that between day and night.” It seems as patent here as in the Eleventh Amendment context that the relief cannot include a monetary award for past wrongs, even if the award is in the form of “equitable restitution” instead of damages. See id., at 665-667. However, prospective relief need not be “totally without effect on the [defendant’s] revenues”; injunctive relief is permissible even if it means that the defendants, in order to shape their conduct to the mandate of the court’s decree, will have to spend more money “than if they had been left free to pursue their previous course of conduct.” Id., at 667-668. The key question for present purposes is whether the decree requires the payment of funds or grants other relief, “not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation” or other relief based on or flowing from violations at a prior time when the defendant “was under no court-imposed obligation to conform to a different standard.” Id., at 668.

The District Court in the present case granted a number of relatively discrete items of relief. First, each class member was awarded constructive seniority, which included the right to: (1) “all monetary entitlements which [the class members] would have received had they been appointed on their constructive seniority date,” including backpay and back medical and insurance benefits; and (2) all other entitlements relative to the award of constructive seniority, including salary, benefits, and pension rights. Also, respondents were directed to give a sergeant’s examination to those class members whose constructive seniority would have entitled them to take the last such examination. Finally, in an effort to insure that future hiring practices would be nondiscriminatory, respondents were ordered to consult with petitioners on the preparation and use of future police officer examinations for the next two years, and to provide petitioners with race and ethnicity information regarding the scores of the next scheduled examination. App. A99-A107.²⁵

On the one hand, it is obvious that the award of backpay and back benefits constitutes relief based upon past conduct no longer permissible; it therefore should not stand. On the other hand, it is without doubt that the portion of the order requiring consultation to insure that future examinations will not have discriminatory effects constitutes permissible injunc-tive relief aimed at conforming respondents’ future conduct to the declared law.

This leaves the award of constructive seniority for purposes of future entitlements: the right to take the special sergeant’s examination ordered by the District Court and the right to an increase of salary and benefits to the level warranted by the constructive seniority. Because such an award affects only the future conduct of a defendant, it arguably could be categorized as permissible prospective relief. I conclude, however, that an award of constructive seniority, for any purpose whatsoever, must be deemed impermissible retroactive relief.

In Franks v. Bowman Transportation Co., 424 U. S. 747, 766-767 (1976), we identified two types of seniority — “benefit” and “competitive status.” The first of these, “which determines pension rights, length of vacations, size of insurance coverage and unemployment benefits, and the like, is analogous to backpay. . . . Benefit-type seniority, like backpay, serves to work complete equity by penalizing the wrongdoer economically at the same time that it tends to make whole the one who was wronged.” Id., at 786-787 (Powell, J.). A general bar to the award of retroactive seniority “reduces the restitution required of an employer at such time as he is called upon to account for his discriminatory actions perpetrated in violation of the law.” Id., at 767, n. 27 (opinion of the Court). Since constructive benefit-type seniority in this case is obviously restitutionary and remedial in nature, it is “a form of compensation” to those whose rights were violated at a time when the respondents were “under no court-imposed obligation to conform to a different standard. ” Edelman v. Jordan, 415 U. S., at 668. It is therefore not an appropriate remedy for the Title VI violations alleged here.

An award of “competitive status” seniority, although prospective in form, nevertheless constitutes a form of compensation or relief based on past conduct now deemed violative of the Act. In no respect can such an award be said to be “a necessary consequence,” ibid., of future Title VI compliance by the employer. It therefore must also be considered an inappropriate Title VI remedy. I also note that competitive-type seniority “determines an employee’s preferential rights to various economic advantages at the expense of .other employees. These normally include the order of layoff and recall of employees, job and trip assignments, and consideration for promotion.” Franks, supra, at 787 (Powell, J.). Although an award of constructive seniority of this nature does not result in any increased costs to the wrongdoing employer, it “directly implicate[s] the rights and expectations of perfectly innocent employees,” 424 U. S., at 788, and it can only be viewed as compensation for a past wrong. Accordingly, I conclude that neither “benefit” nor “competitive status” constructive seniority may be obtained as a private remedy for Title VI violations, at least in the absence of proof of intentional discrimination.

