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Civil Rights Forum, Winter-Spring, 1996, Volume 10, Number 1

Table of Contents
In This Issue...

1. Executive Order 12250 Advisory Group Off to Good Start

2. Deval Patrick Testifies Against Dole-Canady Bill and For Affirmative Action

3. So Ordered... Court Cases of Note

a. First Circuit Holds Student AIDS Awareness Assembly Not Sexual Harassment

b. Second Circuit Reverses Injunction Granted Against New York Subway Fare Increase

c. Fifth Circuit Holds Title IX Cannot Be Used to Obtain Money Damages in an Employment Case

d. Seventh Circuit Upholds Older Americans Act Funding Formula

4. Connecticut Agrees to Remedy Title VI Home Health Care "Redlining" Violations

5. Eastchester, New York, Adopts More Affordable Park Fees to Resolve Title VI Violations

6. FBI Broadens Scope of Civil Rights Training Offered at National Police Academy

7. Justice Produces "All-Purpose" Title VI Brochure

8. Comings, Goings, and Other Changes

Executive Order 12250 Advisory Group Off to Good Start

The Executive Order 12250 advisory group, comprised of representatives from 12 Federal funding agencies, held its first meeting at the Department of Justice on February 13, 1996. The advisory group was established by the Civil Rights Division to provide advice and recommendations for the improved governmentwide coordination and enforcement of Title VI, Title IX, and similar grant-related civil rights statutes.

Deputy Assistant Attorney General Loretta King expressed her appreciation to the participants for their dedication over the years to civil rights, and for their willingness to explore new and innovative ways of effectively enforcing the civil rights laws.

Merrily Friedlander, Chief of the Civil Rights Division's Coordination and Review Section, which directs Executive Order 12250 coordination activities, also welcomed the group. She explained that the advisory group concept was originally suggested by the Department of Agriculture during the Section's series of individual meetings last fall with the 28 Federal funding agencies.

Agency representatives identified various legal and programmatic topics for discussion by the advisory group, resulting in the establishment of six subcommittees:

(1) planning, performance, and data reporting requirements; (2) civil rights compliance functions and responsibilities in block grant programs; (3) the use and operation of delegation agreements; (4) the use of program staff for civil rights compliance activities; (5) application of the Attorney General's memorandum of July 14, 1994, on the use of the disparate impact standard in Title VI administrative regulations; and (6) the possible development of a Title VI conference.

The six subcommittees each include several agency representatives and a Coordination and Review Section staff member. Each subcommittee will meet during the coming weeks and will report to the full group at its regularly scheduled monthly meetings.

The advisory group consists of representatives from seven departments (Agriculture, Education, Health and Human Services, Housing and Urban Development, Interior, Labor, and Transportation); and five "small" agencies (the Corporation for National and Community Service, the Environmental Protection Agency, the Federal Emergency Management Agency, the General Services Administration, and the National Aeronautics and Space Administration).

Deval Patrick Expresses Clinton Administration's Opposition to Dole-Canady Bill; Reiterates Support for Affirmative Action Programs

In December 7, 1995, testimony before the House Judiciary Committee's Subcommittee on the Constitution, Assistant Attorney General for Civil Rights Deval L. Patrick expressed the Clinton Administration's opposition to proposed legislation to end racial and gender "preferences" in Federal hiring and contracting programs. Patrick also reiterated the Administration's support for affirmative action programs. Patrick was testifying on the proposed Equal Opportunity Act (H.R. 2128/S. 1805, also known as the Dole-Canady bill).

Patrick said that the bill's prohibition against intentional discrimination on the basis of race, ethnicity, and gender would add nothing new to what already is prohibited by the Constitution as interpreted by the courts and by various Federal laws. He further said that the bill is redundant on the subject of quotas, which already are outlawed by Executive Order 12246 and the Civil Rights Act of 1991, by the Constitution as interpreted by the courts, and by the President, as a matter of public policy.

Patrick said that, in proposing to prohibit the use of numeric goals and timetables of any kind, the bill reflects "an almost hysterical aversion to numbers." He noted that goals and timetables are used to measure progress in a wide variety of business, educational, and personal contexts. He stated that "[w]hen Americans believe something is important, our tradition is to face the facts, decide where we have to go, plot a course for getting us there, and measure our progress along the way. This is all that goals and timetables are about."

Patrick stressed that "[i]n the context of affirmative action programs, goals and timetables must be flexible, they must be sensibly related to a demonstrable pool of qualified individuals and they must be fair." He declared that "[n]othing about affirmative action -- or the use of goals and timetables to measure affirmative action -- requires the abrogation of common sense or simple fairness."

