OPINION AND ORDER
KIMBA M. WOOD, District Judge.
Plaintiffs filed this action as part of their attempt to require New York City public schools to teach a curriculum that gives greater weight to the contributions of Africans and African Americans. Their desire for curricular reform has brought them to this court, they explain, because it is their forum of last resort: “[plaintiffs] come to this Court because they have no place else to go where they can find relief____ [N]early everyone else who can bring about change in the education system is worried about a job or a vote.” Pls.Mem.Opp. at 4. Defendants, in contrast, argue that none of statutes relied upon by plaintiffs provides a basis for recovery. It is true that the independence of the federal courts permits them to resolve controversial and emotional disputes in an atmosphere free of the political pressures of the day. That independence, however, does not empower courts to decide all disputes that are seen as so emotionally or politically charged that they defy resolution elsewhere. Because neither the United States Constitution nor federal statutes — the sources from which this court derives its authority — provide a basis for relief, I must grant defendants’ motion to dismiss the amended complaint.
Background
Plaintiffs’ amended complaint represents their second attempt to state a cause of action upon which relief can be granted.
Plaintiffs purport to bring this action on behalf of a class of all African-American public school students in New York City. They allege that the curriculum of the New York City public schools injures African Americans because it is systematically biased against them; they allege that the curriculum:
distorts and demeans the role of African Americans and excludes the existence, contributions, and participation of African Americans in the various aspects of world and American culture, sciences, history, arts and other areas of human endeavor, resulting in emotional and psychological harm denying Plaintiffs the full and equal benefits of public education and subjecting Plaintiffs to' discrimination under a program receiving federal financial assistance.
Amended Complaint ¶2. Plaintiffs also allege that the curriculum’s “systemic bias” against African Americans disparately un
pacts upon the putative plaintiff class, and future school-age children, by denying them the benefits provided to white students.
Id.
¶¶ 8, 10.
Plaintiffs are not arguing that there is a different curriculum for African-American students or that fewer resources are devoted to teaching the curriculum to African-American students as compared with non-African-American students. Rather, plaintiffs’ amended complaint alleges that the content of the curriculum has a disparate impact on African Americans’ self esteem and ability to learn. Plaintiffs assert a claim under 42 U.S.C. § 1983, arguing that the present curriculum violates the Due Process and Equal Protection clauses of the Fourteenth Amendment, and assert a claim under the regulations implementing Title VI, 34 C.F.R. § 100
et seq.
(1991).
Plaintiffs seek a declaration that the curriculum is discriminatory and an injunction barring defendants from perpetuating the allegedly racially discriminatory aspects of the curriculum. They also seek an order directing defendants to submit a revised curriculum “which includes the existence, true participation and contributions of African Americans and other non-whites ... and which would eliminate the discriminatory aspects of the existing public school curriculum.... ”
Id.
¶ 3 (“Prayer for Relief’).
Defendants now move to dismiss the amended complaint on the ground that it, like its predecessor, fails to state a claim upon which relief can be granted. Defendant New York State Education Department (“NYSED”) also moves to dismiss on the ground that it is immune from suit in the federal courts. The court first addresses the immunity of defendant New York State Education Department (“NYSED”) to suit. The court then addresses the adequacy of plaintiffs’ claim under § 1983, and the adequacy of their claims under the regulations implementing Title VI.
Discussion
1.
Immunity from Suit
NYSED argues that the Eleventh Amendment bars plaintiffs’ suit in its entirety against NYSED. State Defs.Mem.Opp. at 9-11. NYSED correctly states that a State and its agencies are immune from suit in federal court unless the State consents or Congress enacts legislation abrogating the State’s Eleventh Amendment immunity.
Id.
at 10. NYSED ignores, however, the fact that Congress explicitly abrogated the states’ immunity from suits in federal court alleging violations of Title VI of the Civil Rights Act of 1964.
See
42 U.S.C. § 2000d-7(a) (West’s Supp.1993).
Moreover, NYSED made this same, baseless argument for immunity four years ago in
Sharif v. New York State Education Dept.,
709 F.Supp. 345, 358 (S.D.N.Y.1989), where then-District Judge Walker held that Congress had eliminated NYSED’s immunity. NYSED’s citation to, and discussion of,
Sharif
in its supplemental brief makes its failure to retract its position on the immunity issue even more inexplicable. Contrary to NYSED’s erroneous assertion, it is
not
immune from suit where, as here, plaintiffs allege violations of Title VI and its regulations.
