Title VI Legal Manual
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue NW - NWB
Washington DC 20530
January 11, 2001
In Chapter XII of this Manual, entitled "Private Right of Action and Individual Relief through Agency Action," the text notes that there was a split among the federal Circuits as to whether plaintiffs had a private right of action to enforce disparate impact regulations implementing section 602 of Title VI. The text further notes that the Supreme Court had granted certiorari in one of these cases, Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), and that the Court would "likely definitively decide the issue when it hears Sandoval."
In 2001, the Supreme Court decided the issue. In Alexander v. Sandoval, 532 U.S. 275 (2001), the Court held that there is no private right of action to enforce Title VI disparate impact regulations; that only the funding agency issuing the disparate impact regulation has the authority to challenge a recipient's actions under this theory of discrimination. The Court held that although Congress clearly intended to create a private cause of action to enforce section 601 of Title VI, id. at 279-280, 283, the question before the Court was whether Congress had also intended these particular regulations to be privately enforced. The Court noted that there were two types of regulations. Regulations that simply "apply," "construe," or "clarify" a statute can be privately enforced through the existing cause of action to enforce the statute because a "Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of a statute to be so enforced as well." Id. at 283-85. But regulations that go beyond the statute require a separate cause of action, even if those regulations were a valid exercise of Congress's grant of rulemaking authority. Id. at 285-86.
In applying this dichotomy, the Court relied on its uncontested holding in prior cases that section 601 prohibits only disparate treatment (i.e., intentional discrimination). Id. at 280. Since the Title VI regulations expanded the section 601 definition of discrimination to include effects, the disparate impact regulations could not be viewed merely as an interpretation or application of section 601. Id. at 285-86. Accordingly, the Court concluded that Congress would have had to create (either explicitly or implicitly) a separate private cause of action to enforce such regulations. Id. at 285-87. Assessing the text and structure of the statute, the Court concluded that Congress had intended only agency enforcement of disparate impact regulations and had not intended to create a private right of action to enforce those regulations that went beyond the statute. Id. at 290-93.
On October 26, 2001, the Assistant Attorney General for the Civil Rights Division issued a memorandum for "Heads of Departments and Agencies, General Counsels and Civil Rights Directors" that clarified and reaffirmed the vitality of the disparate impact regulations in light of Sandoval. The memorandum noted that although Sandoval foreclosed private judicial enforcement of Title VI disparate impact regulations, it did not undermine the validity of those regulations or otherwise limit the authority and responsibility of Federal grant agencies to enforce their own implementing regulations. Therefore, the agencies' disparate impact regulations continue to be a vital administrative enforcement mechanism.
TABLE OF CONTENTS
Table of Authorities
I. Overview: Interplay of
Title VI with Title IX, Section 504, the Fourteenth Amendment, and Title VII
II. Synopsis of Legislative
History and Purpose of Title VI
III. Title VI Applies to "Persons"
IV. "In the United States"
V. Federal Financial
Assistance Includes More Than Money
A. Examples of Federal Financial Assistance
B. Direct and Indirect
Receipt of Federal Assistance
C. Federal Action That Is Not
Federal Financial Assistance
VI. What is a Recipient?
B. Direct Relationship
C. Indirect Recipient
D. Transferees and Assignees
E. Primary/Subrecipient Programs
F. Contractor and Agent
G. Recipient v. Beneficiary
VII. "Program or Activity"
A. Initial Passage and Judicial Interpretations
B. Grove City College
C. Civil Rights Restoration Act
D. State and Local Governments
E. Educational Institutions
F. Corporations and Private Entities
G. Catch-All/Combinations of Entities
VIII. What Constitutes Discriminatory Conduct?
B. Disparate Impact/Effects
C. National Origin
Discrimination and Services in Languages Other than English
1. Presidential Reaffirmance
and Clarification of Lau Obligations
2. The Four Factor Analysis:
Reasonable Steps Toward Reasonable Measures
D. Environmental Justice
1. Executive Order 12898: The
Duty to Collect, Disseminate, and Think
2. EPA Guidance on Environmental Justice
3. An Analytical Approach and
Its Attendant Problems of Timing and Proof
IX. Employment Coverage
A. Scope of Coverage
B. Regulatory Referral of
Employment Complaints to the EEOC
X. Federal Funding Agency
Methods to Evaluate Compliance
A. Pre-Award Procedures
1. Assurances of Compliance
2. Deferral of the Decision
Whether to Grant Assistance
3. Pre-Award Authority of
Recipients vis-a-vis Subrecipients
4. Data Collection
5. Recommendations Concerning Pre-award Reviews
B. Post-Award Compliance Reviews
1. Selection of Targets and
Scope of Compliance Review
2. Procedures for Compliance Reviews
XI. Federal Funding Agency
Methods to Enforce Compliance
A. Efforts to Achieve Voluntary Compliance
1. Voluntary Compliance at the Pre-Award Stage
a. Special Conditions
b. Use of Cautionary Language
2. Other Nonlitigation Alternatives
B. "Any Other Means
Authorized by Law:" Judicial Enforcement
C. Fund Suspension and Termination
1. Fund Termination Hearings
2. Agency Fund Termination is
Limited to the Particular Political Entity, or Part Thereof, that Discriminated
XII. Private Right of Action
and Individual Relief through Agency Action
A. Entitlement to Damages for
B. Availability of Monetary
Damages in Other Circumstances
C. Recommendations for Agency Action
D. States Do Not Have
Eleventh Amendment Immunity Under Title VI
XIII. Department of Justice Role Under Title VI
This manual provides
an overview of the legal principles of Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §2000d, et seq. This document is intended to be an abstract
of the general principles and issues that concern Federal agency enforcement, and is not
intended to provide a complete, comprehensive directory of all cases or issues related to
Title VI. For example, this manual does not address all issues associated with private
enforcement. In addition, this manual has cited cases interpreting Title VI to the fullest
extent possible, although cases interpreting both Title IX and Section 504 also are
included. While statutory interpretation of these laws overlap, they are not fully
consistent, and this manual should not be considered to be an overview of any statute
other than Title VI.
It is intended that
this manual will be updated periodically to reflect significant changes in the law. In
addition, policy guidance or other memoranda distributed by the Civil Rights Division to
Federal agencies that modify or amplify principles discussed in the manual will be
referenced, as appropriate. Comments on this publication, and suggestions as to future
updates, including published and unpublished cases, may be addressed to:
Federal Coordination and Compliance Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW - NWB
Washington, D.C. 20530
Telephone and TDD
FAX (202) 307-0595
This manual is
intended only to provide guidance to Federal agencies and other interested entities, and
is not intended to, does not, and may not be relied upon to create any right or benefit,
substantive or procedural, enforceable at law by a party against the United States.
TABLE OF AUTHORITIES
Adams v. Richardson, 356 F. Supp. 92 (D.D.C.
Adarand Constructors, Inc. v. Peņa, 515 U.S.
Ahern v. Board of Educ., 133 F.3d 975 (7th
Alabama NAACP State Conference of Branches v. Wallace,
269 F. Supp. 346 (M.D. Ala. 1967)
Alexander v. Choate, 469 U.S. 287 (1985)
Arlington Heights v. Metropolitan Hous. Redevelopment
Corp., 429 U.S. 252 (1977).
Association Against Discrimination in Employment v.
City of Bridgeport, 647 F.2d 256 (2d Cir. 1981), cert. denied,
455 U.S. 988 (1982)
Ayers v. Allain, 674 F. Supp. 1523 (N.D. Miss.
Baldwin v. University of Texas Med. Branch at Galveston,
945 F. Supp. 1022 (S.D.Tex. 1996)
Balzac v. Puerto Rico, 258 U.S. 298 (1922)
Bass v. Board of County Comm'rs , 38 F. Supp. 2d
1001 (M.D. Fla. 1999)
Bentley v. Cleveland County Bd. of County Comm'rs,
41 F.3d 600 (10th Cir. 1994)
Board of Pub. Instruction v. Cohen, 413 F.2d
1201 (5th Cir. 1969)
Board of Pub. Instruction v. Finch, 414 F.2d
1068 (5th Cir. 1969)
Bob Jones Univ. v. Johnson, 396 F. Supp. 597 (D.
S.C. 1974), aff'd, 529 F.2d 514 (4th Cir.
Brantley v. Independent Sch. Dist. No. 625, St. Paul
Public Schools, 936 F. Supp. 649 (D. Minn. 1996)
Brown v. Board of Educ., 347 U.S. 483 (1954)
Bryant v. New Jersey Dep;t of Transp., 998 F.
Supp. 438 (D.N.J. 1998)
Caddo Parish Sch. Bd. v. United States, 389 U.S.
California Ass'n of the Physically Handicapped v. FCC,
840 F.2d 88 (D.C. Cir. 1988)
Cannon v. University of Chicago, 441 U.S. 677
Caulfield v. Board of Educ., 486 F. Supp. 862
Chevron U.S.A. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)
Chicago v. Lindley, 66 F.3d 819 (7th Cir. 1995)
City of Los Angeles, Dep't of Water and Power v.
Manhart, 435 U.S. 702 (1978)
Coalition of Bedford-Stuyvesant Block Ass'n. v. Cuomo,
651 F. Supp. 1202 (E.D.N.Y. 1987)
Community Television of S. Cal. v. Gottfried,
459 U.S. 498 (1983)
Consolidated Rail Corp. v. Darrone, 465 U.S. 624
Contractors Ass'n of E. Pa. v. Secretary of Labor,
442 F.2d 159 (3d. Cir. 1971), cert. denied., 404 U.S. 854 (1971)
Cooper v. Aaron, 358 U.S. 1 (1958)
Cuffley v. Mickes, 208 F.3d 702 (8th
Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999)
David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988)
Davis v. Halpern, 768 F. Supp. 968 (E.D.N.Y.
DeLeo v. City of Stamford, 919 F. Supp. 70 (D.
DeVargas v. Mason & Hanger-Silas Mason Co.,
911 F.2d 1377 (10th Cir. 1990)
Dekalb County Sch. Dist. v. Schrenko, 109 F.3d
680 (11th Cir. 1997)
Delmonte v. Department of Bus. Prof'l Regulation,
877 F. Supp. 1563 (S.D. Fla. 1995)
District of Columbia v. Carter, 409 U.S. 418
Doe v. District of Columbia, 796 F. Supp. 559
Downes v. Bidwell, 182 U.S. 244 (1901)
Elston v. Talladega County Bd. of Educ., 997
F.2d 1394 (11th Cir.), reh'g denied, 7
F.3d 242 (11th Cir. 1993)
First Ala. Bank of Montgomery, N.A., v. Donovan,
692 F.2d 714 (11th Cir. 1982)
Franklin v. Gwinett City Pub. Sch., 503 U.S. 60
Furnco Const. Corp. v. Waters, 438 U.S. 567
Gallagher v. Croghan Colonial Bank, 89 F.3d 275
(6th Cir. 1996)
Gardner v. Alabama, 385 F.2d 804 (5th Cir.
1967), cert. denied, 389 U.S. 1046 (1968).
Gautreaux v. Romney, 457 F.2d 124 (7th Cir.
Georgia State Conference of Branches of NAACP v.
Georgia, 775 F.2d 1403 (11th Cir. 1985)
Godby v. Montgomery County Bd. of Educ., 996 F.
Supp. 1390 (M.D.Ala. 1998).
Gomez v. Illinois State Bd. of Educ., 811 F.2d
1030 (7th Cir. 1987)
Graves v. Methodist Youth Servs., Inc., 624 F.
Supp. 429 (N.D. Ill. 1985)
Griggs v. Duke Power, 401 U.S. 424 (1971)
Grove City College v. Bell, 465 U.S. 555 (1984)
Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S.
Hamilton v. Illinois Ctr. R.R. Co., 894 F. Supp.
1014 (S.D. Miss. 1995)
Hans v. Louisiana, 134 U.S. 1 (1890)
Herman v. United Bhd. of Carpenters, 60 F.3d
1375 (9th Cir. 1995)
Hodges by Hodges v. Public Bldg. Comm'n of Chicago (I),
864 F. Supp. 1493 (N.D. Ill. 1994), reconsideration
denied, 873 F. Supp. 128 (N.D. Ill. 1995)
Horner v. Kentucky High School Athletic Ass'n,
43 F.3d 265 (6th Cir. 1994)
Huber v. Howard County, Md., 849 F. Supp. 407
(D. Md.1994), aff'd without opinion, 56
F.3d 61 (4th Cir. 1995), cert. denied, 516 U.S. 916
In re Naturalization of 68 Filipino War Veterans,
406 F. Supp. 931 (N.D. Cal. 1975)
Independent Hous. Servs. of San Francisco (IHS) v.
Fillmore Ctr. Assoc., 840 F. Supp. 1328 (N.D. Cal. 1993)
International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977)
Jacobson v. Delta Airlines, 742 F.2d 1202 (9th
Jersey Heights Neighborhood Ass'n v. Glendening,
174 F.3d 180 (4th Cir. 1999)
Knight v. Alabama, 787 F. Supp. 1030 (N.D. Ala.
1991), aff'd in part, rev'd in part, and vacated
in part, 14 F.3d 1534 (11th Cir. 1994)
Lane v. Peņa, 518 U.S. 187 (1996)
Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984)
Lau v. Nichols, 414 U.S. 563 (1974)
Leija v. Canutillo Indep. Sch. Dist., 887 F.
Supp. 947 (W.D. Tex. 1995), rev'd on other
grounds, 101 F.3d 393 (5th Cir. 1996)
Marable v. Alabama Mental Health Bd., 297 F.
Supp. 291 (M.D. Ala. 1969)
Marshall v. Barlow's Inc., 436 U.S. 307 (1978)
Mass v. Martin Marietta Corp., 805 F. Supp. 1530
(D. Colo. 1992)
Mathews v. Diaz, 426 U.S. 67 (1976)
McDonnell Douglas Corp. v. Green, 411 U.S. 792
Meek v. Martinez, 724 F. Supp. 888 (S.D.Fla.
Meyers by and through Meyers v. Board of Educ. of the
San Juan Sch. Dist., 905 F. Supp. 1544 (D. Utah 1995)
Moore v. Sun Bank, 923 F.2d 1423 (11th Cir.
Muller v. Hotsy Corp., 917 F. Supp. 1389 (N.D.
NCAA v. Smith, 525 U.S. 459 (1999)
New York City Envtl. Justice Alliance v. Giuliani,
214 F.3d 65 (2d Cir. 2000)
New York Urban League v. Metropolitan Transp. Auth.,
905 F. Supp. 1266 (S.D.N.Y. 1995), vacated on
other grounds, 71 F.3d 1031 (2d Cir. 1995)
New York Urban League v. New York, 71 F.3d 1031
(2d Cir. 1995)
North Haven v. Bell, 456 U.S. 512 (1982)
Pabon v. Levine, 70 F.R.D. 674 (S.D.N.Y. 1976)
Pandazides v. Virginia Bd. of Educ., 13 F.3d 823
(4th Cir. 1994)
Pennhurst State Sch. and Hosp. v. Halderman, 451
U.S. 1 (1981)
Plyler v. Doe, 457 U.S. 202 (1982)
Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999)
Rannels v. Hargrove, 731 F. Supp. 1214 (E.D. Pa.
Regents of the Univ. of Cal. v. Bakke, 438 U.S.
Reynolds v. School Dist. No. 1, Denver, Colo.,
69 F.3d 1523 (10th Cir. 1995)
Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642
(8th Cir. 1994)
Sandoval v. Hagan, 7 F. Supp. 2d 1234 (M.D. Ala.
Sandoval v. Hagan, 197 F.3d 484 (11th
Cir. 1999), cert. granted sub.
nom. Alexander v. Sandoval,
__ U.S. __, 121 S.Ct. 28, 68 U.S.L.W. 3749 (U.S. Sept. 26, 2000)
Schroeder v. City of Chicago, 927 F.2d 957 (7th
Seminole Tribe of Fla. v. Florida, 517 U.S. 44
Simkins v. Moses H. Cone Memorial Hosp., 323
F.2d 959 (5th Cir. 1963), cert. denied, 376 U.S. 938 (1964)
Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir.
1983), cert. denied, 466 U.S. 929 (1984)
Stanley v. Darlington County Sch. Dist., 84 F.3d
707 (4th Cir. 1995)
Steptoe v. Savings of America, 800 F. Supp. 1542
(N.D. Ohio 1992)
Thornton v. National R.R. Passenger Corp., 16
F.Supp. 2d 5 (D.D.C. 1998)
United States by Clark v. Frazer, 297 F. Supp.
319 (M.D. Ala. 1968)
United States Dep't of Transp. v. Paralyzed Veterans,
477 U.S. 597 (1986)
United States v. Alabama, 791 F.2d 1450 (11th
United States v. Baylor Univ. Med. Ctr., 736
F.2d 1039 (5th Cir. 1984), cert. denied,
469 U.S. 1189 (1985)
United States v. City and County of Denver, 927
F. Supp. 1396 (D. Colo. 1996)
United States v. City of Yonkers, 880 F. Supp.
212 (S.D.N.Y. 1995), vacated and remanded on
other grounds, 96 F.3d 600 (2d Cir.
United States v. Harris Methodist Fort Worth,
970 F.2d 94 (5th Cir. 1992)
United States v. Jefferson County Bd. of Educ.,
372 F.2d 836 (5th Cir. 1966)
United States v. Marion County Sch. Dist., 625
F.2d 607 (5th Cir.), reh'g denied, 629
F.2d 1350 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981)
United States v. Mississippi Power & Light Co.,
638 F.2d 899 (5th Cir. 1981)
United States v. New Orleans Pub. Serv., 723
F.2d 422 (5th Cir.) reh'g en banc denied, 734 F.2d 226 (5th Cir. 1984)
United States Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 715 (1982)
Villanueva v. Carere, 85 F.3d 481 (10th Cir.
W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995)
Williams v. City of Dothan, 745 F.2d 1406 (11th
Waldrop v. Southern Co. Servs., 24 F.3d 152
(11th Cir. 1994)
Washington Legal Found. v. Alexander, 984 F.2d
483 (D.C. Cir. 1993)
Women's Equity Action League v. Cavazos, 906
F.2d 742 (D.C. Cir. 1990)
Young by and through Young v. Montgomery County (Ala.)
Bd. of Educ., 922 F. Supp. 544 (M.D. Ala. 1996)
Campaign for Fiscal Equity, Inc. v. State, 86
N.Y.2d 307, 655 N.E.2d 1178 (N.Y. Ct. App. Jun 15, 1995)
U.S. Const. amend.
5 U.S.C. § 571
5 U.S.C. § 3372
20 U.S.C. §
20 U.S.C. §
20 U.S.C. § 1681
29 U.S.C. § 794
42 U.S.C. § 2000d
42 U.S.C. § 6101
42 U.S.C. § 12131
3 C.F.R. § 859
5 C.F.R. §
15 C.F.R. §
24 C.F.R. § 1.2(d)
24 C.F.R. § 1.8(d)
28 C.F.R. § 42
28 C.F.R. § 50.3
29 C.F.R. § 31.8(a)
29 C.F.R. § 31.8(c)
29 C.F.R. §§
1691.1 - 1691.13
32 C.F.R. § 195.6
32 C.F.R. § 195.8
34 C.F.R. §
34 C.F.R. § 100.8
38 C.F.R. §
45 C.F.R. § 80.8(a)
45 C.F.R. § 80.8(c)
49 C.F.R. §
48 Fed. Reg. 3570
59 Fed. Reg. 7629
65 Fed. Reg. 26464
65 Fed. Reg. 50121
65 Fed. Reg. 50123
Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003, 100 Stat. 1845 (1986)
Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988)
6 Op. Off. Legal
Counsel 83 (1982)
Exec. Order No.
9981, 3 C.F.R. 722 (1943-1948)
Exec. Order No.
10479, 3 C.F.R. 61 (1949-1953), as amended by Exec. Order No. 10482, 3 C.F.R. 968
Exec. Order No.
11063, 3 C.F.R. 652-656 (1959-1963) , as amended by Exec. Order No. 12259, 3 C.F.R. 307
Exec. Order No.
11197, 3 C.F.R. 1964-1965 Comp. 278.
Exec. Order No.
Exec. Order No.
11247, 3 C.F.R. 1964-1965 Comp. 348
Exec. Order No.
11764, 3A C.F.R. § 124 (1974 Comp.)
Exec. Order No.
12250, 28 C.F.R. Pt. 41, App. A
Exec. Order No.
Exec. Order No.
Exec. Order No.
Environmental Justice for the Heads of All Departments and Agencies, 30 Weekly Comp. Pres.
Doc. 279 (Feb. 11, 1994)
Interplay of Title VI with Title IX, Section 504, the Fourteenth Amendment, and Title VII
Title VI prohibits
discrimination on the basis of race, color, or national origin in programs and activities
receiving Federal financial assistance. Specifically, Title VI provides that
[n]o person in the
United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d.
Title VI is the model for several subsequent statutes that prohibit discrimination on
other grounds in federally assisted programs or activities, including Title IX
(discrimination in education programs prohibited on the basis of sex) and Section 504
(discrimination prohibited on the basis of disability). See United
States Dep't. of Transp. v. Paralyzed Veterans, 477 U.S. 597, 600 n.4 (1986); Grove City College v. Bell, 465 U.S. 555, 566
(1984) (Title IX was patterned after Title VI); Consolidated
Rail Corp. v. Darrone, 465 U.S. 624 (1984) (Section 504 patterned after Titles VI
and IX). (1) Accordingly, courts have "relied on case
law interpreting Title VI as generally applicable to later statutes," Paralyzed Veterans, 477 U.S. at 600 n.4.
It is important to
note, however, that not all issues are treated identically in the three statutes. For
example, Title VI statutorily restricts claims of employment discrimination to instances
where the "primary objective" of the financial assistance is to provide
employment. 42 U.S.C. § 2000d-3. No such restriction applies to Title IX or Section
504. See North Haven v. Bell, 456 U.S. 512, 529-30 (1982)
("The meaning and applicability of Title VI are useful guides in construing Title IX,
therefore, only to the extent that the language and history of Title IX do not suggest a
contrary interpretation."); Bentley v.
Cleveland County Bd. of County Comm'rs, 41 F.3d 600 (10th Cir. 1994)
(Section 504 claim alleging discriminatory termination of former employee).
Apart from the
provisions common to Title VI, Title IX, and Section 504, courts also have held that Title
VI adopts or follows the Fourteenth Amendment's standard of proof for intentional
discrimination, and Title VII's standard of proof for disparate impact. See Elston
v. Talladega County Bd. of Educ., 997 F.2d 1394, 1405 n.11, 1407 n.14 (11th Cir.), reh'g denied, 7 F.3d 242 (11th Cir. 1993); (see Chapter VIII). Accordingly, cases under
these constitutional and statutory provisions may shed light on an analysis concerning the
applicability of Title VI to a given situation.
II. Synopsis of
Legislative History and Purpose of Title VI
The landmark Civil
Rights Act of 1964 was a product of the growing demand during the early 1960s for the
Federal Government to launch a nationwide offensive against racial discrimination. In
calling for its enactment, President John F. Kennedy identified "simple justice"
as the justification for Title VI:
requires that public funds, to which all taxpayers of all races contribute, not be spent
in any fashion which encourages, entrenches, subsidizes, or results in racial
discrimination. Direct discrimination by Federal, State, or local governments is
prohibited by the Constitution. But indirect discrimination, through the use of Federal
funds, is just as invidious; and it should not be necessary to resort to the courts to
prevent each individual violation.
