Civil Rights Forum
Volume 10, Number 2
In This Issue...
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Supreme Court Rules VMI Cannot Exclude Women
The Supreme Court ruled on June 26, 1996, that the Commonwealth of Virginia violated
the Fourteenth Amendment's Equal Protection Clause by denying women the unique
military-style education offered to males at the Commonwealth's Virginia Military
Institute (VMI). The Court further held that Virginia failed to remedy the constitutional
violation by offering women a separate, but not comparable, program at another institution
of higher learning.
Commenting on the 7-1 decision for the United States in _United States_ v. _Virginia_,
___ U.S. ___, 64 USLW 4638, 1996 WL 345786, Attorney General Janet Reno expressed
satisfaction that "[t]he Supreme Court overwhelmingly has given life to the
promise in the Constitution that all of us deserve an equal shot at educational
Justice Ruth Bader Ginsburg, whose majority opinion was joined by five Justices,
forcefully restated the Court's stringent constitutional standard for a governmental
entity to justify discrimination on the basis of sex. Such a justification must be "exceedingly
persuasive," and it must be real and not hypothesized or invented _post-hoc_.
Further, if such a justification is proffered, the means selected for achieving the
discriminatory end must be "substantially related" to that justification.
The Supreme Court found both justifications offered by the Commonwealth wanting. The
Court found no persuasive evidence that VMI's male-only admissions were in furtherance of
an asserted policy of diversity in education. VMI's male-only policy was a product of a
history of providing public higher education soely to men, and Virginia's adoption in
recent years of coeducation in all other public colleges and universities belied any State
policy of "diversity" through single-sex education. Moreover, Justice
Ginsburg wrote, while the creation of the unique VMI educational experience might afford
diverse educational options to "the State's sons, it makes no provision whatever
for her daughters. That is not _equal_ protection."
The Supreme Court also rejected the argument that admitting women would be incompatible
with VMI's "adversative model" of education, which emphasizes physical
rigor, mental stress, absolute equality of treatment, absence of privacy, minute
regulation of behavior, and indoctrination of values. As Justice Ginsburg explained: "The
notion that admission of women would downgrade VMI's stature, destroy the adversative
system and, with it, even the school, is a judgment hardly proved, a prediction hardly
different from other 'self-fulfilling prophec[ies]' . . . once routinely used to deny
[women] rights or opportunities." Further, it was undisputed that the VMI
approach could be used to educate some women (as it is used to educate some men), and
therefore Virginia could not justify excluding all women from VMI.
With regard to remedy, the Supreme Court found Virginia's female-only alternative
program to be but a "'pale shadow' of VMI." In myriad ways, the women's
program was not VMI's equal: in military training; student body; faculty; course
offerings; facilities; endowment; prestige; and influential alumni network. Accordingly,
the Court remanded the case for the development of an appropriate remedy.
The VMI decision provides important markers for judging single-sex educational programs
in the future. However, the United States emphasized throughout the case that disallowing
VMI's exclusion of women did not require any determination about single-sex education
generally. The Supreme Court agreed, observing that the parties had not contested the "reality"
that "[s]ingle-sex education affords pedagogical benefits to at least some
students." Chief Justice William Rehnquist wrote an opinion concurring in the
judgment, Justice Antonin Scalia issued a dissenting opinion, and Justice Clarence Thomas
took no part in the case.
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Justice Proposes Affirmative Action Reforms in Federal
The Department of Justice has announced proposed affirmative action reforms in Federal
procurement to ensure compliance with the Supreme Court's decision in _Adarand
Constructors, Inc._ v. _Pena_, 115 S. Ct. 2097 (1995). This action is consistent with
President Clinton's directive to "mend" rather than "end"
Federal affirmative action programs.
The _Adarand_ decision extended strict judicial scrutiny to Federal affirmative action
programs that use racial or ethnic criteria as a basis for decisionmaking. Strict scrutiny
requires that there be a compelling government interest for consideration of race or
ethnicity and that such consideration be narrowly tailored.
The proposal encourages the use of race-neutral methods by Federal agencies to expand
procurement opportunities for minority-owned businesses through programs that aid small
firms that are owned by socially and economically disadvantaged individuals.