In view of the foregoing, it is apparent to me that the only proper Title VI relief granted by the District Court is the order directing the respondents to take actions and make disclosures intended to insure that future hiring practices will be nondiscriminatory and valid. However, this relief is wholly sustainable under the District Court’s findings and conclusions with respect to petitioners’ Title VII claim, and all members of the class will fully benefit from it.²⁶ There is thus no need to disturb the judgment of the Court of Appeals.

I — I >

In conclusion, for the reasons expressed above, I am convinced that discriminatory intent is not an essential element of a Title VI violation, but that a private plaintiff should recover only injunctive, noncompensatory relief for a defendant’s unintentional violations of Title VI. Such relief should not include an award of constructive seniority. Albeit on different grounds, the judgment below is

Affirmed,. ²⁷

1 Section 601 of the Act, 78 Stat. 252, 42 U. S. C. § 2000d, provides:

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

2 The five of us reach the conclusion that the Court of Appeals erred by different routes. Justice Stevens, joined by Justice Brennan and Justice Blackmun, reasons that, although Title VI itself requires proof of discriminatory intent, the administrative regulations incorporating a disparate-impact standard are valid. Post, at 642-645. Justice Marshall would hold that, under Title VI itself, proof of disparate-impact discrimination is all that is necessary. Post, at 623. I agree with Justice Marshall that discriminatory animus is not an essential element of a violation of Title VI. I also believe that the regulations are valid, even assuming, arguendo, that Title VI, in and of itself, does not proscribe disparate-impact discrimination. Part II, infra.

3 The class representatives are The Guardians Association of the New York City Police Department, Inc., The Hispanic Society of the New York City Police Department, Inc., Oswaldo Perez, and Felix E. Santos.

4 Petitioners also alleged that the Department’s 5' 7" minimum height requirement discriminated against Hispanics. The disposition of this issue in the lower courts is not now before us.

5 This was petitioners’ second judicial attack on the Department’s use of the examinations. Petitioners first filed suit in 1972, but the District Court denied their motion for a preliminary injunction restraining the making of appointments from the ranked eligibility lists generated by the challenged examinations, on the basis that the eligibility lists would soon be fully exhausted. The Court of Appeals affirmed. Guardians Assn. v. Civil Service Comm’n, 490 F. 2d 400 (CA2 1973). Petitioners unsuccessfully sought to revive the earlier case before filing the present suit. See 633 F. 2d 232, 235 (CA2 1980).

6 Among these was a claim under 42 U. S. C. § 1981, which the District Court twice rejected because petitioners failed to prove discriminatory intent, which the court found to be a necessary element of a § 1981 cause of action. 431 F. Supp. 526, 534 (SDNY 1977); 466 F. Supp. 1273, 1276, n. 4 (SDNY 1979). The Court of Appeals affirmed. 633 F. 2d, at 263-268. Petitioners raised this § 1981 issue in their petition for certiorari, but they abandoned it after our decision last Term in General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375 (1982), resolved the issue adversely to them. See Reply Brief for Petitioners 1, n.

7 The District Court correctly relied on Griggs v. Duke Power Co., 401 U. S. 424 (1971), and its progeny, as the framework for its Title VII disparate-impact analysis. 431 F. Supp., at 538-539.

8 The panel majority disagreed with Judge Meskill’s views, reading our decisions in Bakke and Cannon v. University of Chicago, 441 U. S. 677 (1979), as allowing a private right of action under Title VI irrespective of the compensatory effect of the relief sought or granted. Also, fearing that part of the noncompensatory relief in the District Court’s order might not be available to the entire class under Title VII, the court could not agree with Judge Meskill’s conclusion that his rationale made it unnecessary to decide whether Title VI requires proof of discriminatory intent. 633 F. 2d, at 274.

9 Respondents also filed a petition for certiorari, in which they seek review of the Court of Appeals’ determination that the plaintiff class is entitled to relief under Title VII. Civil Service Comm’n of the City of New York v. Guardians Assn., No. 81-432.

10 See University of California Regents v. Bakke, 438 U. S., at 287 (Powell, J.); id., at 328 (opinion of BRennan, White, MARSHALL, and Blackmun, JJ.).