See H.R. Misc. Doc. No. 124, 88th Cong., 1st
Sess. 3, 12 (1963).
Title VI was not the
first attempt to ensure that Federal monies not be used to finance discrimination on the
basis of race, color, or national origin. For example, various prior Executive Orders
prohibited racial discrimination in the armed forces, in employment by federally funded
construction contractors, and in federally assisted housing. (2)
Various Federal court decisions also served to eliminate discrimination in individual
federally assisted programs. (3)
the need for a statutory nondiscrimination provision such as Title VI to apply
across-the-board "to make sure that the funds of the United States are not used to
support racial discrimination." 110 Cong. Rec. 6544 (Statement of Sen. Humphrey).
Senator Humphrey, the Senate manager of H.R. 7152, which became the Civil Rights Act of
1964, identified several reasons for the enactment of Title VI. Id. First, several Federal financial assistance
statutes, enacted prior to Brown v. Board of
Education, 347 U.S. 483 (1954), expressly provided for Federal grants to racially
segregated institutions under the "separate but equal" doctrine that was
overturned by Brown. Although the validity
of these programs was doubtful after Brown,
this decision did not automatically invalidate these statutory provisions. Second, Title
VI would eliminate any doubts that some Federal agencies may have had about their
authority to prohibit discrimination in their programs.
Third, through Title
VI, Congress would "insure the uniformity and permanence to the nondiscrimination
policy" in all programs and activities involving Federal financial assistance. Id. Thus, Title VI would eliminate the need for
Congress to debate nondiscrimination amendments in each new piece of legislation
authorizing Federal financial assistance. (4) As stated by
Title VI enables the
Congress to consider the overall issue of racial discrimination separately from the issue
of the desirability of particular Federal assistance programs. Its enactment would avoid
for the future the occasion for further legislative maneuvers like the so-called Powell
110 Cong. Rec. 2468
supporters of Title VI considered it an efficient alternative to litigation. It was
uncertain whether the courts consistently would declare that government funding to
recipients that engaged in discriminatory practices was unconstitutional. Prior court
decisions had demonstrated that litigation involving private discrimination would proceed
slowly, and the adoption of Title VI was seen as an alternative to such an arduous route. See 110 Cong. Rec. 7054 (1964) (Statement by
various remedial efforts, racial discrimination continued to be widely subsidized by
Federal funds. For example, Senator Pastore addressed how North Carolina hospitals
received substantial Federal monies for construction, that such hospitals discriminated
against blacks as patients and as medical staff, and that, in the absence of legislation,
judicial action was the only means to end these discriminatory practices.
That is why we need
Title VI of the Civil Rights Act, H.R. 7152 - to prevent such discrimination where Federal
funds are involved. . . . Title VI is sound; it is morally right; it is legally right; it
is constitutionally right. . . . What will it accomplish? It will guarantee that the money
collected by colorblind tax collectors will be distributed by Federal and State
administrators who are equally colorblind. Let me say it again: The title has a simple
purpose - to eliminate discrimination in Federally financed programs.
Johnson signed the Civil Rights Act of 1964 into law on July 2, 1964, after more than a
year of hearings, analyses, and debate. During the course of congressional consideration,
Title VI was one of the most debated provisions of the Act.
III. Title VI Applies to "Persons"
Title VI states
"no person" shall be discriminated against on the basis of race, color, or
national origin. While the courts have not addressed the scope of "person" as
that term is used in Title VI, the Supreme Court has addressed this term in the context of
challenges brought under the Fifth and Fourteenth Amendments. See, e.g.,
Plyler v. Doe, 457 U.S. 202 (1982); Mathews v. Diaz, 426 U.S. 67 (1976). The Supreme
Court has held that undocumented aliens are considered "persons" under the equal
protection and due process clauses of the Fifth and Fourteenth Amendments. Plyler, 457 U.S. at 210-211; Mathews, 426 U.S. at 77. Since rights protected
by Title VI, at a minimum, are analogous to such protections under the Fifth and
Fourteenth Amendments, these cases provide persuasive authority as to the scope of
"persons" protected by Title VI. See
Guardians Ass'n. v. Civil Serv. Comm'n,
463 U.S. 582 (1983); Regents of the Univ. of Cal.
v Bakke, 438 U.S. 265 (1978). (6) Thus, one may
assume that Title VI protections are not limited to citizens.
Related to the scope
of coverage of Title VI is the issue of standing to challenge program operations as a
violation of Title VI. Individuals may bring a cause of action under Title VI if they are
excluded from participation in, denied the benefits of, or subjected to discrimination
under, any Federal assistance program. See
Coalition of Bedford-Stuyvesant Block Ass'n, v.
Cuomo, 651 F. Supp. 1202, 1209 n.2 (E.D.N.Y. 1987); Bryant v. New Jersey Dep't of Transp., 998
F.Supp. 438 (D.N.J. 1998). At least two courts of appeal have ruled that
a city or other instrumentality of a State does not have standing to bring suit against
the State under Title VI. In United States v.
Alabama, 791 F.2d 1450 (11th Cir. 1986), the United States, later joined
by intervenors, Alabama State University (ASU), a majority-black institution, along with
faculty, staff, students, and graduates of ASU, filed suit against the state of Alabama,
state educational authorities, and all state four-year institutions of higher education,
claiming that Alabama operates a dual system of segregated higher education. Based on its
review of Title VI and its legislative history, the court concluded that neither the
statute nor the legislative history of Title VI provided for a state instrumentality to be
considered "a person" protected by Title VI, and the court "decline[d] to
infer such a right of action by judicial fiat." Id. at 1456-57. The court further stated there
are other avenues of recourse to remedy Title VI violations, including a private right of
action for individuals under Title VI and Title VI's comprehensive scheme of
administrative enforcement. (7) Id. at 1456, (citing Cannon v. University of Chicago, 441 U.S. 677,
696-97 (1978)). See also Dekalb
County Sch. Dist. v. Schrenko, 109 F.3d 680, 689 (11th Cir. 1997)
(concluding that a political subdivision created by the state has no standing to bring a
Title VI claim against the state); Stanley v.
Darlington County Sch. Dist., 84 F.3d 707, 717 n.2 (4th Cir. 1995)
(finding no authorization under Title VI for a political subdivision to sue the state).
IV. "In the United States"
Title VI states that
no person "in the United States" shall be discriminated against on the basis of
race, color, or national origin by an entity receiving Federal financial assistance.
Agency Title VI regulations define "recipients" or "United States" to
encompass, inter alia, territories and possessions. (8) No court has addressed the scope of "United
States" or the validity of the regulations including territories and possessions,
although we believe such regulations are valid. Cases interpreting the Fifth and
Fourteenth Amendments again provide guidance in this analysis.
Amendment only prohibits violations by the States, and does not encompass the territories.
District of Columbia v. Carter, 409 U.S.
418, 424 (1973) (Territories are not "States" and are not subject to the
Fourteenth Amendment). The Fifth Amendment equal protection guarantees, however, do apply
to the territories. In re Naturalization of 68
Filipino War Veterans, 406 F. Supp. 931, 940-41 (N.D. Cal. 1975), citing Balzac v. Puerto Rico, 258 U.S. 298, 312-13
(1922) (Fifth Amendment applies to territories); Downes
v. Bidwell, 182 U.S. 244, 282-83 (1901) (same). Thus, all areas under the
sovereignty of the United States fall within the combined jurisdiction of the Fifth and
Fourteenth Amendments. Accordingly, since Title VI is at least coextensive with the Fifth
and Fourteenth Amendments (for purposes of intentional violations), to construe Title VI
to apply to the States yet not to the territories would be inconsistent with its
constitutional underpinnings, as well as congressional intent that Title VI be interpreted
broadly to effectuate its purpose. See 110
Cong. Rec. 6544 (Statement of Sen. Humphrey); S. Rep. No. 64, 100th Cong., 2d Sess. 4-5
(1988), reprinted in 1988 U.S.C.C.A.N. 3,
Financial Assistance Includes More Than Money
Title VI states that
no program or activity receiving "Federal financial assistance" shall
discriminate against individuals based on their race, color, or national origin. The
clearest example of Federal financial assistance is the award or grant of money. Federal
financial assistance, however, also may be in nonmonetary form. See United
States Dep't of Transp. v. Paralyzed Veterans, 477 U.S. 597, 607 n.11 (1986). As
discussed below, Federal financial assistance may include the use or rent of Federal land
or property at below market value, Federal training, a loan of Federal personnel,
subsidies, and other arrangements with the intention of providing assistance. Federal
financial assistance does not encompass contracts of guarantee or insurance, regulated
programs, licenses, procurement contracts by the Federal government at market value, or
programs that provide direct benefits. It is also important to remember that not only must
a program receive Federal financial assistance to be subject to Title VI, but the entity
also must receive Federal assistance at the time of the alleged discriminatory act(s). See Huber
v. Howard County, Md., 849 F. Supp. 407, 415 (D. Md.1994) (Motion to dismiss claim
of discriminatory employment practices under § 504 denied as defendant received
Federal assistance during the time of probationary employment and discharge.), aff'd without opinion, 56 F.3d 61 (4th Cir.
1995), cert. denied, 516 U.S. 916 (1995); see also Delmonte v. Department of Bus. Prof'l Regulation,
877 F. Supp. 1563 (S.D. Fla. 1995). (9)
A. Examples of
Federal Financial Assistance
use similar, if not identical, language to define Federal financial assistance:
(1) Grants and loans
of Federal funds,
(2) The grant or
donation of Federal property and interests in property,
(3) The detail of
(4) The sale and
lease of, and the permission to use (on other than a casual or transient basis), Federal
property or any interest in such property without consideration or at a nominal
consideration, or at a consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such sale or lease to
the recipient, and
(5) Any Federal
agreement, arrangement, or other contract which has as one of its purposes the provision
28 C.F.R. §
42.102(c). (10) No extended discussion is necessary to
show that money, through Federal grants, cooperative agreements and loans, is Federal
financial assistance within the meaning of Title VI. See Paralyzed
Veterans, 477 U.S. at 607. For example:
- A State health
department receives $372,000 in Federal funds from the Department of Health and Human
Services to be distributed to private hospitals for emergency room services. The funds
constitute Federal financial assistance to the State health department as well as the
private hospitals that are funded, and thus Title VI would apply to all of these entities.
See 42 U.S.C. §§ 2000d-4a(1)(a),
- White patients are
treated more expeditiously than minority patients at the emergency room of HealWell
Hospital, even though the minority patients' medical needs are similar. HealWell receives
Medicare funds through its patients. Partial payments by Medicare funds constitute Federal
financial assistance to HealWell. See United States v. Baylor Univ. Med. Ctr., 736
F.2d 1039 (5th Cir. 1984), cert. denied,
469 U.S. 1189 (1985).
- United States
military veterans are enrolled at Holy University, a private, religious university. The
veterans receive payments from the Federal government for educational pursuits and such
monies are used by the veterans to pay a portion of their respective tuition payments at
Holy University. Although Federal payments are direct to the veterans and indirect to Holy
University, the university is receiving Federal financial assistance. See Grove
City College v. Bell, 465 U.S. 555 (1984).
As set forth in the
regulations, Federal financial assistance may be in the form of a grant or donation of
land or use (rental) of Federal property for the recipient at no or reduced cost. Since
the recipient pays nothing or a lower amount for ownership of land or rental of property,
the recipient is being assisted financially by the Federal agency. Typically, assurances
state that this type of assistance is considered to be ongoing for as long as the land or
property is being used for the original or a similar purpose for which such assistance was
intended. E.g., 28 C.F.R. § 42.105.
Moreover, regulations bind the
successors and transferees of this property, as long as the original purpose, or a similar
objective, is pursued. Id. Thus, if the recipient uses the land or rents property
for the same purpose at the time of the alleged discriminatory act, the recipient is
receiving Federal financial assistance, irrespective of when the land was granted or
- Sixteen years ago,
the Department of Defense (DOD) donated land from a closed military base to a State as the
location for a new prison. Currently, the prison has been built and houses 130 inmates.
Black and Hispanic inmates complain that they tend to be in long-term segregation more
often than white inmates, and allege racial discrimination by the prison administrators.
Because the State still uses the land donated to it by the DOD for its original (or
similar purpose), the State is still receiving Federal financial assistance. See 32 C.F.R. § 195.6.
- A police department
has a branch office located in a housing project built, subsidized, and operated with
Housing and Urban Development (HUD) funds. The police department is not charged rent.
Thus, the police department is receiving Federal financial assistance and is subject to
Intergovernmental Personnel Act of 1970, Federal agencies may allow a temporary assignment
of personnel to State, local, and Indian tribal governments, institutions of higher
education, Federally funded research and development centers, and certain other
organizations for work of mutual concern and benefit. See 5 U.S.C. § 3372. This detail of
Federal personnel to a State or other entity is considered Federal financial assistance,
even if the entity reimburses the Federal agency for some of the detailed employee's
Federal salary. See Paralyzed Veterans, 477 U.S. at 612 n.14.
However, if the State or other entity fully reimburses the Federal agency for the
employee's salary, it is unlikely that the entity receives Federal financial assistance.
- Two research
scientists from the National Institute of Health (NIH) are detailed to a research
organization for two years to help research treatments for cancer. NIH pays for
three-fourths of the salary of the two detailed employees, while the organization pays the
remaining portion. The research organization is considered to be receiving Federal
financial assistance since the Federal government is paying a substantial portion of the
salary of the detailed Federal employees. The research organization is thus now subject to
Another common form
of Federal financial assistance provided by many agencies is training by Federal
personnel. For example:
- A city police
department sends several police officers to training at the FBI Academy at Quantico
without cost to the city. The police department is considered to have received Federal
financial assistance. See Delmonte v. Department of Bus. & Prof'l Regulation,
877 F. Supp. 1563 (S.D. Fla. 1995).
B. Direct and Indirect Receipt of Federal Assistance
assistance may be received directly or indirectly. (12)
For example, colleges indirectly receive Federal financial assistance when they accept
students who pay, in part, with Federal financial aid directly distributed to the
students. Grove City College v. Bell, 465
U.S. 555, 564 (1984) (13); see also Bob Jones Univ. v. Johnson, 396 F. Supp. 597,
603 (D.S.C. 1974), aff'd, 529 F.2d 514
(4th Cir. 1975). In Bob Jones Univ., the
university was deemed to have received Federal financial assistance for participating in a
program wherein veterans received monies directly from the Veterans Administration to
support approved educational pursuits, although the veterans were not required to use the
specific Federal monies to pay the schools for tuition and expenses. 396 F. Supp. at
602-03 & n.22. Even if the financial aid to the veterans did not reach the university,
the court considered this financial assistance to the school since this released the
school's funds for other purposes. Id. at
602. Thus, an entity may be deemed to have "received Federal financial
assistance" even if the entity did not show a "financial gain, in the sense of a
net increment in its assets." Id. at
602-03. Aid such as this, and noncapital grants, are equally Federal financial assistance.
C. Federal Action That Is Not Federal Financial Assistance
To simply assert
that an entity receives something of value in nonmonetary form from the Federal
government's presence or operations, however, does not mean that such benefit is Federal
financial assistance. For example, licenses impart a benefit since they entitle the
licensee to engage in a particular activity, and they can be quite valuable. Licenses,
however, are not Federal financial assistance. Community
Television of S. Cal. v. Gottfried, 459 U.S. 498, 509 (1983) (The Federal
Communications Commission is not a funding agency and television broadcasting licenses do
not constitute Federal financial assistance); California
Ass'n. of the Physically Handicapped v. FCC, 840 F.2d 88, 92-93 (D.C. Cir. 1988)
(same); see Herman v. United Bhd. of Carpenters, 60 F.3d
1375, 1381-82 (9th Cir. 1995) (Certification of union by the National Labor Relations
Board is akin to a license, and not Federal financial assistance under § 504.).
programs or regulations that directly or indirectly support, or establish guidelines for,
an entity's operations are not Federal financial assistance. Herman, 60 F.3d at 1382 (Neither Labor
regulations establishing apprenticeship programs nor Davis-Bacon Act wage protections are
Federal financial assistance.); Steptoe v.
Savings of America, 800 F. Supp. 1542, 1548 (N.D. Ohio 1992) (Mortgage lender
subject to Federal banking laws does not receive Federal financial assistance.); Rannels v. Hargrove, 731 F. Supp. 1214, 1222-23
(E.D. Pa. 1990) (Federal bank regulations are not Federal financial assistance under the
Age Discrimination Act).
programs "owned and operated" by the Federal government, such as the air traffic
control system, do not constitute Federal financial assistance. Paralyzed Veterans, 477 U.S. at 612; Jacobson v. Delta Airlines, 742 F.2d 1202, 1213
(9th Cir. 1984) (air traffic control and national weather service programs do not
constitute Federal financial assistance). (14)
It also should be
noted that, while contracts of guaranty and insurance may constitute Federal financial
assistance, Title VI specifically states that it does not apply to "Federal financial
assistance...extended by way of a contract of insurance or guaranty." 42 U.S.C. §
2000d-4; see Gallagher v. Croghan Colonial Bank, 89 F.3d 275,
277 (6th Cir. 1996) (Default insurance for bank's disbursement of Federal student loans is
a "contract of insurance," and excluded from Section 504 coverage by agency
regulations). But see Moore
v. Sun Bank, 923 F.2d 1423, 1427 (11th Cir. 1991) (loans guaranteed by the Small
Business Administration constituted Federal financial assistance since Section 504 does
not exclude contracts of insurance or guaranty from coverage as does Title VI).
contracts also are not considered Federal financial assistance. (15)
DeVargas v. Mason & Hanger-Silas Mason Co.,
911 F.2d 1377 (10th Cir. 1990); Jacobson,
742 F.2d at 1209; Muller v. Hotsy Corp.,
917 F. Supp. 1389, 1418 (N.D. Iowa 1996) (procurement contract by company with GSA to
provide supplies is not Federal financial assistance); Hamilton v. Illinois Cent. R.R. Co., 894 F.
Supp. 1014, 1020 (S.D. Miss. 1995). A distinction must be made between procurement
contracts at fair market value and subsidies; the former is not Federal financial
assistance although the latter is. Jacobson,
742 F.2d at 1209; Mass v. Martin Marietta Corp.,
805 F. Supp. 1530, 1542 (D. Co. 1992) (Federal payments for goods pursuant to a contract,
even if greater than fair market value, do not constitute Federal financial assistance).
As described in Jacobson and followed in DeVargas, there need not be a detailed analysis
of whether a contract is at fair market value, but instead a focus on whether the
government intended to provide a subsidy to the contractor. DeVargas, 911 F.2d at 1382-83; Jacobson, 742 F.2d at 1210. In DeVargas, a Department of Energy contract,
issued through a competitive bidding process after a determination that a private entity
could provide the service in a less costly manner, evidenced no intention to provide a
subsidy to the contractor. Id. at 1382-83.
- DOD contracts with
SpaceElec, a private aerospace company, to develop and manufacture parts for the space
shuttle. Under the contract, full price is paid by the DOD for the goods and services to
be provided by SpaceElec. Because this is a direct procurement contract by the Federal
government, the funds paid to SpaceElec by the DOD do not subject SpaceElec to Title VI.
Finally, Title VI
does not apply to direct, unconditional assistance to ultimate beneficiaries, the intended
class of private citizens receiving Federal aid. For example, social security payments and
veterans' pensions are not Federal financial assistance. Soberal-Perez v. Heckler, 717 F.2d 36, 40 (2d
Cir. 1983), cert. denied, 466 U.S. 929 (1984); Bob Jones Univ., 396 F. Supp. at 602, n.16. (16) Members of Congress, responding to criticisms about the
scope of Title VI, repeatedly explained during the congressional hearings in 1964 that
Title VI does not apply to direct benefit programs:
The title does not
provide for action against individuals receiving funds under federally assisted programs
-- for example, widows, children of veterans, homeowners, farmers, or elderly persons
living on social security benefits.
110 Cong. Rec. 15866
(1964) (Statement of Senator Humphrey); see
100 Cong. Rec. 6544 (1963) (Statement of Senator Humphrey). See also
110 Cong. Rec. 1542 (1964) (Statement of Rep. Lindsay); 110 Cong. Rec. 13700 (1964)
(Statement of Sen. Javits).
VI. What is a Recipient?
"recipient" receives Federal financial assistance and/or operates a
"program or activity," and therefore its conduct is subject to Title VI. All
agency Title VI regulations use a similar if not identical definition of
"recipient," as follows:
The term recipient
means any State, political subdivision of any State, or instrumentality of any State or
political subdivision, any public or private agency, institution, or organization, or
other entity, or any individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program, including any successor,
assign, or transferee thereof, but such term does not include any ultimate beneficiary
under any such program.
The term primary
recipient means any recipient which is authorized or required to extend Federal
financial assistance to another recipient for the purpose of carrying out a program.
§ 42.102(f), (g) (emphasis in original).
Several aspects of
the plain language of the regulations should be noted. First, a recipient may be a public
(e.g., a State, local or municipal agency)
or a private entity. Second, Title VI does not apply to the Federal government. Therefore,
a Federal agency cannot be considered a "recipient" within the meaning of Title
VI. Third, there may be more than one recipient in a program; that is, a primary recipient
(e.g., State agency) that transfers or
distributes assistance to a subrecipient (local entity) for distribution to an ultimate
beneficiary. (17) Fourth, a recipient also encompasses a
successor, transferee, or assignee of the Federal assistance (property or otherwise),
under certain circumstances. Fifth, as discussed in detail below, there is a distinction
between a recipient and a beneficiary. Finally, although not addressed in the regulations,
a recipient may receive Federal assistance either directly from the Federal government or
indirectly through a third party, who is not necessarily another recipient. For example,
schools are indirect recipients when they accept payments from students who directly
receive Federal financial aid.
The clearest means
of identifying a "recipient" of Federal financial assistance is to determine
whether the entity has voluntarily entered into a relationship with the Federal government
and receives Federal assistance under a condition or assurance of compliance with Title VI
(and/or other nondiscrimination obligations). Paralyzed
Veterans, 477 U.S. at 605-06.
By limiting coverage
to recipients, Congress imposes the obligations of § 504 [and Title VI] upon those who
are in a position to accept or reject those obligations as part of the decision whether or
not to "receive" federal funds.
Id. at 606; see also Soberal-Perez, 717 F.2d at 41. It is important
to note that by signing an assurance, the recipient is committing itself to complying with
the nondiscrimination mandates. Even without a written assurance, courts describe
obligations under nondiscrimination laws as similar to a contract, and have thus concluded
that "the recipients' acceptance of the funds triggers coverage under the
nondiscrimination provision." Paralyzed
Veterans, 477 U.S. at 605. In this scenario, the recipient has a direct
relationship with the funding agency and, therefore, is subject to the requirements of
Title VI. For example:
- Airport operators are
recipients of Federal financial assistance pursuant to a statutory program providing funds
for airport construction and capital development. Id.
- Hall City Police
Department (HCPD) received a grant from the U. S. Department of Justice for community
outreach programs. HCPD is considered to be a recipient of Federal financial assistance.
- Six years ago,
LegalSkool, a law school at a university, was built partly with Federal grants, loans, and
interest subsidies in excess of $7 million from the Department of Education (ED). The law
school is a "recipient" because of the funding from ED for construction
While showing that
the entity directly receives a Federal grant, loan, or contract, (other than a contract of
insurance or guaranty) is the easiest means of identifying a Title VI recipient, this
direct cash flow does not describe the full reach of Title VI. (18)
A recipient may
receive funds either directly or indirectly. Grove
City, 465 U.S. at 564-65. (19) For example,
educational institutions receive Federal financial assistance indirectly when they accept
students who pay, in part, with Federal loans. Although the money is paid directly to the
students, the universities and other educational institutions are the indirect recipients.