The proposal also permits agencies to use race-conscious tools -- evaluation and price
credits -- to assist small disadvantaged businesses (SDBs) where necessary to remedy the
effects of discrimination in particular industries. The use of race-conscious tools, in
terms of duration and effect, will be limited by the extent and persistence of
discrimination. The use of credits gives assistance to disadvantaged businesses but
retains the essential element of competition in the procurement process. Set-asides for
SDBs are not authorized under the proposal. The success of the reforms in overcoming
discrimination, however, will be reviewed after two years to determine whether set-asides
or other approaches are warranted.
In addition, the Department's proposal combats fraud and abuse by tightening
eligibility requirements for small and disadvantaged businesses. The Department and the
Small Business Administration (SBA) will aggressively seek penalties against individuals
who misrepresent their status or ownership and control of the business.
The proposal states the Department's conclusion that the government has a compelling
interest to use race-conscious tools in Federal procurement. The appendix to the proposal
sets forth a preliminary survey of evidence of how past and present racially
discriminatory barriers impede the ability of minority-owned businesses to participate in
More specifically, under the proposal, agencies will be required to maximize the use of
technical assistance, outreach, and other race-neutral means to increase minority business
opportunities in Federal procurement, thereby decreasing reliance on race-conscious
actions. Race-neutral efforts can substantially increase participation by minority
businesses, yet the extent of discrimination against minorities in certain industries
warrants race-conscious action.
Benchmarks will be identified for each industry by the Federal government. The industry
benchmarks will represent the level of minority contracting that one would reasonably
expect to find in a market absent discrimination. The benchmarks will be calculated by
combining the capacity of minority firms in the industry (with consideration for the
appropriate labor market) and, where applicable, the amount that discrimination has
suppressed capacity. The benchmark then will provide a basis for comparison with actual
minority participation in procurement in that industry. Benchmarks will be calculated on
an annual basis by the Department of Commerce in consultation with the General Services
Administration and the SBA.
Where actual participation falls below the benchmark, a price or evaluation credit will
be authorized for evaluation of bids by SDBs and prime contractors who commit to
subcontract with SDBs. When disadvantaged and minority business participation exceeds the
benchmark, the credits will be lowered or suspended. The SBA concurrently would monitor
the 8(a) program and, where necessary, restrict entry to the program in specific
industries, accelerate graduation, or limit contract awards in an industry. (The 8(a)
program is designed to assist the development of businesses owned by socially and
economically disadvantaged individuals.)
In addition, the proposal modifies the process of certification. Previously, SDBs
certified their own status for eligibility to participate in SDB programs. Under the
proposal, an SDB must provide a certificate of ownership and control issued by an entity
approved by the SBA. Certification will be valid for up to three years.
SDBs are small firms that are owned by individuals who are disadvantaged socially
(subjected to racial or cultural bias) and economically (as measured by income and
assets). Members of designated racial and ethnic groups currently are presumed to be
socially and economically disadvantaged by statute, and this presumption will remain. The
proposal, however, lessens the burden imposed on individuals who are not members of
designated racial and ethnic groups to prove they too qualify as socially and economically
disadvantaged. The prior evidentiary standard of "clear and convincing"
evidence has been reduced to a "preponderance" of evidence concerning the
business owner(s)' social and economic disadvantage.
The proposal will be the model for modifications to the Federal Acquisition Regulation
and the Defense Federal Acquisition Regulation Supplement. Therefore, it will affect the
manner of all direct procurement by the Federal government.
The proposal was published in the Federal Register on May 23, 1996 (61 Fed. Reg. 26042
(1996)). The Department invited written comments from the public until July 22, 1996.
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Supreme Court Declines to Review Texas Law School
Affirmative Action Case
The Supreme Court denied the State of Texas' petition for _certiorari_ in _State of
Texas_ v. _Hopwood_, 116 S. Ct. 2580 (1996), on July 1, 1996. The Department of Justice
had filed a brief as _amicus curiae_ urging the Supreme Court to grant review of the court
of appeals' decision.
