Civil Rights Forum
Summer - Fall 2000
Volume 14, Number 3
In This Issue...
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nation of immigrants moves to address the language needs of individuals with limited
While only recently the subject of front-page news, the
Title VI roots of the obligation to address the needs of persons with limited English
proficiency reach back more than twenty-five years to Lau v. Nichols, 414 U.S. 563
(1974). In the waning days of the first summer of the century, President Clinton took
steps to draw attention to, and build upon, this page from civil rights history.
On August 11, 2000, the President issued Executive Order
13166, "Improving Access to Services for Persons with Limited English
Proficiency." At the same time, the Department of Justice (DOJ) issued a Policy
Guidance Document, "Enforcement of Title VI of the Civil Rights Act of 1964
National Origin Discrimination Against Persons with Limited English Proficiency" (LEP
Guidance). The purpose of the Executive Order and the LEP Guidance is to eliminate to the
maximum extent possible limited English proficiency as an artificial barrier to full and
meaningful participation by beneficiaries in all federally assisted and federally
conducted programs and activities. Prior to the Presidents action, LEP obligations
under Title VI were limited to recipients of Federal financial assistance.
In issuing the Executive Order, the President observed
[f]ailure to systematically confront language barriers can
lead to unequal access to federal benefits based on national origin and can harm the
mission of federal agencies. Breaking down these barriers will allow individuals with
limited English proficiency to more fully participate in American society . . . [A]gencies
and recipients must take reasonable steps to provide meaningful access to their programs
and activities . . .
Executive Order 13166 requires each federal agency to
address the needs of LEP persons, both in their own federally conducted programs and
activities, and in those of their federally assisted recipients, through the development
of two documents. The first, an internal implementation plan, is designed to ensure
meaningful access to each agencys own federally conducted programs and activities.
The second, agency-specific external LEP guidance for recipients, is designed to guide
federally assisted programs and activities.
The Executive Order also directs agencies to develop both
documents after appropriate consultations with recipient and beneficiary stakeholders. The
documents must be consistent with the LEP Guidance and must be completed by December 11,
2000. Agency implementation plans will be filed with the Department of Justice as the
federal repository, and LEP guidance documents for recipients will be submitted to the
Department of Justice for review and approval. The Civil Rights Divisions
Federal Coordination and Compliance Section (COR) has been assigned responsibility for all Department
of Justice functions under the Executive Order.
"While the time frame for implementation is short,
the great needs of LEP individuals warrant it," emphasized Merrily Friedlander, COR
Section Chief. She continued: "As the President has directed, our goal is to turn the
promise of Lau v. Nichols into a reality whenever and wherever LEP individuals seek
services from the federal government or from recipients of federal financial
The LEP Guidance, which is referenced in Executive Order
13166, provides a framework for agencies to evaluate their own federally conducted
programs and activities, and to develop agency-specific guidance for their recipients on
how to address the needs of LEP persons.
The LEP Guidance rejects a "bright line" test
for coverage or the imposition of universal mitigation measures. Instead, it provides a
four-factor analysis as the starting point in identifying whether a federally conducted or
federally assisted program or activity must take affirmative steps to overcome language
barriers. The factors to be considered are: (1) the number or proportion of LEP
individuals served by the program; (2) the frequency of contact by LEP individuals with
the program; (3) the nature and importance of the program to the quality of
beneficiaries lives or livelihood; and (4) the resources available to meet the needs
of LEP individuals.
The LEP Guidance also advances a vital/non-vital
information test for determining whether oral or written services or information provided
by or about a program or activity must be available in languages other than English. Where
understanding information is vital to accessing or benefitting from a program or activity,
written translation or oral interpretation likely is required under the LEP Guidance.
Where the information is merely helpful or secondary to the accomplishment of the core
purpose of the program or activity, rather than vital, translation or interpretation is
more than likely not required.
"The guiding principle of the LEP Guidance is
reasonableness," explained Ms. Friedlander. Therefore, she clarified: "Agencies
and recipients must take steps to identify and implement reasonable measures to mitigate
limited English proficiency as an artificial barrier to full and meaningful
In furtherance of its coordination efforts under Executive
Order 13166, COR has initiated an aggressive program of intra- and inter-agency
consultations. COR is actively soliciting comments and suggestions from representatives of
recipients and LEP individuals about how to identify and address the needs of LEP
In addition, COR is working actively with
other federal agencies, assisting them as they develop their plans for federally conducted
programs and their agency-specific guidance. On September 25, 2000, COR hosted a meeting
of all funding agencies, with White House staff present, at which time the principles of the LEP Guidance
were discussed and specific agency questions were answered. On November 14, 2000, COR
hosted an LEP stakeholders meeting at which ten organizations representing LEP populations
met with representatives of approximately 60 federal agencies to discuss how best to
address the needs of LEP individuals.
