Civil Rights Forum

Volume 9, Number 1, Spring 1995

Published quarterly by the Civil Rights Division, U. S.
Department of Justice

IN THIS ISSUE...

     A Message from Deval L. Patrick

     Attorney General Affirms Use of Disparate Impact Standard

     Restoration Act Clarifies Meaning of "Program or Activity"

     So Ordered...Court Cases of Note

     Around the Agencies...

     Alternative Dispute Resolution Aids Justice Investigations

     The Computer, Data, and Discrimination


*A Message from the Assistant Attorney General*

     [Photo] I am pleased to use this first issue of the
reinstituted Civil Rights Forum as a place to announce the recent
reorganization of the Civil Rights Division.   On March 1, 1995,
all of the disability-related coordination and enforcement
responsibilities of the Federal Coordination and Compliance Section under the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973 were transferred to the new Disability
Rights Section, formerly the Public Access Section. 

     A major purpose of this reorganization is to refocus the
Federal Coordination and Compliance Section on the task for which it was
originally established: implementation of Executive Order 12250,
which requires the Department of Justice to ensure consistent and
effective enforcement of statutes prohibiting discrimination in
federally funded programs and activities, in particular Title VI
of the Civil Rights Act of 1964 and Title IX of the Education
Amendments of 1972.  (Section 504 will be coordinated by the
Disability Rights Section.) 

     The reorganization will streamline our operations, increase
our efficiency and, most of all, greatly enhance our ability to
undertake an active, comprehensive and well-coordinated effort to
reinvigorate Title VI and other statutes covered by Executive
Order 12250.  Resuming publication of the Civil Rights Forum
after a ten-year hiatus is part of this effort. 

     Full implementation of Executive Order 12250 is a high
priority for the Division, as well as a personal priority of
mine.  However, another priority is to ensure that the Department
of Justice's own recipients provide their services and programs
in a nondiscriminatory manner.  Thus, in addition to its
responsibilities under the Executive Order, the Coordination and
Review Section also is being given major new duties to ensure
nondiscrimination by recipients of Federal financial assistance
from the Department of Justice.

     We anticipate that the Section will be conducting post-award
compliance reviews of Department of Justice recipients, and it
will also be investigating complaints of discrimination in
services on the basis of race, color, national origin, sex, age,
and religion by Department recipients, which include vast numbers
of law enforcement agencies, jails, and state prisons.  On May 5,
1995, I plan to meet with the civil rights directors of agencies
that administer federally assisted programs, to discuss their
ideas and my agenda for the implementation of Executive Order
12250 and for ensuring nondiscrimination in programs funded by
the Department of Justice.  We intend to hold similar meetings
with representatives of civil rights and other organizations.  I
am counting on you to join me in recommitting ourselves to
ensuring nondiscrimination and providing equality of opportunity
for all Americans.

*Attorney General Affirms Use of Disparate Impact Standard*
[reprinted memorandum]

July 14, 1994

Memorandum for Heads of Departments and Agencies that Provide
Federal Financial Assistance

From:     The Attorney General

Subject:  Use of the Disparate Impact Standard in Administrative
          Regulations Under Title VI of the Civil Rights Act of
          1964


     This month marks the 30th anniversary of the passage of
Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to
2000d-6), which prohibits discrimination on the basis of race,
color, or national origin in programs and activities that receive
Federal financial assistance.  The anniversary of this landmark
legislation is a fitting time to remind agencies that admini-
strative regulations implementing Title VI apply not only to
intentional discrimination but also to policies and practices
that have a discriminatory _effect_.  In _Guardians Association_
v. _Civil Service Commission_, 463 U.S. 582 (1983), the Supreme
Court held that while Title VI itself requires proof of
discriminatory intent, agencies may validly adopt regulations
implementing Title VI that also prohibit discriminatory effects.
Nearly all agencies have adopted such regulations.  In
_Alexander_ v. _Choate_, 469 U.S. 287 (1985) (construing Section
504 of the Rehabilitation Act of 1973), a unanimous Supreme Court
restated the holding in _Guardians_ that disparate impact
violations could be addressed through regulations implementing
Title VI.

     This Administration will vigorously enforce Title VI. 
As part of this effort, and to make certain that Title VI is
not violated, each of you should ensure that the disparate
impact provisions in your regulations are fully utilized so
that all persons may enjoy equally the benefits of federally
financed programs.