The case involves a constitutional challenge to an affirmative action admissions
program at the University of Texas School of Law. Four rejected white applicants claimed
that the program discriminated against them on the basis of race and national origin in
violation of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The
program, since discontinued by the law school, involved lower presumptive admissions
standards for black and Mexican-American applicants and a separate review of such
applications by a minority admissions subcommittee.
The district court, applying the strict judicial scrutiny standard articulated by the
Supreme Court in _City of Richmond_ v. _J.A. Croson Co._, 488 U.S. 469 (1989), found that
the State had two compelling interests: obtaining a diverse student body and remedying
past discrimination. The district court also found, however, that the program was not
narrowly tailored to serve the State's interests. The district court declined to award
injunctive relief or damages.
Following an appeal by plaintiffs, the Fifth Circuit reversed, holding that neither of
the interests asserted by the State could justify _any_ consideration of race in the law
school's admissions process. Finding no compelling interest by the State, the Fifth
Circuit directed the State to permit the plaintiffs to reapply to the law school under a
race-neutral admissions process. The appellate court remanded the case with instructions
to the district court to award damages and equitable relief to each plaintiff, unless the
law school could prove that a plaintiff would not have been admitted even under a
race-blind system. _Hopwood_ v. _Texas_, 78 F.3d 932, _reh'g denied_, 84 F.3d 720 (5th
Justice Ruth Bader Ginsburg, in a one-page opinion joined by Justice David Souter,
stated that the question of whether it is constitutional for a public college or graduate
school to use race or national origin as a factor in its admissions process is an issue of
"great national importance." She pointed out, however, that the petition
does not challenge the lower courts' judgments that the particular admissions procedure
used by the University of Texas Law School in 1992 was unconstitutional. Rather, the
petition acknowledges that the program "has long since been discontinued and will
not be reinstated." Noting that the petition challenged only the rationale used
by the court of appeals, Justice Ginsburg stated that the Court "must await a
final judgment on a program genuinely in controversy before addressing the important
question raised in this petition."
The Supreme Court also did not say that race cannot be used as a factor in admissions.
Nor did it overturn its own decision in _Regents of the University of California_ v.
_Bakke_, 438 U.S. 265 (1978), which recognized that institutions of higher education have
a compelling interest in obtaining the educational benefits of a diverse student body.
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Michigan Athletic Conference Agrees to Invite High Schools
with Significant Black Populations
A Michigan high school athletic league that failed to admit certain school districts
with significant black student enrollments will invite six of the schools into their
league, under an agreement reached with the Department of Justice on April 1, 1996. The
agreement will ensure that the once-excluded schools will be able to compete with the
other conference schools in all sports and extracurricular activities. The agreement
requires 18 public school districts located outside Detroit, which founded the Michigan
Mega Conference Athletic League, to invite previously excluded schools into the league.
Mega, an interscholastic high school athletic and extracurricular league, did not offer
invitations to certain schools when it was formed in 1992, even though the schools were
located in the same geographic area. When Mega was formed, less than five percent of the
students in the Mega schools overall were black, while black students constituted from 32%
to 99% of the pupils in each of the formerly excluded schools.
In 1993, two schools filed a complaint with the Department of Education's (ED) Office
for Civil Rights. Each alleged that the founding schools discriminated in the formation
and operation of the league. After determining that the Mega school districts violated
Title VI of the Civil Rights Acts of 1964 and its implementing regulations, ED tried to
negotiate a resolution with the founding school districts. When the effort failed, ED
referred the matter to the Civil Rights Division's Educational Opportunities Section last
summer. After further investigation, the Civil Rights Division entered into negotiations
with the founding Mega districts, which eventually led to the April 1 agreement.
Under the agreement, six formerly excluded schools will be invited to join the league
immediately, with competition beginning this Fall. The new schools will become fully
participating members in the Fall of 1997. Further, leadership positions will be
redistributed, the invited schools are protected against discriminatory treatment, and
each of the founding Mega schools are bound to the league for five years. In addition, in
order to facilitate enforcement of the agreement, the founding Mega schools waived
procedural rights under Title VI in the event of a breach of the agreement.
The Mega schools also agreed to schedule as many contests and extracurricular events as
possible with a small high school with a substantial black student enrollment. The school
was not invited into Mega because of its size, but is competitive in certain sports and
wishes to participate in the various non-athletic events sponsored by the league.
