Civil Rights Forum, Vol. 10, Number 2, Summer 1996

In This Issue...

Supreme Court Rules VMI Cannot Exclude Women

Justice Proposes Affirmative Action Reforms in Federal Procurement

Supreme Court Declines to Review Texas Law School Affirmative Action Case

Michigan Athletic Conference Agrees to Invite High Schools with Significant Black Populations

Are Money Damages Available for Unintentional Discrimination?

So Ordered...Court Cases of Note

Sixth Circuit Holds State Statutes of Limitations Apply to Private Title IX Actions

Eleventh Circuit Accepts Justice's View That Student-on-Student Harassment Is Actionable

State Police Traffic Stop Case Covered by Title VI

The Supreme Court ruled on June 26, 1996, that the Commonwealth of Virginia violated the Fourteenth Amendment's Equal Protection Clause by denying women the unique military-style education offered to males at the Commonwealth's Virginia Military Institute (VMI). The Court further held that Virginia failed to remedy the constitutional violation by offering women a separate, but not comparable, program at another institution of higher learning.

Commenting on the 7-1 decision for the United States in _United States_ v. _Virginia_, ___ U.S. ___, 64 USLW 4638, 1996 WL 345786, Attorney General Janet Reno expressed satisfaction that "[t]he Supreme Court overwhelmingly has given life to the promise in the Constitution that all of us deserve an equal shot at educational opportunity."

Justice Ruth Bader Ginsburg, whose majority opinion was joined by five Justices, forcefully restated the Court's stringent constitutional standard for a governmental entity to justify discrimination on the basis of sex. Such a justification must be "exceedingly persuasive," and it must be real and not hypothesized or invented _post-hoc_. Further, if such a justification is proffered, the means selected for achieving the discriminatory end must be "substantially related" to that justification.

The Supreme Court found both justifications offered by the Commonwealth wanting. The Court found no persuasive evidence that VMI's male-only admissions were in furtherance of an asserted policy of diversity in education. VMI's male-only policy was a product of a history of providing public higher education soely to men, and Virginia's adoption in recent years of coeducation in all other public colleges and universities belied any State policy of "diversity" through single-sex education. Moreover, Justice Ginsburg wrote, while the creation of the unique VMI educational experience might afford diverse educational options to "the State's sons, it makes no provision whatever for her daughters. That is not _equal_ protection."

The Supreme Court also rejected the argument that admitting women would be incompatible with VMI's "adversative model" of education, which emphasizes physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination of values. As Justice Ginsburg explained: "The notion that admission of women would downgrade VMI's stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other 'self-fulfilling prophec[ies]' . . . once routinely used to deny [women] rights or opportunities." Further, it was undisputed that the VMI approach could be used to educate some women (as it is used to educate some men), and therefore Virginia could not justify excluding all women from VMI.

With regard to remedy, the Supreme Court found Virginia's female-only alternative program to be but a "'pale shadow' of VMI." In myriad ways, the women's program was not VMI's equal: in military training; student body; faculty; course offerings; facilities; endowment; prestige; and influential alumni network. Accordingly, the Court remanded the case for the development of an appropriate remedy.

The VMI decision provides important markers for judging single-sex educational programs in the future. However, the United States emphasized throughout the case that disallowing VMI's exclusion of women did not require any determination about single-sex education generally. The Supreme Court agreed, observing that the parties had not contested the "reality" that "[s]ingle-sex education affords pedagogical benefits to at least some students." Chief Justice William Rehnquist wrote an opinion concurring in the judgment, Justice Antonin Scalia issued a dissenting opinion, and Justice Clarence Thomas took no part in the case.

The Department of Justice has announced proposed affirmative action reforms in Federal procurement to ensure compliance with the Supreme Court's decision in _Adarand Constructors, Inc._ v. _Pena_, 115 S. Ct. 2097 (1995). This action is consistent with President Clinton's directive to "mend" rather than "end" Federal affirmative action programs.

The _Adarand_ decision extended strict judicial scrutiny to Federal affirmative action programs that use racial or ethnic criteria as a basis for decisionmaking. Strict scrutiny requires that there be a compelling government interest for consideration of race or ethnicity and that such consideration be narrowly tailored.