11 Justice Stevens correctly states that “when the Court unequivocally rejects one reading of a statute, its action should be respected in future litigation. ... If a statute is to be amended after it has been authoritatively construed by this Court, that task should almost always be performed by Congress.” Post, at 641. However, Justice Stevens appears to ignore his own admonition by disregarding the square holding of Lau v. Nichols, the only case that directly addressed the present issue. In Lau, we “unequivocally rejected]” the notion that Title VI requires proof of discriminatory intent. Since Congress has chosen not to modify Title VI after it was “authoritatively construed” in Lau, we should be especially slow to adopt a new construction of the statute at this late date.

12 Section 602 of Title VI, 78 Stat. 252, 42 U. S. C. §2000d-l, empowers agencies providing federal financial assistance to issue “rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance . . . .” Justice Stewart explained that the regulations therefore should be upheld as valid, because they were “ ‘ “reasonably related to the purposes of the enabling legislation.’”” Lau v. Nichols, 414 U. S., at 571 (opinion concurring in result) (quoting Mourning v. Family Publications Service, Inc., 411 U. S. 356, 369 (1973), in turn quoting Thorpe v. Housing Authority of City of Durham, 393 U. S. 268, 280-281 (1969)).

13 See 29 Fed. Reg. 16274-16305 (1964). As Justice Marshall notes, post, at 619, shortly after these initial regulations were promulgated, every Cabinet department and about 40 federal agencies adopted Title VI regulations prohibiting disparate-impact discrimination.

14 Justice Marshall details, post, at 620, how Congress has rebuffed efforts to overturn the Title VI disparate-impact regulations, and how Congress, with full awareness of how the agencies were interpreting Title VI, has modeled later statutes on § 601 of Title VI, thus indicating approval of the administrative definition. Cf. Bob Jones University v. United States, 461 U. S. 574 (1983); Haig v. Agee, 453 U. S. 280, 291-300 (1981) (agency interpretation of a statute may be confirmed or ratified by congressional inaction).

15 See Brief for Respondents 8-9; Tr. of Oral Arg. 21-22.

16 Bakke, 438 U. S., at 281-284 (Powell, J.); id., at 328 (Brennan, Marshall, and Blackmun, JJ.).

17 Id., at 379 (White, J.). This Justice, however, was of the view that where the alleged discriminatory conduct constitutes state action, a cause of action under 42 U. S. C. § 1983 is available.

18 Id., at 419-421, 420, n. 28 (Stevens, J., joined by Burger, C. J., and Stewart and Rehnquist, JJ.).

19 One Justice disagreed with the Court’s holding that a private right of action could be implied under Title IX itself, without expressing a view as to whether Title IX could be privately enforced via § 1983. 441 U. S., at 730-749 (Powell, J., dissenting).

20 It is not uncommon in the law for the extent of a defendant’s liability to turn on the extent of his knowledge or culpability. Thus, it has been said that, under principles of contract law, a contracting party cannot be held liable for extraordinary harm due to special circumstances unless, at the time the contract was made, he knew or had reason to know the circumstances that made such extraordinary injury probable “so as to have the opportunity of judging for himself as to the degree of this probability.” 5 A. Corbin, Contracts § 1014 (1964). See also id., §§ 1006-1019; 11W. Jae-ger, Williston on Contracts § 1344A (3d ed. 1968). And in tort law, usually only persons who have intentionally or recklessly violated another’s rights are liable for punitive damages. See Smith v. Wade, 461 U. S. 30 (1983); W. Prosser, Law of Torts 9-10 (4th ed. 1971).

21 Hearings on S. 1731 and S. 1750 before the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 335 (1963) (Sen. Keating).