The Assistant Attorney General further stated that "[b]y completely prohibiting otherwise lawful and flexible affirmative action and categorically rejecting several decades of Supreme Court precedent imposing limits on affirmative action, this bill attacks remedies that have evolved as a modest, but helpful response to the deep intransigence of institutions which persist in viewing African Americans, Hispanic Americans, Native Americans, Asian Americans, and women as less deserving of jobs, business opportunities and places in universities."

Patrick referred to President Clinton's pledge to "mend, not end," affirmative action programs. He noted that the Department of Justice is continuing its review of all Federal affirmative action programs to ensure that they comply with Administration policies and the Supreme Court's decision in _Adarand_ v. _Pena_. (See the Fall, 1995 issue of the _Civil Rights Forum_.)

So Ordered...Court Cases of Note

First Circuit Holds Student AIDS Awareness Assembly Not Sexual Harassment

Two ninety-minute sessions of a high school assembly promoting AIDS awareness did not create a sexually hostile school environment in violation of Title IX, according to the First Circuit. The plaintiffs had alleged that the assembly program contained extremely sexually explicit monologues and skits and, among other things, used lewd and lascivious language in advocating and approving a variety of sexual activities and practices.

The court explicitly embraced Title VII case law in analyzing the claim of a hostile environment. The panel applied the four-part test enunciated in the Supreme Court case of _Harris_ v. _Forklift Sys. Inc._, 114 S. Ct. 367, 371 (1993), looking for evidence of an objective or subjective hostile environment.

The court found that one-time exposure, in this case, was not "frequent"; the comments made during the program were not severe; the comments were not physically threatening or humiliating, but were made in the context of a presentation and designed to create a humorous environment for the assembly; and the remarks did not significantly alter the educational environment, even though they may have led to weeks of coarse jesting addressed to the students who did not accept the message of the assembly. With respect to this last element of the test, the court concluded that the evidence showed discrimination, if any, based on viewpoint, not gender. _Brown_ v. _Hot, Sexy and Safer Productions, Inc._, No. 95-1275, 1995 WL 610915 (lst Cir. Oct. 23, 1995).

Second Circuit Reverses Injunction Granted Against New York Subway Fare Increase

The Second Circuit has reversed and remanded a case in which a district court had issued a preliminary injunction against a New York Mass Transit Authority (MTA) subway fare increase. The district court had enjoined the increase because of its view that an adverse impact on minorities in violation of Title VI would result. The district court based its decision, in part, on the Attorney General's July 14, 1994, memorandum (reprinted in the Spring, 1995 _Civil Rights Forum_) regarding the use of the adverse impact standard in Title VI regulations.

The district court used a Title VII adverse impact analysis in applying the U.S. Department of Transportation's Title VI regulation to the fare increase. It found that roughly 60% of working commuters riding on the bus and subway system were members of racial and ethnic minority groups, as contrasted to roughly 40% of rail commuters. MTA was increasing both subway and rail fares. However, the proposed percentage increase was 20% on subway and bus fares but only 9% on rail commuter fares. Unpersuaded that capital accounts or that something other than fare box costs should be considered, the court found that the subway fare increase adversely impacted on minorities in violation of Title VI.

The district court dismissed arguments that, because it applied equally to minority and nonminority riders, the subway fare increase was nondiscriminatory. It also rejected as a business necessity defense the contention that pollution would increase if suburban commuters were encouraged to drive to work because of the higher rail fare. The court enjoined the increase in subway fares, although it allowed implementation of the rail commuter fare increase. _New York Urban League, Inc._ v. _Metropolitan Transit Authority_, 905 F. Supp 1266 (S.D.N.Y. Nov. 8, 1995).

On an expedited appeal, the Second Circuit reversed and remanded the case. The appellate court found that the district court decision was based on insufficient findings to support the disparate impact conclusion. It further found that the evidence did not support rejection of the proffered justification for any disparity. Finally, it held that enjoining the scheduled fare increases was an inappropriate remedy even if the plaintiffs were successful in the case on the merits. _New York Urban League, Inc._ v. _Metropolitan Transit Authority_, ___ F.3rd ____, 64 USLW 2400 (2d Cir. Dec. 7, 1995).

Fifth Circuit Holds Title IX Cannot Be Used to Obtain Money Damages in an Employment Case

The Fifth Circuit has reversed a jury verdict of liability in a Title IX employment case. A three-judge panel unanimously held that Title VII provides the exclusive remedy for persons seeking money damages who allege sex discrimination in employment by educational institutions receiving Federal financial assistance.