The proposal encourages the use of race-neutral methods by Federal agencies to expand procurement opportunities for minority-owned businesses through programs that aid small firms that are owned by socially and economically disadvantaged individuals.

The proposal also permits agencies to use race-conscious tools -- evaluation and price credits -- to assist small disadvantaged businesses (SDBs) where necessary to remedy the effects of discrimination in particular industries. The use of race-conscious tools, in terms of duration and effect, will be limited by the extent and persistence of discrimination. The use of credits gives assistance to disadvantaged businesses but retains the essential element of competition in the procurement process. Set-asides for SDBs are not authorized under the proposal. The success of the reforms in overcoming discrimination, however, will be reviewed after two years to determine whether set-asides or other approaches are warranted.

In addition, the Department's proposal combats fraud and abuse by tightening eligibility requirements for small and disadvantaged businesses. The Department and the Small Business Administration (SBA) will aggressively seek penalties against individuals who misrepresent their status or ownership and control of the business.

The proposal states the Department's conclusion that the government has a compelling interest to use race-conscious tools in Federal procurement. The appendix to the proposal sets forth a preliminary survey of evidence of how past and present racially discriminatory barriers impede the ability of minority-owned businesses to participate in Federal procurement.

More specifically, under the proposal, agencies will be required to maximize the use of technical assistance, outreach, and other race-neutral means to increase minority business opportunities in Federal procurement, thereby decreasing reliance on race-conscious actions. Race-neutral efforts can substantially increase participation by minority businesses, yet the extent of discrimination against minorities in certain industries warrants race-conscious action.

Benchmarks will be identified for each industry by the Federal government. The industry benchmarks will represent the level of minority contracting that one would reasonably expect to find in a market absent discrimination. The benchmarks will be calculated by combining the capacity of minority firms in the industry (with consideration for the appropriate labor market) and, where applicable, the amount that discrimination has suppressed capacity. The benchmark then will provide a basis for comparison with actual minority participation in procurement in that industry. Benchmarks will be calculated on an annual basis by the Department of Commerce in consultation with the General Services Administration and the SBA.

Where actual participation falls below the benchmark, a price or evaluation credit will be authorized for evaluation of bids by SDBs and prime contractors who commit to subcontract with SDBs. When disadvantaged and minority business participation exceeds the benchmark, the credits will be lowered or suspended. The SBA concurrently would monitor the 8(a) program and, where necessary, restrict entry to the program in specific industries, accelerate graduation, or limit contract awards in an industry. (The 8(a) program is designed to assist the development of businesses owned by socially and economically disadvantaged individuals.)

In addition, the proposal modifies the process of certification. Previously, SDBs certified their own status for eligibility to participate in SDB programs. Under the proposal, an SDB must provide a certificate of ownership and control issued by an entity approved by the SBA. Certification will be valid for up to three years.

SDBs are small firms that are owned by individuals who are disadvantaged socially (subjected to racial or cultural bias) and economically (as measured by income and assets). Members of designated racial and ethnic groups currently are presumed to be socially and economically disadvantaged by statute, and this presumption will remain. The proposal, however, lessens the burden imposed on individuals who are not members of designated racial and ethnic groups to prove they too qualify as socially and economically disadvantaged. The prior evidentiary standard of "clear and convincing" evidence has been reduced to a "preponderance" of evidence concerning the business owner(s)' social and economic disadvantage.

The proposal will be the model for modifications to the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement. Therefore, it will affect the manner of all direct procurement by the Federal government.

The proposal was published in the Federal Register on May 23, 1996 (61 Fed. Reg. 26042 (1996)). The Department invited written comments from the public until July 22, 1996.

The Supreme Court denied the State of Texas' petition for _certiorari_ in _State of Texas_ v. _Hopwood_, 116 S. Ct. 2580 (1996), on July 1, 1996. The Department of Justice had filed a brief as _amicus curiae_ urging the Supreme Court to grant review of the court of appeals' decision.

