42 U.S.C. § 2000d-4a(3). Bakke, therefore, is not on point.
More compelling is plaintiffs' argument that language in Title VI itself permits their suit against the State. As part of the Rehabilitation Act Amendments of 1986, Pub. L No. 99-506, 100 Stat. 1845, Congress added the following provision to Title VI: "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 . . ." 42 U.S.C. § 2000d-7(a)(1) (emphasis added). This statute has received scant attention in the case law.
Only one other district court has considered § 2000d-7 in the context of an argument similar to that made by defendants in this case. In a case involving a Title VI challenge to an allegedly segregated school system, that court rejected the State of Indiana's motion for summary judgment. Parents for Quality Educ. With Integration, Inc. v. Indiana, 753 F. Supp. 733, 736-37 (N.D. Ind. 1990), aff'd, 977 F.2d 1207 (7th Cir. 1992), modified, 986 F.2d 206 (7th Cir. 1993). The case is of limited value here, however, because the district court did not include in its discussion whether the State was claiming exemption from Title VI on the ground that it was not a "program or activity." An earlier decision in the same case, holding that "the express language [of § 2000d-7] clearly illustrates that a State or its agencies may be sued in federal court under [Title VI,]" likewise is of little assistance, given that the quoted statement appears in the context of a general discussion of Eleventh Amendment immunity. Parents for Quality Educ. With Integration, Inc. v. Indiana, 662 F. Supp. 1475, 1481 (N.D. Ind. 1987).
The two opinions are significant, however, because they are part of a long line of cases in which a state was a Title VI defendant even though it was not a "program or activity." See, e.g., United States v. Yonkers Bd. of Educ., 893 F.2d 498, 500 (2d Cir. 1990) (State of New York as Title VI defendant); Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1407 (11th Cir. 1985); Queets Band of Indians v. Washington, 765 F.2d 1399, 1404 n.2 (9th Cir. 1985), vacated as moot, 783 F.2d 154 (9th Cir. 1986); United States v. School Dist. of Ferndale, 577 F.2d 1339, 1350 n.18 (6th Cir. 1978) (State of Michigan as Title VI defendant); Knight v. Alabama, 787 F. Supp. 1030, 1361-65 (N.D. Ala. 1991); United States v. Louisiana, 692 F. Supp. 642, 650-53 (E.D. La. 1988).
The consistent understanding, as reflected by cases such as these, is that a state may be sued under Title VI, at least where the state is the entity responsible for the Title VI violation. Defendants attempt to distinguish these cases in two ways. First, they argue that the cases decided before passage of the Restoration Act are not on point because that Act made clear that a state is not a "program or activity." Second, defendants argue that none of the cases decided after Congress passed the Restoration Act expressly dealt with the argument defendants advance here. Taking the latter argument first, defendants are correct that the mere fact that other courts have permitted Title VI actions against states, without considering the argument that a state is not a "program or activity," does not foreclose defendants from raising the argument in this case. See Brecht v. Abrahamson, 123 L. Ed. 2d 353, 113 S. Ct. 1710, 1718 (1993). When their argument is considered on the merits, however, it becomes clear that it is without merit.
The common element to both of defendants' arguments for distinguishing the cited cases is that among the changes wrought by the Restoration Act was the exemption of the states themselves (as opposed to their "programs or entities") as defendants. Defendants purport to find support for that argument in two sources: (1) the language and structure of § 2000d-4a, and (2) the Restoration Act's legislative history.
The first of these sources, the language and structure of the statutory text, is preferred for purposes of divining congressional intent. See, e.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) ("Where . . . the statute's language is plain, 'the sole function of the courts is to enforce it according to its terms.'") (quoting Caminetti v. United States, 242 U.S. 470, 485, 61 L. Ed. 442, 37 S. Ct. 192 (1917)). The problem for defendants is that the statutory language doesn't clearly support their argument. Although the text of § 2000d-4a, which is set out in detail at pages 17-18, infra, obviously excludes a state from the definition of "program or activity" (a conclusion that plaintiffs do not dispute), nothing in the language of Title VI mandates that an entity must be a "program or activity" to be a Title VI defendant. Indeed, to the extent it has any bearing on this issue, the statutory language points in the opposite direction. Section 2000d-7 quite clearly provides that a state may be a defendant in a Title VI action.