2.
Section 1988
In its earlier opinion, the court explained the rule of law that determines whether plaintiffs state a claim under § 1983. 786 F.Supp. at 1191-93. To state a claim for discrimination that is actionable as a constitutional violation, plaintiffs must assert that “the decision maker ... selected or reaffirmed a particular course of action at least in part
because of
not merely
in spite of
its adverse effects upon an identifiable group.”
Personnel Administrator of Massachusetts v. Feeney,
442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979) (emphasis added).
Plaintiffs make three arguments in support of their allegation that discriminatory
purpose
was a motivating factor in defendants’ actions.
First, plaintiffs argue that defendants’ “failure and refusal to quickly and fully embrace a curriculum inclusive of Africans and African Americans is a failure and refusal based on race, and that such failure and refusal is conscious, and therefore, intentional.”
Id.
Second, plaintiffs imply that purposeful discrimination can be inferred from the fact that the New York City Board of Education implemented a Holocaust Curriculum and an Italian Heritage Curriculum, but did not adopt a special curriculum to focus on issues of particular importance to African Americans.
Id.
at 7. Third, .plaintiffs argue that the lack of progress in changing the curriculum since this action was commenced three years ago supports an inference of racially discriminatory intent.
Id.
at 3.
In response to the first two arguments, to the extent that plaintiffs argue that constitutionally impermissible intentional discrimination may be inferred from (1) the conscious failure to adopt a curriculum that includes more material regarding Africans and African Americans, or (2) defendants’ responsiveness to other groups’ special needs, their allegations are inadequate to sustain this inference. Plaintiffs have failed to come forward with the specific allegations of fact necessary to sustain the claim that a discriminatory
purpose
was a motivating factor in any actions taken by defendants — that is, that the curriculum was adopted
because
of, not merely
in spite
of, its allegedly detrimental effects on African American students. In alleging a claim under § 1983 based on a constitutional violation, the “[discriminatory purpose” with which a defendant must have acted “implies more than intent as volition or intent as awareness of the consequences.”
Feeney,
442 U.S. at 279, 99 S.Ct. at 2296. Although I recognize the thinness of this distinction and the difficulty one could expect to encounter in proving that a school
intended
such detrimental effects (as opposed to
intending
to adopt a
curriculum,
the byproducts of which are allegedly detrimental effects), there is no doubt that appellate decisions require plaintiffs to demonstrate that the curriculum was adopted
because of
its allegedly detrimental effects on African-American students, and not merely with
awareness of
such effects.
See Soberal-Perez v. Heckler,
717 F.2d 36, 42 (2d Cir.1983) (dismissing constitutional challenge to defendant’s failure to provide Spanish language services where plaintiffs alleged that such failure had detrimental effect on Hispanics, but plaintiffs could not “allege in good faith, much less prove, any other evidence of discriminatory intent” other than a legitimate preference for English over all other languages);
Lora v. Bd. of Educ.,
623 F.2d 248, 250 (2d Cir.1980) (standing alone, evidence of a foreseeable, detrimental result from an action is not sufficient to establish the requisite discriminatory intent on the part of the school board);
Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450
(1977) (absent a clear pattern of state action unexplainable on grounds other than an intent to discriminate on the basis of race, disproportionate impact alone does not establish invidious racial discrimination).
Plaintiffs’ third argument is that defendants’ alleged inaction since the commencement of this lawsuit establishes discrimination. Notice of a lawsuit may bring the alleged detrimental effects to defendants’ attention; however the court may not infer an intent to discriminate from awareness of allegedly detrimental effects alone, for the reasons stated above.
The court must, therefore, again dismiss plaintiffs’ claims under § 1983 for failure to adequately allege intentional discrimination.
3.
Regulations Implementing Title VI
As noted above, plaintiffs’ original complaint alleged a causal relationship between the present New York City public school curriculum and harm to the members of the putative plaintiff class, but did not allege the intent required to state a cause of action pursuant to the Constitution or Title VI.
The court granted plaintiffs leave to plead a claim under the regulations implementing Title VI (the “Regulations”) because the Regulations do not require an allegation of discriminatory intent. 786 F.Supp. at 1193. Plaintiffs amended their complaint to allege just such a violation, but, for the following reasons, their claim is not actionable under the Regulations.
As this court explained in its earlier opinion, the Supreme Court acknowledged the existence of a cause of action under the Regulations for claims based on disparate impact, as well as disparate treatment.
