Civil Rights Forum
Volume 13, Number 2
In This Issue...
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Department conference seeks to increase trust between communities and law enforcement
The Department of Justice convened a groundbreaking conference in Washington, D.C. on
June 9-10, 1999, which brought together leaders from various law enforcement and civil
rights organizations in an effort to continue the dialogue on ways to build trust and
improve the relationship between police and the communities they serve.
Attorney General Janet Reno opened the conference, entitled "Strengthening Police
Community Relationships," by encouraging a frank and open discussion regarding
difficult issues such as police use of excessive force and racial profiling (stopping
individuals because of their race). She announced that the Justice Department would begin
to "survey Americans about their experiences with traffic stops." In the last
year, these issues have caught the eye of media and the attention of the American public.
President Clinton addressed conference participants and then chaired a roundtable
discussion with various civil rights and law enforcement leaders, including Attorney
General Reno, Secretary of Transportation Rodney Slater, Deputy Attorney General Eric
Holder, and Acting Assistant Attorney General for Civil Rights Bill Lann Lee.
The President denounced racial profiling as "morally indefensible and deeply
corrosive." "While public confidence in the police has been growing steadily
overall, people of color continue to have less confidence and less trust, and believe they
are targeted for action," he said.
In an effort to address the issue on a Federal level, President Clinton announced a
directive issued to the Secretary of the Treasury, the Attorney General, and the Secretary
of the Interior, for Federal law enforcement agencies in their Departments to begin
collecting and reporting data on the race, ethnicity, and gender of the individuals they
stop and search. After one year, the agencies are to report on the findings of the new
data collection systems and make additional recommendations based on those findings on how
to ensure greater fairness in Federal law enforcement procedures.
President Clinton said he hoped this Federal step would encourage State and local
officials to examine their own law enforcement agencies for evidence of racial profiling.
The President also announced his support for legislation introduced by Representative
John Conyers (D-MI) that would require the Attorney General to conduct a nationwide study
on the number and nature of traffic stops conducted by State and local law enforcement
agencies. The legislation also would authorize Federal grants to State and local law
enforcement agencies to collect and report traffic stop data to the Attorney General for
purposes of the study.
Conference participants worked in break-out groups to develop recommendations,
proposals, and best practices on various issues, including hiring and recruitment, use of
force, racial profiling, police management practices, and community relations. The groups
will meet periodically in the future to continue their work, with the goal of developing
recommendations in each area.
Many participants found the conference to be particularly significant as it brought
together civil rights and law enforcement leaders to discuss these important issues
something that often happens only after an incident has occurred, when emotions and
tensions are high. Conference organizers stressed that the conference was only a first
step but an important first step in working together to resolve concerns
raised by conference participants.
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rights laws provide powerful tools to address police misconduct
Existing Federal civil rights laws provide powerful tools to address issues of police
misconduct that can erode faith in law enforcement.
Three of the major noncriminal statutes in this category are: (1) Title VI of the Civil
Rights Act of 1964, which prohibits discrimination on the basis of race, color, or
national origin by recipients of Federal financial assistance; (2) the nondiscrimination
provision of the Omnibus Crime Control and Safe Streets Act, which prohibits
discrimination on the basis of race, color, national origin, sex, and religion by
recipients of assistance from the Justice Departments Office of Justice Programs
(OJP) and the Office of Community Oriented Policing Services (COPS) (which encompass the
vast majority of the nations police departments); and (3) the 1994 "police
misconduct provision" contained in the Violent Crime Control and Law Enforcement Act
of 1994, which makes it unlawful for State and local law enforcement officers to engage in
a pattern or practice of conduct that deprives persons of rights protected by the
Constitution or laws of the United States. This latter provision applies to all law
enforcement entities, regardless of whether or not they receive funds from the Federal
government and regardless of whether there is a racial or other discriminatory motive.
In addition to these civil statutes, the Department of Justice also enforces criminal
statutes that prohibit police misconduct. For example, law enforcement officers who
deprive individuals of their rights protected by the Constitution or the laws of the
United States while acting under "color of law" are subject to fines and jail
terms. The types of police misconduct covered by these statutes include excessive force,
sexual assault, intentional false arrests, or the intentional fabrication of evidence
resulting in a loss of liberty to another. Enforcement of these provisions, which is the
responsibility of the Civil Rights Divisions Criminal Section (acting in conjunction
with the U.S. Attorneys offices), does not require that there be any racial,
religious, or other discriminatory motive.
While the threat of jail is a powerful incentive for individuals not to engage in
police misconduct, the role of the civil statutes set forth above is equally important.