The case involves a constitutional challenge to an affirmative action admissions program at the University of Texas School of Law. Four rejected white applicants claimed that the program discriminated against them on the basis of race and national origin in violation of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The program, since discontinued by the law school, involved lower presumptive admissions standards for black and Mexican-American applicants and a separate review of such applications by a minority admissions subcommittee.

The district court, applying the strict judicial scrutiny standard articulated by the Supreme Court in _City of Richmond_ v. _J.A. Croson Co._, 488 U.S. 469 (1989), found that the State had two compelling interests: obtaining a diverse student body and remedying past discrimination. The district court also found, however, that the program was not narrowly tailored to serve the State's interests. The district court declined to award injunctive relief or damages.

Following an appeal by plaintiffs, the Fifth Circuit reversed, holding that neither of the interests asserted by the State could justify _any_ consideration of race in the law school's admissions process. Finding no compelling interest by the State, the Fifth Circuit directed the State to permit the plaintiffs to reapply to the law school under a race-neutral admissions process. The appellate court remanded the case with instructions to the district court to award damages and equitable relief to each plaintiff, unless the law school could prove that a plaintiff would not have been admitted even under a race-blind system. _Hopwood_ v. _Texas_, 78 F.3d 932, _reh'g denied_, 84 F.3d 720 (5th Cir., 1996).

Justice Ruth Bader Ginsburg, in a one-page opinion joined by Justice David Souter, stated that the question of whether it is constitutional for a public college or graduate school to use race or national origin as a factor in its admissions process is an issue of "great national importance." She pointed out, however, that the petition does not challenge the lower courts' judgments that the particular admissions procedure used by the University of Texas Law School in 1992 was unconstitutional. Rather, the petition acknowledges that the program "has long since been discontinued and will not be reinstated." Noting that the petition challenged only the rationale used by the court of appeals, Justice Ginsburg stated that the Court "must await a final judgment on a program genuinely in controversy before addressing the important question raised in this petition."

The Supreme Court also did not say that race cannot be used as a factor in admissions. Nor did it overturn its own decision in _Regents of the University of California_ v. _Bakke_, 438 U.S. 265 (1978), which recognized that institutions of higher education have a compelling interest in obtaining the educational benefits of a diverse student body.

Michigan Athletic Conference Agrees to Invite High Schools with Significant Black Populations A Michigan high school athletic league that failed to admit certain school districts with significant black student enrollments will invite six of the schools into their league, under an agreement reached with the Department of Justice on April 1, 1996. The agreement will ensure that the once-excluded schools will be able to compete with the other conference schools in all sports and extracurricular activities. The agreement requires 18 public school districts located outside Detroit, which founded the Michigan Mega Conference Athletic League, to invite previously excluded schools into the league.

Mega, an interscholastic high school athletic and extracurricular league, did not offer invitations to certain schools when it was formed in 1992, even though the schools were located in the same geographic area. When Mega was formed, less than five percent of the students in the Mega schools overall were black, while black students constituted from 32% to 99% of the pupils in each of the formerly excluded schools.

In 1993, two schools filed a complaint with the Department of Education's (ED) Office for Civil Rights. Each alleged that the founding schools discriminated in the formation and operation of the league. After determining that the Mega school districts violated Title VI of the Civil Rights Acts of 1964 and its implementing regulations, ED tried to negotiate a resolution with the founding school districts. When the effort failed, ED referred the matter to the Civil Rights Division's Educational Opportunities Section last summer. After further investigation, the Civil Rights Division entered into negotiations with the founding Mega districts, which eventually led to the April 1 agreement.

Under the agreement, six formerly excluded schools will be invited to join the league immediately, with competition beginning this Fall. The new schools will become fully participating members in the Fall of 1997. Further, leadership positions will be redistributed, the invited schools are protected against discriminatory treatment, and each of the founding Mega schools are bound to the league for five years. In addition, in order to facilitate enforcement of the agreement, the founding Mega schools waived procedural rights under Title VI in the event of a breach of the agreement.

The Mega schools also agreed to schedule as many contests and extracurricular events as possible with a small high school with a substantial black student enrollment. The school was not invited into Mega because of its size, but is competitive in certain sports and wishes to participate in the various non-athletic events sponsored by the league.