Defendants are left only with their reliance on the Restoration Act's legislative history. They seize on the following statement in the Senate Committee Report that accompanied the Act to the Senate floor: "For State and local governments, only the department or agency which receives the aid is covered." S. Rep. No. 64, 100th Cong., 2d Sess. 4 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 6 (emphasis added). According to defendants, the upshot of this statement is that the Restoration Act did not expose the State itself to the prospect of losing federal funds in the event one of its subdivisions was in violation of Title VI.
This single sentence in the legislative history is not compelling evidence that Congress, by passing the Restoration Act, intended either to abolish the accepted practice of states being sued as defendants, see cases cited at page , supra, or to override the plain language of § 2000d-7 (which was on the books before the Restoration Act was passed). To make matters worse for defendants, this brief snippet from the Committee Report is surrounded by statements that could support a conclusion that goes against defendants' position. The sentence immediately following the one cited by defendants reads as follows: "Where an entity of state or local government receives federal aid and distributes it to another department or agency, both entities are covered." S. Rep. No. 64, supra, at 4, reprinted in 1988 U.S.C.C.A.N. at 6. This sentence certainly could bear the construction that where a state itself receives federal money (as does the State of California) and then distributes that money to one of its agencies (e.g., a local school district), "both entities are covered." Of course, the sentence just as easily could be construed to support defendants' position, viz., only "an entity of state or local government," and not the state or local government, is "covered."
But the Court is not construing the Committee Report, it is construing the statute. That the statute's legislative history contains sentences that can be stretched to support the positions of either side in this lawsuit only makes the case more compelling for the Court to focus on the words in Title VI. Cf. Conroy v. Aniskoff, 123 L. Ed. 2d 229, 113 S. Ct. 1562, 1567 (1993) (Scalia, J., concurring in the judgment) (recalling Judge Leventhal's description of "the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends").
There is nothing in the language of Title VI, including the Restoration Act, to indicate that an entity must be a "program or activity" if it is to be sued for a violation of Title VI. Indeed, the accepted practice, both before and after the Restoration Act's passage, has been that a state may be sued so long as it is responsible for the Title VI violation. In this case, the undisputed facts show that the State is responsible for creating the CTC and for requiring passage of the CBEST as a prerequisite to certificated employment in the California public schools. The facts as they develop in the future may or may not support a finding that the State's actions violate Title VI. The State may not escape Title VI liability, however, simply because it is not a "program or activity."
(b) The CTC.
With respect to the CTC, defendants argue that Title VI does not apply because it is undisputed that neither the CTC nor its predecessor, the CTPL, received any federal financial assistance during the relevant time period. Defendants cite Baker v. Board of Regents, 991 F.2d 628, 631 (10th Cir. 1993), for the proposition that in Title VI cases, "the entity engaging in discrimination [must be] receiving federal financial assistance." While the Baker court listed this as an element of a Title VI claim, it did so only in the course of discussing the relevant statute of limitations for such a cause of action. More importantly, the Tenth Circuit did not hold that the defendant must be the entity that receives the federal funds. Nor could it have so held, because a requirement of that kind would represent a return to Grove City's "program-specific" limitation on the statute's coverage. See 465 U.S. at 563-74.
As discussed above, that limitation was specifically rejected by the Restoration Act, which substituted in its place a broad definition for the term "program or activity." The relevant sections of the Restoration Act provide as follows:
For the purposes of this subchapter, the term "program or activity" and the term "program" mean all the operations of --
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or