Id.; Bob Jones Univ., 396 F. Supp. at 602.
In Grove City, the Supreme Court found that there
was no basis to create a distinction not made by Congress regarding funding paid directly
to or received indirectly by a recipient. 465 U.S. at 564-65. In reaching its conclusion,
the Court considered the congressional intent and legislative history of the statute in
question to identify the intended recipient. The Court found that the 1972 Education
Amendments, of which Title IX is a part, are "replete with statements evincing
Congress' awareness that the student assistance programs established by the Amendments
would significantly aid colleges and universities. In fact, one of the stated purposes of
the student aid provisions was to 'provid[e] assistance to institutions of higher
education.' Pub. L. 92-318, § 1001(c)(1), 86 Stat. 831, 20 U.S.C. § 1070(a)(5) " Id. at 565-66. Finally, the Court distinguished
student aid programs that are "designed to assist" educational institutions and
that allow such institutions an option to participate in, or exclude themselves from,
other general welfare programs where individuals, including students, are free to spend
the payments without limitation. Id. at
In contrast, as
subsequently explained by the Supreme Court in Paralyzed
Veterans, it is essential to distinguish aid that flows indirectly to a recipient
from aid to a recipient that reaches a beneficiary.
While Grove City stands for the proposition that Title
IX coverage extends to Congress' intended recipient, whether receiving the aid directly or
indirectly, it does not stand for the proposition that federal coverage follows the aid
past the recipient to those who merely benefit from the aid.
Paralyzed Veterans, 477 U.S. at 607 (citing Grove city, 465 U.S. at 564).
Along these lines,
the Supreme Court in NCAA v. Smith, 525
U.S. 459, 470 (1999), citing both Grove City
and Paralyzed Veterans, stated that while
dues paid to an entity (NCAA) by colleges and universities, who were recipients of federal
financial assistance, "at most ... demonstrates that it [NCAA] indirectly benefits
from the federal assistance afforded its afforded members." But the Court stated,
"This showing, without more, is insufficient to trigger Title IX coverage. Id. at
regulations and assurances often include specific statements on the application of Title
VI to successors, transferees, assignees, and contractors. For example, the Department of
Justice's regulations state:
In the case
where Federal financial assistance is to provide or is in the form of personal property,
or real property or interest therein or structures thereon, such assurance shall obligate
the recipient, or in the case of a subsequent transfer, the transferee, for the period during which the
property is used for a purpose for which the Federal financial assistance is extended or
for another purpose involving the provision of similar services or benefits . . . . The
responsible Department official shall specify the form of the foregoing assurances for
each program, and the extent to which the assurances will be required of subgrantees,
contractors, and subcontractors, transferees, successors in interest, and other
participants in the program.
§ 42.105(a)(1) (emphasis added).
land that originally was acquired through a program receiving Federal financial assistance
shall include a covenant binding on subsequent purchasers or transferees that requires
nondiscrimination for as long as the land is used for the original or a similar purpose
for which the Federal assistance is extended. 28 C.F.R. § 42.105(a)(2). (21)
have two recipients. The primary recipient directly receives the Federal financial
assistance. The primary recipient then distributes the Federal assistance to a
subrecipient to carry out a program. See, e.g., 28 C.F.R. § 42.102(g). Both the
primary recipient and subrecipient are covered by and must conform their actions to Title
VI. For example:
- A State agency,
such as the Department of Children and Family Services, receives a substantial portion of
its funding from the Federal government. The State agency, as the primary recipient or
conduit, in turn, funds local social service organizations, in part, with its Federal
funds. The local agencies receive Federal financial assistance, and thus are subject to
Section 504 (and Title VI, and other nondiscrimination laws). See Graves
v. Methodist Youth Servs., Inc., 624 F. Supp. 429 (N.D. Ill. 1985).
- Under the Older
Americans Act, funds are given by the Department of Health and Human Services to State
agencies which, in turn, distribute funds according to funding formulas to local agencies
operating programs for elderly Americans. Title VI applies to the programs and activities
of the State agencies because of each agency's status as a direct conduit recipient
passing Federal funds on to subrecipients. Title VI also applies to the local agencies as
subrecipients of Federal financial assistance. See
Chicago v. Lindley, 66 F.3d 819 (7th Cir.
A recipient may
not absolve itself of its Title VI obligations by hiring a contractor or agent to perform
or deliver assistance to beneficiaries. Agency regulations consistently state that
prohibitions against discriminatory conduct, whether intentional or through race neutral
means with a disparate impact, apply to a recipient, whether committed "directly or through contractual or other arrangements."
E.g., 28 C.F.R. §§ 42.104(b)(1), (2)
(emphasis added). For example:
- A recipient
public housing authority contracts with a residential management company for the
management and oversight of a public housing authority. Employees of the contractor reject
prospective tenants based on their race, color, or national origin. The recipient is
liable under Title VI for the contractor's actions as the contractor is performing a
program function of the recipient.
One also should
evaluate the agency's assurances or certifications; such documents can provide an
independent basis to seek enforcement. For example, the assurance for the Office of
Justice Programs, within the Department of Justice, states, inter alia,
Applicant] will comply, and all its contractors
will comply, with the nondiscrimination requirements of the [Safe Streets Act,
Title VI, Section 504, Title IX . . . .] (emphasis added).
analyzing whether an entity is a recipient, it is necessary to distinguish a recipient
from a beneficiary; the former is covered by Title VI while the latter is not. (23) Paralyzed
Veterans, 477 U.S. at 606-07. An assistance program may have many beneficiaries,
that is, individuals and/or entities that directly or indirectly receive an advantage
through the operation of a Federal program. Beneficiaries, however, do not enter into any
formal contract or agreement with the Federal government where compliance with Title VI is
a condition of receiving the assistance. (24) Id.
In almost any
major federal program, Congress may intend to benefit a large class of persons, yet it may
do so by funding - that is, extending federal financial assistance to - a limited class of
recipients. Section 504, like Title IX in Grove
City [465 U.S. 555 (1984)], draws the line of federal regulatory coverage between
the recipient and the beneficiary.
Id. at 609-10. Title VI was meant to cover only
those situations where Federal funding is given to a non-Federal entity which, in turn,
provides financial assistance to the ultimate beneficiary, or disburses Federal assistance
to another recipient for ultimate distribution to a beneficiary. It is important to note
that the Supreme Court has firmly established that the receipt of student loans or grants
by an entity renders the entity a recipient of Federal financial assistance. See Grove
City, 456 U.S. at 596
In Paralyzed Veterans, a Section 504 case decided
under Department of Transportation regulations, the Court held that commercial airlines
that used airports and gained an advantage from the capital improvements and construction
at airports were beneficiaries, and not recipients, under the airport improvement program.
477 U.S. at 607. The airport operators, in contrast, directly receive the Federal
financial assistance for the airport construction. The Court examined the program statutes
recognized a need to improve airports in order to benefit a wide variety of persons and
entities, all of them classified together as beneficiaries. [note omitted]. Congress did
not set up a system where passengers were the primary or direct beneficiaries, and all
others benefitted by the Acts are indirect recipients of the financial assistance to
covers those who receive the aid, but does not extend as far as those who benefit from it.
. . Congress tied the regulatory authority to those programs or activities that receive federal financial assistance.
Id. at 607-09.
VII. "Program or Activity"
prohibits discrimination in "any program or activity," any part of which
receives Federal financial assistance. Initially, it should be understood that
interpretations of "program or activity" depend on whether one is analyzing the
scope of Title VI's prohibitions or evaluating what part of the entity is subject to a
potential fund termination or refusal. Further, the Civil Rights Restoration Act of 1987
(CRRA) amended Title VI and related statutes by adding an expansive definition of
"program or activity." As described more fully below, the CRRA was passed to
restore broad interpretations, consistent with original congressional intent, and to
reverse the Supreme Court's narrow ruling in Grove
City, 465 U.S. 555.
Passage and Judicial Interpretations
When enacted in
1964, Title VI did not include a definition of "program or activity." (25) Congress, however, made its intentions clearly known:
Title VI's prohibitions were meant to be applied institution-wide, and as broadly as
necessary to eradicate discriminatory practices supported by Federal funds. 110 Cong. Rec.
6544 (Statement of Sen. Humphrey); see S.
Rep. No. 64, 100th Cong., 2d Sess. 5-7 (1988), reprinted
in 1988 U.S.C.C.A.N. 3, 7-9.
consistent with congressional intent, initially interpreted "program or
activity" broadly to encompass the entire institution in question. For example, all
of the services and activities of a university were subject to Title VI even if the sole
Federal assistance was Federal financial aid to students. See Bob
Jones Univ., 396 F. Supp. at 603; S. Rep. No. 64 at 10, reprinted in 1988 U.S.C.C.A.N. at 12. (26)
however, the Supreme Court in Grove City,
severely narrowed the interpretation of "program or activity." 465 U.S. at
571-74. The Court ruled that Title IX's prohibitions against discrimination applied only
to the limited aspect of the institution's operations that specifically received the
Federal funding. Since the college received Federal funds as a result of Federal financial
aid to students, the "program or activity" was the college's financial aid
program. Id. at 574. The Court rejected
the court of appeal's analysis that receipt of Federal funds for one purpose (financial
aid) freed up school funds for other purposes (e.g.,
athletics) to render the entire university (or at least the other programs that benefitted
from 'freed up' funds) a "program or activity." Id. at 572.
Court held that, although the Federal money was added to the college's general funds, the
purpose of the monies was for financial aid, and, therefore, the covered program or
activity was the financial aid program. Id.
Thus, the receipt of Federal financial aid by some of the students of the college did not
subject an entire college to Title IX, but only the operations of the financial aid
program. Finally, the Court noted that earmarked funds, such as the Federal financial aid
monies, increase resources and obligations of the recipient, while non-earmarked funds are
unrestricted in use and purpose. Id. at
Rights Restoration Act
The Grove City interpretation of "program or
activity" lasted for four years, until Congress passed the Civil Rights Restoration
Act of 1987 (CRRA), Pub. L. No. 100-259, 102 Stat. 28 (1988). Congress' intent in passing
the CRRA was clear. As the Senate Report states:
introduced . . . to overturn the Supreme Court's 1984 decision in Grove City College v. Bell, . . . and to restore
the effectiveness and vitality of the four major civil rights statutes [Title IX, Title
VI, Section 504, and the Age Discrimination Act of 1975] that prohibit discrimination in
federally assisted programs.
S. Rep. No. 64
at 2, reprinted in 1988 U.S.C.C.A.N. at
3-4. (27) The CRRA includes virtually identical amendments
to broadly define "program or activity" (for coverage purposes) for the four
cross-cutting civil rights statutes.
Report provides extensive detail about the history of these statutes, including Congress'
original intent that they be broadly interpreted and enforced; the consequences of Grove City, i.e., the narrow interpretations by courts and
agencies that relieved entities of liability for apparent acts of discrimination because
of the new, constricted interpretation of program or activity; and detailed explanations
of the Act's language. Id. at 5-20. (28)
As explained in
Chapter VIII, Title VI prohibits intentional discrimination, and agency Title VI
regulations prohibit conduct that has an unjustified discriminatory effect. See Guardians
Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983) and Alexander v. Choate, 469 U.S. 287, 293 (1985).
In 1999, the Third Circuit held that the CRRA's statutory definition of "program or
activity" did not apply to the effects test created by Title VI regulations. Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999)
(appeal pending). The court reasoned that since the Title VI regulations in question had
not been amended to reflect the CRRA's definition, the effects test only applied to
specifically funded programs. (29) In response to the
decision, federal agencies took steps to amend their regulations to make clear that the
broad definition of program or activity applies to claims brought under the effects test
enunciated in regulations, as well as to intentional discrimination.
D. State and
defines coverage in specific areas. As to State and local governments, Title VI now
purposes of this subchapter, the term "program or activity" and the term
"program" mean all of the operations of--
department, agency, special purpose district, or other instrumentality of a State or of a
local government; or
(B) the entity
of such State or local government that distributes such assistance and each such
department or agency (and each other State or local government entity) to which the
assistance is extended, in the case of assistance to a State or local government;
any part of which is extended Federal financial
42 U.S.C. §
2000d-4a(1) (emphasis added).
Two courts of
appeals and several district courts have interpreted this language, and most of the cases
have concerned the scope of § 504. Generally, the entire department or office within
a State or local government is identified as the "program or activity." (31) For example, if a State receives funding that is
designated for a particular State prison, the entire State Department of Corrections is
considered the covered "program or activity" (but not, however, the entire
In Huber v. Howard County, Md, 849 F. Supp. 407,
415 (D. Md. 1994), the court held that the county fire department received Federal
financial assistance under § 504 upon evidence that a subunit within the fire department received Federal
funds and the salary of one employee was partially paid with Federal funds. The court
receipt of federal financial assistance by one department or agency of a county does not
render the entire county subject to the provisions of § 504, and while such
assistance to one department does not subject another department to the requirements of
§ 504, if one part of a department receives federal financial assistance, the whole
department is considered to receive federal assistance as to be subject to § 504. Id.
Thus, while the
CRRA overruled Grove City's narrow
interpretation, the amendments were not so broad as to cover an entire local or State
government as part of a "program or activity." See Hodges
by Hodges v. Public Bldg. Comm'n of Chicago (I), 864 F. Supp. 1493, 1505 (N.D. Ill.
1994), reconsideration denied, 873 F.
Supp. 128, 132 (N.D. Ill. 1995) (City of Chicago "is a municipality and, as such, it
does not fit within the definition of 'program or activity' for purposes of Title
VI."); (32) see
also Schroeder v. City of Chicago,
927 F.2d 957, 962 (7th Cir. 1991). (33)
- If Federal
health assistance is extended to a part of a State health department, the entire health
department would be covered in all of its operations. However, the entire State government
is not considered a recipient just because the health department receives Federal
- If the office of
a mayor receives Federal financial assistance and distributes it to departments or
agencies, all of the operations of the mayor's office are covered along with the
departments or agencies which actually receive the aid from the Mayor's office.
significant to note that some courts have held that a State need not be a "program or
activity" to be a defendant under Title VI. A State is properly included as a
defendant if it is partly responsible for or participates in the discriminatory conduct. See United
States v. City of Yonkers, 880 F. Supp. 212, 232 (S.D.N.Y. 1995) vacated and remanded on other grounds, 96 F. 3d
600 (2d Cir. 1996); New York Urban League v.
Metropolitan Transp. Auth., 905 F. Supp. 1266, 1273 (S.D.N.Y. 1995), vacated on other grounds, 71 F.3d 1031 (2d Cir.
In United States v. City of Yonkers,the court
rejected the State's argument that sovereign immunity applied since it is not a
"program or activity." 880 F. Supp. at 232. The court stated that not only does
the plain language of § 2000d-7 defeat the State's assertion, but also that
nothing in the
legislative history of Title VI compels the conclusion that an entity must be a 'program'
or 'activity' to be a Title VI defendant. . . .We therefore hold that the State of New
York can be sued under Title VI as long as it, along with those of its agencies receiving
federal financial assistance, is alleged to have been responsible for a Title VI
violation. Id. (note omitted). (34)
The CRRA also
defines "program or activity" in an educational context. Title VI (and Title IX,
Section 504 and the ADEA of 1975) now provide:
purposes of this subchapter, the term "program or activity" and the term
"program" mean all of the operations of--
college, university, or other postsecondary institution, or a public system of higher
(B) a local
educational agency (as defined in section 8801 of Title 20), system of vocational
education, or other school system;
any part of which is extended Federal financial
§ 2000d-4a(2) (emphasis added). It is section 2(A) that specifically overturns the Grove City decision by including all of the
operations of a postsecondary institution when any part of that institution is extended
Federal financial assistance. (35) See Knight
v. Alabama, 787 F. Supp. 1030, 1364 (N.D. Ala. 1991) (entire Statewide university
system constituted "program or activity," notwithstanding limited autonomy of
institutions and even though not all institutions received Federal assistance), aff'd in part, rev'd in part, and vacated in part,
14 F.3d 1534 (11th Cir. 1994).
64 provides several examples of the scope of an educational "program or
activity." Federal funding to one school subjects the entire school system to Title
VI. S. Rep. No. 64 at 17, reprinted in
1988 U.S.C.C.A.N. at 19. For example, Federal aid to one of three schools operated by the
Catholic Diocese would subject all three schools to Title VI. Further, Congress explained
that "all of the operations of" encompasses, but is not limited to,
"traditional educational operations, faculty and student housing, campus shuttle bus
service, campus restaurants, the bookstore, and other commercial activities." Id.
The courts have
followed this broad interpretation by ruling that a local educational agency includes
school boards, their members, and agents of such boards. Meyers by and through Meyers v. Board of Educ. of the
San Juan Sch. Dist., 905 F. Supp. 1544 (D. Utah 1995) (36);
Horner v. Kentucky High Sch. Athletic Ass'n,
43 F.3d 265, 272 (6th Cir. 1994) (Title IX case); see
also Young by and through Young v.
Montgomery County (Ala.) Bd. of Educ., 922 F. Supp. 544 (M.D. Ala. 1996) (Court
addressed the merits of Title VI claims against the county board of education without
comment or question as to the propriety of such claims). In Horner, the Sixth Circuit held that both the
school board and its agent for intercollegiate athletics were subject to Title IX. The
court addressed this issue in terms of identifying a "program or activity" and
"recipient" interchangeably. Id.
at 271-72. The court reasoned that the State Department of Education receives the Federal
funds, and the Board statutorily "controls and manages," on behalf of the
Department, the operations of the schools. Furthermore, the Board's agent (a high school
athletic association) was also a recipient since it had statutory authority to perform the
Board's functions and received dues from schools that received Federal funds. Id.
and Private Entities
The CRRA also
defines "program or activity" to include certain private entities. The scope of
"program or activity" as it applies to a corporation or other private entity
depends on the operational purpose of the entity, the purpose of the funds, and the
structure of the entity. Title VI provides:
purposes of this subchapter, the term "program or activity" and the term
"program" mean all of the operations of--
entire corporation, partnership, or other private organization, or an entire sole
assistance is extended to such corporation, partnership, private organization, or sole
proprietorship as a whole; or
(ii) which is
principally engaged in the business of providing education, health care, housing, social
services, or parks and recreation; or
(B) the entire
plant or other comparable, geographically separate facility to which Federal financial
assistance is extended, in the case of any other corporation, partnership, private
organization, or sole proprietorship;
any part of which is extended Federal financial
42 U.S.C. §
2000d-4a(3) (emphasis added).
funds are given to an entity "as a whole" when such funds further the central or
primary purpose of the entity, or the funds are not for a specific, narrow purpose. Senate
Report No. 64 provides several examples regarding the application of this section.
S. Rep. No. 64 at 17-18, reprinted in
1988 U.S.C.C.A.N. at 19-20. The following principles can be identified based on examples
set forth in the Senate Report:
provided to ensure the continued operation of a corporation are assistance to the entity
"as a whole," and thus all operations of the entire corporation are subject to
Title VI. Federal financial assistance extended to a corporation or other entity "as
a whole" refers to situations where the corporation receives general assistance that
is not designated for a particular purpose. For example:
financial assistance to the Chrysler Company for the purpose of preventing the company
from going bankrupt would be an example of assistance to a corporation "as a
b. When any
recipient is principally engaged in the business of providing education, health care,
housing, social services, or parks and recreation, and any part of this entity is extended
Federal financial assistance, then "program or activity" encompasses all of the
operations of the entire entity. For example:
- If a private
hospital corporation receives Federal funds to operate its emergency room, all of the
operations of the hospital (e.g., the
operating rooms, pediatrics, discharge and admissions offices, etc.) are subject to Title
Corporation owns and runs a chain of five nursing homes as its principal business. One of
the five nursing homes receives Federal financial assistance under the Older Americans
Act. Because the corporation is principally engaged in the business of providing social
services and housing for elderly persons, aid to one home will subject the entire
corporation to the requirements of Title VI. See
42 U.S.C. § 2000d-4a(3)(A)(ii); S. Rep. No. 64 at 18, reprinted in 1988 U.S.C.C.A.N. at 20.
c. Funds for a
specific purpose or funds that support one of several functions of the recipient would not
be considered assistance "as a whole," and thus only that aspect of the
recipient's operations would be subject to Title VI. For example:
- A grant to a
religious organization to enable it to extend assistance to refugees would not be
assistance to the religious organization as a whole if the funded program is only one
among a number of activities of the organization.
- Federal aid
which is limited in purpose, e.g., Job Training Partnership Act (JTPA) funds, is not
considered aid to the corporation as a whole, even if it is used at several facilities and
the corporation has the discretion to determine which of its facilities participate in the
d. When Federal
assistance is extended to a plant or any other comparable, geographically separate
business facility of a corporation or other private entity, only the operations of the
specific plant or facility are a "program or activity" subject to Title VI.
Further, Federal financial assistance that is earmarked for one or more facilities of a
private corporation or other private entity when it is extended is not assistance to the
entity "as a whole." Id. For
- The Dearborn,
Michigan plant of General Motors is extended Federal financial assistance for first aid
training through the State department of health. All of the operations of the Dearborn
plant are covered by Title VI, as well as the State health department that distributed the
Federal money. However, other geographically separate facilities of General Motors are not
considered to be covered just because of the assistance to the Dearborn plant. See S. Rep. No. 64 at 18, reprinted in 1988 U.S.C.C.A.N. at 20-21.
e. The theory
of "freeing up" funds for other purposes due to the receipt of Federal aid does
not expand the application of Title VI beyond the principles described above. (37)
CRRA defines "program or activity" to include the operations of entities formed
by any combination of the aforementioned entities. Title VI is amended to read:
purposes of this subchapter, the term "program or activity" and the term
"program" mean all of the operations of--
(4) any other
entity which is established by two or more of the entities described in paragraph (1),
(2), or (3);
any part of which is extended Federal financial
42 U.S.C. §
2000d-4a(4) (emphasis added).
entity under this provision will include a partnership with a public entity, coverage will
extend to the entire entity.
which is established by two or more entities described in [Paragraphs] (1), (2), or (3) is
inevitably a public venture of some kind, i.e., either a government-private effort (1 and
3), a public education-business venture (2 and 3) or a wholly government effort (1 and 2).
It cannot be a wholly private venture under which limited coverage is the general rule.
The governmental or public character helps determine institution-wide coverage. . . . Even
private corporations are covered in their entirety under (3) if they perform governmental
functions, i.e., are "principally engaged in the business of providing education,
health care, housing, social services, or parks and recreation."
S. Rep. No. 64
at 19-20, reprinted in 1988 U.S.C.C.A.N.
at 21-22. Thus, all of the operations of a partnership between a public and private
entity, such as a school and a private corporation, would be subject to Title VI. The
Senate Report also notes that coverage under Paragraph (4) applies to the newly created
entity; coverage of the separate entities that comprise the partnership or joint venture
must be determined independently. Id. at
20, reprinted in 1988 U.S.C.C.A.N. at 22.
VIII. What Constitutes Discriminatory Conduct?
prohibits discrimination on the basis of "race, color, or national origin . . . under
any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d.
The purpose of Title VI is simple: to ensure that public funds are not spent in a way
which encourages, subsidizes, or results in racial discrimination. Toward that end, Title
VI bars intentional discrimination. See Guardians, 463 U.S. at 607-08; Alexander v. Choate, 469 U.S. 287, 293 (1985).