The heart of the court's position is that Title IX was not intended as a bypass of the balanced remedial process laid out by Title VII for addressing employment discrimination. The court noted that "[t]ermination of federal funding is the sole remedy expressly available for violations of Title IX."

The panel distinguished Supreme Court cases that found private rights of action for money damages under Title IX by noting that none of the cases addressed the relationship between Title IX and Title VII. The court also rejected the argument that 42 U.S.C. ? 1983 could be used derivatively to indirectly provide money damages in circumvention of the remedies provided by Title VII. In reaching its conclusion, the court explicitly withheld opinion on whether employment suits seeking only declaratory or injunctive relief were likewise available exclusively under Title VII. _Lakoski_ v. _James_, 66 F.3d 751 (5th Cir. Oct. 3, 1995).

This case raises a question about what many assumed to be settled law, at least since _Consolidated Rail Corp._ v. _Darrone_, 465 U.S. 624 (1984). There, the Supreme Court found that Section 504 of the Rehabilitation Act, which is enforced like Title IX, created a right to backpay and money damages for employment discrimination. In addition, the case raises questions about the joint Department of Justice/Equal Employment Opportunity Commission regulation governing complaints of employment discrimination filed against recipients of Federal financial assistance, commonly known as the Title VI/Title VII rule. That rule presumes the availability of backpay as a remedy for employment discrimination covered by Title VI (which is enforced like Title IX) and Title VII.

Seventh Circuit Upholds Older Americans Act Funding Formula

The Seventh Circuit has upheld an Illinois State regulation that implements the Federal Older Americans Act. The city of Chicago claimed that the funding formula adopted by Illinois to distribute funds provided by that Act violated Title VI because it used two factors that adversely impacted on minorities. The two factors were increased funding for people over 75 years of age and increased funding for persons living in rural areas.

The court, in a September 8, 1995, ruling, held that because the formula also contained a factor for minorities, the formula as a whole did not create a disparate impact, despite minority underrepresentation in the other two factors (75+ age and rural area residence). The panel found that the formula did not discriminate on its face and, most importantly, that the rural factor served a purpose of the Act, which specifically directed State agencies to spend funds for "services to older individuals residing in rural areas." _City of Chicago_ v. _Lindley_, 66 F.3d 819 (7th Cir. 1995).

Connecticut Agrees to Remedy Title VI Home Health Care "Redlining" Violations

The Department of Health and Human Services (HHS) has entered into a formal settlement agreement with the Connecticut Department of Social Services to ensure that home health care providers receiving Medicaid funds will not refuse or limit services based on where a person lives, a practice called "redlining."

The complainant in the case, an African-American resident of New Haven, alleged that Staff Builders Services, Inc., a New York-based home health care agency, violated Title VI of the Civil Rights Act of 1964 by terminating services to her and her severely disabled minor son when they moved to the Eastern Circle housing complex. Staff Builders used written employee safety guidelines that prohibited employees from visiting certain streets and specific housing complexes. The areas so designated were predominately Hispanic and African-American. Staff Builders has rescinded these guidelines.

Mr. Dennis Hayashi, Director of HHS's Office for Civil Rights, stated that "[w]hile OCR previously found Staff Builders in violation of Title VI for practicing medical redlining, this agreement addresses the issue of access in _all_ home health agencies receiving funds through the State."

The State of Connecticut receives more than $1.3 billion in Federal financial assistance from HHS.

The State has agreed to implement regulations prohibiting racial discrimination by home health care providers. It also will ensure that such agencies do not refuse or limit services to individuals based on where they reside, except when, in emergency situations, they reasonably determine that unsafe conditions at a particular time and location place employees in immediate jeopardy.

Home health agencies will provide, whenever possible in the event of an emergency, alternative methods of service delivery, such as the use of escorts furnished without extra cost to clients. In addition, agencies will take all steps necessary to ensure that emergency suspensions of service are temporary, and that needed services are not denied or terminated.

Eastchester, New York, Adopts More Affordable Park Fees to Resolve Title VI Violations

The Town of Eastchester, New York, following arduous negotiations with the Department of the Interior, has voluntarily agreed to take comprehensive measures to resolve Title VI violations with respect to its operation of Lake Isle Park. Interior had found that the park's fee structure, in effect, barred low income individuals and families, particularly minorities, from participating in programs and activities offered at the park.

The town built the park in 1979 with two grants from the National Park Service totalling $778,675, which were used to purchase a former country club. With five swimming pools, an 18hole golf course, and multi-room clubhouse facilities, the 116acre Lake Isle Park serves as the centerpiece of the town's public park system.