     Enforcement of the disparate impact provisions is an
essential component of an effective civil rights compliance
program.  Individuals continue to be denied, on the basis of
their race, color, or national origin, the full and equal
opportunity to participate in or receive the benefits of programs
assisted by Federal funds.  Frequently discrimination results
from policies and practice that are neutral on their face but
have the _effect_ of discriminating.  Those policies and
practices must be eliminated unless they are shown to be
necessary to the program's operation and there is no less
discriminatory alternative.

     Under Executive Order 12250, the Department of Justice
is responsible for ensuring that funding agencies meet their
responsibilities under Title VI.  This Department is committed
to productive and effective enforcement of the civil rights
laws by each agency that extends Federal financial assistance.
Facially neutral policies and practices that act as arbitrary and
unnecessary barriers to equal opportunity must end.  This
was the goal of Title VI when it became law and it remains one
of the highest priorities of this Administration.

*Restoration Act Clarifies Meaning of "Program or Activity"*

     The Civil Rights Restoration Act of 1987 (Pub. L. No. 100-
259, 102 Stat. 28) reinstated the broad application of Title VI
(as well as Title IX and Section 504) in effect prior to the
Supreme Court's decision in _Grove City College_ v. _Bell_, 465
U.S. 555 (1984), by adding a new definition of "program or
activity" to each statute.

     Although this statute is eight years old, agencies should
review their own compliance programs to ensure that decisions
regarding jurisdiction currently reflect the Restoration Act's
definition of program or activity.

     In _Grove City_ the Court held that Federal aid to college
students was Federal financial assistance to the college, but
that Title IX coverage did not extend to the entire institution.
The Court ruled that the federally assisted program or activity
covered as a result of the student aid was limited to the
college's student aid program.

     Congress enacted the Restoration Act to reverse the _Grove
City_ decision.  It did so by defining "program or activity" and
"program" as "_all of the operations_ of [the institution] --
_any part of which_ is extended Federal financial assistance"
(emphasis added).  The legislative history states that these
definitions "make clear that discrimination is prohibited
throughout entire agencies or institutions if any part receives
Federal financial assistance."  S. Rep. No. 64, 100th Cong., 2d
Sess. 4 (1988)  Because Congress intended to reinstate the law as
it was interpreted prior to _Grove City_, most courts have found
that the Act applies retroactively.

     The original regulations implementing Title VI and the other
statutes reflect the broad interpretation of coverage that was
reversed by the Supreme Court in _Grove City_ and restored by the
Restoration Act.  Therefore, they should consistently apply the
Act's definition to all of the activities of a recipient.  Post-
Act cases reflecting the broad definition include:

     --  Assistance from the Federal Emergency Management Agency
for repairing hurricane damage results in coverage of the
operations of the Puerto Rico Telephone Company. 
_Rivera-Flores_ v. _Puerto Rico Telephone Co._, 840 F. Supp. 3
(D. P.R. 1993).

     -- Federal financial assistance to any arm of an educational
institution results in coverage of the whole institution.
_Cohen_ v. _Brown University_, 991 F.2d 888 (lst Cir. 1993).

*So Ordered...Court Cases of Note*

     *14th Amendment Prohibits Single Race Scholarship*

     The Fourth Circuit held that the University of Maryland's
Banneker scholarship program, participation in which was limited
to African-Americans, was not justified under the 14th
Amendment's strict scrutiny standard of review for racial
classifications.  (Many courts, including the District Court in
this case, have found that standards are the same under both
Title VI and the 14th Amendment.)

     The University argued that the scholarship program is a
remedial measure to overcome the present effects of past
discrimination.  In analyzing the argument, the Fourth Circuit
applied a two-step test.  First, the University had to
demonstrate a strong basis in evidence that the remedial action
was necessary.  Then the University had to demonstrate that the
remedial measure was narrowly tailored to meet the remedial goal.

     The University offered four present effects of past
discrimination:  a poor reputation within the African-American
community, underrepresentation of African-Americans in the
student population, low retention and graduation rates of
African-American students who enroll in the university, and a
perceived campus atmosphere hostile to African-American students.
The Court found these arguments wanting.  It questioned the
connection of a perceived hostile campus environment to past
discrimination, noting that societal discrimination "cannot be
used as a basis for supporting a race-conscious remedy."  The
Court concluded that even if African-Americans were
underrepresented and had a higher attrition rate as a result of
past discrimination, the Banneker scholarship program still did
not pass Constitutional muster.  The Court concluded that the
program was not narrowly tailored to remedy these problems. 