In addition, Title VI authorizes and directs Federal agencies to enact "rules,
regulations, or orders of general applicability" to achieve the statute's objectives.
42 U.S.C. § 2000d-1. Most Federal agencies have adopted regulations that prohibit
recipients of Federal funds from using criteria or methods of administering their programs
that have the effect of subjecting
individuals to discrimination based on race, color, or national origin. The Supreme Court
has held that such regulations may validly prohibit practices having a disparate impact on
protected groups, even if the actions or practices are not intentionally discriminatory. Guardians, 463 U.S. at 582; Alexander v. Choate, 469 U.S. at 292-94; see Elston
v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir.), reh'g denied, 7 F.3d 242 (11th Cir. 1993).
Thus, Title VI
claims may be proven under two primary theories: intentional discrimination/disparate
treatment and disparate impact/effects. Under the first theory, the recipient, in
violation of the statute, engages in intentional discrimination based on race, color, or
national origin. The analysis of intentional discrimination under Title VI is equivalent
to the analysis of disparate treatment under the Equal Protection Clause of the Fourteenth
Amendment. Elston, 997 F.2d at 1405 n. 11;
Guardians, 463 U.S. at 582, Alexander, 469 U.S. at 287, 293; Georgia State Conference of Branches of NAACP v.
Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).
second theory, a recipient, in violation of agency regulations, uses a neutral procedure
or practice that has a disparate impact on individuals of a particular race, color, or
national origin, and such practice lacks a "substantial legitimate
justification." Larry P. v. Riles,
793 F.2d 969, 983 (9th Cir. 1984); New
York Urban League v. New York, 71 F.3d 1031, 1038 (2d Cir. 1995); Elston, 997 F.2d at 1407. Title VI disparate
impact claims are analyzed using principles similar to those used to analyze Title VII
disparate impact claims. Young by and through
Young v. Montgomery County (Ala.) Bd. of Educ., 922 F. Supp. 544, 549 (M.D. Ala.
A. Intentional Discrimination/Disparate Treatment
An intent claim
alleges that similarly situated persons are treated differently because of their race,
color, or national origin. To prove intentional discrimination, one must show that "a
challenged action was motivated by an intent to discriminate." Elston, 997 F.2d at 1406. This requires a
showing that the decisionmaker was not only aware of the complainant's race, color, or
national origin, but that the recipient acted, at least in part, because of the
complainant's race, color, or national origin. However, the record need not contain
evidence of "bad faith, ill will or any evil motive on the part of the
[recipient]." Elston, 997 F.2d at
1406 (quoting Williams v. City of Dothan,
745 F.2d 1406, 1414 (11th Cir. 1984)).
discriminatory intent may be direct or circumstantial and may be found in various sources,
including statements by decisionmakers, the historical background of the events in issue,
the sequence of events leading to the decision in issue, a departure from standard
procedure (e.g., failure to consider
factors normally considered), legislative or administrative history (e.g., minutes of meetings), a past history of
discriminatory or segregated conduct, and evidence of a substantial disparate impact on a
protected group. See Arlington Heights v. Metropolitan Hous. Redevelopment
Corp., 429 U.S. 252 at 266-68 (1977) (evaluation of intentional discrimination
claim under the Fourteenth Amendment); Elston,
997 F.2d at 1406.
Direct proof of
discriminatory motive is often unavailable. In the absence of such evidence, claims of
intentional discrimination under Title VI may be analyzed using the Title VII burden
shifting analytic framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). (38) See
Baldwin v. Univ. of Texas Med. Branch at
Galveston, 945 F.Supp. 1022, 1031 (S.D.Tex. 1996); Brantley v. Independent Sch. Dist. No. 625, St. Paul
Public Schools, 936 F.Supp. 649, 658 n.17 (D.Minn. 1996).
Applying the McDonnell Douglas principles to a Title VI
claim, the investigating agency must first determine if the complainant can raise an
inference of discrimination by establishing a prima
facie case. The elements of a prima facie
case may vary depending on the facts of the complaint, but such elements often include the
1. that the
aggrieved person was a member of a protected class;
2. that this
person applied for, and was eligible for, a federally assisted program that was accepting
3. that despite
the person's eligibility, he or she was rejected; and,
4. that the
recipient selected applicants of the complainant's qualifications -- or that the program
remained open and the recipient continued to accept applications from applicants of
complainant's qualifications. (40)
If the case
file contains sufficient evidence to establish a prima
facie case of discrimination, the
investigating agency must then determine if the recipient can articulate a legitimate,
nondiscriminatory reason for the challenged action. See McDonnell
Douglas, 411 U.S. at 802. If the recipient can articulate a nondiscriminatory
explanation for the alleged discriminatory action, the investigating agency must determine
whether the case file contains sufficient evidence to establish that the recipient's
stated reason was a pretext for discrimination. Id.
In other words, the evidence must support a finding that the reason articulated by the
recipient was not the true reason for the challenged action, and that the real reason was
discrimination based on race, color, or national origin.
principles may be used to analyze claims that a recipient has engaged in a "pattern
or practice" of unlawful discrimination. Such claims may be proven by a showing of
"more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory
acts." See International Bhd. of Teamsters v. United States,
431 U.S. 324, 336 (1977). The evidence must establish that a pattern of discrimination
based on race, color, or national origin was the recipient's "standard operating
procedure the regular rather than the unusual practice." Id. Once the existence of such a discriminatory
pattern has been proven, it may be presumed that every disadvantaged member of the
protected class was a victim of the discriminatory policy, unless the recipient can show
that its action was not based on its discriminatory policy. Id. at 362.
It is also
important to remember that some claims of intentional discrimination may involve the use
of policies or practices that explicitly classify individuals on the basis of membership
in a particular group. Such "classifications" may constitute unlawful
discrimination if based on characteristics such as race, color, national origin, sex, etc.
For example, the Supreme Court held in a Title VII case that a policy that required female
employees to make larger contributions to the pension fund than male employees created an
unlawful classification based on sex. See City of Los Angeles, Dep't of Water and Power v.
Manhart, 435 U.S. 702 (1978). The investigation of such claims should focus on the
recipient's reasons for utilizing the challenged classification policies. Most such
policies will be deemed to violate Title VI, unless the recipient can articulate a lawful
justification for classifying people on the basis of race, color, or national origin.
primary theory for proving a Title VI violation is based on Title VI regulations and is
known as the discriminatory "effects" or disparate impact theory. As noted
previously, Title VI authorizes Federal agencies to enact regulations to achieve the
statute's objectives. Most Federal agencies have adopted regulations that apply the
disparate impact or effects standard. For example, the Department of Justice regulations
recipient, in determining the type of disposition, services, financial aid, benefits, or
facilities which will be provided under any such program, or the class of individuals to
whom, or the situations in which, such will be provided under any such program, or the
class of individuals to be afforded an opportunity to participate in any such program, may
not, directly or through contractual or other arrangements, utilize criteria or methods of
administration which have the effect of
subjecting individuals to discrimination because of their race, color, or national origin,
or have the effect of defeating or substantially impairing accomplishment of the
objectives of the program as respects individuals of a particular race, color, or national
28 C.F.R. §
42.104(b)(2) (emphasis added).
such regulations, all entities that receive Federal funding enter into standard agreements
or provide assurances that require certification that the recipient will comply with the
implementing regulations under Title VI. Guardians,
463 U.S. 582, 642 n. 13. The Supreme Court has held that these regulations may validly
prohibit practices having a disparate impact on protected groups, even if the actions or
practices are not intentionally discriminatory. Guardians,
463 U.S. at 582, Alexander v. Choate, 469
U.S. at 293.
cases have also recognized the validity of Title VI disparate impact claims. See Villanueva
v. Carere, 85 F.3d 481 (10th Cir. 1996); New York Urban League v. New York, 71 F.3d 1031,
1036 (2d Cir. 1995); Chicago v. Lindley,
66 F.3d 819 (7th Cir. 1995); David K.
v. Lane, 839 F.2d 1265 (7th Cir. 1988); Gomez v. Illinois State Bd. Of Educ., 811 F.2d
1030 (7th Cir. 1987); Georgia State
Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir.
1985); Larry P. v. Riles, 793 F.2d 969 (9th
Cir. 1984). (41) In addition, by memorandum dated July 14,
1994, the Attorney General directed the Heads of Departments and Agencies to "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."
disparate impact theory, a recipient, in violation of agency regulations, uses a neutral
procedure or practice that has a disparate impact on protected individuals, and such
practice lacks a substantial legitimate justification. The elements of a Title VI
disparate impact claim derive from the analysis of cases decided under Title VII disparate
impact law. New York Urban League, 71 F.3d
In a disparate
impact case, the focus of the investigation concerns the consequences of the recipient's
practices, rather than the recipient's intent. Lau
v. Nichols, 414 U.S. 563 at 568 (1974). For example, in Sandoval v. Hagan, 197 F.3d 484 (11th
Cir. 1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 28,
68 U.S.L.W. 3749 (U.S. Sept. 26, 2000) (No. 99-1908) plaintiffs filed a private action
under Title VI claiming that Alabama's English-only driver's license exam policy, although
facially neutral, had a disparate impact on the basis of national origin in violation of
section 602 of Title VI. The court observed that the defendant-recipients, the Alabama
Department of Public Safety, did not contest the district court's finding of fact "as
to the disparate impact of the [English-only] policy on non-English speaking license
applicants," nor the "disparate impact their English-only policy visits on
Alabama residents of foreign descent." Id.
at 508. Instead, the court stated that the defendants argued "that an English
language policy, even if exerting a disparate impact on the basis of national origin,
cannot ever constitute national origin discrimination." Id. The court rejected this claim, concluding
that regardless of whether language may serve as a proxy for national origin
discrimination in an intentional discrimination claim, claims brought under section 602 of
Title VI do not involve an intent requirement. Id.
at 508-09. Rather, in order to establish a disparate impact claim under section 602,
plaintiffs need only show that the policy "has a 'disparate impact on groups
protected by the statute, even if those actions are not intentionally
discriminatory.'" Id. at 509 (quoting
Elston, 997 F.2d at 1407).
discrimination under a disparate impact scheme, the investigating agency must first
ascertain whether the recipient utilized a facially neutral practice that had a
disproportionate impact on a group protected by Title VI. (42)
Larry P. v. Riles, 793 F.2d 969, 982; Elston, 997 F.2d at 1407 (citing Georgia State Conference of Branches of NAACP v.
Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985)). The agency must show a
causal connection between the facially neutral policy and the disproportionate and adverse
impact on a protected Title VI group.
In New York City Envtl. Justice Alliance (NYCEJA) v.
Giuliani, 214 F.3d 65, 69 (2d Cir. 2000), plaintiffs sought to enjoin the City of
New York from selling or bulldozing certain city-owned lots containing 600 community
gardens mainly located in minority neighborhoods. They alleged that the city's actions
would violate the Environmental Protection Agency's Title VI implementing regulations
because the actions would have a disproportionately adverse impact on the city's minority
residents. 214 F. 3d 65, 67.
plaintiffs "alleged in substance that white community districts tend to have access
to more open space than minority ones, and that the sale of community gardens would
perpetuate and exacerbate this disparity," the court found that the evidence
plaintiffs presented in support of their claim consisted of broad conclusive statements or
flawed statistics. 214 F.3d 65, 69-71. Accordingly, the court dismissed plaintiff's motion
for preliminary injunction for failure to present adequate proof of causation. Id. at 69. In order to establish causation,
plaintiffs were required "to employ facts and statistics that 'adequately capture[d]'
the impact of the city's plans on similarly situated members of protected and
non-protected groups." 214 F. 3d 65, 70 quoting New York Urban League, 71 F. 3d 1031, 1037.
If the evidence
establishes a prima facie case, the investigating agency must then
determine whether the recipient can articulate a "substantial legitimate
justification" for the challenged practice. Georgia
State Conference, 775 F.2d at 1417. "Substantial legitimate
justification" is similar to the Title VII concept of "business necessity,"
which involves showing that the policy or practice in question is related to performance
on the job. Griggs v. Duke Power, 401 U.S.
To prove a
"substantial legitimate justification," the recipient must show that the
challenged policy was "necessary to meeting a goal that was legitimate, important,
and integral to the [recipient's] institutional mission." Sandoval v. Hagan, 7 F.Supp. 2d 1234, 1278 (M.D.
Ala. 1998), aff'd, 197 F.3d 484 (11th
Cir. 1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 28,
68 U.S.L.W. 3749 (U.S. Sept. 26, 2000) (No. 99-1908) (quoting Elston, 997 F.2d at 1413). The justification
must bear a "manifest demonstrable relationship" to the challenged policy. Georgia State Conference, 775 F.2d. at 1418. See, e.g.,
Elston, 997 F. 2d at 1413 (In an education
context, the practice must be demonstrably necessary to meeting an important educational
goal, i.e. there must be an
"educational necessity" for the practice).
If the recipient can
make such a showing, the inquiry must focus on whether there are any "equally
effective alternative practices" that would result in less racial disproportionality
or whether the justification proffered by the recipient is actually a pretext for
discrimination. Id. See generally, McDonnell Douglas, 411 U.S. 792. Evidence of
either will support a finding of liability.
Courts have often
found Title VI disparate impact violations in cases where recipients utilize policies or
practices that result in the provision of fewer services or benefits, or inferior services
or benefits, to members of a protected group. In Larry
P. v. Riles, 793 F.2d 969 (9th Cir. 1984), the Ninth Circuit applied a
discriminatory effects test to analyze the Title VI claims of a class of black school
children who were placed in special classes for the "educable mentally retarded"
("EMR") on the basis of non-validated IQ tests. The Ninth Circuit upheld the
district court's finding that use of these IQ tests for placement in EMR classes
constituted a violation of Title VI. Id.
at 983. Similarly, in Sandoval, the court
held that discrimination on the basis of language, in the form of an English-only policy,
had an unjustified disparate impact on the basis of national origin, and thus violated
Title VI. Sandoval, 7 F.Supp. 2d at 1312. See Meek
v. Martinez, 724 F.Supp. 888 (S.D.Fla. 1987) (Florida's use of funding formula in
distributing aid resulted in a substantially adverse disparate impact on minorities and
the elderly). See also, Campaign
for Fiscal Equity, Inc. v. State, 86 N.Y.2d 307, 655 N.E.2d 1178 (N.Y. Ct. App. Jun
15, 1995) (Prima facie case established where allocation of educational aid had a racially
In evaluating a
potential disparate impact claim under Title VI, it is important to examine whether there
is a substantial legitimate justification for the challenged practice and whether there
exists an alternative practice that is comparably effective with less of a disparate
impact. See Elston, 997 F.2d at 1407. For example, the
Second Circuit in New York Urban League,
reversed the district court's preliminary injunction for its failure to consider whether
there was a "substantial legitimate justification" for a subway fare increase
that had an adverse impact. 71 F.3d at 1039.
[B]ut the district court did not consider, much less
analyze, whether the defendants had shown a substantial legitimate justification for this
allocation. The MTA and the State identified several factors favoring a higher
subsidization of the commuter lines. By encouraging suburban residents not to drive into
the City, subsidization of the commuter rails minimizes congestion and pollution levels
associated with greater use of automobiles in the city; encourages business to locate in
the City; and provides additional fare-paying passengers to the City subway and bus
system. In these respects and in others, subsidizing the commuter rails may bring material
benefits to the minority riders of the subway and bus system. The district court dismissed
such factors, concluding that the MTA board did not explicitly consider them before voting
on the NYCTA and commuter line fare increases. That finding is largely irrelevant to
whether such considerations would justify the relative allocation of total funds to the
NYCTA and the commuter lines. (Emphasis added) (43)
Similarly, in Young by and through Young, 922 F.Supp at 544,
the court ruled that even if a disparate impact were assumed, the defendants had
established a "substantial legitimate justification."
presented evidence that Policy IDFA was adopted to address concerns that the M to M
transfer program was being used to facilitate athletic recruiting in the Montgomery County
school system and to help revitalize Montgomery's west side [minority] high schools. Both
of these justifications are substantial and legitimate because they evince a genuine
attempt by the Board of Education to improve the quality of education offered in [the]
Id. at 551.
If a substantial
legitimate justification is identified, the third stage of the disparate impact analysis
is the plaintiff's demonstration of a less discriminatory alternative. Elston, 997 F. 2d at 1407; see also,
Young by and through Young, 922 F. Supp.
at 551 (where defendants established a substantial legitimate justification, plaintiffs
failed to demonstrate existence of an equally effective alternative practice).
C. National Origin Discrimination and Services in
Languages Other than English
Since its adoption
and initial implementation, Title VI regulations have barred utilization of criteria and
methods of administration which have, among other results, "the effect of defeating
or substantially impairing accomplishment of the objectives of the program as respect
individuals of a particular race, color or national origin."
(44) This universal regulatory language incorporates a disparate impact standard
into Title VI. (45)
In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme
Court faced a challenge by Chinese-speaking students to a school district's policy of
offering instruction only in English. Siding with the students, the Court concluded that
the failure to provide information and services in languages other than English could
result in discrimination on the basis of national origin where the failure to do so
resulted in a significant number of limited English proficiency (LEP) beneficiaries from
the same language minority being unable to fully realize the intended benefits of a
federally assisted program or activity.
[i]t seems obvious
that the Chinese-speaking minority receive fewer benefits than the English-speaking
majority from respondents' school system which denies them a meaningful opportunity to
participate in the educational program - all earmarks of the discrimination banned by [the
Title VI implementing regulations]." (46)
Lau has its clearest application in the
educational setting. However, Lau's reach
is not limited to educational programs or activities. The core holding in Lau -- that the failure to address limited
English proficiency among beneficiary classes could constitute national origin
discrimination -- has equal vitality with respect to any federally assisted program or
activity providing services to the public. (47)
1. Presidential Reaffirmance and Clarification of Lau
obligation to eliminate limited English proficiency as an artificial barrier to full and
meaningful participation in all federally assisted programs and activities was
reaffirmed and clarified by the President. See
Executive Order 13166, 65 Fed. Reg. 50121 (August 16, 2000). (48)
Government is committed to improving the accessibility of...services to eligible [limited
English proficiency] persons, a goal that reinforces its equally important commitment to
promoting programs and activities designed to help individuals learn English....Each
Federal agency shall...work to ensure that recipients of Federal financial assistance
(recipients) provide meaningful access to their LEP applicants and
beneficiaries....[R]ecipients must take reasonable steps to ensure meaningful access to
their programs and activities by LEP persons. (49)
The Executive Order
requires each federal agency to develop, after consultation with appropriate program and
activity stakeholders (50), agency-specific LEP guidance
for recipients of federal financial assistance. (51) As an
aid in developing this guidance, the Executive Order incorporates the Department of
Justice LEP Guidance (LEP Guidance) issued contemporaneously with the Executive Order. (52) The LEP Guidance "sets forth the compliance
standards that recipients must follow to ensure that programs and activities they normally
provide in English are accessible to LEP persons." (53)
Agency-specific LEP guidance for recipients is to be "consistent with the standards
set forth in the [DOJ] LEP Guidance." (54)
2. The Four Factor Analysis: Reasonable Steps Toward
Title VI, Executive Order 13166, and the LEP
Guidance do not require a recipient to re-invent or mirror a federally assisted program or
activity solely because a significant number or proportion of its beneficiary class are
LEP persons. Indeed, in some circumstances, the creation of separate but equal
language-based mirror programs could itself be questioned under Title VI. Nor do they
require recipients to add non-English modules to a program or activity where English
competency is an essential element (such as providing employment examinations only in
English when English proficiency is a legitimate job requirement).
(55) Rather, recipients are required to address, consistent with the core
objectives of the federally assisted programs or activities, the specific language
needs of their LEP beneficiaries which operate as artificial barriers to
full and meaningful participation in the federally assisted program or activity. This
requires that recipients evaluate how a LEP person's inability to understand oral and
written information provided by and about a federally assisted program or activity might
adversely impact his or her ability to fully participate in or benefit from that program
or activity. The LEP Guidance provides a structure through which these various aspects of
a program or activity can be consistently evaluated.
Given the wide range
of programs and activities receiving Federal financial assistance, no single uniform rule
of compliance is either possible or reasonable. Instead, the LEP Guidance incorporates
"reasonableness" as its guiding principle. Toward that end, the LEP Guidance
articulates a flexible four-factor analysis requiring reasonable steps to identify and
implement reasonable measures to mitigate those aspects of beneficiaries' limited English
proficiency that act as artificial barriers to "accomplishment of the objectives of
the program as respects individuals of a particular race, color or national origin." (56)
Title VI and its
regulations require recipients to take reasonable steps to ensure "meaningful"
access to the information and services they provide. What constitutes reasonable steps to
ensure meaningful access will be contingent on a number of factors. Among the factors to
be considered are the number or proportion of LEP persons in the eligible service
population, the frequency with which LEP individuals come in contact with the program, the
importance of the service provided by the program, and the resources available to the
Under the DOJ
four-factor analysis, the search for "reasonableness" flows from a balancing or
blending of all four factors to determine what, if any, language mitigation measures are
reasonably necessary to eliminate or minimize LEP as a barrier to participation in or
receipt of the benefits of a federally assisted program or activity. Under this approach,
no single factor alone is determinative and no single factor is entitled to greater weight
in isolation from the other three. Finally, separate analyses should be undertaken with
respect to each different language group within the recipient's beneficiary class.
Justice and Title VI
term 'environmental justice' is of fairly recent vintage, the concept is not." (58) For thirty-five years, Title VI has prohibited methods
of administration or the use of criteria which had the effect of discriminating on the
basis of race, color or national origin. The application of this result-oriented analysis
to criteria used or not used in decision-making on projects or activities
affecting the human environment is a logical extension of Title VI. Indeed, the core tenet
of environmental justice - that development and urban renewal benefitting a community as a
whole not be unjustifiably purchased through the disproportionate allocation of its
adverse environmental and health burdens on the community's minority - flows directly from
the underlying principal of Title VI itself.
1. Executive Order 12898: The Duty to Collect, Disseminate
In 1994, the
President issued Executive Order 12898 entitled "Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations." (59) While that Executive Order creates no new obligations
or rights, it does clarify existing Title VI requirements on Federal officials and those
that receive federal financial assistance to incorporate into their respective
cost-benefit analyses a meaningful consideration of possible disproportionate adverse
environmental and health impacts on minority and low-income populations.
12898] is designed to focus Federal attention on the environmental and human health
conditions in minority communities and low-income communities with the goal of achieving
environmental justice. That order is also intended to promote non-discrimination in
Federal programs substantially affecting human health and the environment, and to provide
minority communities and low-income communities access to public information on, and an
opportunity for public participation in, matters relating to human health or the
In order to
accomplish its goals, Executive Order 12898 requires each federal agency to develop, under
the guidance of an Interagency Working Group on Environmental Justice, a written strategy
to identify and address disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minority and low-income populations.
That strategy is to reflect agency efforts to re-focus and, if necessary re-tool, its
programs, policies, planning and public participation processes, enforcement, and/or
rulemaking related to human health or the environment to:
enforcement of all health and environmental statutes in areas with minority populations
and low-income populations; (2) ensure greater public participation; (3) improve research
and data collection relating to the health of and environment of minority populations and
low-income populations; and (4) identify differential patterns of consumption of natural
resources among minority populations and low-income populations.