These statutes provide a means not only to remedy individual instances of discriminatory
treatment, but they also provide a way to encourage law enforcement management to identify
and remedy potential misconduct.
In contrast to the 1994 "police misconduct provision," which reaches only
unlawful policies or patterns of police misconduct, Title VI and OJPs
nondiscrimination provision cover individual instances of mistreatment and reach a wide
variety of behaviors including harassment or use of racial slurs, discriminatory traffic
stops, coercive sexual conduct, refusal of a law enforcement agency to respond to
complaints alleging discriminatory treatment by its officers, and retaliation for filing a
complaint. The Civil Rights Divisions Federal Coordination and Compliance Section and OJPs
Office for Civil Rights both investigate administrative complaints alleging violations of
Title VI and OJPs nondiscrimination provision.
The 1994 "police misconduct provision" is enforced by the Civil Rights
Divisions Special Litigation Section. Using this provision, the Section has entered
into extensive consent decrees with police departments in Steubenville, Ohio, and
Pittsburgh, Pennsylvania. These decrees, which resolve cases alleging excessive force,
false arrests, and improper searches, include detailed provisions aimed at reforming
police department management practices.
The Department of Justice also has established a Police Misconduct Task Force to
coordinate the efforts of the various departmental components that address police
misconduct issues. These components not only seek to remedy specific instances of police
misconduct but, of equal importance, they work with law enforcement agencies to identify
and resolve problems before they escalate into misconduct. The lead article in this issue
of the Civil Rights Forum describes the Department of Justice-sponsored conference on
building trust between the community and law enforcement, which is an example of the
Departments proactive approach.
The Department, through its Police Misconduct Task Force, also has published a brochure
entitled "Addressing Police Misconduct." This brochure contains information for
members of the public on laws related to police misconduct that the Department enforces,
both criminal and civil. It tells how people who believe their rights have been violated
under any of these laws can file a complaint with the Department. If you would like a copy
of the brochure, contact the Title VI Information Line at 1-888-TITLE06 (voice and TDD) or
go to the Federal Coordination and Compliance Sections Website at http://www.usdoj.gov/crt/cor.
In 1997, the Civil Rights Division sent to the 9,500 law enforcement organizations
receiving Federal financial assistance from the COPS office a Question and Answer document
about how Title VI of the Civil Rights Act of 1964 and other civil rights statutes apply
to law enforcement. The goal was to "ensure that everyone has the faith in law
enforcement that is expected and deserved."
The Justice Departments goal remains as it was then, and the Department is
vigorously using the existing civil rights laws as tools to achieve that goal.
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Supreme Court settles question of student-on-student sex harassment
On May 24, 1999, the Supreme Court established guidelines for determining the
circumstances under which a school district could be held liable for damages resulting
from student-on- student sexual harassment. The case on review was the Eleventh
Circuits decision in Davis v. Monroe County Board of Education, 120 F. 3d 1390 (11th
Cir. August 21, 1997), upholding the dismissal of a mothers Title IX suit against a
school board for failure to prevent a fifth grade fellow student from sexually harassing
her daughter. The plaintiff complained of eight separate instances of sexual harassment,
all of which were reported to teachers at the school.
In Davis v. Monroe County Board of Education, 1999 WL 320808 (1999), the Supreme Court
decided that a school could be held liable for money damages in cases of
student-on-student sex harassment, but only if a certain set of conditions exists: the
school board must have actual knowledge of the conduct; the conduct must be so severe,
pervasive, and objectively offensive that it can be said to deprive the victim of access
to the educational opportunities or benefits provided by the school; the harassment must
take place in a context subject to the school districts control, e.g., during school
hours on school grounds; and the school must be deliberately indifferent to this
knowledge, i.e., it must have failed to take steps to stop the misconduct that were
reasonable in light of the circumstances.
With this decision, the Supreme Court extended its reasoning in Gebser v. Lago Vista
Independent School District, 524 U.S. 274 (1998), in which it held that a school may be
liable for damages under Title IX where it is deliberately indifferent to known acts of
teacher-student sex harassment. In Davis, this holding was extended to cases of
student-on-student sex harassment. The Court used the language of the Title IX statute to
set forth the parameters of liability.