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Are Money Damages Available for Unintentional
In _Franklin_ v. _Gwinnett County Public Schools_, 503 U.S. 60 (1992), a Title IX case
involving intentional discrimination, the Supreme Court ruled that monetary damages were
available. However, the Supreme Court did not address the issue of the availability of
monetary damages for unintentional discrimination since that was not the issue before it.
A Louisiana district court recently answered the question in the negative. In a case
finding a violation of Title IX with respect to women's athletics, the court ruled that
monetary damages were unavailable because the discrimination was unintentional. _Pederson_
v. _Louisiana State University_, 912 F. Supp. 892 (M.D. La. 1996).
In this suit filed by female students against a university for failing to provide equal
athletic programs for men and women, the court commented on the university's "arrogant
ignorance" and "outdated views." The court found that the university
provided no opportunities for women to compete in fast pitch softball at any level
whatsoever, while male students were provided a varsity baseball team. Also, the court
determined that no new women's teams had been added for 14 years. Such actions were found
to violate Title IX. However, the court found that the university's actions did not rise
to the level of intentional discrimination. Because the discrimination was unintentional,
the court granted equitable relief but not damages to the plaintiffs.
As reported in the Summer 1995 issue of the _Civil Rights Forum_, the Justice
Department has taken the position that damages are available for unintentional
discrimination under Title II of the Americans with Disabilities Act (ADA), and it filed
an _amicus_ brief to that effect in _Tyler_ v. _City of Manhattan, Kansas_, No. 94-3344
(10th Cir. 1995). Recently, Justice filed a similar _amicus_ brief in _Ferguson_ v. _City
of Phoenix_, No. 95-0260 (D. Ariz. 1996), a case brought both under Title II and under
Section 504 of the Rehabilitation Act of 1973. The _Ferguson_ court has since decided that
monetary damages are unavailable as a remedy for unintentional discrimination. _Ferguson_,
No. 95-0260, slip. op. at 18-20 (D. Ariz. Apr. 16, 1996).
A recent Third Circuit case held that monetary damages are available under Section 504.
Relying on the Supreme Court's decision in _Franklin_, the court granted damages against a
school district for its persistent refusal to evaluate, classify, and provide necessary
educational services for a child. The court did not discuss whether the school district's
conduct constituted intentional discrimination. _W.B._ v. _Matula_, 67 F.3d 484 (3d Cir.
These Section 504 and ADA cases are relevant to Title VI and Title IX because Title II
of the ADA adopts the rights, remedies, and procedures of Section 504, and both Section
504 and Title IX are patterned after Title VI. Ultimately, the Supreme Court will have to
decide whether damages are available for unintentional discrimination.
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So Ordered...Court Cases of Note
a. Sixth Circuit Holds State Statutes of Limitations
Apply to Private Title IX Actions
The Sixth Circuit has decided that the statutory remedies of Title IX of the
Educational Amendments of 1972 do not preclude a plaintiff from bringing a substantive due
process claim under section 1983. It also concluded that State statutes of limitations for
personal injury actions apply to private Title IX actions.
The case involves allegations that a school system failed to act despite reports of
sexual harassment by a coach and teacher. Plaintiffs alleged violations of both Title IX
and the First and Fourteenth Amendments through 42 U.S.C. 1983. The district court
had summarily dismissed the section 1983 and Title IX claims. While affirming the
dismissal of the constitutional claims, the Sixth Circuit reversed the dismissal of the
Title IX claims. On appeal it was argued, among other things, that Title IX precluded the
section 1983 claims. While upholding the dismissal of the constitutional claims, the court
concluded: "There is no evidence in Title IX that Congress intended to foreclose
[a section 1983] action by providing an exclusive remedy within Title IX."
The Sixth Circuit also decided that the statute of limitations for bringing a Title IX
claim was not the 180-day period applicable to filing an administrative complaint, which
the district court had relied upon in dismissing the claim. Rather, the time period was
the State limitations period applicable to personal injury claims, which is one year in
the State of Tennessee. In reaching this decision, the court relied on similar rulings
concerning the relevant limitations applicable to private actions under Title VI.