In sum, Executive
Order 12898 requires agencies to develop and implement an integrated approach to realizing
environmental justice through the collection, analysis and dissemination of understandable (62) and useful information on the adverse environmental and
health impacts on protected populations. Armed with this information, decision-making on
projects and proposals affecting the social and physical environment should be enriched to
the benefit of both decision-makers and the public.
2. EPA Guidance
on Environmental Justice
While the concept of
environmental justice is applicable to any federally assisted program or activity
involving potential environmental or health burdens, it has its clearest impact with
respect to undertakings which also trigger federal obligations under the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §321, et seq, or its state and local
progeny. (63) Such undertakings generally involve changes
to a community's land use patterns or physical environment and include, but are not
limited to, such things as highways, water/sewer/power lines, mass transit projects, urban
re-development and other activities associated with community infrastructure construction.
Consistent with its
leadership role over federal environmental policy and its enhanced obligations under
Executive Order 12898, (64) the Environmental Protection
Agency is currently finalizing two environmental guidance documents focusing on the
application of environmental justice concepts in the permitting context.
(65) The first outlines EPA's policies on recipients' existing environmental
justice obligations under Title VI of the Civil Rights Act of 1964, as amended. The second
details the internal investigative procedures and criteria that will be used by EPA to
investigate Title VI complaints containing environmental justice concerns. Through these
documents, EPA intends to address questions raised over how to achieve environmental
justice in this important yet difficult area. Notwithstanding their focus on permitting,
the EPA guidance documents offer valuable assistance in clarifying environmental justice
questions raised in other areas. These documents are available on the EPA Office of Civil
Rights website at www.epa.gov/civilrights.
3. An Analytical Approach and its Attendant Problems of
Timing and Proof
Two recent cases
illustrate the approach and inherent difficulties of timing and proof associated with
environmental justice actions. The first, Jersey
Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180 (4th
Cir. 1999) highlights the consequences of lack of meaningful notice on the
ability to seek environmental justice through litigation. The second, New York City Envtl. Justice Alliance v. Giuliani,
214 F.3d 65 (2d Cir. 2000) [hereinafter NYCEJA],
sets out one approach to analyzing environmental justice claims but highlights the
difficulties of proof a complainant faces in establishing a prima facie case.
In Jersey Heights, an African-American community
challenged under Title VI, among other grounds, a decision to route a highway bypass
through their community. The challenged route, initially chosen in 1985, confirmed in 1989
and revised in 1991, placed the path of the bypass adjacent to Jersey Heights, a local
community whose population was more than 90% African-American. The other route under
consideration in 1985, running through a predominantly white area of the city, was
rejected after residents of that area voiced strong and timely objections to its
selection. The residents of the predominantly white area had received individual notice in
1985 of the planning process while the residents of Jersey Heights had not. Planning
officials did not specifically meet with Jersey Heights residents until 1992, after the
bypass routing decision had already been made. (66) When
administrative remedies under Title VI failed to address their concerns, the residents
resorted to their judicial remedies in 1997. On appeal, the Fourth Circuit Court of
Appeals sustained a dismissal of the action as untimely.
In connection with
the plaintiff's Title VI claim against state official, (67)
the court in Jersey Heights first held
that Title VI actions were subject to the state's three-year limitation period. (68) Because the final route decision was made in 1989 and
in light of evidence indicating that at least some of the residents of Jersey
Heights had actual or imputed knowledge of the decision at that time, their 1997 action
was time-barred. In reaching this result, the court rejected argument that Title VI is
triggered by the final commitment of federal assistance to the project rather than the
local decision to proceed with the project. It also refused to adopt the "continuing
violation" theory, citing established Circuit law that a "'continuing violation
is occasioned by continual unlawful acts, not continual ill effects from an original
violation.'" (69) Finally, while recognizing the
desirability of resort to administrative remedies, the court declined to hold that the
limitations period was tolled during the administrative complaint process.
In large measure,
Executive Order 12898 seeks to address the Jersey
Heights result by mandating timely and effective notice to minority and low-income
populations as part of any planning process. In drafting guidance or conducting program
reviews, agency officials should focus specific attention on the public notice and
participation procedures employed by themselves and their recipients to ensure compliance
with the public consultation requirements of Executive Order 12898.
Even where notice is
sufficient, environmental justice litigants must overcome the inherent difficulties of
providing adequate proof of discrimination. (71) In NYCEJA, a panel of the Second Circuit Court of
Appeals confronted a challenge to a proposed auction of city-owned lots, most located in
minority communities and used as community gardens, for the asserted purpose of building
new housing and fostering urban renewal. 214 F. 3d 65. As discussed above in Section B of
this Chapter, the court rejected the plaintiffs' proffered prima facie case because it was
not based on an "appropriate measure" that "adequately captured" the
nature and scope of the asserted adverse impact borne specifically and principally by the
minority population in relation to the non-minority population. (72)
The decision in NYCEJA demonstrates that although the analytical
approach to environmental justice claims is relatively easy to articulate, they are
difficult to resolve. In such circumstances, the ability to isolate and prove adverse
environmental and health burdens disproportionately suffered by a minority which are not
shared by other parts of a community will play a determinative role in establishing a
violation of Title VI in the environmental justice setting.
A complainant may
bring a retaliation claim under Title VI or under a Title VI regulation that prohibits
retaliation. For example, most agency Title VI regulations provide that "[n]o
recipient or other person shall intimidate, threaten, coerce, or discriminate against any
individual for the purpose of interfering with any right or privilege secured by [Title
VI], or because he has made a complaint, testified, assisted, or participated in any
manner in an investigation, proceeding or hearing under this subpart." 28 C.F.R. §
42.108(e) (Department of Justice Regulation).
To establish a prima facie
case of retaliation, the investigating agency must first determine if the complainant can
show (1) that he or she engaged in a protected activity, (2) that the recipient knew of
the complainant's protected activity, (3) that the recipient took some sort of adverse
action against the complainant, and (4) that there was a causal connection between the
complainant's protected activity and the recipient's adverse actions. See Davis
v. Halpern, 768 F.Supp. 968, 985 (E.D.N.Y. 1991). (Defendants's summary judgment
motion to dismiss Title VI retaliation claim was denied because plaintiff established
evidence of prima facie case).
Once a prima facie
case of retaliation has been established, the investigating agency must then determine if
the recipient can articulate a "legitimate non-discriminatory reason" for the
action. Id. If the recipient can offer
such a reason, the investigating agency must then show that recipient's proffered reason
is pretextual and that the recipient's actual reason was retaliation. Id. A showing of pretext is sufficient to
support an inference of retaliation. Id.
IX. Employment Coverage
A. Scope of
While Title VI was
not meant to be the primary Federal vehicle to prohibit employment discrimination, it does
forbid employment discrimination by recipients in certain situations. If a primary
objective of the Federal financial assistance to a recipient is to promote employment,
then the recipient's employment practices are subject to Title VI. 42 U.S.C.
§ 2000d-3. (73)
Nothing contained in
[Title VI] shall be construed to authorize action under [Title VI] by any department or
agency with respect to any employment practice of any employer, employment agency, or
labor organization except where a primary
objective of the Federal financial assistance is to provide employment.
Id. (emphasis added). In addition, as explained
below, a recipient's employment practices also are subject to Title VI where those
practices negatively affect the delivery of services to ultimate beneficiaries.
For example, if a
recipient built a temporary shelter with funds designed to provide temporary assistance to
dislocated individuals, the employment practices of the recipient with respect to the
construction of such facility are not subject to Title VI. However, if the recipient built
the same facility with funds received through a public works program whose primary
objective is to generate employment, the employment practices are subject to Title VI. In
the former case, the program's benefit was to provide shelter to dislocated individuals
while, in the latter case, the benefit was the employment of individuals to build the
Thus, to sustain a
claim of employment discrimination under Title VI, the plaintiff has an additional
threshold requirement: not only must the plaintiff establish that the recipient receives
Federal financial assistance, but also that the "primary objective" of the
Federal funding is to provide employment. Reynolds
v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995) (motion
to dismiss granted due to plaintiff's failure to show that the primary purpose of Federal
assistance was to provide employment); Association
Against Discrimination in Employment v. City of Bridgeport, 647 F.2d 256, 276 (2d
Cir. 1981) (failure to prove all elements of employment discrimination claim due to lack
of evidence of primary purpose of Federal funds), cert.
denied, 455 U.S. 988 (1982); Bass v. Board of County Comm'rs of Orange County,
38 F. Supp. 2d 1001 (M.D. Fla, 1999) (summary judgment against plaintiff due to lack of
evidence of primary purpose of Federal funds); Thornton
v. National R.R. Passenger Corp., 16 F. Supp. 2d 5 (D.D.C. 1998) (complaint
dismissed because primary objective of funding was to promote transportation, not
employment). In Reynolds, plaintiff's
assertion that Federal funds paid, in part, the salary of an employee was insufficient,
since plaintiff did not show that the primary objective of the Federal funds was
employment rather than general funding of school programs. Id. at 1532.
employment discrimination by a recipient has a secondary effect on the ability of
beneficiaries to meaningfully participate in and/or receive the benefits of a federally
assisted program in a nondiscriminatory manner, those employment practices are within the
purview of Title VI. (74) Agency regulations specifically
address this principle in identical or similar language:
In regard to Federal financial assistance which does not
have providing employment as a primary objective, the provisions of paragraph (c)(1)
[prohibitions where objective is employment] apply to the employment practices of the
recipient if discrimination on the grounds of race, color, or national origin in such
employment practices tends, on the grounds of race, color, or national origin, to exclude
persons from participation in, to deny them the benefits of or to subject them to
discrimination under the program receiving Federal financial assistance. In any such case,
the provisions of paragraph (c)(1) of this section shall apply to the extent necessary to
assure equality of opportunity to and nondiscriminatory treatment of beneficiaries.
§ 42.104(c)(2); see also 15 C.F.R.
§ 8.4(c)(2) (Commerce); 34 C.F.R. § 100.3(c)(3) (Education). In this
situation, there is a causal nexus between employment discrimination and discrimination
against beneficiaries. United States v. Jefferson
County Bd. of Educ., 372 F.2d 836, 883 (5th Cir. 1966) ("Faculty integration
is essential to student desegregation."), cert.
denied. sub nom., Caddo Parish Sch. Bd. v.
United States, 389 U.S. 840 (1967); Ahern
v. Board of Educ., 133 F. 3d 975 (7th Cir. 1998) (applying infection
theory to public school plan for assignment of principals); Caulfield v. Board of Educ., 486 F. Supp. 862,
876 (E.D.N.Y. 1979) (characterization of infection theory where employment practices
affect beneficiaries, i.e., students); Marable v. Alabama Mental Health Bd., 297 F.
Supp. 291, 297 (M.D. Ala. 1969) (patients of State mental health system have standing to
challenge segregated employment practices which affect delivery of services to patients.).
Section 2000d-3 does
not exempt a recipient's employment practices from other applicable Federal statutes,
executive orders, or regulations. United States
by Clark v. Frazer, 297 F. Supp. 319, 321-322 (M.D. Ala. 1968); see also, Contractors Ass'n. of E. Pa. v. Secretary of Labor,
442 F.2d 159, 173 (3d. Cir. 1971), cert. denied., 404 U.S. 854 (1971). Furthermore, a
recipient's compliance with State and local merit systems for employment may not
constitute compliance with Title VI. 28 C.F.R. § 42.409.
B. Regulatory Referral of Employment Complaints to EEOC
In 1983, the
Department of Justice and the Equal Employment Opportunity Commission (EEOC) published
"Procedures for Complaints of Employment Discrimination Filed Against Recipients of
Federal financial assistance." 28 C.F.R. §§ 42.601-42.613 (DOJ); 29 C.F.R.
§§ 1691.1 - 1691.13 (EEOC) (often referred to as the Title VI/VII rule). In
summary, the procedures provide that a Federal agency receiving a complaint of employment
discrimination against a recipient that is covered by both Title VI (and/or other
grant-related prohibitions against discrimination) and Title VII should refer the
complaint to the EEOC for investigation and conciliation. (75)
28 C.F.R. §§ 42.605(d), 42.609. If the EEOC determines that there is discrimination
and is unable to resolve the complaint, the rule calls for the funding agency to evaluate
the matter, "with due weight to the EEOC's determination that reasonable cause
exists," and to take appropriate enforcement action. 28 C.F.R. § 42.610. Where
complaints allege a pattern or practice of discrimination and there is dual coverage,
agencies have the option of keeping the complaint rather than referring it.
The reason for this
regulation is clearly stated in the Preamble to the notice in the Federal Register:
The rule . . . will reduce duplicative efforts by
different Federal agencies to enforce differing employment discrimination prohibitions and
thereby will reduce the burden on employers covered by more than one of those
prohibitions. At the same time it will allow the Federal fund granting agencies to focus
their resources on allegations of services discrimination.
48 Fed. Reg. 3570
Funding Agency Methods to Evaluate Compliance
The Federal agency
providing the financial assistance is primarily responsible for enforcing Title VI as it
applies to its recipients. Agencies have several mechanisms available to evaluate whether recipients are in compliance
with Title VI, and additional means to enforce
or obtain compliance should a recipient's practices be found lacking. Evaluation
mechanisms, discussed below, include pre-award reviews, post-award compliance reviews, and
investigations of complaints.
endeavor to ensure that awards of Federal financial assistance are only granted to
entities that adhere to the substantive antidiscrimination mandates of Title VI and other
1. Assurances of Compliance
The Title VI
Coordination Regulations, (as well as the Section 504 coordinating regulation), require
that agencies obtain assurances of compliance from prospective recipients. 28 C.F.R.
§§ 41.5(a)(2), 42.407(b). Regulations requiring applicants to execute an assurance
of compliance as a condition for receiving assistance are valid. Grove City, 465 U.S. at 574-575 (Title IX
assurances); Gardner v. Alabama, 385 F.2d
804 (5th Cir. 1967), cert. denied, 389 U.S. 1046 (1968) (Title VI
assurances). If an applicant refuses to sign a required assurance, the agency may deny
assistance only after providing notice of the noncompliance, an opportunity for a hearing,
and other statutory procedures. 42 U.S.C. § 2000d-1; 28 C.F.R. § 50.3 II.A.1.
However, the agency need not prove actual discrimination at the administrative hearing,
but only that the applicant refused to sign an assurance of compliance with Title VI (or
similar nondiscrimination laws). Grove City,
465 U.S. at 575. Assurances serve two important purposes: they remind prospective
recipients of their nondiscrimination obligations, and they provide a basis for the
Federal government to sue to enforce compliance with these statutes. See United
States v. Marion County Sch. Dist., 625 F.2d 607, 609, 612-13 (5th Cir.), reh'g denied, 629 F.2d 1350 (5th Cir. 1980), cert. denied,
451 U.S. 910 (1981).
2. Deferral of the
Decision Whether to Grant Assistance
for the Enforcement of Title VI, Civil Rights Act of 1964," (the "Title VI
Guidelines") specifically state that agencies may defer assistance decisions:
"In some instances . . . it is legally permissible temporarily to defer action on an
application for assistance, pending initiation and completion of [statutory remedial]
procedures--including attempts to secure voluntary compliance with title VI." 28
C.F.R. § 50.3 I.A. Thus, deferral may occur while negotiations are ongoing to
special condition the award, during the pendency of a lawsuit to obtain relief, or during
proceedings aimed at refusing to grant the requested assistance.
is a reasonable, and even necessary, application of the statutory remedial scheme. The
congressional authorization to obtain relief pre-award would be sharply reduced, if not
rendered a near nullity, if agencies could not postpone the assistance decision while
spending the time needed to conduct a full and fair investigation and while seeking
appropriate relief. Furthermore, the Attorney General's administrative interpretation is
entitled to deference. See, e.g., Chevron
U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). (77)
The Title VI
Guidelines recommend that agencies adopt a flexible, case-by-case approach in assessing
when deferral is appropriate, and consider the nature of the potential noncompliance
problem. Where an assistance application is inadequate on its face, such as when the
applicant has failed to provide an assurance or other material required by the agency,
"the agency head should defer action
on the application pending prompt initiation and completion of [statutory remedial]
procedures." 28 C.F.R. § 50.3 II.A.1 (emphasis added). Where the application is
adequate on its face but there are "reasonable grounds" for believing that the
applicant is not complying with Title VI, "the agency head may defer action on the application pending
prompt initiation and completion of [statutory remedial] procedures." Id. II.A.2 (emphasis added).
When action on an
assistance application is deferred, remedial efforts "should be conducted without
delay and completed as soon as possible." Id.
I.A. Agencies should also be cognizant of the time involved in a deferral to ensure that a
deferral does not become "tantamount to a final refusal to grant assistance." Id. II.C. The agency should not completely rule
out deferrals where time is of the essence in granting the assistance, but should consider
special measures that may be taken to seek expedited relief (e.g., by referring the matter to the Department
of Justice to file suit for interim injunctive relief).
Authority of Recipients vis-a-vis Subrecipients
The Title VI
Guidelines provide that the "same [pre-award] rules and procedures would apply"
where a Federal assistance recipient is granted discretionary authority to dispense the
assistance to subrecipients. Id. III:
[T]he Federal Agency should instruct the approving agency
-- typically a State agency -- to defer approval or refuse to grant funds, in individual
cases in which such action would be taken by the original granting agency itself . . . .
Provision should be made for appropriate notice of such action to the Federal agency which
retains responsibility for compliance with [Title VI compliance] procedures. Id.
Thus, the Title VI
Guidelines support Federal agencies requiring that recipients/subgrantors obtain
assurances of compliance from subrecipients. (79) When the
recipient receives information pre-award that indicates noncompliance by an applicant for
a subgrant, recipients may defer making the grant decision, may seek a voluntary
resolution and, if no settlement is reached, (after complying with statutory procedural
requirements), may refuse to award assistance.
4. Data Collection
Section 42.406(d) of
the Coordination Regulations lists the types of data that should be submitted to and
reviewed by Federal agencies prior to granting funds. In addition to submitting an
assurance that it will compile and maintain records as required, an applicant should
provide: (1) notice of all lawsuits (and, for recipients, complaints) filed against it;
(2) a description of assistance applications that it has pending in other agencies
and of other Federal assistance being provided; (3) a description of any civil rights
compliance reviews of the applicant during the preceding two years; and (4) a statement as
to whether the applicant has been found in noncompliance with any relevant civil rights
Regulations require that agencies "shall make [a] written determination as to whether
the applicant is in compliance with Title VI." 28 C.F.R. § 42.407(b). Where a
determination cannot be made from the submitted data, the agency shall require the
submission of additional information and take other steps necessary for making a
compliance determination, which could include communicating with local government
officials or community organizations and/or conducting field reviews. Id.
Recommendations Concerning Pre-award Reviews
It is recommended
that agencies implement an internal screening process whereby agency officials are
notified of potential assistance grants and are provided the opportunity to raise a
"red flag" or concern about the potential grant recipient.
(80) If limited resources are a problem, agencies should develop a system to
target a significant proportion of assistance applications. (81)
As part of the Department of Justice's oversight and coordinating function, each agency
should submit to the Department, as part of its annual implementation plan, any targeting
procedures that are adopted.
B. Post-Award Compliance Reviews (82)
Federal agencies are
required to maintain an effective program of post-award compliance reviews. (83) Federal
agency Title VI regulations reiterate this requirement. (84)
Compliance reviews can be large and complex, or more limited in scope.
1. Selection of Targets and Scope of Compliance Review
have broad discretion in determining which recipients and subrecipients to target for
compliance reviews. However, this discretion is not unfettered. In United States v. Harris Methodist Fort Worth,
970 F.2d 94 (5th Cir. 1992), the Fifth Circuit found that a Title VI compliance review
involves an administrative search and, therefore, Fourth Amendment requirements for
"reasonableness" of a search are applicable. The Court considered three factors:
(1) whether the proposed search is authorized by statute; (2) whether the proposed search
is properly limited in scope; and (3) how the administrative agency designated the target
of the search. Id. at 101; United States v. New Orleans Pub. Serv. Inc.,
723 F.2d 422 (5th Cir.) reh'g en banc denied,
734 F.2d 226 (5th Cir. 1984) [hereinafter NOPSI III] (E.O. 11246 compliance review
unreasonable) (citing United States v.
Mississippi Power & Light Co., 638 F.2d 899 (5th Cir. 1981)); and First Ala. Bank of Montgomery, N.A., v. Donovan,
692 F.2d 714, 721 (11th Cir. 1982) (Exec. Order No. 11246 compliance review reasonable); see Marshall
v. Barlow's Inc., 436 U.S. 307 (1978). (85)
The Harris Methodist Court suggested that selection
of a target for a compliance review will be reasonable if it is based either on (1)
specific evidence of an existing violation, (2) a showing that "reasonable
legislative or administrative standards for conducting an . . . inspection are satisfied
with respect to a particular [establishment]," or (3) a showing that the search is
"pursuant to an administrative plan containing specific neutral criteria." Harris Methodist, 970 F.2d at 101 (internal
citations omitted); NOPSI III, 723 F.2d at
In Harris Methodist, the court rejected the
Department of Health and Human Services' (HHS') attempts to gain access to records,
including a vast array of records associated with confidential, physician peer review
evaluations, as part of a compliance review of the hospital. The court held that signing
an assurance gives consent "only to searches that comport with constitutional
standards of reasonableness." 970 F.2d at 100. Where the proposed compliance review
was not subjected to management review and not based upon consideration of a management
plan or objective criteria, the court of appeals agreed that the HHS official acted
"arbitrarily and without an administrative plan containing neutral criteria. Id. at 103.
Thus, agencies are
cautioned that they should not select targets randomly for compliance reviews but, rather,
they should base their decisions on neutral criteria or evidence of a violation. A
credible complaint can serve as specific evidence suggesting a violation that could
trigger a compliance review.
targets for compliance reviews, agencies may wish to take into consideration the
- Issues targeted in the agency's strategic plan, if any;
- Issues frequently identified as problems faced by program
- Geographical areas the agency wishes to target because of
the many known problems beneficiaries are experiencing or because the agency has not had a
"presence" there for some time;
- Issues raised in a complaint or identified during a
complaint investigation that could not be covered within the scope of the complaint
- Problems identified to the agency by community
organizations or advocacy groups that cite actual incidents to support their concerns;
- Problems identified to the agency by its block grant
recipients; (86) and
- Problems identified to the agency by other Federal, State,
or local civil rights agencies.
Apart from complying with the standards outlined above, it
is recommended that a decision to conduct a compliance review be set forth in writing and
approved by senior civil rights management. An agency may be required to show that it has
selected its targets for compliance reviews in an objective, reasonable manner. A
contemporaneous, written record that reflects the factors considered will aid in refuting
allegations of bias or improper targeting of a recipient. See NOPSI
III, 723 F.2d at 428. The memorandum should identify any regulations or internal
guidance that set forth criteria for selection of targets for compliance reviews, and
explain how such criteria are met.
2. Procedures for Compliance Reviews
Agency Title VI regulations are silent as to procedures
for conducting compliance reviews, although, as discussed, the Coordination Regulations
provide general guidance as to the types of data to solicit. Federal agencies granting
Federal financial assistance are required to "establish and maintain an effective
program of post-approval compliance reviews" of recipients to ensure that the
recipients are complying with the requirements of Title VI. 28 C.F.R. § 42.407(a).
Related to the reviews themselves, recipients should be required to submit periodic
compliance reports to the agencies and, where appropriate, conduct field reviews of a
representative number of major recipients. Finally, the Coordination Regulations recommend
that agencies consider incorporating a Title VI component into general program reviews and
audits. 28 C.F.R. § 42.407(c)(1). (87)
Results of post-approval reviews by the Federal agencies
should be in writing and include specific findings of fact and recommendations. The
determination by the Federal agency of the recipient's compliance status shall be made as
promptly as possible. 28 C.F.R. § 42.407(c).