See Alexander v. Choate,
469 U.S. 287, 293 nn. 8, 9, 105 S.Ct. 712, 716 nn. 8, 9, 83 L.Ed.2d 661 (1985). A recipient of federal financial assistance, such as the New York City Board of Education, may not “provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program” on the basis of race, color, or national origin. 34 C.F.R. § 100.-3(b)(l)(ii) (1992).
The complementary, disparate
impact
provision states that:
A recipient, in determining the types of services,
financial aid or other benefits ... which will be provided under any such program ... may not ... 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 respect individuals of a particular race, color, or national origin.
Id.
at § 100.3(b)(2) (emphasis added). The term “program” is defined to include “any program, project or activity for the provision of services ... or other benefits to individuals (including education or training ...)----”
Id.
at § 100.13(g).
Defendants argue that the factual scenario painted by plaintiffs, even if proven, does not violate § 100.3(b)(2).
Defendants claim that
that regulation does not reach the conduct complained of by plaintiffs, because the prohibition against “criteria or methods of administration” that have a racially discriminatory effect does not extend to the regulation of the
content
of a school’s curriculum. State Defs.Mem.Opp. at 5-6. Defendants read § 100.3(b)(2) as applying to administrative decisions regarding the allocation of resources and access to programs, but not to the content of curriculum.
Id.
at 7.
Plaintiffs respond by asserting that “Curriculum is a ‘method of administration’ and its design, implementation and application, when resulting in a discriminatory impact is clearly prohibited” under § 100.3(b)(2). PI. Mem.Opp. at 11. Plaintiffs alternatively argue that under a regime of compulsory school attendance,
[w]hile Plaintiffs are taught that they are inferior, that they and their people have accomplished little to nothing, they are being subjected to ... treatment [that] is separate and unequal from the treatment Caucasian students are accorded in the same course of instruction.
Id.
at 12.
The court’s analysis begins with the language of the Regulations and the decisions interpreting that language. A violation of the Regulations is stated when the “criteria or methods of administration” used in determining the types of benefits or services to provide have the effect of discriminating on the basis of race. The Regulations are not violated by proof that the educational services provided by a school system are disproportionately less beneficial to members of one race than another
unless
the reason for that disparate impact is that the school system selected discernable administrative policies that, although facially neutral, are the functional equivalent of purposeful racial discrimination.
See Watson v. Ft. Worth Bank & Trust,
487 U.S. 977, 987, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (1988) (premise of disparate impact approach is that a practice may in operation be “functionally equivalent to intentional discrimination”) (plurality opinion).
The court must determine whether, as plaintiffs allege, the selection of an emphasis on European history, for example, constitutes “criteria or methods of administration” actionable under the Regulations. This issue may be resolved by looking at the decisional law interpreting § 100.3(b)(2), the legislative and administrative history of Title VI and comparable statutes, and the present interpretive position of the Office for Civil Rights of the United States Department of Education, the agency responsible for enforcing the provisions of Title VI.
A. Decisional Law
The reported decisions interpreting § 100.-3(b)(2) do not address whether the Regulations extend to cover curricular content; rather, these decisions address the propriety of tests and policies to determine admission and placement into school programs. For example, the use of I.Q. tests to identify students to be placed in “dead-end” classes for the educable, mentally retarded violated the Regulations implementing Title VI, because the use of the test resulted in a disproportionately high number of minority students being placed in these classes.
See Larry P. v. Riles,
793 F.2d 969, 980, 983 (9th Cir.1984). Similarly, the practice of achievement grouping of students can be attacked as violating the Regulations under Title VI because the composition of classrooms did not reflect a random population distribution.
See Georgia State Conference of Branches of NAACP v. Georgia,
775 F.2d 1403, 1417 (11th Cir.1985). Also, the practice of permitting each school district to establish its own criteria for determining English proficiency can be attacked as violating Title VI Regulations, because this practice allegedly resulted in a failure to properly identify those in need of language assistance.
See Gomez v. Illinois State Board of Education,
811 F.2d 1030, 1044-45 (7th Cir.1987). More recently, Alabama’s practice of requiring a minimum score on the American College Testing Program’s (“ACT”) examination for admission to undergraduate teacher training programs was found to violate § 100.3(b)(2); there was an insufficient justification for relying on the ACT cut-off score as a “valid measure of the minimal ability necessary to become a competent teacher,” and reliance on the score
had a disparate impact on African Americans.