_Lillard_ v. _Shelby County Board of Education_, 76 F.3d 716 (6th Cir., 1996).
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b. Eleventh Circuit Accepts Justice's View That
Student-on-Student Harassment Is Actionable
The Civil Rights Division's position was sustained in the Eleventh Circuit when the
court majority held that Title IX requires school officials to address instances of
student-on-student sexual harassment once they know about it. Substantially adopting the
reasoning of the Department's _amicus_ brief, the court stated that the failure of school
officials to end the harassment of which they were aware would permit the sexually
harassing atmosphere to continue. Generally analogizing to Title VII employment law, the
court found that knowledge of the harassment by a teacher and a principal created a
responsibility on the part of the school district to take action to end the
discrimination. The majority concluded that a private right of action and damages are
available against the school system.
One judge filed a separate opinion, which concurred in the dismissal of the section
1983 constitutional claim but dissented from the majority view that student-on-student
sexual harassment was actionable under Title IX against the school district. The judge
further noted that, even if student-on-student harassment were covered, damages would be
available only upon a showing of intentional discrimination. _Davis_ v. _Monroe County
Board of Education_, 74 F.3rd 1186 (11th Cir. 1996).
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c. State Police Traffic Stop Case Covered by Title
In an important procedural ruling, a Northern Illinois District Court judge has refused
to dismiss a private Title VI claim against the Illinois State Police. The class complaint
alleged that the Illinois State Police unlawfully detain, stop, and search individuals on
the basis of race. The court, in refusing to dismiss the Title VI claim, found that
Federal financial assistance given to the Illinois State Police could be construed as
grants given to an "operation" of "a department, agency, special
purpose district or other instrumentality of a State or local government,"
consistent with the language of the Civil Rights Restoration Act, which amended Title VI.
42 U.S.C. 2000d-4a.
The court stated that the Restoration Act was intended to ensure that various civil
rights statutes would apply to the entire State or local institution that had a program or
activity funded by the Federal government. Therefore, the court concluded that the
Illinois State Police are covered by Title VI. _Chavez_ v. _Illinois State Police_, 1996
WL 66136 (N.D. Ill.).
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Civil Rights Forum Now Available On the Internet
The _Civil Rights Forum_ is now available on the Internet. It is in a "text
only" format, which means it basically looks like typewritten pages with no
pictures or graphics. This simple format enables those without expensive computers, fast
modems, or fancy graphics cards to access the _Forum_ files more quickly. The Civil Rights
Division's Federal Coordination and Compliance Section hopes to explore alternative methods so that
those with access to newer computers with faster modems and graphics cards can experience
the Internet _Forum_ in much the same way as those with hard copy do.
In addition to the _Forum_, the Federal Coordination and Compliance Section is reorganizing its
Internet information. We will continue to provide general information about the
cross-cutting civil rights statutes. However, we hope to offer information individually
organized by agency or Cabinet Department. For example, a Cabinet Department's entry would
contain all applicable grant-related civil rights statutes, as well as civil rights
regulations applicable to its recipients, and other administrative materials. We hope to
develop cross-links to other agency civil rights pages that are being developed for the
Internet. We also hope to post cases of interest and note. So stay tuned: our Net entry is
coming into the 21st Century.
We want and need your suggestions. Our Internet site, after all, is for you and not for
us. If you have any questions, suggestions, criticisms, or things you like or dislike, you
can E-mail Andy Strojny at "firstname.lastname@example.org" or you can use
"snail mail" and write to us at the _Forum_'s address.