The Coordination Regulations require that Federal agencies
establish procedures for the "prompt processing and disposition" of complaints
of discrimination in federally funded programs. 28 C.F.R. § 42.408(a). Agency
regulations with respect to procedures for the investigation of complaints of
discriminatory practices, however, are typically brief, and lack details as to the manner
or time table for such inquiry. See, e.g., 28 C.F.R. § 42.107; 32 C.F.R.
§ 195.8. Generally, by regulation, an agency will allow complainants 180 days to
file a complaint, although the agency may exercise its discretion and accept a complaint
filed later in time. See, e.g., 28 C.F.R. § 42.107(b). An agency is
not obliged to investigate a complaint that is frivolous, has no apparent merit, or where
other good cause is present, such as a pending law suit. An investigation customarily will
include interviews of the complainant, the recipient's staff, and other witnesses; a
review of the recipient's pertinent records, and potentially its facility(ies); and
consideration of the evidence gathered and defenses asserted. If the agency finds no
violation after an investigation, it must notify, in writing, the recipient and the
complainant, of this decision. See, e.g., 28 C.F.R. § 42.107(d)(2). If the
agency believes there is adequate evidence to support a finding of noncompliance, the
first course of action for the agency is to seek voluntary compliance by the recipient. See, e.g.,
28 C.F.R. § 42.107(d)(1). If the agency concludes that the matter cannot be resolved
through voluntary negotiations, the agency must make a formal finding of noncompliance and
seek enforcement, either through judicial action or administrative fund suspension.
If an agency receives a complaint that is not within its
jurisdiction, the agency should consider whether the matter may be referred to another
Federal agency that has or may have jurisdiction, or to a State agency to address the
matter. 28 C.F.R. § 42.408(a)-(b). If a recipient is required or permitted by a
Federal agency to process Title VI complaints, such as under certain block grant programs,
the agency must ascertain whether the recipient's procedures for processing complaints are
adequate. In such instances, the Coordination Regulations require that the Federal agency
obtain a written report of each complaint and investigation processed by the recipient,
and retain oversight responsibility regarding the investigation and disposition of each
complaint. 28 C.F.R. § 42.408(c).
Finally, the Coordination Regulations require that each
Federal agency, (and recipients that process Title VI complaints), maintain a log of Title
VI complaints received. 28 C.F.R. § 42.408(d). The log shall include the following:
the race, color, or national origin of the complainant, the identity of the recipient, the
nature of the complaint, the date the complaint was filed, the investigation completed,
the date and nature of the disposition, and other pertinent information.
XI. Federal Funding Agency Methods to Enforce Compliance
Agencies should remember that the primary means of
enforcing compliance with Title VI is through voluntary agreements with the recipients,
and that fund suspension or termination is a means of last resort.
(88) This approach is set forth in the statute, is a reflection of congressional
intent, and is recognized by the courts. See
42 U.S.C. § 2000d-1; Board of Pub.
Instruction v. Finch, 414 F.2d 1068, 1075 n.11 (5th Cir. 1969) (citing 110 Cong.
Rec. 7062 (1964) (Statement of Sen. Pastore)). Accordingly, if an agency believes an
applicant is not in compliance with Title VI, the agency has three potential remedies:
(1) resolution of the noncompliance (or potential
noncompliance) "by voluntary means" by entering into an agreement with the
applicant, which becomes a condition of the assistance agreement; or
(2) where voluntary compliance efforts are unsuccessful, a
refusal to grant or continue the assistance ; or
(3) where voluntary compliance efforts are unsuccessful,
referral of the violation to the Department of Justice for judicial action. 42 U.S.C.
§ 2000d-1. In addition, agencies may defer the decision whether to grant the
assistance pending completion of a Title VI (Title IX, or Section 504) investigation,
negotiations, or other action to obtain remedial relief. (89)
A. Efforts to Achieve
Under Title VI, before an agency initiates administrative
or judicial proceedings to compel compliance, it must attempt to obtain voluntary
compliance from a recipient.
Compliance with any requirement adopted pursuant to this
section may be effected (1) by the termination of or refusal to grant or to continue
assistance under such program or activity to any recipient . . . or (2) by any other means
authorized by law: Provided, however, that no such action shall be taken until
the department or agency concerned . . . has determined that compliance cannot be secured
by voluntary means.
42 U.S.C. § 2000d-1 (emphasis in original); see Alabama
NAACP State Conference of Branches v. Wallace, 269 F. Supp. 346, 351 (M.D. Ala.
1967) (voluntary compliance is to be effectuated if possible). Both the Coordination
Regulations and the Title VI Guidelines urge agencies to seek voluntary compliance before,
and throughout, the administrative or judicial process. (90)
See 28 C.F.R. § 42.411(a)
("Effective enforcement of Title VI requires that agencies take prompt action to
achieve voluntary compliance in all instances in which noncompliance is found."); 28
C.F.R. § 50.3 I.C.
Title VI requires that a concerted effort be made to
persuade any noncomplying applicant or recipient voluntarily to comply with Title VI.
Efforts to secure voluntary compliance should be undertaken at the outset in every
noncompliance situation and should be pursued through each state of enforcement action.
Similarly, when an applicant fails to file an adequate assurance or apparently breaches
its terms, notice should be promptly given of the nature of the noncompliance problem and
of the possible consequences thereof, and an immediate effort made to secure voluntary
An agency is not required to make formal findings of
noncompliance before undertaking negotiations or reaching a voluntary agreement to end
alleged discriminatory practices. However, there must be a basis for an agency and
recipient to enter into such a voluntary agreement (e.g., identification of alleged discriminatory
practices, even if the parties do not agree as to the extent of such practices). (91) In addition, throughout the negotiation process,
agencies should be prepared with sufficient evidence to support administrative or judicial
enforcement should voluntary negotiations fail.
An agency must balance its duty to permit informal
resolution of findings of noncompliance against its duty to effectuate, without undue
delay, the national policy prohibiting continued assistance to programs or activities
which discriminate. Efforts to obtain voluntary compliance should continue throughout the
process, but should not be allowed to become a device to avoid compliance.
(92) Once an area of noncompliance is identified, an agency is required to
enforce Title VI.
1. Voluntary Compliance at
the Pre-Award Stage
a. Special Conditions
As is done post-award, agencies may obtain compliance
"by voluntary means" in the pre-award context by entering into an agreement with
the applicant that enjoins the applicant from taking specified actions, requires that
specified remedial actions be taken, and/or provides for other appropriate relief. The
terms of the agreement become effective once the assistance is granted, and typically are
attached as a special condition to the assistance agreement. Three issues arise by
exercise of the voluntary compliance authority at the pre-award stage: what is the
appropriate scope of special remedial conditions; what is the remedy if an applicant
refuses to agree to a special condition proposed by an agency; and what is the remedy if,
post-award, the recipient fails to comply with a special remedial condition of the
When voluntary compliance is sought at the pre-award
stage, agencies may exercise greater flexibility in designing appropriate remedial
conditions, for two reasons. First, if the pre-award remedy does not fully resolve the
discrimination concern, agencies may have the opportunity to rectify this matter during
the life of the assistance grant. Second, since a pre-award investigation and remedial
efforts likely would require a deferral of the assistance award, it may be in the interest
of the applicant (as well as potentially the agency) that interim measures be agreed to
that allow the award to go forward while also addressing the discrimination concern. Thus,
a pre-award special condition may grant provisional relief, require that certain aspects
of the recipient's program be monitored, and/or require that the recipient provide
additional information relating to the discrimination allegations. Of course, the mere
fact that relief may be sought post-award does not necessarily mean that full relief,
using voluntary means or otherwise, should not be sought pre-award.
Agency authority to attach special conditions to
assistance agreements extends no further than the agency's authority to seek voluntary
compliance. Thus, if an applicant refuses to agree to a proposed special remedial
condition, the agency either would have to negotiate a different condition, award the
assistance without the condition, seek to obtain compliance "by any other means
authorized by law," or initiate administrative procedures to refuse to grant
assistance. However, an agency may not refuse to grant assistance based solely on an
applicant's refusal to accept a special condition unless the agency is prepared to make a
finding of noncompliance and proceed to an administrative hearing. This is because the
applicant has a right to challenge a refusal to grant assistance through an administrative
hearing. See 42 U.S.C. § 2000d-1.
Whether an agency may immediately suspend payment based on
noncompliance with a previously imposed special remedial condition depends on the terms of
the condition. As a general matter, if a recipient violates the terms of a special
remedial condition, the noncompliance must be remedied in the same manner that any other
post-award noncompliance is addressed -- through voluntary efforts, by the government
filing suit, or by the agency suspending or terminating the assistance pursuant to the
statutory procedure. If, however, as part of the remedial condition the applicant agrees
that the agency immediately may suspend payment if noncompliance occurs, then that
contractual provision would likely supersede the statutory protection against instant fund
suspension that the recipient otherwise enjoys.
b. Use of Cautionary Language
If an agency has evidence at the time of the award which
does not rise to the level of an actual violation by an applicant, and thus does not
warrant refusal of a grant award, the agency may consider notifying the recipient in the
grant award letter that the agency has a civil rights concern. The statement could
acknowledge, where appropriate, the applicant's cooperation with an ongoing civil rights
investigation or its attempts to resolve the concern. (93)
By including this language, the applicant is on notice that there may be a potential
problem and that the funding arm is aware of what the civil rights arm is doing. It also
warns that a failure to cooperate could lead to a denial of funds in the future. The
language also may encourage the applicant to enter into voluntary compliance negotiations
and engage in alternative dispute resolution, in appropriate cases, to resolve the alleged
discrimination at issue without a formal finding or the completion of an investigation. A
major advantage of this approach is that it avoids the due process concerns raised when
deferral or special conditioning is utilized because, in this case, the funds are being
awarded, i.e., there is no "refusal
to grant," which would trigger the right to an administrative hearing.
2. Other Nonlitigation Alternatives
The Title VI Guidelines list four other approaches, short
of litigation or fund termination, that may be available when civil rights concerns are
discovered. The possibilities listed include:
(1) consulting with or seeking assistance from other
Federal agencies . . . having authority to enforce nondiscrimination requirements; (2)
consulting with or seeking assistance from State or local agencies having such authority;
(3) bypassing a recalcitrant central agency applicant in order to obtain assurances from
or to grant assistance to complying local agencies; and (4) bypassing all recalcitrant
non-Federal agencies and providing assistance directly to the complying ultimate
28 C.F.R. § 50.3 I.B.2. Agencies are urged to consider
all of these options, as appropriate.
B. "Any Other Means
Authorized by Law:" Judicial Enforcement
The Department of Justice's statutory authority to sue in
Federal district court on behalf of an agency for violation of Title VI is contained in
the phrase "by any other means authorized by law." See 42 U.S.C. § 2000d-1; United States. v. City and County of Denver, 927
F. Supp. 1396, 1400 (D. Colo. 1996); Ayers v.
Allain, 674 F. Supp. 1523, 1551 n.6 (N.D. Miss. 1987); United States v. Marion County Sch. Dist., 625
F.2d 607, 612-13 & n.14, reh'g denied,
629 F.2d 1350 (5th Cir. 1980), cert.
denied, 451 U.S. 910 (1981). In addition, the Department of Justice may pursue
judicial enforcement through specific enforcement of assurances, certifications of
compliance, covenants attached to property, desegregation or other plans submitted to the
agency as conditions of assistance, or violations of other provisions of the Civil Rights
Act of 1964, other statutes, or the Constitution. See
Marion County, 625 F.2d at 612; 28 C.F.R.
§ 50.3 I.B.
Agency regulations interpreting this phrase provide for
several options including: 1) referral to the Department of Justice for proceedings, 2)
referrals to State agencies, and 3) referrals to local agencies. See, e.g.,
29 C.F.R. § 31.8(a) (Labor); 34 C.F.R. § 100.8 (Education); and 45 C.F.R. §
[C]ompliance may be effected by . . . other means
authorized by law. Such other means may include, but are not limited to, (1) a reference
to the Department of Justice with a recommendation that appropriate proceedings be brought
to enforce any rights of the United States under any law of the United States (including
other titles of the Act), or any assurance or contractual undertaking and (2) any
applicable proceedings under State or local law.
In order to refer a matter to the Justice Department for
litigation, agency regulations require that the funding agency make a finding that a
violation exists and a determination that voluntary compliance cannot be achieved. The
recipient must be notified of its failure to comply and must be notified of the intended
agency action to effectuate compliance. (94) Some agency
regulations require additional time after this notification to the recipient to continue
negotiation efforts to achieve voluntary compliance. (95)
It should be noted that the funding agency must in fact formally initiate referral of the
matter to the Justice Department, because there is no automatic referral mechanism.
In United States
v. Baylor Univ. Med. Ctr., 736 F.2d 1039 (5th Cir. 1984), the Fifth
Circuit held that when a referral is made to the Department of Justice, and suit for
injunctive relief is filed, a court can order termination of Federal financial assistance
as a remedy. However, the termination cannot become effective until 30 days have passed.
The court reasoned that the congressional intent to allow a 30-day period when the
administrative hearing route is followed (see
42 U.S.C. 2000d-1, which provides that the agency must file a report with Congress and 30
days must elapse before termination of the funds) evinces a congressional intent to
likewise permit a 30-day grace period before a court's order to terminate funds takes
C. Fund Suspension and Termination
Several procedural requirements must be satisfied before
an agency may deny or terminate Federal funds to an applicant/recipient. A four step
process is involved:
1) the agency must notify the recipient that it is not in
compliance with the statute and that voluntary compliance cannot be achieved;
2) after an opportunity for a hearing on the record, the
"responsible Department official;" must make an express finding of failure to
3) the head of the agency must approve the decision to
suspend or terminate funds; and
4) the head of the agency must file a report with the
House and Senate legislative committees having jurisdiction over the programs involved and
wait 30 days before terminating funds. (96) The report
must provide the grounds for the decision to deny or terminate the funds to the recipient
or applicant. 42 U.S.C. § 2000d-1; See, e.g., 45 C.F.R. § 80.8(c) (HHS).
1. Fund Termination Hearings
As noted above, funds cannot be terminated without
providing the recipient an opportunity for a formal hearing. See, e.g.,
28 C.F.R. § 42.109(a). If the recipient waives this right, a decision will be issued
by the "responsible Department official" based on the record compiled by the
investigative agency. Hearings on terminations cannot be held less than 20 days after
receipt of notice of the violation. See, e.g., 45 C.F.R. § 80.9(a) (HHS).
Agencies have adopted the procedures of the Administrative
Procedures Act for administrative hearings. See,
e.g., 28 C.F.R. § 42.109(d)
(Justice); 45 C.F.R. § 80.9 (HHS). Technical rules of evidence do not apply, although the
hearing examiner may exclude evidence that is "irrelevant, immaterial, or unduly
repetitious." See, e.g., 28 C.F.R. § 42.109(d); 45 C.F.R.
§ 80.9(d)(2) [HHS]. The hearing examiner may issue an initial decision or a
recommendation to the "responsible agency official." See, e.g.,
28 C.F.R. § 42.110. The recipient may file exceptions to any initial decision. In the
absence of exceptions or review initiated by the "responsible department
official," the hearing examiner's decision will be the final decision. A final
decision that suspends or terminates funds, or imposes other sanctions, is subject to
review and approval by the agency head. Upon approval, an order shall be issued that
identifies the basis for noncompliance, and the action(s) that must be taken in order to
come into compliance. A recipient may request restoration of funds upon a showing of
compliance with the terms of the order, or if the recipient is otherwise able to show
compliance with Title VI. See, e.g., 28 C.F.R. § 42.110; 45 C.F.R. §
80.10(g). The restoration of funds is subject to judicial review. 42 U.S.C.
§ 2000d-2. Moreover, as noted above, no funds can be terminated until 30 days after
the agency head files a written report on the matter with the House and Senate committees
having legislative jurisdiction over the program or activity involved. 42 U.S.C. §
2. Agency Fund Termination
is Limited to the Particular Political Entity,
or Part Thereof, that Discriminated
Congress specifically limited the effect of fund
termination by providing that it
...shall be limited to the particular political entity, or
part thereof, or other recipient as to whom such a finding has been made and, shall be
limited in its effect to the particular program, or part thereof, in which such
noncompliance has been so found, . . . .
42 U.S.C. § 2000d-1. This is called the "pinpoint
provision." As discussed below, the CRRA did not modify interpretations of this
provision, but only affected the interpretation of "program or activity" for
purposes of coverage of Title VI (and related statutes). See S. Rep. No. 64 at 20, reprinted in 1988 U.S.C.C.A.N. at 22.
Congress' intent was to limit the adverse affects of fund
termination on innocent beneficiaries and to insure against the vindictive or punitive use
of the fund termination remedy. Board of Pub.
Instruction v. Finch, 414 F.2d 1068, 1075 (5th Cir. 1969). (97) "The procedural limitations placed on the exercise
of such power were designed to insure that termination would be 'pinpoint(ed) . . . to the
situation where discriminatory practices prevail.'" Id. (quoting 1964 U.S.C.C.A.N. 2512).
The seminal case on this issue is Finch, 414 F.2d at 1068. A Department of Health,
Education, and Welfare (HEW) hearing officer had found that the school district had made
inadequate progress toward student and teacher desegregation and that the district had
sought to perpetuate the dual school system through its construction program. Based on
these findings, a final order was entered terminating "any class of Federal financial
assistance" to the district "arising under any Act of Congress"
administered by HEW, the National Science Foundation, and the Department of the Interior. Id. at 1071.
On appeal, the Fifth Circuit vacated the termination
order, holding that it was in violation of the purpose and statutory scope of the agency's
power. The "programs" in issue were three education statutes, yet the HEW
officer had not made any specific findings as to whether there was discrimination in all
three programs, and/or if action in one program tainted, or caused discriminatory
treatment in, other programs. Id. at
1073-74, 79. The court paid considerable attention to the congressional intent of the
pinpoint provision: limiting the termination power to "activities which are actually
discriminatory or segregated" was designed to protect the innocent beneficiaries of
untainted programs. Id. at 1077. The court
further held that it was improper to construe Section 602 as placing the burden on
recipients to limit the effect of termination orders by proving that certain programs are
untainted by discrimination, rather than on an agency to establish the basis for findings
as to the scope of discrimination. Id.
As to the meaning of the term "program" in the
pinpoint proviso, the court concluded that the legislative history of Title VI evidenced a
congressional intent that the term refer not to generic categories of programs by a
recipient, but rather to specific programs of assistance, or specific statutes,
administered by the Federal government. Id.
at 1077-78. (98) Further, even if "program" was
meant to refer to generic categories of aid, the parenthetical phrase, "or part
thereof", must be given meaning. Thus, an agency's fund termination order must be
based on program-specific (i.e., grant
statute specific) findings of noncompliance. The Court reasoned that:
[T]he purpose of the Title VI [fund] cutoff is best
effectuated by separate consideration of the use or intended use of federal funds under
each grant statute. If the funds provided by the grant are administered in a
discriminatory manner, or if they support a program which is infected by a discriminatory
environment, then termination of such funds is proper. But there will also be cases from
time to time where a particular program, within a state, within a county, within a
district, even within a school (in short, within a "political entity or part
thereof"), is effectively insulated from otherwise unlawful activities. Congress did
not intend that such a program suffer for the sins of others. HEW was denied the right to
condemn programs by association. The statute prescribes a policy of disassociation of
programs in the fact finding process. Each must be considered on its own merits to
determine whether or not it is in compliance with the Act. In this way the Act is shielded
from a vindictive application. Schools and programs are not condemned enmasse or in gross,
with the good and the bad condemned together, but the termination power reaches only those
programs which would utilize federal money for unconstitutional ends.
The specificity required for fund termination was also
addressed by the Seventh Circuit in Gautreaux v.
Romney, 457 F.2d 124 (7th Cir. 1972). In Gautreaux,
the court reversed a district court's order approving Federal fund termination for a
Housing and Urban Development (HUD) program where there were no findings of discrimination
in such program, and where such action was pursued in an effort to pressure action to
remedy the defendant's discriminatory conduct in a wholly sparate HUD program. 457 F.2d at
127-128. The district court had previously found that defendants had violated fair housing
laws yet intended to withhold Model Cities Program funds, which primarily support
education, job training, and day care programs on behalf of low and moderate income
families. Although a small portion of Model Cities money also supported public housing,
there was no allegation or finding that any Model Cities program was operated in a
discriminatory fashion. Id. at 126.
Accordingly, the court of appeals held that the district court violated Section 602 of
Title VI and the "mandate of" Finch,
and abused its discretion in withholding the Model Cities funds. Id. at 128.
It is equally critical to note that, notwithstanding the
need for an independent evaluation of each program, an agency (or reviewing court) must
examine not only whether the Federal funds are "administered in a discriminatory
manner, . . . [but also] if they support a program which is infected by a discriminatory environment." Finch, 414 F.2d at 1078 (emphasis added). Not
all programs operate in isolation. Thus,
the administrative agency seeking to cut off federal funds
must make findings of fact indicating either that a particular program is itself
administered in a discriminatory manner, or is so affected by discriminatory practices
elsewhere in the [overall operation, e.g., school system] that it thereby becomes
1079; see North Haven, 456 U.S. at 539-540 (approval of
HEW Title IX regulations that adopt the Finch
"infection" standard.) This latter analysis is often referred to as the
"infection theory." Although Finch
and Gautreaux were decided prior to
passage of the CRRA, it is important to recognize that while the CRRA defined the meaning
of "program or activity" for purposes of prohibited conduct, it did not change
the definition of such terms for purposes of fund termination for a violation of Title VI.
In particular, the CRRA left intact the "pinpoint" provision that limits any
fund termination to the "program, or part thereof, in which noncompliance has been so
found." 42 U.S.C. § 2000d-1.
XII. Private Right of Action and Individual Relief through
The Supreme Court has established that individuals have an
implied private right of action under Title VI (and Title IX and Section 504). The Court
has stated that it has "no doubt that Congress...understood Title VI as authorizing
an implied private right of action for victims of illegal discrimination." See Cannon
v. University of Chicago, 441 U.S. 677 (1979) (holding that an individual has a
private right of action under Title IX). In addition, several courts of appeals have held
that plaintiffs have a private right of action to enforce the disparate impact regulations
implementing Section 602 of Title VI. See Sandoval v. Hagan, 197 F.3d 484 (11th
Cir. 1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 28,
68 U.S.L.W. 3749 (U.S. Sept. 26, 2000) (No. 99-1908).; Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999).
the court found that a reading of Lau, Guardians, and Alexander, in pari materia supported
the finding of an implied private cause of action under Section 602 of Title VI. 197 F.3d
484, 507 (11th Cir. 1999). Likewise, in Powell v. Ridge, 189 F.3d 387, 397-400 (1999),
the Third Circuit Court of Appeals recognized an implied private right of action to
enforce regulations promulgated pursuant to Section 602 of Title VI. The Second Circuit,
however, declined to reach the issue of whether a private right of action may be brought
under regulations implementing Section 602 and let stand the lower court's ruling that a
private right of action is not available to plaintiffs bringing suit pursuant to Section
602. NYCEJA, 214 F.3d at 72-73. The
Supreme Court will likely definitively decide the issue when it hears Sandoval.