Questions, comments, and requests should be directed to
attorneys Christine Stoneman at (202) 616-6744 (e-mail: email@example.com) or Sebastian
Aloot at (202) 305-9349 (e-mail: firstname.lastname@example.org).
The Executive Order and the related DOJ LEP Guidance were
published in the Federal Register on August 16, 2000. These two documents may be
viewed and downloaded in English, Spanish, and Chinese on the COR website LEP page at
http://www.usdoj.gov/crt/cor/13166.htm. That site also includes the President's Statement
on the Executive Order and a Questions and Answers Document, which contains responses to
commonly-asked questions about the Executive Order.
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federal agencies publish final Title IX common rule
After months of coordinated effort, the final common rule
implementing Title IX of the Education Amendments of 1972, as amended, was published in
the Federal Register on August 30, 2000. The final common rule is designed to
provide an effective enforcement mechanism for the 21 participating agencies (including
the Department of Justice) that lacked their own Title IX regulations.
Enacted in 1972, Title IX prohibits
recipients of federal financial assistance from discriminating on the basis of sex in
education programs or activities. Although passage of this landmark statute occurred over
25 years ago, only four federal agencies previously had adopted implementing regulations: the
Department of Education, the Department of Health and Human Services, the Department of
Agriculture, and the Department of Energy.
Although most of the nations educational
institutions receive funding from the Department of Education and already are covered by
the Department of Educations Title IX regulations, many other federal agencies also
fund educational programs or activities. For example, the Federal Emergency Management
Agency might fund state and local courses on planning how to deal with disasters; the
Department of Transportation might fund state-sponsored courses dealing with traffic
safety; and the Department of the Interior might fund forestry workshops run by state
parks agencies. While Title IX always has applied to such programs, even though they may
have been carried out in meeting halls or other nontraditional education program arenas
rather than at formal educational institutions, the lack of implementing regulations has
made it very difficult for funding agencies to enforce the statute. These new regulations
thus will facilitate the e ffective enforcement of the nondiscrimination mandates of Title
The common rule, which is based upon the
Department of Educations Title IX regulations, was originally published as a Notice
of Proposed Rulemaking on October 29, 1999. During the 60-day notice and comment period,
which ended on December 28, 1999, the Department of Justice received 22 comments regarding
the proposed rule. The majority of these comments expressed strong support for the
proposed regulations and urged prompt and final adoption of the common rule. After
carefully reviewing and analyzing these comments, the Department of Justice circulated a
draft final common rule for approval by all of the participating agencies.
The final common rule will provide guidance to recipients
of federal financial assistance that administer educational programs or activities, and
will promote continuity in the enforcement of Title IX by government agencies. The
regulations cover nondiscrimination on the basis of sex in a wide array of areas,
including admission and recruiting practices, housing, financial and employment
assistance, health insurance benefits and services, athletics, marital and parental
status, and employment. In addition, the regulations address implementation and
Publication of the final common rule represents a major
step toward furthering the effective enforcement of Title IX. The final common rule, which
became effective on September 30, 2000, will help significantly to eradicate sex-based
discrimination in education programs or activities operated by recipients of federal
financial assistance outside the traditional education arena.
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Clinton issues Executive Order prohibiting discrimination in federally conducted education
and training programs
On June 23, 2000, President Clinton
issued Executive Order 13160, which is designed to prohibit a broad range of
discriminatory conduct in federally conducted education and training programs.
Specifically, Executive Order 13160 states that no individual shall be excluded from
participation in, be denied the benefits of, or be subjected to discrimination in a
federally conducted education or training program or activity on the basis of that
individuals race, sex, color, national origin, disability, religion, age, sexual
orientation, or status as a parent.
The purpose of Executive Order 13160 is to ensure that the
federal government holds itself to at least the same principles of nondiscrimination in
educational opportunities as it applies to the education programs and activities of
recipients of federal financial assistance. The Executive Order applies to the federally
conducted education programs of almost 100 federal agencies. It extends the prohibitions
against discrimination on the basis of race, sex, color, national origin, disability, and
age that currently apply to the education and training programs of recipients of federal
financial assistance, and provides new protections against discrimination on the basis of
sexual orientation and status as a parent.