Complete instructions on how to access our Internet site were published in the Fall
1995 _Forum_. But as a reminder, to access our Internet site, activate a computer program
called a browser. You may have heard of Netscape, Microsoft's Internet Explorer, or the
University of Illinois' Supercomputing Center's MOSAIC. They are browser programs. America
On-Line and other on-line services provide browsers with their Internet connections. Once
you have activated your browser, there will be a line where you can enter an "internet
address." To reach our Internet site, type in "http://www.usdoj.gov"
(ignore the quotation marks). That calls up the Justice Department's Internet "home
page." There will be a line on the home page that reads "Litigation
Organizations." Put your mouse pointer on it and double click the left mouse
button, _i.e._, "click" on "Litigation Organizations." From the
menu that appears, click on "Civil Rights Division." From the resultant
menu, click on "Grant Related Civil Rights Statutes." You're at our
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Executive Order 12250 Advisory Group Committees
Address Broad Range of Topics
Six recently formed committees are reviewing issues identified by the Executive Order
12250 Advisory Group, which is comprised of representatives from 15 Federal agencies. In
meetings begun in the Spring, the committees are developing potential recommendations to
Justice for the improved governmentwide coordination and enforcement of Title VI, Title
IX, and related statutes. (See the related article in the Winter-Spring 1996 issue of the
-- A committee on information needs and reporting requirements is advising Justice on
the development of streamlined and simplified guidelines for agency reporting under
Executive Order 12250. Under new guidelines being prepared by the Civil Rights Division,
detailed reports prepared by agencies specifically for Justice no longer will be required.
Instead, agencies can meet many, if not most, reporting requirements by using plans,
information, and data they already have developed for a variety of internal and external
The Civil Rights Division will continue to employ alternative methods to obtain and
facilitate the interagency exchange of information, including regularly scheduled meetings
with individual agencies and clusters of agencies with similar programs.
-- A committee assessing the operation of interagency delegation agreements is
reviewing various options for the exchange of information between lead agencies and
delegating agencies regarding entities funded by more than one agency. The committee also
is advising Justice as it develops recommendations to clarify the division of lead agency
responsibilities for several classes of recipients, and as it explores alternative
approaches to clarifying responsibilities. The committee has developed a questionnaire for
agencies with delegation agreements, which will help us identify in greater detail the
strengths and weaknesses of the current agreements, as well as obtain suggestions for
their improvement, revision, and possible expansion.
-- A committee reviewing the possible use of agency program staff to assist in civil
rights enforcement in this era of downsizing is identifying what functions properly and
effectively could be performed by program staff. The committee is examining the technical
assistance, training, and management considerations involved to ensure the independence of
the civil rights enforcement function and the maintenance of an appropriate level of civil
-- A committee exploring the possibility of holding a Title VI conference has sent a
questionnaire to Federal funding agencies to ascertain their interest and obtain
suggestions regarding potential conference objectives, attendees, presenters, and subject
matter to be addressed.
-- A committee reviewing civil rights compliance responsibilities, functions, and
procedures in the context of block grant programs is assisting Justice in developing
guidance on ensuring civil rights enforcement in the special setting of block grants.
-- A committee established in response to agency requests for more guidance on
disparate impact and other legal issues is planning a series of meetings for interested
agencies to discuss informally relevant legal issues affecting ongoing case
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GSA Joins the Internet
The General Services Administration's (GSA) Office of Equal Employment Opportunity,
which also enforces Title VI and related statutes, has developed a civil rights homepage
on the Internet that is located at http://www.gsa.gov/eeo/. Although it currently focuses
on Federal equal employment opportunity materials, the homepage is still under development
and GSA is considering expanding it to include information on the grant-related civil
rights statutes. If you have any questions or suggestions, contact Warren Hillman at (202)
501-0134 or e-mail him at Warren.Hillman@gsa.gov.
If your agency has a civil rights homepage on the Internet, tell us about it, and we'll
let others know, too!
Something to share? The *Forum* is looking for agency "happenings" and
news of interest to other agencies and the civil rights community. Contact us at (202)
307-2222 (voice); (202) 307-2678 (TDD), 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 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
Deputy Attorney General
John R. Schmidt
Associate Attorney General
Deval L. Patrick
Assistant Attorney General
Susan M. Liss
Chief of Staff
Isabelle Katz Pinzler
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: Andrew Foose, Warren Hillman (GSA), Linda King, Jennifer
Levin, Joshua Mendelsohn, Wonder Moore-Davis, Allen Payne, Mark Posner, Andrew Strojny,
Richard Waters, Margay Williams, William Worthen
Logistics: Michael Espeut
This newsletter is available in alternate formats. Contact the Coordination and Review
Section at (202) 307-2222 (voice) or (202) 307-2678 (TDD).
This page was last updated on February 07, 2001