     Because the Court found that the University did not show
that "its programs and quota goals are narrowly tailored," it
reversed the District Court's summary judgment for the
University.  _Podberesky_ v. _Kirwan_, 38 F.3d 147 (4th Cir.
1994)

     *Damages Available Under Title IX*

     The Supreme Court unanimously concluded that monetary
damages are available in a private suit under Title IX.  The
plaintiff was a female high school student who alleged that she
had been sexually harassed by a member of the school's faculty,
and that school officials knew of the harassment but took no
action to stop it.  This landmark decision, which involved
intentional discrimination, greatly expanded the remedies
available to persons bringing lawsuits under Title IX.  The case
is significant for Title VI because the remedies under the two
statutes are the same.  _Franklin_ v. _Gwinnett County Public
Schools_, 503 U.S. 60 (1992).

     *State High School Athletic Association Subject to Title IX*

     In a decision that significantly extends Title IX's reach,
the Sixth Circuit ruled that the Kentucky High School Athletic
Association and the Kentucky State Board for Elementary and
Secondary Education were "recipients" of Federal financial
assistance.  The Board was a part of the Kentucky Department of
Education, which received over $396 million in federal funds.  On
behalf of the Department, the Board controlled and managed all
programs conducted in state schools.  State law, however,
expressly permitted the Board to designate an agent, i.e., the
Association, to manage interscholastic athletics.  The court
concluded that the Association acted as an "agent" for the Board
and indirectly received Federal funds, and it was therefore
subject to Title IX.  _Horner_ v. _Kentucky High School Athletic
Ass'n._, F.3rd 265 (6th Cir. 1994)

     *Title IX Covers State Prison Educational Programs*

     The Ninth Circuit held that Title IX requires that State
prisons receiving Federal assistance provide female inmates
reasonable opportunities for studies similar to those provided
male inmates.  In this case, the evidence reflected that the
Oregon prison system provided better educational and vocational
programs for its male inmates than it did for its female inmates.

     The court concluded that, due to the unique needs for prison
safety, identical classes may not be required.  However, there
must be reasonable opportunities for parallel studies at the
women's prison, and females must have an equal opportunity to
participate in educational programs.  _Jeldness_ v. _Pearce_, 30
F.3d 1220 (9th Cir. 1994)

We're back!!!
     The Civil Rights Forum is back in business.  Our goal is to
provide our readers -- civil rights professionals in federal
agencies, the civil rights community, and interested members of
the public -- with information on policies, practices, and legal
and programmatic developments that affect (and hopefully will
assist and help improve) civil rights enforcement. 

     Our focus will be on the enforcement of laws that prohibit
discrimination on the basis of race, color, national origin, sex,
and religion in federally assisted programs.  This is your forum,
too, so let us know what you would like to see us cover, and
don't be shy about letting us know what you're up to!!!           

*Around the Agencies....*

     *Education Revamps Investigation Procedures*

     The Department of Education's recently redesignated Case
Resolution Manual provides more flexible, less complex, and less
bureaucratic procedures for the processing of complaints of
discrimination.  Changes incorporated into the manual, which was
developed as part of the strategic planning process, permit the
Office for Civil Rights to maximize the impact of its existing
resources.  As a result, Education has devoted increased
resources to complaints and compliance reviews that affect the
greatest number of students, and that address the most acute
civil rights problems in education.

     New processing procedures reflect the recognition that not
all complaints require a complete investigation to achieve a
resolution that is consistent with the requirements of the civil
rights laws.  Expedited approaches to case resolution include:
facilitation by the Office for Civil Rights of a resolution
satisfactory both to the complainant and the recipient without
the necessity of an investigation and formal determination;
conferences and other methods of expedited fact-finding; and
providing the recipient the opportunity to fully resolve all
allegations to Education's standards.

     *Interior Begins Reinvention Laboratory*

     A newly established "reinvention laboratory" will review the
Department of the Interior's federally assisted and federally
conducted civil rights compliance programs, according to Ms. E.
Melodee Stith, Director of the Office for Equal Opportunity.
This initiative, part of the National Performance Review,
responds to Vice President Gore's challenge to create a
government that works better and costs less.

     The National Performance Review defines a reinvention
laboratory as "a place that cuts through red tape, exceeds
customer expectations, and unleashes innovations for improvement
from its employees."  Interior defines it as "an experiment in
changing the way we conduct business to improve products or
services to [our] customers..." and heavily involves "customers"
and "stakeholders" in its review.