In _Franklin_ v. _Gwinnett County Public Schools_, 503 U.S. 60 (1992), a Title IX case involving intentional discrimination, the Supreme Court ruled that monetary damages were available. However, the Supreme Court did not address the issue of the availability of monetary damages for unintentional discrimination since that was not the issue before it.

A Louisiana district court recently answered the question in the negative. In a case finding a violation of Title IX with respect to women's athletics, the court ruled that monetary damages were unavailable because the discrimination was unintentional. _Pederson_ v. _Louisiana State University_, 912 F. Supp. 892 (M.D. La. 1996).

In this suit filed by female students against a university for failing to provide equal athletic programs for men and women, the court commented on the university's "arrogant ignorance" and "outdated views." The court found that the university provided no opportunities for women to compete in fast pitch softball at any level whatsoever, while male students were provided a varsity baseball team. Also, the court determined that no new women's teams had been added for 14 years. Such actions were found to violate Title IX. However, the court found that the university's actions did not rise to the level of intentional discrimination. Because the discrimination was unintentional, the court granted equitable relief but not damages to the plaintiffs.

As reported in the Summer 1995 issue of the _Civil Rights Forum_, the Justice Department has taken the position that damages are available for unintentional discrimination under Title II of the Americans with Disabilities Act (ADA), and it filed an _amicus_ brief to that effect in _Tyler_ v. _City of Manhattan, Kansas_, No. 94-3344 (10th Cir. 1995). Recently, Justice filed a similar _amicus_ brief in _Ferguson_ v. _City of Phoenix_, No. 95-0260 (D. Ariz. 1996), a case brought both under Title II and under Section 504 of the Rehabilitation Act of 1973. The _Ferguson_ court has since decided that monetary damages are unavailable as a remedy for unintentional discrimination. _Ferguson_, No. 95-0260, slip. op. at 18-20 (D. Ariz. Apr. 16, 1996).

A recent Third Circuit case held that monetary damages are available under Section 504. Relying on the Supreme Court's decision in _Franklin_, the court granted damages against a school district for its persistent refusal to evaluate, classify, and provide necessary educational services for a child. The court did not discuss whether the school district's conduct constituted intentional discrimination. _W.B._ v. _Matula_, 67 F.3d 484 (3d Cir. 1995).

These Section 504 and ADA cases are relevant to Title VI and Title IX because Title II of the ADA adopts the rights, remedies, and procedures of Section 504, and both Section 504 and Title IX are patterned after Title VI. Ultimately, the Supreme Court will have to decide whether damages are available for unintentional discrimination.

The Sixth Circuit has decided that the statutory remedies of Title IX of the Educational Amendments of 1972 do not preclude a plaintiff from bringing a substantive due process claim under section 1983. It also concluded that State statutes of limitations for personal injury actions apply to private Title IX actions.

The case involves allegations that a school system failed to act despite reports of sexual harassment by a coach and teacher. Plaintiffs alleged violations of both Title IX and the First and Fourteenth Amendments through 42 U.S.C.  1983. The district court had summarily dismissed the section 1983 and Title IX claims. While affirming the dismissal of the constitutional claims, the Sixth Circuit reversed the dismissal of the Title IX claims. On appeal it was argued, among other things, that Title IX precluded the section 1983 claims. While upholding the dismissal of the constitutional claims, the court concluded: "There is no evidence in Title IX that Congress intended to foreclose [a section 1983] action by providing an exclusive remedy within Title IX."

The Sixth Circuit also decided that the statute of limitations for bringing a Title IX claim was not the 180-day period applicable to filing an administrative complaint, which the district court had relied upon in dismissing the claim. Rather, the time period was the State limitations period applicable to personal injury claims, which is one year in the State of Tennessee. In reaching this decision, the court relied on similar rulings concerning the relevant limitations applicable to private actions under Title VI. _Lillard_ v. _Shelby County Board of Education_, 76 F.3d 716 (6th Cir., 1996).