In continuing to reject the theory that the school can be held liable for the acts of
others under agency principles, the Court reasoned that the focus of Title IX liability
would not be the students misconduct but, rather, the school districts own
misconduct in failing to remedy the situation. Title IX prohibits a recipient from
"subject[ing]" a student to discrimination under any federally funded education
program or activity. In other words, the schools failure to act causes students to
undergo harassment or makes them vulnerable to it. The Court went on to point out that
because the harassment must occur "under" the "operations of" a
recipient, 20 U.S.C. §1681(a), §1687, the misconduct must take place in a context where
the school has disciplinary authority over the students.
Because Title IX not only protects students from sex discrimination but also protects
them from being excluded from "participation in" or "denied the benefits
of" a recipients "education program or activity," the Court ruled
that the plaintiff must allege harassment so severe that it undermines or detracts from
the victims educational experience to such an extent that the student effectively is
denied equal access to a schools resources and opportunities.
Money damages are not available for simple acts of teasing and name calling, even where
these comments target differences in gender. As the Court said: "By limiting private
damage actions to cases having a systemic effect on educational programs or activities, we
reconcile the general principle that Title IX prohibits official indifference to known
peer sexual harassment with the practical realities of responding to student behavior. . .
The Court was careful not to suggest that its holding mandated that the school impose
specific remedies to known student-on-student sexual harassment such as, for example,
immediate expulsion of the offender. School districts will maintain their flexibility over
management and discipline so long as the response is not clearly unreasonable in light of
the known circumstances.
This Supreme Court ruling supports the Justice Department position in its amicus brief
that schools that are given the responsibility for educating students are also responsible
for ensuring that the learning environment created for those students is not rendered
unlawfully hostile by sexual harassment in violation of Title IX. School officials should
be held accountable for their own tolerance or implicit condonation of a hostile
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So ordered ... Court cases of note
Department files amicus brief in Third Circuit case on whether the NCAA is subject to
The Department of Justice has filed a brief as amicus curiae in the case of Cureton v.
National Collegiate Athletic Association, No. 99-1222 (3d Cir.). In Cureton, plaintiffs
filed a suit on behalf of a class of African-American student athletes, claiming that the
standardized test component of the NCAA's minimum requirements for freshman students to
compete in intercollegiate athletics and to receive athletic scholarships has a
discriminatory impact on African-Americans in violation of Title VI. The district court
concluded the NCAA requirements did have a disparate impact. The court also concluded that
the NCAA was covered by Title VI because it received Federal financial assistance, and
NCAA member schools had ceded controlling authority over the operation of their
intercollegiate athletic programs to the NCAA. See Cureton v. NCAA, 37 F. Supp. 2d 687,
694 (E.D. Pa. 1998).
On appeal, the Third Circuit is expected to decide whether the NCAA is subject to the
nondiscrimination requirements of Title VI, and whether there is a private right of action
to enforce Federal agency Title VI regulations prohibiting practices that have an
unjustified discriminatory impact. In its brief, the Department of Justice argued that
Title VI covers the activities of the NCAA for two reasons. First, the NCAA effectively
exercises control over a grant awarded by the Department of Health and Human Services
(HHS) to the National Youth Sports Program Fund, a corporation controlled by the NCAA and,
therefore, the NCAA is an indirect recipient of Federal financial assistance. Second, the
NCAA is subject to Title VI, regardless of whether the NCAA receives Federal monies,
because member colleges and universities have ceded controlling authority to the NCAA over
their federally assisted intercollegiate athletics programs. In other words, the NCAA
administers these intercollegiate athletic programs on behalf of its member colleges and
universities that are themselves recipients of Federal financial assistance. HHSs
Title VI regulations prohibit grant recipients from discriminating "through
contractual or other means" by utilizing criteria or methods of administration that
have a racially disproportionate impact.
In addition, the Department argued that there is a private right of action to enforce
Title VI regulations prohibiting actions that have a discriminatory purpose or effect. The
NCAA opposes this view, arguing that while there is a private action to enforce Title VI ,
which prohibits intentional discrimination, private plaintiffs cannot enforce the
implementing regulations that prohibit discrimination based upon a disparate impact
Circuit hears arguments on Alabamas English-only drivers tests
On March 25, 1999, the Eleventh Circuit heard the oral argument in the case of Sandoval
v. Hagan, an appeal of a district court decision finding that Alabamas
"English-only" policy violates Title VI of the Civil Rights Act of 1964 as it
applies to how drivers licenses are issued. Sandoval v. Hagan, 7 F. Supp 2d 1234
(M.D. Ala. 1998). The district court found "that the English-only policy has an
unjustified disparate impact on the basis of national origin. . . ."