     A Civil Rights Compliance and Enforcement Team has been
named, consisting of civil rights specialists, state and local
government representatives, a citizen representative, and a team
leader.  A facilitator and an eight-member management advisory
group assist the team's efforts, which will culminate in a report
to the Vice President, and should yield improved planning,
quality control, and product and service delivery.

     *Health and Human Services' Strategic Plan Approved*

      On January 20, 1995, Secretary Donna Shalala approved a
Civil Rights Strategic Plan intended to create a more effective
civil rights compliance, outreach, and enforcement program
throughout the agency.  Its three major goals are:  (1) to
strengthen the agency-wide scope of civil rights initiatives; (2)
to concentrate on priority civil rights issues, develop
partnerships with state and local agencies and providers,
streamline case processing; and (3) to "redevelop the
infrastructure" of the Office for Civil Rights (OCR) through
training, leadership, and culture change initiatives.

       During the next several months, pilot projects will be
undertaken to implement key elements of the plan, such as
increasing equitable access to department services.  An
Implementation Team is reviewing proposals from five regions to
carry out six-month pilot projects:  to reduce case "backlog"
through regional innovation; to process high-priority cases by
involving both the national and regional offices; and to re-
design and streamline OCR's Investigative Procedures Manual.

     *Transportation Reorganization Underway*

     The Departmental Office of Civil Rights is undergoing a
major reorganization.  Six regional offices are being established
to consolidate the department's internal equal opportunity
enforcement.  The reorganization also will expand and strengthen
Transportation's capacity to coordinate and provide policy
guidance for its "external" civil rights programs through the
establishment of an External Policy and Program Development
Division.
     *Social Security a "New" Agency*

     The Social Security Administration (SSA), which administers
Federal financial assistance as well as direct benefits programs,
became independent on March 31, 1995.  SSA has begun to develop a
compliance program to ensure nondiscrimination by its recipients.

*Alternative Dispute Resolution Aids Justice Investigations*

     Using alternative dispute resolution techniques in complaint
investigations produces results and saves time, the Department of
Justice has concluded.  The Civil Rights Division's Coordination
and Review Section has employed alternative dispute resolution
techniques in its complaint processing under Title II of the
Americans with Disabilities Act (ADA) since the ADA became
effective in January 1992.   The ADA specifically encourages the
use of such techniques, and the Department of Justice's large
caseload has provided an additional incentive.  Alternative
dispute resolution techniques include:

     --  expedited processing of complaints alleging imminent
harm, generally involving a modified mediation process (generally
by telephone) and the provision of technical assistance;

     -- a formal offer of settlement negotiations at the point of
notification and data request to an entity, if the case is
amenable to alternative dispute resolution, thereby allowing the
entity to avoid the burden of a full investigation;

     -  a less formal resolution process whereby the entity is
contacted, notified of the allegations, and provided technical
assistance by telephone.  The entity then submits a letter
explaining the corrective action it has committed to or has
taken.

     Some form of alternative dispute resolution was offered or
used in virtually every case that the Section processed under
Title II of the ADA.  Where an investigation was required,
settlement still was discussed with the entity throughout the
investigation.

     Under Title II, the Section has achieved more than 115
informal case resolutions and negotiated 27 formal settlement
agreements prior to the completion of investigations and the
issuance of formal Letters of Findings.  Thus, it has
substantially reduced the need to conduct full investigations and
issue formal Letters of Findings, while at the same time
expediting corrective action and relief for complainants.  The
Department of Justice anticipates applying its experience with
alternative dispute resolution under the ADA to  complaints it
will be processing under the civil rights statutes that apply to
federally assisted programs.

*Something to share? *

We are looking for agency "happenings" and news of interest to
other agencies and the civil rights community.  Contact us at
telephone (202) 307-2222; TDD (202) 307-2678, or write to:  Civil
Rights Forum, Federal Coordination and Compliance Section, Civil Rights
Division, Department of Justice, P.O. Box 66560, Washington, D.C.
20035-6560.

THE COMPUTER, DATA, AND DISCRIMINATION

     All discrimination cases start with someone being treated
differently from someone else.  Someone gets a benefit, someone
else does not.  Someone gets a job, someone doesn't.  If it can
be demonstrated that this difference in treatment is the
impermissible result of race, color, sex, national origin,
disability or some other basis that Congress has determined is
unlawful, the law has been broken.  Once this determination is
made, a Federal agency or a court will take action to remedy the
situation.