The Civil Rights Division's position was sustained in the Eleventh Circuit when the court majority held that Title IX requires school officials to address instances of student-on-student sexual harassment once they know about it. Substantially adopting the reasoning of the Department's _amicus_ brief, the court stated that the failure of school officials to end the harassment of which they were aware would permit the sexually harassing atmosphere to continue. Generally analogizing to Title VII employment law, the court found that knowledge of the harassment by a teacher and a principal created a responsibility on the part of the school district to take action to end the discrimination. The majority concluded that a private right of action and damages are available against the school system.

One judge filed a separate opinion, which concurred in the dismissal of the section 1983 constitutional claim but dissented from the majority view that student-on-student sexual harassment was actionable under Title IX against the school district. The judge further noted that, even if student-on-student harassment were covered, damages would be available only upon a showing of intentional discrimination. _Davis_ v. _Monroe County Board of Education_, 74 F.3rd 1186 (11th Cir. 1996).

In an important procedural ruling, a Northern Illinois District Court judge has refused to dismiss a private Title VI claim against the Illinois State Police. The class complaint alleged that the Illinois State Police unlawfully detain, stop, and search individuals on the basis of race. The court, in refusing to dismiss the Title VI claim, found that Federal financial assistance given to the Illinois State Police could be construed as grants given to an "operation" of "a department, agency, special purpose district or other instrumentality of a State or local government," consistent with the language of the Civil Rights Restoration Act, which amended Title VI. 42 U.S.C. 2000d-4a.

The court stated that the Restoration Act was intended to ensure that various civil rights statutes would apply to the entire State or local institution that had a program or activity funded by the Federal government. Therefore, the court concluded that the Illinois State Police are covered by Title VI. _Chavez_ v. _Illinois State Police_, 1996 WL 66136 (N.D. Ill.).

The _Civil Rights Forum_ is now available on the Internet. It is in a "text only" format, which means it basically looks like typewritten pages with no pictures or graphics. This simple format enables those without expensive computers, fast modems, or fancy graphics cards to access the _Forum_ files more quickly. The Civil Rights Division's Coordination and Review Section hopes to explore alternative methods so that those with access to newer computers with faster modems and graphics cards can experience the Internet _Forum_ in much the same way as those with hard copy do.

In addition to the _Forum_, the Coordination and Review Section is reorganizing its Internet information. We will continue to provide general information about the cross-cutting civil rights statutes. However, we hope to offer information individually organized by agency or Cabinet Department. For example, a Cabinet Department's entry would contain all applicable grant-related civil rights statutes, as well as civil rights regulations applicable to its recipients, and other administrative materials. We hope to develop cross-links to other agency civil rights pages that are being developed for the Internet. We also hope to post cases of interest and note. So stay tuned: our Net entry is coming into the 21st Century.

We want and need your suggestions. Our Internet site, after all, is for you and not for us. If you have any questions, suggestions, criticisms, or things you like or dislike, you can E-mail Andy Strojny at "strojnya@justice.usdoj.gov" or you can use "snail mail" and write to us at the _Forum_'s address.

Complete instructions on how to access our Internet site were published in the Fall 1995 _Forum_. But as a reminder, to access our Internet site, activate a computer program called a browser. You may have heard of Netscape, Microsoft's Internet Explorer, or the University of Illinois' Supercomputing Center's MOSAIC. They are browser programs. America On-Line and other on-line services provide browsers with their Internet connections. Once you have activated your browser, there will be a line where you can enter an "internet address." To reach our Internet site, type in "http://www.usdoj.gov" (ignore the quotation marks). That calls up the Justice Department's Internet "home page." There will be a line on the home page that reads "Litigation Organizations." Put your mouse pointer on it and double click the left mouse button, _i.e._, "click" on "Litigation Organizations." From the menu that appears, click on "Civil Rights Division." From the resultant menu, click on "Grant Related Civil Rights Statutes." You're at our Internet site!

Six recently formed committees are reviewing issues identified by the Executive Order 12250 Advisory Group, which is comprised of representatives from 15 Federal agencies. In meetings begun in the Spring, the committees are developing potential recommendations to Justice for the improved governmentwide coordination and enforcement of Title VI, Title IX, and related statutes. (See the related article in the Winter-Spring 1996 issue of the _Forum_.)