In the 1980's, the National Park Service warned the town that the fee structure at the park violated Title VI. Reviews by Interior's Office for Equal Opportunity and Office of the Solicitor concluded that the park's annual admission fees of $3,150 for families and $1,575 for individuals prevented minority residents from participating in park programs and activities. With such a fee structure, the park operated more like the country club it once was.

In an "Affordability Plan" voluntarily adopted by the town and approved by Interior, the town recently established an interracial Lake Isle Park Impact Committee to work in partnership with representatives of Eastchester's minority community. The committee's goal is to ensure that the park is affordable and readily accessible to all people.

The plan contains provisions for transporting children twice a week free of charge to swim at the park; a $1.50 entrance fee per swimmer is the only charge. Family and individual rates for residents were reduced 50% in all program and activity areas. An affirmative employment plan was adopted by the town to increase minority employment at the park, especially in service delivery areas, both in peak seasons and during the slowest period of the year. The town agreed to broaden its outreach towards minority groups and organizations to increase their participation in the park's programs and activities.

The town also has taken steps to publicize its nondiscrimination policies more effectively. Further, the town was required by Interior to install park benches and picnic tables at select locations in the park to facilitate leisure recreation visits.

FBI Broadens Scope of Civil Rights Training Offered at National Police Academy

The National Police Academy, conducted at the FBI Academy in Quantico, Virginia, trains law enforcement officials from around the United States and several foreign countries. The curriculum traditionally includes a general presentation on civil rights law, focusing primarily on issues relating to criminal civil rights violations involving the use of excessive force. However, in November, 1995, representatives from the Department of Justice's Civil Rights Division for the first time gave a brief presentation on the civil--as opposed to criminal--statutes that affect police officers. A similar presentation was made in February, 1996, by the Department of Justice's Office of Justice Programs. That office and the Civil Rights Division will alternate giving the training sessions at future classes, which meet at Quantico four times per year.

The session included an introduction to Title VI, Title IX, and other grant-related civil rights statutes. It also included discussion of a recently enacted provision of the Crime Control Act of 1994, which authorizes the Department of Justice to file civil actions to remedy a pattern or practice of law enforcement conduct that violates the Constitution or Federal laws.

Title VI and the other grant-related civil rights statutes prohibit discrimination in the entire range of police services and functions. The grant-related statutes apply to police departments that receive Federal financial assistance, either directly from the Federal government or through block grants given to the States. Currently, about 80 percent of U.S. citizens are served by police departments that receive Federal financial assistance from the Department of Justice's Community Oriented Policing Services program. Moreover, attendance at the prestigious National Academy, the cost of which is covered by the FBI, itself constitutes Federal financial assistance to the participating law enforcement agencies.

Justice Produces "All-Purpose" Title VI Brochure

The Department of Justice has produced a brochure entitled "Your Rights Under Title VI of the Civil Rights Act of 1964" that, for the first time, addresses Title VI from a governmentwide perspective. It complements other publications designed by the various funding agencies for recipients and beneficiaries of their own particular federally assisted programs.

The brochure addresses the broad range of federally assisted programs covered by Title VI. It provides guidance on how and where to file complaints of discrimination. The brochure also discusses the Department of Justice's role as the governmentwide Title VI complaint "clearinghouse" under Executive Order 12250.

Justice initially sent copies of the brochure to the various Federal funding agencies to notify them that their Title VI complaints may increase in number as a result of the anticipated wide distribution of this brochure.

The first printing of 5,000 brochures will be distributed to more than 60 civil rights and grass roots organizations and their affiliates. These organizations have been asked to duplicate and disseminate the brochures to their staffs, membership, and the public.

State Attorneys General Conference Focuses on Civil Rights

The National Association of Attorneys General (NAAG) held its third annual Civil Rights Conference on March 7-9, 1996, in Washington, D.C.. State and Federal officials met to discuss key issues in civil rights enforcement and how to work together more effectively to eradicate discrimination.

The Conference addressed key nationwide civil rights issues, including police misconduct, civil rights issues in education and private club discrimination, and post-_Adarand_ issues. Four task force working sessions also addressed housing discrimination, bias-motivated crimes, mortgage lending discrimination, and discrimination on the basis of disability in public accommodations. Attorneys from the U.S. Department of Justice's Civil Rights Division participated as panel members in all of the task force working sessions.

Grant Woods, Arizona Attorney General and chair of the NAAG Civil Rights Committee, opened the conference and facilitated a plenary discussion on emerging issues in civil rights law.