     The first step, however, is to determine whether there is a
difference in treatment based on some prohibited ground.  If
there is no difference, there is no next step to take.  It takes
data to objectively make this initial determination.  That is why
the Department of Justice regulation for coordinating Title VI
enforcement requires Federal grant agencies to collect data by
race and other grounds on who is eligible to be served by a
grantee's program and who is actually served.  _See_ 28 C.F.R.
sec. 42.406

     Analyzing this data is a time consuming task.  But, as in
many areas, the computer can help.  The Civil Rights Division has
developed a Geographic Information System (GIS).  This system can
graphically display data in a manner that instantly makes clear
differences in treatment.

     This same kind of analysis and graphic portrayal can be done
for the racial demographics of grantee service areas, eligible
populations, and the populations actually served.  For example,
GIS could generate a map showing the locations of eligible
service populations by race.  An overlay could show the
population by race actually served.  The result may assist with
determining whether further inquiry is necessary.

     The Civil Rights Division's GIS system uses census data.  It
can also incorporate data from other sources.  The Division's GIS
can analyze and map data at the census block level, the smallest
aggregate level provided by the Census Bureau.  Many people are
familiar with the concept of the census tract.  What most don't
know is that a census tract is made up of census blocks.  In many
urban areas, a census block is literally a city block.  The
Division's GIS uses two types of census data: Tiger Lines that
provide the geographic references for creating maps, and Public
Law 94-171 data that provide various aggregations of demographic
data collected by the Census Bureau.  Using this data, GIS can
produce extremely detailed maps.  For example, if one wanted a
series of maps for a geographic area showing households without
indoor plumbing broken out by race, income, education, and age of
the head of the household, GIS could produce it down to the city
block level.  GIS can also create maps using postal zip code
areas if the situation warrants it.

     The Civil Rights Division originally developed the GIS
system as an aid in meeting statutory deadlines in clearing
submissions required under the Voting Rights Act.  Currently, GIS
only has data on those states and counties covered by the Act.
However, GIS will soon have data for all 50 states.  The Civil
Rights Division's GIS Group is currently updating their GIS
capabilities so all of this information is "on-line."  This will
enhance their ability to respond to user requests and also give
users the ability to create their own maps.  Their primary user
application, the Justice Application, was designed so that end
users with approximately two hours of training can do any number
of analytical tasks and generate presentation quality color maps.
The Justice application is described as so user friendly that
even a lawyer can use it.  Once this technological enhancement is
completed, GIS will be unique in that it will be the one of very
few civil rights enforcement systems that provide demographic
data for the entire United States at the block level.

     GIS use has already grown well past just enforcement of the
Voting Rights Act.  It has been used to look for possible
discrimination in mortgage lending and insurance coverage.  Its
ability to geographically portray racial demographics and income
levels along with environmental variables has been used in
analyzing environmental justice issues.

     GIS could be useful to Federal grant agencies in monitoring
recipient compliance with civil rights laws.  For additional
information on GIS use and capabilities, Federal agencies should
contact:  Deserene Worsley, Director, GIS Group, Civil Rights
Division, Department of Justice, P.O. Box 65310, Washington, D.C.
20035-5310, (202) 616-3971.

[Seal]  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.

Janet Reno, Attorney General
Jamie S. Gorelick, Deputy Attorney General
John R. Schmidt, Associate Attorney General

Deval L. Patrick, Assistant Attorney General
Civil Rights Division
Loretta King, Isabelle Katz Pinzler, Kerry Scanlon
Deputy Assistant Attorneys General

Merrily A. Friedlander, Acting Section Chief
Theodore R. Nickens, Deputy Section Chief (Program)
Andrew M. Strojny, Acting Deputy Section Chief (Legal)

Editor: Allen Payne

Contributing to this issue: Sara Kaltenborn, Elizabeth Keenan,
Catherine O'Brien, Louis Stewart, Joseph Talian, Margay Williams

Research and logistics: Michael Espeut, Steven Harris,
Linda King, William Worthen

Secretarial support: Rita Craig, Henrietta Bowden, Leonaye
Simpson

This newsletter is available in alternate formats.  Contact the
Federal Coordination and Compliance Section at (202) 307-2222; (TDD) (202)
307-2678. 


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