Many circuits have ruled that individuals may not bring
suit against the federal government for failure to enforce Title VI (and Section 504 and
Title IX). Jersey Heights Neighborhood Ass'n v.
Glendening et al., 174 F.3d 180 (4th Cir. 1999); Washington Legal Found. v. Alexander, 984 F.2d
483, (D.C. Cir. 1993); Women's Equity Action
League v. Cavazos, 906 F.2d 742 (D.C. Cir. 1990) [hereinafter WEAL II]. In Jersey Heights, plaintiffs, African-American
landowners, filed suit against the U.S. Department of Transportation, among others,
claiming that it abdicated its duties under section 602 of Title VI to eliminate
discrimination in federally-funded programs by failing to terminate funds to recipients
who failed to comply with Title VI. The Fourth Circuit found that Title VI provides two
avenues of recourse to address discrimination by federal funding agencies: private right
of action against recipients of Federal financial assistance and petition to the federal
funding agency to secure voluntary compliance by its recipients. After reviewing the
legislative history of Title VI, the court concluded that Congress did not intend for
aggrieved parties "to circumvent that very administrative scheme through direct
litigation against federal agencies." 174 F.3d at 191.
Similarly, the court in WEAL II, ruled that, absent congressional
authorization, individuals do not have a private right of action against the federal
government under Title VI, Title IX, or Section 504. (100)
906 F.2d at 752. Citing the Supreme Court's examination of
the legislative history of Title VI in Cannon,
the court found that Congress did not intend for private suits to be brought against the
federal funding agencies. Id. at 748. The WEAL II court further concluded that because
individuals already have an adequate remedy through private rights of action against the
recipients of Federal financial assistance, individuals could not maintain a cause of
action against the federal funding agency to compel enforcement of Title VI under the
Administrative Procedure Act, the Mandamus Act, or the Constitution. Id. at 752. One possible exception to these
rulings might to be a situation where the federal funding agency makes a finding that a
recipient is in violation of Title VI but, nonetheless, refuses to enforce its own
determination. See Washington Legal Found. v. Alexander, 984 F.2d
at 488 (101).
The most common form of relief sought and obtained through
a private right of action is an injunction ordering a recipient to do something. See Cannon,
441 U.S. 667. See also, United
States v. Baylor Univ. Med. Ctr., 736 F. 2d 1039, in which the court ordered
termination of funds. The Supreme Court also has held that individuals may obtain monetary
damages for claims of intentional discrimination under Title IX. See Franklin
v. Gwinett, 503 U.S. 60 (1990) at 75 n.8. (102) As
discussed below, agencies are encouraged to identify and seek the full complement of
relief for complainants and identified victims, where appropriate, as part of voluntary
settlements, including, where appropriate, not only the obvious remedy of back pay for
certain employment discrimination cases, but also compensatory damages for violations in a
nonemployment context. Agencies are also asked to recommend the scope of relief to be
sought in referrals of matters to the Department of Justice for judicial enforcement.
A. Entitlement to Damages
for Intentional Violations
In addition to agency enforcement mechanisms, private
individuals have an implied right of action under Title VI (as well as Title IX and
Section 504). See Cannon, 441 U.S. at 696 (private right of action
recognized under Title IX, and citing with approval cases finding a private right of
action under Title VI). (103) In addition, the Supreme
Court has ruled that monetary damages are an available remedy in private actions brought
to enforce Title IX for alleged intentional violations. See Franklin,
503 U.S. at 72-75 (104), Consolidated Rail Corp. v. Darrone, 465 U.S.
624, 630-31 (1984).
contains a detailed discussion on the merits of allowing monetary damages for intentional
violations of Title IX (as well as Title VI and Section 504). Id. at 71-76. The Court placed great reliance on
the "longstanding rule" that where a Federal statute provides (expressly or
impliedly) for a right to bring suit, Federal courts "presume the availability of all
appropriate remedies unless Congress has expressly indicated otherwise." Id. at 66. (105)
The Court found no congressional intent to abandon this presumption in the enforcement of
Title IX. (106) Accordingly, the Court concluded that
private individuals may obtain damages in appropriate cases.
Throughout its opinion, the Franklin Court broadly referred to the relief
being sanctioned as "monetary damages." Although the Court did not define this
term, it specifically rejected limiting Title IX plaintiffs to monetary relief that is
equitable in nature, such as backpay. See id. at 75-76. In these circumstances, it appears
appropriate to be guided by the traditional definition of "compensatory
damages," which includes damages for both pecuniary and nonpecuniary injuries. (107)
B. Availability of
Monetary Damages in Other Circumstances
the Supreme Court was not called upon to rule whether monetary damages are available where
other types of discrimination are proven. Nonetheless, the Court noted that unintentional
discrimination may present a different legal question, and damages may not be available. Id. at 74. (108)
Awarding damages may be particularly problematic where the violation rests on a
"disparate impact" theory of discrimination. See Guardians,
463 U.S. at 595-603 (Opinion of White, J.).
C. Recommendations for Agency Action
In incorporating the damages remedy into agency compliance
activities, agencies will need to decide when damages should be sought as part of a
voluntary compliance agreement and, if damages are requested, the amount of emphasis to be
placed on the damages request in compliance negotiations. Agencies will want to ensure
that the damages remedy is implemented in a manner consonant with other enforcement goals
and policies, in a manner consistent among compliance agreements, and in a manner that
protects the flexibility of the voluntary compliance process. To effectuate these goals,
agencies may wish to draft written guidelines, and establish special supervisory
procedures and internal reporting requirements.
There are several considerations that may be relevant in
deciding how to exercise administrative discretion in applying the damages remedy in
particular cases. One factor may be the degree of seriousness of the violation. A second
factor may be whether the injury is substantial. A third factor may be whether the injury
is pecuniary in nature. Since pecuniary losses represent a concrete injury and are
relatively straightforward to measure, they may represent a type of loss for which damages
almost always should be sought. Injuries involving "emotional distress" also
should be addressed, but may require closer analysis. A fourth factor may be whether the
discrimination victim has a current, ongoing relationship with the recipient that involves
regular interactions between the two. If such a relationship exists and prospective relief
is obtained that benefits the victim, that may weigh against providing compensation for
any nonpecuniary injury that is relatively slight.
Another issue is how agencies should respond to requests
by recipients that discrimination victims sign a liability release in order to obtain a
damage award through a compliance agreement. As a practical matter, agencies likely will
need to be open to including such a release in any agreement that provides for damages, if
requested by the recipient.
D. States Do Not Have
Eleventh Amendment Immunity Under Title VI
The Eleventh Amendment bars a State from being sued by a
citizen of the State in Federal court. (109) Since 1890,
the Supreme Court has consistently held that this Amendment protects a State from being
sued in Federal court without the State's consent. See Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 54 n.7 (1996) (cases cited). However,
Federal courts have jurisdiction over a State if the State has either waived its immunity
or Congress has abrogated unequivocally a State's immunity pursuant to valid powers. See id.
at 68. Congress has unequivocally done so with respect to Title VI and related statutes.
In 1986, Congress enacted 42 U.S.C. § 2000d-7 as
part of the Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003,
100 Stat. 1845 (1986), to abrogate States' immunity from suit for violations of Section
504, Title VI, Title IX, the Age Discrimination Act, and similar nondiscrimination
statutes. See Lane, 518 U.S. at 199. Section 2000d-7 states:
(1) A State shall not be immune under the Eleventh
Amendment of the Constitution of the United States from suit in Federal court for a
violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794], title IX of
the Education Amendments of 1972 [20 U.S.C. § 1681 et seq.], the Age Discrimination Act
of 1975 [42 U.S.C. § 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.
§ 2000d et seq.], or the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute
referred to in paragraph (1), remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as such remedies are available for such
a violation in the suit against any public or private entity other than a State.
It is the position of the Department of Justice that
Section 2000d-7 is an unambiguous abrogation which gives States express notice that a
condition for receiving Federal funds is the requirement that they consent to suit in
Federal court for alleged violations of Title VI and the other statutes enumerated.
XIII. Department of Justice Role Under Title VI
The Department of Justice has two roles to play in Title
VI enforcement: coordination of Federal agency implementation and enforcement, and legal
representative of the United States. Pursuant to Exec. Order No. 12250, 28 C.F.R. Pt. 41,
App. A, the Attorney General shall "coordinate the implementation and enforcement by
Executive agencies" of Title VI, Title, IX, Section 504 and "any other provision
of Federal statutory law which provides, in whole or in part, that no person in the United
States shall, on the ground of race, color, national origin, handicap, religion, or sex,
be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity receiving Federal financial assistance. Exec.
Order No. 12250 § 1-201. Except for approval of agency regulations implementing
Title VI and Title IX and the issuance of coordinating regulations, all other
responsibilities have been delegated to the Assistant Attorney General for Civil Rights.
While each Federal agency extending Federal financial assistance has primary
responsibility for implementing Title VI with respect to its recipients, overall
coordination in identifying legal and operational standards, and ensuring consistent
application and enforcement, rests with the Civil Rights Division of the Department of
Initially, the Title VI coordination responsibility was
assigned to a President's Council on Equal Opportunity, which was created by Exec. Order
No. 11197, dated February 5, 1965. Exec. Order No. 11197, 3 C.F.R. 1964-1965 Comp. 278.
However, the Council was abolished after six months and the responsibility was reassigned
to the Attorney General pursuant to Exec. Order No. 11247, dated September 24, 1965. 3
C.F.R. 1964-1965 Comp. 348. Exec. Order No. 11247 provided that the Attorney General was
to assist Federal departments and agencies in coordinating their Title VI enforcement
activities adopting consistent, uniform policies, practices, and procedures. During this
period, the Department issued its "Guidelines for the Enforcement of Title VI, Civil
Rights Act of 1964," 28 C.F.R. § 50.3.
In 1974, the President signed Exec. Order No. 11764, which
was designed "to clarify and broaden the role of the Attorney General with respect to
Title VI enforcement." Exec. Order No. 11764, 3A C.F.R. § 124 (1974 Comp.). The
Order gave the Attorney General broad power to insure the effective and coordinated
enforcement of Title VI. Pursuant to this Executive Order, in 1976, the Department
promulgated its Coordination Regulations describing specific implementation, compliance,
and enforcement obligations of Federal funding agencies under Title VI. See 28 C.F.R.
§§ 42.401-42.415. (110) Every agency that extends
Federal financial assistance covered by Title VI is subject to the Coordination
Regulations and Title VI Guidelines issued by the Department of Justice.
Finally, on November 2, 1980, President Carter signed
Exec. Order No. 12250, which directs the Attorney General to oversee and coordinate the
implementation and enforcement responsibilities of the Federal agencies pursuant to Title
VI. For the first time, the President's approval power over regulations was delegated to
the Attorney General. See id. at § 1-1. (111)
This Executive Order also requires agencies to issue
appropriate implementing directives either in the form of policy guidance or regulations
that are consistent with the requirements prescribed by the Attorney General. Id. at § 1-402.
The Department of Justice's second role is as the Federal
government's litigator. As discussed in Chapter XI, the Department of Justice, on behalf
of Executive agencies, may seek injunctive relief, specific performance, or other remedies
when agencies have referred determinations of noncompliance by recipients to the
Department for judicial enforcement. Such litigation will be assigned to the Department's
Civil Rights Division. In addition, the Department is responsible for representing agency
officials should they be named in private litigation involving Title VI.
1. In addition, Title II of the
Americans with Disabilities Act of 1990, as amended, is patterned after Section 504. 42
U.S.C. § 12131.
2. Exec. Order No. 11063, 3C.F.R.
652-656 (1959-1963) (equal opportunity in housing), as amended by Exec. Order No. 12259, 3
C.F.R. 307 (1981); Exec. Order No. 10479, 3 C.F.R. 61 (1949-1953), as amended by Exec.
Order No. 10482, 3 C.F.R. 968 (1949-1953) (equal employment opportunity by government);
Exec. Order No. 9981, 3 C.F.R. 722 (1943-1948) (equal opportunity in the armed services).
3. See, e.g.,
Cooper v. Aaron, 358 U.S. 1 (1958); Simkins v. Moses H. Cone Memorial Hosp., 323
F.2d 959 (5th Cir. 1963), cert. denied, 376 U.S. 938 (1964).
4. See 6 Op. Off. Legal Counsel 83, 93 (1982)
("The statutes [Title VI, Title IX, Section 504, and the Age Discrimination Act] . .
. [are] intended to apply to all programs or activities receiving federal financial
assistance without being explicitly referenced in subsequent legislation. They should
therefore be considered applicable to all legislation authorizing federal financial
assistance . . . unless Congress evidences a contrary intent.")
5. These amendments were so named
because of their proponent, Congressman Adam Clayton Powell. See 110 Cong. Rec. 2465 (1964) (Statement by
6. Fifth and Fourteenth Amendment equal
protection claims are coextensive, and "indistinguishable." Adarand Constructors, Inc. v. Peņa, 515 U.S.
200, 217 (1995).
7. See discussion infra Chs. XI and XII for a discussion of these
remedies. This may mean that although a subrecipient
could not sue a state recipient of Federal financial assistance
for alleged discriminatory allocation of funds among subrecipients,
aggrieved individuals may be able to bring suit against the
state recipient for discriminatory distribution of funds.
8. See e.g., 5 C.F.R. § 900.403(f) (Office of
Personnel Management's definition of "recipient"); 24 C.F.R. § 1.2(d)
(Housing and Urban Development's definition of "United States"); 28 C.F.R.
§ 42.102(b) (Department of Justice's definition of "United States"); 29
C.F.R. § 31.2(j) (Department of Labor's definition of "United States"); 38
C.F.R. § 18.13(d) (Veterans Administration's definition of "United
States"); 45 C.F.R. § 80.13(e) (Health and Human Services' definition of
"United States"); and 49 C.F.R. § 21.23(f) (Department of Transportation's
definition of "recipient").
9. In Delmonte, the plaintiff alleged that he was
demoted in 1990 on a prohibited basis in violation of Section 504. 877 F. Supp. at 1564.
The court held that the defendant received Federal financial assistance through its
participation in at least 10 Federal training programs (consisting of less than one to
three-day programs) both before and after the demotion, over a course of approximately
twelve years. Id. at 1565-66. The court
does not clearly address if its conclusion is based on training in the aggregate, or if a
single training session (with the required contractual assurances of compliance with
nondiscrimination), is sufficient. Id. at
10. Agency Title VI regulations
include an appendix that sets forth examples of the types of Federal financial assistance
provided through the agency's programs. This list can provide guidance, although it should
not be considered (and may specifically state that it is not) an exhaustive list of all
Federal financial assistance provided by that agency. Agencies should amend the appendix,
"at appropriate intervals," to include programs enacted after issuance of the
regulations. See 28 C.F.R.
11. Regulations also typically bind
the successors and transferees of this property, as long as the original purpose, or a
similar objective, is pursued. Id.
12. It is often difficult to separate
discussions of closely linked concepts, such as what is a recipient and what is Federal
financial assistance. Accordingly, the concept of "direct" and
"indirect" are discussed both in terms of "direct/indirect recipient"
and "directly receive/indirectly receive Federal financial assistance."
13. "With the benefit of clear
statutory language, powerful evidence of Congress' intent, and a longstanding and coherent
administrative construction of the phrase 'receiving federal financial assistance,' we
have little trouble concluding that Title IX coverage is not foreclosed because federal
funds are granted to Grove City's students rather than directly to one of the College's
educational programs." Grove City College v.
Bell, 465 U.S. 555, 569.
14. As stated by then-Deputy Attorney
General Nicholas deB. Katzenbach to Hon. Emanuel Celler, Chairman, Committee on the
Judiciary, House of Representatives (December 2, 1963):
Activities wholly carried out by the United States with
Federal funds, such as river and harbor improvements or other public works, defense
installations, veteran's hospitals, mail service, etc. are not included in the list [of
federally assisted programs]. Such activities, being wholly owned by, and operated by or
for, the United States, cannot fairly be described as receiving Federal 'assistance.'
While they may result in general economic benefit to neighboring communities, such benefit
is not considered to be financial assistance to a program or activity within the meaning
of Title VI.
110 Cong. Rec. 13380 (1964).
15. In response to specific questions
from Senator John Sherman Cooper, Attorney General Robert F. Kennedy explained the
exclusion of procurement contracts from Title VI:
Title VI does not apply to procurement contracts, or to
other business contracts which do not involve financial assistance by the United States.
It does apply to grant and loan agreements, and to certain other contracts involving
financial assistance (for example, those research "contracts" which are
essentially grants in nature). In those cases in which Title VI is applicable, section 602
would apply to a person or corporation who accepts a direct grant, loan, or assistance
contract from the Federal Government. But, as indicated, the fact that the title applied
would not authorize any action, except with respect to discrimination against
beneficiaries of the particular program involved.
110 Cong. Rec. 10075 (1964).
16. The court in Bob Jones Univ., distinguished pensions from
payments to veterans for educational purposes since the latter is a program with a
requirement or condition that the individual participate in a program or activity. 396 F.
Supp. at 602 n.16. For a more detailed discussion of when assistance to a beneficiary may
constitute indirect assistance to a recipient, see discussion of indirect recipient in
section (VI)(C) of this chapter.
17. An ultimate beneficiary usually
does not receive a "distribution" of the federal money. Rather, he or she enjoys
the benefits of enrollment in the program.
18. It should be noted that the
remaining text of this section distinguishes various scenarios for recipients and
beneficiaries. While captions are used to separate different circumstances, courts do not
uniformly use the same phrase to explain the same funding pattern. Thus, a court may refer
to an "indirect recipient" when the situation more closely fits the paradigm of
"primary recipient/subrecipient." See
discussion infra Section E.
19. While the court's analysis in Grove City of the scope of "program or
activity" was reversed by the Civil Rights Restoration Act of 1987, Pub. L. No.
100-259, 102 Stat. 28 (1988), the Court's discussion of other principles, including direct
and indirect recipients, remains undisturbed.
20. The Court in Smith specifically did not address the
Department's argument that "when a recipient cedes controlling authority over a
federally funded program to another entity, the controlling entity is covered by Title IX
regardless whether it is itself a recipient. Id.
21. In contrast, in Independent Hous. Servs. of San Francisco (IHS) v.
Fillmore Ctr. Assoc., 840 F. Supp. 1328, 1341 (N.D. Ca. 1993), the transfer of
property in issue occurred before the effective date of HUD regulations that stated
transferees or purchasers of real property are subject to Section 504. Accordingly, in IHS, a San Francisco agency was a recipient of
funds under a block grant to assemble and clear land for redevelopment, and the purchaser
of the land, who built housing units, was considered a beneficiary. Id.
22. The Graves court described the local agency as an
"indirect" recipient since the Federal money flowed "through another
recipient," and compared this situation to Grove City College's indirect receipt of
BEOG funds from students. Id. at 433.
Given that the funding was distributed to a State agency and a portion allocated to a
local entity, the more accurate description is that of primary/subrecipient.
23. Most agency Title VI regulations
state that the term recipient "does not include any ultimate beneficiary under the
program." See, e.g., 28 C.F.R. § 42.102(f) (DOJ).
24. For example, in Cuffley v. Mickes, 208 F.3d 702 (8th
Cir. 2000) plaintiffs, the Knights of the Ku Klux Klan, brought suit against the Missouri
Highway and Transportation Commission (State) for denying its application to participate
in Missouri's Adopt-A-Highway program. Among the State's reasons for denying the
application was that allowing the Klan to participate in the Adopt-A-Highway program would
violate Title VI of the Civil Rights Act of 1964 and would cause the state to lose its
federal funding. The Eighth Circuit ruled that "Title VI clearly does not apply
directly to prohibit the Klan's discriminatory membership criteria" and that the Klan
is not a direct recipient of federal financial assistant through the Adopt-A-Highway
program, but merely a beneficiary of the program. Therefore, the State's denial of the
Klan's application was invalid. Id. at
25. See, e.g.,
42 U.S.C. § 2000d (1964), 42 U.S.C. § 2000d-1 (1964), and 42 U.S.C. § 2000d-4
26. Agency regulations, while broad in
scope, provide limited, specific guidance. See,
e.g., 28 C.F.R. § 42.102(d).
27. The Senate further stated:
The purpose of
the Civil Rights Restoration Act of 1987 is to reaffirm pre-Grove City judicial and executive branch
interpretations and enforcement practices which provided for broad coverage of the
anti-discrimination provisions of these civil rights statutes. Id.
28. No House Report or Conference
Report was submitted with the legislation.
29. The Cureton court implied that the CRRA definition
of "program or activity" applied to the regulations dealing with the disparate
treatment or intent standard. However, it specifically refused to rule on the issue,
because the allegations in the case were solely based upon the regulatory disparate impact
theory. 198 F.3d at 116.
30. See, e.g.,
the Department of Education Notice of Proposed Rulemaking. 65 Fed. Reg. 26464 (2000) (to
be codified at 34 C.F.R. pts. 100, 104, 106, & 110) (proposed May 5, 2000); the
Department of Health and Human Services Notice of Proposed Rulemaking, 65 Fed. Reg. 64194
(2000) (to be codified at 45 C.F.R. pts. 80, 84, 86, 90, 91) (proposed Oct. 26, 2000).
31. At least one court, however, has
held that an entire county was the "program or activity." See Bentley
v. Cleveland County Bd. of Comm'rs, 41 F.3d 600 (10th Cir. 1994).
32. In the first opinion, the District
Court recognized that the Public Building Commission (PBC) could be subject to Title VI
even if it did not directly receive Federal funds (as part of a larger program or
activity). Conclusory allegations of PBC's contractual relationship with the Board of
Education (CBOE), which received Federal funds, were insufficient to survive a motion to
dismiss. "These conclusory allegations are insufficient to show that the PBC
administered the CBOE's funds, benefitted from the CBOE's funds, or was connected in any
other way to the Federal funds received by the CBOE." Id. at 1507.
33. In Schroeder, the court stated:
amendment was not, so far as we are able to determine--there are no cases on the
question--intended to sweep in the whole state or local government, so that if two little
crannies (the personnel and medical departments) of one city agency (the fire department)
discriminate, the entire city government is in jeopardy of losing its federal financial
34. Plaintiffs had alleged that the
State, through its legislature, contributed to the alleged school segregation by passing
laws that impeded desegregation efforts and providing limited financial assistance for
such efforts. Id. at n.25. It is unclear
whether evidence of such allegations was introduced. In a subsequent opinion, the court
did not address these facts and rejected plaintiffs' arguments that a State, solely by its
failure to prevent alleged discrimination, could be held vicariously liable for the
discriminatory acts of a local education agency under either an intent or impact theory. United States v. City of Yonkers, 880 F. Supp.
591, 597-98 (S.D.N.Y. 1995), vacated and remanded,
96 F. 3d 600 (2d Cir. 1996).
35. "Postsecondary institution is
a generic term for any institution which offers education beyond the twelfth grade.
Examples of postsecondary institutions would include vocational, business and secretarial
schools." S. Rep. No. 64 at 16, reprinted in
1988 U.S.C.C.A.N. at 18.
36. The court in Meyers opined that the Department of Education's
regulations have a more narrow definition of "program or activity" than is set
forth in the statute. Id. at 1574 n.37.
37. Nor does S. 557 embody a notion of
"freeing up." Federal financial assistance to a corporation for particular
purposes does not become assistance to the corporation as a whole simply because receipt
of the money may free up funds for use elsewhere in the company. Id.
38. At least one court, however, has
declined to apply the McDonnell Douglas
burden shifting framework to the analysis of a Title VI claim. See Godby
v. Montgomery County Bd. of Educ., 996 F. Supp. 1390, 1414 n.17 (M.D. Ala. 1998).