In his keynote speech, Deval L. Patrick, Assistant Attorney General for Civil Rights, stressed the need for greater cooperation between the States and the Federal government. He stated that now "is a time for coming together, for taking advantage of the benefits of collaboration." He noted, by way of example, that Federal and State officials are working together in several cases involving church bombings in Alabama and clinic entrance access in Connecticut. He concluded by stating that civil rights is the struggle for America's conscience, and that when one stands up for his or her rights, that person "stands up for all of us."

Under a Memorandum of Understanding, NAAG and the Civil Rights Division are cooperating to further communication between States and the Federal government, to share information and expertise, and to coordinate resources to target violations of civil and criminal civil rights laws. The Memorandum is expected to be amended shortly to include U.S. Attorneys.

A panel facilitated by Loretta King, Deputy Assistant Attorney General in the Civil Rights Division, examined permissible actions based on race or ethnicity in light of the Supreme Court's decision in _Adarand_. Another group dealt with police misconduct issues including harassment and physical violence toward minorities by police officers. State enforcement tools that can be used against these police officers and the inadequacy of sensitivity training were addressed.

The conference also examined barriers to State enforcement of civil rights. Many State Attorney General offices lack express statutory authority to enforce State and Federal civil rights laws. As an alternative, a number of offices rely on the general subpoena power granted under their consumer protection laws to conduct investigations into civil rights violations. In addition, NAAG endorsed in 1992 a proposed Federal statute that would give State Attorneys General the authority to enforce Federal civil rights statutes and file cases in Federal court using their _parens patriae_ authority.

The growing problem of racial and sexual harassment of students in America's schools was addressed by representatives from the Department of Education's Office for Civil Rights. They discussed the First Amendment ramifications of investigations on harmful language, and guidelines for investigating cases involving these allegations.

Twenty-three State Attorney General offices were represented at the conference, as were nine U.S. Attorneys offices, the Civil Rights Division of the Department of Justice, the Equal Employment Opportunity Commission, the Department of Education, the Department of Housing and Urban Development, and other Federal agencies with civil rights enforcement responsibilities.

Comings, Goings, and Other Changes

Mr. George S. Robertson is currently the Acting Director, Civil Rights, Department of Agriculture. The position of Director formerly was held by Mr. David Montoya.

Mr. Courtland V. Cox, formerly the Acting Director, is now the Director, Office for Civil Rights, Department of Commerce.

Ms. Elizabeth Julian, formerly the Acting Deputy Assistant Secretary, is now the Deputy Assistant Secretary for Policy and Initiatives, Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development.

Mr. George E. Reese is currently the Acting Associate Administrator for Equal Opportunity Programs, National Aeronautics and Space Administration. The position was formerly held by Dr. Yvonne B. Freeman, who left the agency on January 22, 1996.

Ms. Jean Riggs, formerly Acting Coordinator, has been designated as the Director, Office of Equal Opportunity, National Science Foundation.

Please note the following changes to the list of agency civil rights directors and their addresses, which was published in the Fall, 1995 issue:

General Services Administration: Ms. Yvonne T. Jones, Room 5123.

Office of Justice Programs: telephone number (202) 307-0690.

Tennessee Valley Authority: Mr. George H. Provost, new area code (423).

Department of the Treasury: Mr. Robert Breivis, Room 4150.

United States Information Agency: Ms. Hattie P. Baldwin, Room 858.

Department of Veterans Affairs: Mr. Gerald K. Hinch, 810 Vermont Avenue, N.W.

And at the Department of Justice's Civil Rights Division:

Mr. William R. Yeomans will become Acting Deputy Assistant Attorney General with responsibility for the Voting, Special Litigation, and Coordination and Review Sections when Deputy Assistant Attorney General Loretta King begins her maternity leave begins in late March. He currently is Counsel to the Assistant Attorney General.

Mr. Andrew M. Strojny is now Deputy Section Chief (Legal) in the Coordination and Review Section. He had been Acting Deputy Section Chief (Legal).

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

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.

Attorney General

Deputy Attorney General

John R. Schmidt

Associate Attorney General

Deval L. Patrick

Assistant Attorney General

Isabelle Katz Pinzler

Deputy Assistant Attorneys General

Merrily A. Friedlander

Theodore R. Nickens

Deputy Section Chief (Program)

Andrew M. Strojny

Deputy Section Chief (Legal)

Contributing to this issue: Melvin Fowler (Interior), Joshua Mendelsohn, Allen Payne, Lisa Silverberg (HHS), Andrew Strojny, Margay Williams, William Worthen

Logistics: Michael Espeut

Secretarial support: Rita Craig

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

Updated July 25, 2008