Groves v. Alabama State Board of Education,
776 F.Supp. 1518, 1530 (M.D.Ala.1991). In sum, these decisions pertain to admissions and testing policies designed to identify which students are to benefit from school programs; these decisions do not speak directly to the applicability of the Regulations to curriculum choices.
B. Administrative History of Title VI Regulations
Because of the lack of case law on the issues presented here, I asked the parties to submit additional briefs concerning four issues the court deems relevant in ruling on the scope of the Title VI Regulations, including whether any administrative or legislative history offers any further guidance as to what was meant by the phrase “criteria or methods of administration.” May 10, 1993 Order.
The scant administrative history of the Regulations, when originally adopted and as amended, does not address the issue of curricular content.
See
29 Fed.Reg. 16298-16316 (1964) (original Regulations); 33 Fed.Reg. 4955-56 (1968); 35 Fed.Reg. 11595-96 (1970). The administrative history of the Regulations supports the generally agreed upon proposition that the Regulations require schools to provide students with “the opportunity to obtain the education generally obtained by other students in the system.” 33 Fed.Reg. 4956. There is, however, no support in the administrative history of the Regulations implementing Title VI for the proposition that the Regulations extend to overseeing the content of school curricula.
C. Relevance of Regulations Implementing Title IX
Given the dearth of guidance from the administrative history' of Title VI, I also asked the parties to address the relevance of the regulations implementing Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681,
et
seg.
In 1975, when the Department of Education (the “Department”)
adopted the final version of regulations implementing Title IX, the Department stated that Title IX “is similar” to Title VI of the Civil Rights Act of 1964 in proscribing discrimination in federally funded schools, “except that Title IX applies to discrimination based on sex,” 40 Fed.Reg. 24128 (1975), while Title VI is restricted to race, color and national origin discrimination. Courts have often noted the similarity in purpose and construction of Title VI and Title IX, and have found the Title VI Regulations instructive in interpreting Title IX and its accompanying regulations.
See, e.g., Cannon v. University of Chicago,
441 U.S. 677, 694-98, 99 S.Ct. 1946, 1956-58, 60 L.Ed.2d 560 (1979);
Mabry v. State Board of Community Colleges and Occupational Educ.,
813 F.2d 311, 317 (10th Cir.),
cert. denied,
484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987);
Sharif,
709 F.Supp. at 360-61. Likewise, courts have consistently found language of Title IX decisions applicable to Title VI cases.
See Chowdhury v. Reading Hospital & Medical Center,
677 F.2d 317, 319 n. 2 (3rd Cir.1982),
cert. denied,
463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1411 (1983);
Neighborhood Action Coalition v. City of Canton,
882 F.2d 1012, 1015 (6th Cir.1989).
The Title IX regulations include the following provision:
Nothing in this Regulation shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.
34 C.F.R. § 106.42 (1992). This provision did not appear in the original version of the regulations proposed on June 20, 1974. The Department explained in the Federal Register that it made changes to the original proposed regulations in response to comments that it received during 1974.
See
40
Fed.Reg. 24128 (1975). Discussing this change, the Department stated:
The last substantive change in Subpart D is the addition of specific exemption of textbooks and curricular materials from the scope of the regulation. The new section explicitly states the Department’s position that title IX does not reach the use of textbooks and curricular materials on the basis of their portrayals of individuals in a stereotypic manner or on the basis that they otherwise project discrimination against persons on account of their sex. As stated in the preamble to the proposed regulation, the Department recognizes that sex stereotyping in textbooks and curricular materials is a serious matter. However, the imposition of restrictions in this area would inevitably limit communication and would thrust the Department into the role of Federal censor. There is no evidence in the legislative history that the proscription in title IX against sex discrimination should be interpreted as requiring, prohibiting, or limiting the use of any such material. Normal rules of statutory construction require the Department, wherever possible, to interpret statutory language in such a way as to avoid potential conflicts with the Constitution. Accordingly the Department has construed title IX as not reaching textbooks and curricular materials on the ground that to follow another interpretation might place the Department in a position of limiting free expression in violation of the First Amendment.
Id.,
at 24135 (emphasis added). The Department took this position after receiving comments both in favor of and against the inclusion of textbooks and curricular materials within the scope of the Title IX regulations.
See id.
The Department has thus chosen to interpret Title IX as not extending to such claims when gender discrimination is alleged. The First Amendment concerns cited by the Department for its position would appear equally applicable to Title VI claims where racial discrimination is alleged.