In accordance with the Executive Order, the Coordination
and Review Section of the Civil Rights Division is drafting a Guidance Document for
publication in the Federal Register. The Guidance Document is designed to
facilitate implementation of the Executive Order and will address a number of issues
including the scope of covered programs and activities, examples of discriminatory
conduct, applicable legal principles, enforcement procedures, remedies, and agency
reporting requirements. In addition, within 90 days of publication of this Guidance
Document, each executive department and agency must establish a procedure for receiving
and addressing complaints.
The issuance of Executive Order 13160, together with the
publication of the Title IX common rule (see the accompanying article in this issue) mark
the completion of two major objectives established by President Clinton in June 1997. In a
memorandum issued on the 25th anniversary of Title IX, the President announced his
intention to reinvigorate the enforcement of Title IX and to apply the standards of Title
IX (which covers education and training programs that receive federal financial
assistance) to education and training programs conducted by the federal government itself.
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Lee sworn in as Assistant Attorney General for Civil Rights
With his wife, Carolyn Yee, and the youngest two of his
three children by his side, Bill Lann Lee was sworn in by Attorney General Janet Reno as
Assistant Attorney General for Civil Rights on September 14, 2000. He had been serving as
Acting Assistant Attorney General since December 15, 1997, following his nomination by
President Clinton in July of that year to head the Civil Rights Division.
As previously reported in the Civil Rights Forum,
Bill Lee, the first Asian-American to head the federal governments premier civil
rights post, was born in New York City, and grew up in Manhattan, where his parents owned
a small laundry. He attended the prestigious Bronx High School of Science and won a
scholarship to Yale, where he graduated magna cum laude. A winner of the First Year
Moot Court Brief Prize, and a Third Year Stone Scholar, he graduated from Columbia
University Law School in 1974.
Bill Lee joined the NAACP Legal Defense and Educational
Fund, holding additional positions as an adjunct professor at Fordham University and as
counsel to the Asian American Legal Defense and Education Fund. In 1983, he moved to
California to assume the position of Supervising Attorney for Civil Rights Litigation at
the Center for Law in the Public Interest in Los Angeles. He returned to the NAACP Legal
Defense and Education Fund in 1988, where he served as head of the office from 1990 until
he joined the Civil Rights Division.
Throughout his career, Bill Lann Lee has worked to ensure
equal opportunity for victims of discrimination in employment, housing, voting,
transportation, and education. His many achievements during his tenure at the Civil Rights
Division include expanded prosecutions of hate crimes and modern-day slavery, strengthened
enforcement of the Americans with Disabilities Act and fair housing and lending laws, and
the development of a wide range of strategies for addressing police misconduct.
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Protection Agency completes public comment process on draft Title VI guidance documents
The Environmental Protection Agency (EPA) has completed a
vigorous public comment process on two related draft Title VI guidance documents. The
"Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental
Permitting Programs" (Draft Recipient Guidance), written at the request of states,
offers suggestions to EPAs recipients of federal financial assistance to help them
address potential Title VI concerns relating to the adverse environmental and health
impacts of their granting of permits. The "Draft Revised Guidance for Investigating
Title VI Administrative Complaints Challenging Permits" (Draft Revised Investigation
Guidance) explains how E PA will investigate complaints alleging that the adverse
environmental and health impacts of a state or local government environmental
agencys permitting decisions constitute discrimination on the basis of race, color,
or national origin, in violation of Title VI. Both draft documents are found on EPAs
website at http://www.epa.gov/civilrights/polguid.htm.
In its publication of the draft documents for public
comment, EPA summarized the guidance as "strik[ing] a fair and reasonable balance
between EPAs strong commitment to civil rights enforcement and the practical aspects
of operating permitting programs." 65 Fed. Reg. 39650 (June 27, 2000).
This effort is not EPAs first exploration of this
important area of civil rights enforcement. In February 1998, EPA issued its "Interim
Guidance for Investigating Title VI Administrative Complaints Challenging Permits"
(Interim Guidance). The Interim Guidance provided an initial framework for E PA to process
complaints filed under Title VI that allege discriminatory environmental and health
effects from environmental permits issued by EPA financial assistance recipients. That
effort drew a large number of comments by stakeholders and others seeking more detail and
clarity about different aspects of the Title V I investigation process.