-- A committee on information needs and reporting requirements is advising Justice on the development of streamlined and simplified guidelines for agency reporting under Executive Order 12250. Under new guidelines being prepared by the Civil Rights Division, detailed reports prepared by agencies specifically for Justice no longer will be required. Instead, agencies can meet many, if not most, reporting requirements by using plans, information, and data they already have developed for a variety of internal and external purposes.

The Civil Rights Division will continue to employ alternative methods to obtain and facilitate the interagency exchange of information, including regularly scheduled meetings with individual agencies and clusters of agencies with similar programs.

-- A committee assessing the operation of interagency delegation agreements is reviewing various options for the exchange of information between lead agencies and delegating agencies regarding entities funded by more than one agency. The committee also is advising Justice as it develops recommendations to clarify the division of lead agency responsibilities for several classes of recipients, and as it explores alternative approaches to clarifying responsibilities. The committee has developed a questionnaire for agencies with delegation agreements, which will help us identify in greater detail the strengths and weaknesses of the current agreements, as well as obtain suggestions for their improvement, revision, and possible expansion.

-- A committee reviewing the possible use of agency program staff to assist in civil rights enforcement in this era of downsizing is identifying what functions properly and effectively could be performed by program staff. The committee is examining the technical assistance, training, and management considerations involved to ensure the independence of the civil rights enforcement function and the maintenance of an appropriate level of civil rights expertise.

-- A committee exploring the possibility of holding a Title VI conference has sent a questionnaire to Federal funding agencies to ascertain their interest and obtain suggestions regarding potential conference objectives, attendees, presenters, and subject matter to be addressed.

-- A committee reviewing civil rights compliance responsibilities, functions, and procedures in the context of block grant programs is assisting Justice in developing guidance on ensuring civil rights enforcement in the special setting of block grants.

-- A committee established in response to agency requests for more guidance on disparate impact and other legal issues is planning a series of meetings for interested agencies to discuss informally relevant legal issues affecting ongoing case investigations.

The General Services Administration's (GSA) Office of Equal Employment Opportunity, which also enforces Title VI and related statutes, has developed a civil rights homepage on the Internet that is located at http://www.gsa.gov/eeo/. Although it currently focuses on Federal equal employment opportunity materials, the homepage is still under development and GSA is considering expanding it to include information on the grant-related civil rights statutes. If you have any questions or suggestions, contact Warren Hillman at (202) 501-0134 or e-mail him at Warren.Hillman@gsa.gov.

If your agency has a civil rights homepage on the Internet, tell us about it, and we'll let others know, too!

Something to share? The *Forum* is looking for agency "happenings" and news of interest to other agencies and the civil rights community. Contact us at (202) 307-2222 (voice); (202) 307-2678 (TDD), or write to:

Civil Rights Forum

Coordination and Review Section

Civil Rights Division

Department of Justice

P.O. Box 66560

Washington, D.C. 20035-6560

The Attorney General has determined that the publication of this periodical is necessary in the transaction of the public business required by law of the Department of Justice. Use of funds for printing this periodical has been approved by the Attorney General.

Janet Reno

Attorney General

Jamie Gorelick

Deputy Attorney General

John R. Schmidt

Associate Attorney General

Deval L. Patrick

Assistant Attorney General

Susan M. Liss

Chief of Staff

Loretta King

Isabelle Katz Pinzler

Kerry Scanlon

Deputy Assistant Attorneys General

Merrily A. Friedlander

Section Chief

Theodore R. Nickens

Deputy Section Chief (Program)

Andrew M. Strojny

Deputy Section Chief (Legal)

Allen Payne

Editor

Contributing to this issue: Andrew Foose, Warren Hillman (GSA), Linda King, Jennifer Levin, Joshua Mendelsohn, Wonder Moore-Davis, Allen Payne, Mark Posner, Andrew Strojny, Richard Waters, Margay Williams, William Worthen

Logistics: Michael Espeut

This newsletter is available in alternate formats. Contact the Coordination and Review Section at (202) 307-2222 (voice) or (202) 307-2678 (TDD).