22 See also, e. g., 110 Cong. Rec. 1520 (1964) (Rep. Celler); id., at 7068 (Sen. Pastore); id., at 7065 (Sen. Ribicoff).

23 The lower courts are generally in agreement that it is not appropriate to award monetary damages for Title VI violations. See Lieberman v. University of Chicago, 660 F. 2d 1185 (CA7 1981) (Title IX case), cert. denied, 456 U. S. 937 (1982); Drayden v. Needville Independent School District, 642 F. 2d 129, 133 (CA5 1981); Nabke v. HUD, 520 F. Supp. 5, 10-11 (WD Mich. 1981); Concerned Tenants Assn. v. Indian Trails Apartments, 496 F. Supp. 522, 526-527 (ND Ill. 1980); Rendon v. Utah State Dept. of Employment Security Job Service, 454 F. Supp. 534 (Utah 1978). See also C. Antieau, Federal Civil Rights Acts § 317 (1980); 2 N. Dorsen, P. Bender, B. Neuborne, & S. Law, Political and Civil Rights in the United States 608 (4th ed. 1979). But cf. Miener v. Missouri, 673 F. 2d 969, 977-979 (CA8 1982) (holding that damages may be recovered under § 504 of the Rehabilitation Act of 1973, which was considered to be “closely analogous” to Title VI); Gilliam v. City of Omaha, 388 F. Supp. 842 (Neb.) (dicta), aff’d without mention of remedies, 524 F. 2d 1013 (CA8 1975); Quiroz v. City of Santa Ana, 18 FEP Cases 1138 (CD Cal. 1978) (dicta); Flanagan v. President & Directors of Georgetown College, 417 F. Supp. 377 (DC 1976) (dicta).

Justice Stevens argues, post, at 638, that even if Title VI authorizes only a limited remedy, full relief is available in this case because the petitioners “sought relief under 42 U. S. C. § 1983,” and § 1983 “provides a damages remedy.” Damages indeed are usually available in a § 1983 action, but such is not the case when the plaintiff alleges only a deprivation of rights secured by a Spending Clause statute. Thus, in Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 27-29 (1981), the Court indicated that, even if the plaintiffs were entitled to relief under § 1983 for defendants’ alleged violations of certain Spending Clause legislation, the defendants would not be required “to provide money to [the] plaintiffs.”

24 Justice Marshall erroneously contends, post, at 632, that my view “would allow recipients to violate the conditions of their contracts until a court identifies the violation and either enjoins its continuance or orders the recipient to begin performing its duties incident to the receipt of federal money.” This is not so, because the Federal Government can always sue any recipient who fails to comply with the terms of the grant agreement and force the violator to repay misspent funds. See Bell v. New Jersey, 461 U. S. 773, 794 (1983) (White, J., concurring). But it is an entirely different matter to subject the recipient to open-ended liability to private plaintiffs. Justice Marshall’s third-party beneficiary analogy, post, at 632-633, is appealing, but he ignores the possibility that Congress may have felt that the salutary deterrent effect of a compensatory remedy was outweighed by the possibility that such a remedy would dissuade potential recipients from participating in important federal programs. Of course, not every contract that benefits third persons accords enforceable rights in such persons; it is a question of intent. See 4 A. Corbin, Contracts § 777 (1951). Section 313 of the Restatement (Second) of Contracts (1981) states that a party who contracts with a government agency to do an act or render a service to the public is generally not subject to contractual liability to a member of the public for consequential damages resulting from performance or failure to perform. The only exceptions to this rule involve situations where the terms of the contract provide for such liability, or where the governmental entity would be subject to liability to the injured member of the public. Ibid. Neither of these exceptions is applicable in the present context.

25 As permitted by 42 U. S. C. §2000e-5(k) and 42 U. S. C. § 1988, the District Court also awarded attorney’s fees to petitioners. App. A107.

26 Under Title VII, this type of relief can be granted unconditionally. Under Title VI, the defendants should be given the option of complying or terminating participation in the federal program. See Parts IV and V, supra.

27 Despite the numerous opinions, the views of at least five Justices on two issues are identifiable. The dissenters, Justices Brennan, Marshall, Blackmun, and Stevens, join with me to form a majority for upholding the validity of the regulations incorporating a disparate-impact standard. See n. 2, supra. A different majority, however, would not allow compensatory relief in the absence of proof of discriminatory intent. Justice Rehnquist and I reach this conclusion directly. See Parts III and IV, supra; post, at 612 (Rehnquist, J., concurring in judgment). Justice Powell, joined by The Chief Justice, post, at 608-610, believes that no private relief should ever be granted under Title VI under any circumstances. Justice O’Connor, post, at 615, would hold that all relief should be denied unless discriminatory intent is proved. It follows from the views of these three latter Justices that no compensatory relief should be awarded if discriminatory animus is not shown.