I also invited the Department of Education to submit an
amicus
brief articulating its position on the applicability of the Title VI Regulations to plaintiffs’ claims.
May 18, 1993 Request for the Filing of a Brief, as
Amicus Curiae.
The Department responded by a letter to the court dated July 23, 1993 from Ms. Paula Kuebler, Regional Civil Rights Director, Region II, Office for Civil Rights, United States Department of Education (“Department Letter”) (attached as Appendix A to this Opinion and Order). In its letter, the Department stated its position that in enforcing Title VI, it has
on occasion, intervened in what may be fairly described as curriculum matters. In all such cases, however, the formal concern of the Department has been in ensuring equality of access to what was being taught, rather than with the intrinsic content or purpose of the instruction.
Department Letter at 1. The Department has thus taken the position that plaintiffs’ claims here are not claims covered by the Regulations implementing Title VI, a position that is entitled to some deference by this court.
The court is asked to resolve a question of first impression — whether the Title VI Regulations extend to regulating the content of school curricula. No one source provides a definitive answer to this question. However, upon a review of the language of § 100.3(b)(2), the decisional law, the administrative history of Title VI and Title IX, and the Department’s interpretive position, the court concludes that the Regulations, as they have been construed by the courts and the Department, do not encompass the regulation of curricular content.
Conclusion
For the reasons stated above defendants’ motions to dismiss are granted. The Clerk of the Court is hereby directed to dismiss the amended complaint.
SO ORDERED.
APPENDIX A
UNITED STATES DEPARTMENT OF EDUCATION
REGION II
FEDERAL BUILDING
26 FEDERAL PLAZA
NEW YORK, NEW YORK 10278
OFFICE FOR CIVIL RIGHTS
July 23 1993
Honorable Judge Kimba M. Wood
U.S. District Court
Southern District of New York
480 Foley Square
New York, New York 10007
Dear Judge Wood:
In your request to Ms. Agnes Northern, of my staff, dated May 18,1993, you asked for a statement of Department of Education policy in regard to the reach of Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. § 2000d, in cases involving allegations of discriminatory course content. You asked for this information to assist you in resolving a motion pending before you in
Grimes v. Sobel,
90 Civ. 4539 (KMW), to dismiss for failure to state a justiciable claim. This letter responds to your request.
In
Grimes,
plaintiffs had alleged that the curriculum for the New York City public schools violated Title VI because it failed to portray the contributions of African-Americans accurately and fairly, resulting in emotional and psychological harm to the plaintiffs. The threshold issue raised by the defendant’s motion to dismiss was whether Title VI can be violated by course content alone. In your request, you note that this office issued a letter of findings (LOF) in Office for Civil Rights (OCR) Case No. 02-91-2058, dated December 18, 1991, a case investigated by OCR to determine whether a course at the New York City Technical College violated Title VI. As discussed below, the referenced OCR complaint investigation does not appear to have raised matters that have a bearing on the case before you.
OCR has, on occasion, intervened in what may be fairly described as curriculum matters. In all such cases, however, the formal concern of the Department has been in ensuring equality of access to what was being taught, rather than with the intrinsic content or purpose of the instruction. Thus, for example, in enforcing Title VI and its regulation, OCR has required elementary and secondary schools and vocational education institutions to afford English-as-a-second-language instruction and to make other adjustments to curricula to accommodate national-origin-minority students who have not learned English. Failure of institutions, whose services or benefits are otherwise generally available to all individuals within a particular area, to afford such services can have the effect of exclusion on the basis of
national origin.
See Lau v. Nichols,
414 U.S 563 (1974).
The OCR ease regarding the New York City Technical College was investigated to determine whether the student-complainant had been the victim of discrimination. The complainant had alleged that a failing grade was awarded because the complainant was black. The complainant also alleged that “Caucasian biochemistry” had been taught in the course the complainant failed.
It might have been proper to dismiss that part of the complaint that charged “Caucasian biochemistry” was being taught. Notwithstanding, the complainant had clearly charged that the instructor had awarded a failing grade on the basis of race. As the LOF disclosed, no discrimination was found. The final examination was machine-graded. The only changes made to the score afforded the complaining student and others credit for questions that a substantial number of students had answered incorrectly. Thus, the referenced complaint investigation does not appear to have a bearing on the issues before the Court in
Grimes.
I hope this information pertaining to OCR policy and its actions in the referenced administrative case may be helpful to the Court.
Sincerely,
[Signature]
for Paula Kuebler
Regional Civil Rights Director