Prior to 1991, Alabama administered written driver's license examinations in
approximately 14 foreign languages. In 1991, due to the ratification of a State
constitutional amendment declaring English the official language of Alabama, the
defendants adopted an "English only" policy, requiring that all portions of the
driver's license examination process be administered in English only, and forbidding the
use of interpreters, translation dictionaries, and other interpretive aids, even if
A private action was brought challenging Alabama's policy as a violation of Title VI
and its implementing regulations, which prohibit policies that have an unjustified
discriminatory effect on the basis of national origin. After a bench trial, the district
court determined that the English-only policy had a disparate impact on foreign-born
individuals. It also found that the rule had a significant adverse effect by excluding
otherwise qualified drivers from obtaining licenses. The court then examined each of the
defendants rationales for imposing the rule, found that none of them were
substantiated, and also found that plaintiffs had proffered effective alternative
practices that would result in less disparate impact while addressing the defendants
concerns. The district court thus entered an injunction in favor of plaintiffs.
While Alabama had argued that understanding English was required for highway safety
considerations, the district court concluded: "It cannot be seriously disputed that
not every individual who possesses a valid drivers license from one of the other
forty-nine states, territories, or from a foreign country, speaks, reads and writes
English. Nevertheless, Alabama will honor their license. . . ." In addition, a former
Assistant Director of the Department of Public Safety and former Chief of the
Drivers License Division testified that they were aware "of no evidence
showing: (1) that non-English speakers are more likely to get into accidents than people
who do not speak English; [or] (2) that non-English speakers have difficulty comprehending
traffic signals. . . ."
In response to the defendants' appeal, the Civil Rights Division argued as intervenor
that Congress had the power to abrogate States' Eleventh Amendment immunity to suits under
Title VI and its implementing regulations, and had explicitly done so. As amicus, the
Civil Rights Division argued that (1) individuals have a private right of action against
recipients of Federal funds for violations of Title VI disparate impact regulations in
addition to violations of the statute itself; and (2) the district court correctly held
that English-only policies could violate Title VI and its discriminatory effects
regulations, and that consistent administrative and judicial interpretations to that
effect put defendants on sufficient notice that its policy denying the benefits of its
program to those who cant read English could be found to violate Title VI
discriminatory effects regulations. Indeed, an Alabama Attorney General Opinion concerning
the English-only requirement raised a concern that it might violate Title VI .
The court has not yet issued an opinion on the appeal.
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Department requests en banc Fifth Circuit review of case involving the use of race as a
factor in law school admissions
In 1996, a divided panel of the Fifth Circuit Court of Appeals prohibited the
University of Texas Law School from taking race into account when admitting law students.
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). The Supreme Courts decision not to
review the case, Texas v. Hopwood, 518 U.S. 1033, resulted in the return of the case to
the district court. On remand, the district court, while finding that none of the
plaintiffs would have been admitted to the law school under a race-neutral system,
nonetheless enjoined the law school from taking race into consideration in admissions. The
district court also awarded nominal damages and attorneys fees. Hopwood v. Texas, 999 F.
Supp. 872 ( W.D. Tex. 1998).
The Department of Justice, as amicus curiae, has asked the Fifth Circuit bench, en
banc, to review the lower courts decision. In its brief, the Department reiterated
its concern that a Fifth Circuit panel had rejected the continuing applicability of the
Supreme Courts decision in Regents of the University of California v. Bakke, 438
U.S. 265 (1978). Specifically, the Department argued that Bakke is still good law and
should not have been disregarded. Additionally, the brief pointed to existing Department
of Education policy guidance on the use of race-targeted financial aid, which uses
diversity as a justification for such targeting. The brief also cited the Department of
Educations Title VI regulations, which permit voluntary actions even in the absence
of prior discrimination to overcome conditions that limit the participation of certain
people. The Fifth Circuit has not decided whether to hear the case en banc.
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Something to share?
Something to share? The Forum is looking
for agency "happenings" and news of interest to other agencies and the civil
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
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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
- Janet Reno
Eric H. Holder
Deputy Attorney General
Raymond C. Fisher
Associate Attorney General
Bill Lann Lee
Acting Assistant Attorney General
- William Yeomans
Chief of Staff
- Anita Hodgkiss
Stuart J. Ishimaru (Acting)
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: Pamela Brewington, Mona Diaz, Joshua Mendelsohn, Allen
Payne, Andrew Strojny, William Worthen
- Logistics: Michael Espeut
- Secretarial support: Rita Craig
This newsletter is available in alternate formats. Contact the Coordination and Review
Section at (202) 307-2222 (voice) or (202) 307-2678 (TDD).
Toll-free Title VI Information Line: 1-888-TITLE06
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