Over the past two years, EPA has engaged in an extensive
consultation process with representatives of state and local government, communities,
environmental justice organizations, and industry, as it developed the draft guidance
documents. Once the Draft Revised Investigation Guidance is finalized, it will replace the
During the public comment period, EPA hosted seven public
listening sessions in Washington DC; Dallas; Chicago; New York; Los Angeles; Oakland; and
Philadelphia. Transcripts of those listening sessions will be considered during the
revision of the draft guidance documents. EPA currently is reviewing the comments and
hopes to issue the final guidance documents early next year.
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give high marks to Civil Rights Divisions Title VI training course
The more than 500 people who have attended the intensive
two-day Title VI training program offered by the Civil Rights Divisions Coordination
and Review Section (COR) have responded positively to it, with more than 90% of
respondents characterizing it as outstanding or excellent.
COR currently conducts one intensive two-day training
course per month. COR already has presented this course to staff from over 50 federal and
state agencies, including the Departments of Transportation, Housing and Urban
Development, Agriculture, and the Wisconsin Department of Health and Family Services,
COR also presents shorter courses, which focus on a Title
VI overview, Title VI investigation procedures, and illustrative vignettes. These half-day
to full-day courses have been attended by staff from over 40 federal and state agencies,
and have received similar positive responses.
Now that an additional 21 federal agencies have published
final regulations to implement Title IX of the Education Amendments of 1972, COR is
developing a Title IX Legal Manual and an accompanying training module that will
address the application of Title IX to federally assisted education and training programs
in settings other than educational institutions. CORs goal is to offer this Title IX
training module sometime in 2001.
The Title VI training course agenda and related materials
are found on CORs website at http://www.usdoj.gov/crt/cor/coord/train.htm.
The two manuals upon which the course is based also can be viewed: the Title VI Legal
Manual at http://www.usdoj.gov/crt/cor/coord/vimanual.htm;
and the Investigation Procedures Manual at http://www.usdoj.gov/crt/cor/coord/invmanual.htm.
Federal, state, or local government agencies interested in scheduling Title VI training
should write to Andy Strojny, Deputy Section Chief, Federal Coordination and Compliance Section, Civil
Rights Division, P.O. Box 66560, Washington, D.C. 20035- 6560; or e-mail him at: email@example.com.
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Norton appointed Civil Rights Divisions newest Deputy Assistant Attorney General
Helen Norton was appointed as a Deputy Assistant Attorney
General in the Civil Rights Division on October 10, 2000, having served in an acting
capacity in that position since August 28, 2000. Prior to joining the Department of
Justice in 1998 as Counsel to the Assistant Attorney General for Civil Rights, Ms. Norton
was Director of Legal and Public Policy at the National Partnership for Women and Families
(formerly known as the Womens Legal Defense Fund).
Ms. Norton currently is co-chair of the American Bar
Associations Equal Employment Opportunity Committee and an adjunct associate
professor at American Universitys Washington College of Law. She is a graduate of
Boalt Hall School of Law at the University of California at Berkeley and of Stanford
As a Deputy Assistant Attorney General, Ms. Norton
supervises the Civil Rights Divisions Coordination and Review, Educational
Opportunities, and Employment Litigation Sections. She also is involved in developing
litigation strategy and policy positions on civil rights issues; representing the Civil
Rights Division to Congress, the public, and other federal enforcement agencies; and
coordinating civil rights policy within the Department of Justice and the Administration.
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The Attorney General has determined that the publication
of this periodical is necessary in the transaction of the public business required by law
of the Department of Justice. Use of funds for printing this periodical has been approved
by the Attorney General
Eric H. Holder, Jr.
Deputy Attorney General
Acting Associate Attorney General
Bill Lann Lee
Assistant Attorney General
Chief of Staff
Stuart J. Ishimaru
Deputy Assistant Attorneys General
Merrily A. Friedlander
Theodore R. Nickens
Deputy Section Chief (Program)
Andrew M. Strojny
Deputy Section Chief (Legal)
Contributing to this issue:
Sebastian Aloot, Jody Feder, Selin Cherian-Rivers, Mona Diaz, Allen Payne, Beth Pincus,
Christine Stoneman, Nathan Stump, Andrew Strojny, Bill Worthen, Yasmin Yorker (EPA)
Secretarial support: Rita Craig
This newsletter can be viewed on the Coordination and
Review Sections website at http://www.usdoj.gov/crt/cor.
It also is available in alternate formats. Contact the Federal Coordination and Compliance Section
at (202) 307-2222 (voice) or (202) 307-2678 (TDD).
Toll-free Title VI Information Line:
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