39. The Civil Rights Act of 1991
amended Title VII to clarify the burdens of proof in disparate impact cases. 42 U.S.C. §
40. It is important to remember that
the "prima facie case method established in McDonnell
Douglas was 'never intended to be rigid, mechanized or ritualistic. Rather, it is
merely a sensible, orderly way to evaluate the evidence in light of common experience as
it bears on the critical question of discrimination.'" United States Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 715 (1982) (quoting Furnco Constr. Corp.
v. Waters, 438 U.S. 567, 577 (1978)).
For example, it
should be noted that the McDonnell Douglas
prima facie framework for Title VII claims does not require that the applicant
selected for the position be of a different race, color, or national origin than the
complainant. Under McDonnell Douglass, the
complainant only needs to show that "after his rejection, the position remained open
and the employer continued to seek applicants from persons of complainant's
qualifications." McDonnell Douglas,
411 U.S. at 802. Several courts dealing with this issue in the Title VII context have
noted that the fact that the applicant selected in place of the complainant is of a
different race "may help to raise an inference of discrimination," but it is not
necessarily dispositive on the question of discriminatory intent. Byers v. Dallas Morning News, Inc., 209 F.3d
419, 427 (5th Cir. 2000) (internal citations omitted); see also Pivirotto v. Innovative Systems, Inc., 191 F.3d
344, 354 (3d Cir. 1999); Jackson v. Richards Med.
Co., 961 F.2d 575, 587 n.12 (6th Cir. 1992).
41. While there is no question that a
Federal funding agency can enforce its Title VI regulations providing for a disparate
impact standard of proof, several courts of appeals have held that plaintiffs have a
private right of action to enforce the disparate impact regulations implementing Section
602 of Title VI, as well. See Chapter XII
for further discussion of this issue.
42. The policy or procedure in
question need not be formalized in writing, but can also be a practice that is understood
as a "standard operating procedure" by its employees or others who implement it.
43. It is interesting to note that
this opinion suggests that post-hoc justifications, be they "substantial and
legitimate," will be considered. Furthermore, these justifications also are arguably
tangential in their alleged benefits to the minority riders disparately affected by the
fare increase. However, it also should be remembered that this case was on review of a
preliminary injunction, where plaintiffs must show a likelihood of success on the merits
to receive an injunction. New York Urban League,
71 F. 3d at 1039.
44. 65 Fed. Reg. 50121, 50123.
45. See discussion supra Section B of this chapter for a discussion
of the disparate impact standard.
46. Lau v. Nichols, 414 U.S. at 568.
47. See e.g.,
Sandoval v. Hagen, 7 F. Supp. 2d 1234
(driver's licence examinations); Pabon v. Levine,
70 F.R.D. 674 (S.D.N.Y. 1976) (unemployment insurance information).
48. Executive Order 13166 also
expanded the obligation to address the language needs of Limited English Proficiency (LEP)
persons beyond federally assisted programs and activities to include federally conducted
programs and activities. The Executive Order makes clear that the same compliance
standards expected of recipients of federal financial assistance are applicable to Federal
agencies themselves in the conduct of their own programs and activities. See Section 2, Executive Order 13166, 65 Fed.
Reg. at 50121.
49. Section 1, Executive Order 13166.
50. Id. at Section 4. "Stakeholders" are
persons and organizations having an interest in the administration and operation of
particular programs and activities providing services or benefits to the public. For the
purposes of documents developed in furtherance of Executive Order 13166,
"stakeholders" includes, but is not necessarily limited to, "LEP persons
and their representative organizations, recipients, and other appropriate individuals or
51. Id. at Section 3. Agency-specific LEP Guidance
for recipients must be submitted to the Department of Justice for review and approval
prior to final issuance. Approval responsibility for the Department has been assigned to
the Federal Coordination and Compliance Section of the Civil Rights Division, Department of Justice.
52. Policy Guidance Document:
Enforcement of Title VI of the Civil Rights Act of 1964 - National Origin Discrimination
Against Persons with Limited English Proficiency, dated August, 11, 2000, reprinted at 65 Fed. Reg. 50123 (August 16,
53. See Executive Order 13166 at Section 1.
54. Id. at Section 3.
55. See 65 Fed. Reg. at 50125, n. 13. The fact that
English competency is a core element of the federally assisted program or activity does
not necessarily mean that a recipient is alleviated from an LEP obligations to program
beneficiaries. Recipients should undertake a separate analysis for each aspect of their
program or activity (e.g., application,
admission, instruction/service, referral, recruitment, outreach, etc.) to ensure that some
specific language need on the part of LEP persons does not operate directly or indirectly
as an artificial barrier to full and meaningful participation in the English proficiency
portion of the federally assisted program or activity.
56. See 65 Fed. Reg. at 50123.
57. See 65 Fed. Reg. at 50124 (LEP Guidance).
58. Jersey Heights Neighborhood Ass'n v. Glendening,
174 F.3d 180, 195 (4th Cir. 1999) (King, Circuit Judge, concurring). To
highlight his point, Judge King recalled an observation made almost thirty years ago that
continues to have validity. "'As often happens with interstate highways, the route
selected was through the poor area of town, not through the area where the politically
powerful people live'." Id.
quoting Triangle Improvement Council v. Ritchie,
402 U.S. 497, 502 (1971) (per curiam) (Douglas, J., dissenting).
59. 59 Fed. Reg. 7629 (1994), codified
at 3 C.F.R. § 859 (1995).
60. Presidential Memorandum for the
Heads of all Departments and Agencies, 30 Weekly
Comp. Pres. Doc. 279 (February 11, 1994) ("Presidential Memorandum").
61. 59 Fed. Reg. 7629, 7630 at
62. In this regard, Executive Order
12898 directs federal agencies to ensure that public documents, notices and hearing are
"concise, understandable, and readily accessible to the public." Executive Order
12898, §5-5(c). In addition, where practicable and appropriate, agencies are authorized
to translate crucial environmental or health information into languages other than
English. Id., §5-5(b). For a
discussion of where such translations may be required under Executive Order 13166, issued
six years after Executive Order 12898, see pp. 59-65 in this chapter.
63. As clarified by the President when
he issued Executive Order 12898, the duty to engage in an environmental justice analysis
is coextensive with the duty to engage in an environmental analysis under NEPA. See Presidential Memorandum.
64. In addition to its environmental
justice responsibilities share in common with other federal departments and agencies, EPA
is directed to ensure as part of its reviews under Section 309 of the Clean Air Act, 42
U.S.C. § 760, that the environmental effects of proposed action on minority and
low-income communities have been fully analyzed, including all human health, social, and
economic effects. See Presidential
65. "Draft Title VI Guidance for
EPA Assistance Recipients Administering Environmental Permitting Programs" and
"Revised Draft Guidance for Investigating Title VI Administrative Complaints
Challenging Permits," 65 Fed. Reg.
66. Jersey Heights, 174 F.3d at 195.
67. The court affirmed dismissal of
parallel claims against federal official under Title VI as barred by sovereign immunity
and, with respect to a claimed abdication of enforcement duty, unauthorized. Id. at 191.
68. In so doing, the court
acknowledged that the question of which limitations period applied to Title VI actions had
not been definitively addressed in the Fourth Circuit. In addition, finding no state
statute comparable to Title VI, the court concluded that the applicable limitation period
of that applied to personal injuries. Id.
69. Id. at 189 (quoting National Adver. Co. v. City of Raleigh, 947 F.2d
1158, 1166 (4th Cir. 1991).
70. Id. at 191.
71. See supra
pp. 55-57 for a discussion on NYCEJA and
providing proof of disparate impact.
72. See NYCEJA, 214 F.3d 65, 69 (2d Cir. 2000).
73. In contrast, if employment of
potential beneficiaries was not a primary object of the Federal assistance, the employment
practices of a recipient are not covered by Title VI.
[S]ection 604 would be added, to preclude action by a
Federal agency under Title VI with respect to any employment practices of an employer,
employment agency, or labor organization, except where a primary objective of the Federal
financial assistance involved is to provide employment. This provision is in line with the
provisions of section 602 and serves to spell out more precisely the declared scope of
coverage of the title. 110 Cong. Rec. 12720 (1964) (Statement by Sen. Humphrey); see 110 Cong. Rec. 2484 (1964) (Statement by
74. This is oftentimes referred to as
the "infection theory."
75. If the complaint only alleges a
violation of Title VII and not Title VI, the matter should be transferred to the EEOC. In
addition, the regulation exempts from its application Executive Order 11246, which is
enforced by the Office of Federal Contracts Compliance Programs, and the Omnibus Crime
Control and Safe Streets Act, as amended, and the Juvenile Justice and Delinquency
Prevention Act. 28 C.F.R. § 42.601.
76. The Title VI Guidelines
distinguish between the applicability of an agency's deferral authority for initial or
one-time awards versus continuing, periodic awards. The Title VI Guidelines state, that
agencies have deferral authority with regard to "applications for one-time or
noncontinuing assistance and initial applications for new or existing programs of
continuing assistance." 28 C.F.R. § 50.3 II.A. In contrast, if an application
for funds has been approved and a recipient is entitled to "future, periodic
payments," or if "assistance is given without formal application pursuant to
statutory direction or authorization," distribution of funds may not be deferred or
withheld unless all the Title VI statutory procedures for a termination of funds are
followed. Id. II.B.
The Title VI Guidelines do not specify what may constitute
"abnormal" or exceptional circumstances to warrant deferral of a continuing
grant. In these renewal or continuation situations, the Title VI Guidelines indicate that
an assurance of compliance or a nondiscrimination plan may be required prior to continuing
the payout of funds.
77. Subsequent to the adoption of
Title VI, Congress on at least two occasions has refused to prohibit agencies from
exercising pre-award deferral authority. In 1966, in considering the Elementary and
Secondary Education Amendments of 1966, the House adopted a provision that effectively
would have prohibited pre-award deferrals of certain education grants by the Department of
Health, Education, and Welfare. The amendment, offered by Representative Fountain,
provided that no deferral could occur unless and until there was a formal finding, after
opportunity for hearing, that the applicant was violating Title VI. 112 Cong. Rec. 25,573
(1966). Representative Fountain argued that a deferral was the same as a refusal, and
accordingly that deferrals should be subject to the same hearing procedure required to
refuse or terminate assistance. Id. at
25,573-74. In opposition, Representative Celler argued that the amendment would preclude
HEW from obtaining pre-award relief since the award procedure would be completed before
the Title VI hearing could be held. Id. at
25,575. During the debate, Rep. Celler noted that HEW was acting pursuant to the
directives set out in the Title VI Guidelines. Id.
The Senate version did not include any limitation on deferrals. In conference, the
prohibition was deleted and replaced with a durational/procedural limitation on certain
HEW deferrals. Conf. Rep. No. 2309, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 3896. Codified at
42 U.S.C. § 2000d-5. Again in 1976, in adopting the Education Amendments of 1976,
Congress imposed a durational/procedural limitation on HEW deferral authority, codified at
20 U.S.C. 1232i(b), but rejected a House passed amendment effectively prohibiting
specified HEW deferrals. 122 Cong. Rec. 13411-13416; H.R. Conf. Rep. No. 1701, 94th Cong.,
1st Sess. 242-43 (1976), reprinted in 1976
U.S.C.C.A.N. 4943-44. This post-adoption legislative history buttresses the conclusion
that deferrals are an appropriate application of the pre-award remedial authority granted
agencies by Congress. Board of Pub. Instruction
v. Cohen, 413 F.2d 1201 (5th Cir. 1969).
78. The Title VI Guidelines note that
deferral may be more appropriate where it will be difficult during the life of the grant
to obtain compliance, e.g., where the
application is for noncontinuing assistance. On the other hand, deferral may be less
appropriate where full compliance may be achieved during the life of the grant, e.g., where the application is for a program of
continuing assistance. Where the grant of assistance is not deferred despite a concern
about noncompliance, the Title VI Guidelines advise that
the applicant should be given prompt notice of the
asserted noncompliance; funds should be paid out for short periods only, with no long-term
commitment of assistance given; and the applicant advised that acceptance of the funds
carries an enforceable obligation of nondiscrimination and the risk of invocation of
severe sanctions, if noncompliance in fact is found. Id. II.A.2.
79. In the alternative, a Federal
agency may obtain assurances directly from subrecipients, if it so chooses.
80. A further refinement would involve
agencies sharing their lists of potential grantees with other agencies, as appropriate.
For example, there may be instances in which it would be appropriate for HUD to share its
lists with the Department of Justice, Civil Rights Division's Housing and Civil
81. For example, pre-award reviews
would not be necessary for applications that are unlikely to be funded for programmatic
82. Post-award reviews may be limited
to a "desk audit," i.e., a
review of documentation submitted by the recipient, or may involve an on-site review. In
either case, an agency will demand the production of or access to records, and this
discussion addresses the limits on an agency's demand for such records.
83. See Coordination Regulations, 28 C.F.R. §
84. See, e.g.,
Department of Justice Title VI Regulations, 28 C.F.R. § 42.107(a).
85. As mentioned above, it is assumed
that the first two factors can be established. First, that the access provision is an
appropriate exercise of agency authority to issue regulations consistent with the statute.
Second, it is assumed that any data sought will be relevant to an evaluation of whether
the recipient's employment practices or delivery of services are discriminatory.
86. An agency may wish to consider
involving the block grant recipient (generally, a State agency) in the compliance review
and in any subsequent negotiations to resolve identified violations.
87. "All Federal staff
determinations of Title VI compliance shall be made by, or be subject to the review of,
the agency's civil rights office." 28 C.F.R. § 42.407(a). Where regional or area
offices of Federal agencies have responsibility for approving applications or specific
projects, the agency shall "include personnel having Title VI review responsibility
on the staffs" of these offices. These personnel will conduct the post-approval
compliance reviews. Id.
In this era of downsizing, it is understood that not all
field offices will have Title VI staff. This element of review, however, should be
conducted and reviewed by experienced Title VI personnel, whether as a full time or
collateral duty, and whether or not as members of the office in issue.
88. The discussion herein applies
primarily to post-award enforcement. Subsections address the extent to which enforcement
may vary in a pre-award context.
89. In considering options for
enforcement, agencies should consult the Title VI Guidelines. 28 C.F.R. § 50.3.
90. Agencies are strongly encouraged
to make use of alternative dispute resolution (ADR), whenever appropriate. Both the
President and the Attorney General have encouraged the use of alternative dispute
resolution in matters that are the subject of civil litigation. See Executive Order 12988 and Attorney General
Order OBD 1160.1. The Administrative Dispute Resolution Act of 1996 authorizes the use of
ADR to resolve administrative disputes. 5 U.S.C. § 571 et seq.).
ADR can consist of anything from the use of a neutral third party or mediator to
informally resolving a matter without completing a full investigation.
91. Where voluntary compliance is
achieved, the agreement must be in writing and specify the action necessary for the
correction of Title VI deficiencies. 28 C.F.R. § 42.411(b).
92. Although Title VI does not provide
a specific limit within which voluntary compliance may be sought, it is clear that a
request for voluntary compliance , if not followed by responsive action on the part of the
institution within a reasonable time, does not relieve the agency of the responsibility to
enforce Title VI by one of the two alternative means contemplated by the statute. A
consistent failure to do so is a dereliction of duty reviewable in the courts. 28 C.F.R.
93. One example of language currently
used by the Department of Justice's Office of Justice Programs is as follows:
In reviewing an application for funding, we consider
whether the applicant is in compliance with federal civil rights laws. A determination of
noncompliance could lead to a denial of assistance or an award conditioned on remedial
action being taken. We are aware that the Department's Civil Rights Division is conducting
an investigation involving possible civil rights violations. The Civil Rights Division has
advised us that your agency is cooperating with its investigation, and we have taken that
into account in deciding to approve your grant application.
94. See, e.g.,
24 C.F.R. § 1.8(d) (HUD); 29 C.F.R. § 31.8(c) (Labor).
95. For example, HUD regulations
require that the agency continue negotiations for ten days from the date of mailing the
notice of noncompliance to the recipient. Id.
96. The congressional intent behind
the 30 day requirement was to include seemingly neutral third parties, (the relevant
Congressional committees), to ensure that the decision to terminate funds was fair,
reasoned, and not arbitrary. See 110 Cong.
Rec. 2498 (1964) (Statement of Cong. Willis); 110 Cong. Rec. 7059 (1964) (Statement of
97. Much of the legislative debate on
Title VI centered on the potential scope of any termination of assistance due to a failure
to comply with the rules effectuating Section 601. The Dirksen-Mansfield substitute bill,
which was developed through informal, bipartisan conferences, sought to answer those
concerns. For a listing and explanation of specific changes made by the substitute see, 110 Cong. Rec. 12817-12820 (1964) (Report
of Senator Dirksen). Senator Humphrey explained the purpose behind the substitute
Some Senators have expressed the fear that in its original
form Title VI would authorize cutting off of all federal funds going to a state for a
particular program even though only part of the state were guilty of racial discrimination
in that program. And some Senators have feared that the title would authorize canceling
all federal assistance to a state if it were discriminating in any of the
federally-assisted programs in that State.
As was explained a number of times on the floor of the
Senate, these interpretations of Title VI are inaccurate. The title is designed to limit
any termination of federal assistance to the particular offenders in the particular area
where the unlawful discrimination occurs. Since this was our intention, we have made this
specific in the provisions of Title VI by adding language to 602 to spell out these
limitations more precisely. This language provides that any termination of federal
assistance will be restricted to the particular political subdivision which is violating
non-discriminatory regulations established under Title VI. It further provides that the
termination shall affect only the particular program, or part thereof, in which such a
violation is taking place.
110 Cong. Rec. 12714-12715 (l964); see, 110 Cong. Rec. 1520 (1964) (Celler); 110
Cong. Rec. 1538 (1964) (Rodino); 110 Cong. Rec. 7061-7063 (1964) (Pastore).
98. The court noted that each of the
grant statutes affected by the order was denominated "a program" by the terms of
its own statutory scheme.
99. The court also quoted Senator Long
from the debate on passage of the Act:
Proponents of the bill have continually made it clear that
it is the intent of Title VI not to require wholesale cutoffs of Federal [f]unds from all
Federal programs in entire States, but instead to require a careful case-by-case
application of the principle of nondiscrimination to those particular activities which are
actually discriminatory or segregated.
1075 (quoting 110 Cong. Rec. 7103 (1964)).
100. The WEAL II decision brought to a close sub nom.
the twenty year history of litigation that began in 1970 under Adams v. Richardson, 356 F. Supp. 92 (D.D.C.
1973), a suit that challenged the Department of Health, Education, and Welfare's
dereliction in enforcing Title VI.
101. In this case, plaintiffs brought
suit to enjoin the Department of Education from allowing recipients of its funds to offer
certain federally funded scholarships exclusively to minorities. Id. at 486.
102. The broad reasoning employed in Franklin is equally applicable to Title VI
lawsuits, and the Franklin Court
explicitly linked the availability of damages under Titles VI and IX by its citation to Guardians. Subsequent to Franklin, courts of appeals have unanimously
extended the Franklin holding to Section
504 lawsuits. W.B. v. Matula, 67 F.3d 484,
494 (3d Cir. 1995); Rodgers v. Magnet Cove Pub.
Sch., 34 F.3d 642, 644 (8th Cir. 1994); Waldrop
v. Southern Co. Servs.,, 24 F.3d 152, 156 (11th Cir. 1994); Pandazides v. Virginia Bd. of Educ., 13 F.3d
823, 831 (4th Cir. 1994).
103. See Lane
v. Peņa, 518 U.S. 187, 202 & n.3 (1996) (Stevens, J., dissenting) (citing
uniform holdings of ten courts of appeals that Section 504 provides an implied right of
action). The Supreme Court had addressed the merits of two Title VI cases brought by
private plaintiffs without addressing the issue of whether a private right of action
exists. See, Bakke, 438 U.S. at 282; Lau, 414 U.S. 563.
104. Justice White authored the
opinion for the Court in which five Justices joined. Justice Scalia wrote an opinion
concurring in the judgment, in which Chief Justice Rehnquist and Justice Thomas joined.
The Franklin Court also recognized that a
majority of justices in Guardians,
notwithstanding the multiple opinions, opined that private plaintiffs may obtain damages
under Title VI to remedy intentional violations. Id.
105. The Court further stated,
"absent clear direction to the contrary by Congress, the federal courts have the
power to award any appropriate relief in a cognizable cause of action brought pursuant to
a federal statute." Id. at 70-71.
106. The Court examined congressional
intent expressed both prior to and after its decision in Cannon. When Title IX was enacted, Congress was
silent on the subject of a private right of action, but the Court noted that Congress
acted in the context of the prevailing presumption in favor of all available remedies. Id. at 72. Following Cannon, Title IX (Title VI, Section 504, and the
Age Discrimination Act) were amended on two occasions, although neither action evidenced
congressional disagreement with this presumption. Id.
at 72-73. First, Congress added 42 U.S.C. § 2000d-7 through the Rehabilitation Act
Amendments of 1986, to abrogate the States' Eleventh Amendment immunity in suits under
these statutes. Second, Congress added 42 U.S.C. § 2000d-4a under the CRRA to
broaden the scope of programs covered by these statutes.
107. Section 903 of Restatement
(Second) of Torts (1979) defines "compensatory damages" as "the damages
awarded to a person as compensation, indemnity or restitution for harm sustained."
Section 904 states that damages for nonpecuniary harm include damages for bodily harm and
emotional distress. See generally id., §§ 901-932.
Courts applying Franklin
generally have interpreted it to permit the award of the full range of compensatory
damages, including damages for emotional distress. Doe v. District of Columbia, 796 F. Supp. 559
(D.D.C. 1992) (same); see also DeLeo v. City of Stamford, 919 F. Supp. 70 (D.
Conn. 1995) (citing cases equating monetary damages with compensatory damages). Contra, Leija
v. Canutillo Indep. Sch. Dist., 887 F. Supp. 947 (W.D. Tex. 1995), rev'd on other grounds, 101 F.3d 393 (5th Cir.
108. The Court explained that the
problem with "permitting monetary damages for an unintentional violation is that the
receiving entity of federal funds lacks notice that it will be liable for a monetary
award." Id. at 74. The notice problem
is a function of the consensual nature of an entity's decision to accept Federal funds and
the conditions attached to their receipt. The entity weighs the benefits and burdens
before accepting the funds, including the nondiscrimination obligations that attach to the
funding. The concern is that where the violation is unintentional, particularly if it is a
"disparate impact" violation, the recipient may not have been sufficiently aware
at the time the funds were accepted that the nature and scope of the nondiscrimination
obligation included a prohibition on the specific behavior subsequently found to
constitute unlawful discrimination. Accordingly, responsibility for money damages may not
have been foreseen. See id.; Guardians,
463 U.S. at 596-597 (White, J., joined by Rehnquist, J.); Pennhurst State Sch. and Hosp. v. Halderman, 451
U.S. 1, 17 (1981).
109. U.S. Const. Amend. XI states:
"The judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or subjects of any Foreign State." See, Hans
v. Louisiana, 134 U.S. 1 (1890).
110. These regulations were amended
slightly after the signing of Executive Order 12250 in 1980 to correctly identify the
applicable Executive Order, but in substance they are substantially as they were when
issued in 1976.
111. Title VI provides that no rules,
regulations and orders of general applicability "shall become effective unless and
until approved by the President." 42 U.S.C. § 2000d-1.