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Civil Rights Forum

Winter 1997
Volume 11, Number 1

In This Issue...

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The Forum "Debriefs" Deval Patrick

Deval L. Patrick, Assistant Attorney General for Civil Rights for nearly three years, resigned effective January 20, 1997. He was interviewed for the Civil Rights Forum by the Federal Coordination and Compliance Section's Deputy Director (Program), Ted Nickens. The interview took place in Mr. Patrick's office on January 8, 1997.

FORUM: What would you say were your most significant accomplishments as Assistant Attorney General for Civil Rights?

DLP: I think we have a very energized enforcement program with some terrific people, both career and non-career. Their dedication always has been clear, but I think their support is broader within the Department and within the Administration, and their mission is clearer.

Specifically, I'm proud of the work we've done in fair lending, in our enforcement and public education on disability rights issues and the ADA, and in our voting efforts, such as "Motor Voter" and the defense of majority minority voting districts. We also have defended affirmative action with integrity and a good deal of success. We also now have a Title VI program that has been awakened from a long period of dormancy. And, of course, our work on church arsons.

There's work still to be done. For example, VMI and The Citadel are now open to women but there are still issues to be worked through in terms of the full integration of women into those programs. I am very confident of the Department's and the Administration's continuing support for this program and of the continuing energy level and commitment of the people in the Division.

FORUM: What was the most difficult issue you had to face?

DLP: The church arsons certainly have been one of the more significant challenges because of the scope of the coordination needed to respond effectively. We have probably the most well-coordinated, multi-agency response that anybody is able to point to. We have typically competitive law enforcement agencies working hand-in-hand in the same offices on similar projects. We've had a seven to eight-fold increase in the rate of arrests -- we've made possibly 140 arrests in the matters under investigation by the task force. We have a lot more work to do, but we've undertaken what has become the largest current civil rights investigation and one of the second or third largest criminal investigations of any kind ever.

FORUM: Is there any matter that you feel you are leaving unfinished?

DLP: How can I put it? I think it was Thomas Jefferson who said, "Constant vigilance is the price of liberty." I take that to mean that the work of civil rights, which is of course the measure of liberty and the vitality of American democracy, is never finished. There are financial and staffing resource demands on the Division that have become more acute and will require the immediate attention of the Department. I think that if you are going to have a vigorous program, you need to support it completely so that you can sustain that vigor over time.

Speaking more broadly, I think the quality of the public debate on issues of race relations, in particular civil rights, has improved only marginally, but I think it has improved. I think the President himself laid out notions of reconciliation and respect as preeminent themes of his second term and that's important. I think we heard a re-elected Speaker of the House talk about issues of race relations and a national conversation on race requiring the attention of Congress as well. I think these are good things, not things to be afraid of. They will be difficult, I'm sure, but they will serve our long-term interests in this country.

We, all of us, have contributed in the last four years or so in trying to improve that discussion. We've had to go through some pretty sullied periods before coming to where we are, but where we are is better than where we were, and as long as we keep moving forward we'll be all right.

FORUM: During your tenure you made a committed effort to reinvigorate the enforcement of Title VI of the Civil Rights Act of 1964, which you referred to as a "Sleeping Giant." What can the Federal government do to continue to raise public awareness about Title VI?

DLP: Well, for one thing, because of the way Title VI is organized, it's not enough for the Department of Justice alone to vigorously enforce it. Effective enforcement of Title VI requires that it get due attention from the funding agencies as well. I think there is still some more work to do in this regard. We have seen the agencies' awareness raised, but we are still seeing an uneven level of attention being paid to Title VI. I think we also need to examine ways in which the Department may have independent litigating authority under the related provisions of various block grant statutes. I also think we need to enhance the resources within the Division that are devoted to Title VI enforcement.

FORUM: How would you like your tenure to be remembered by the civil rights community?

DLP: Respectfully. I think what we tried to do here is enforce the civil rights laws without fear and without favor. That is not going to make everyone happy all of the time, but I think that the integrity with which all of us here have gone about this mission deserves the respect of the Administration, the Congress, and the American people as a whole.

FORUM: What will you miss most when you leave?

DLP: The people. First and foremost, the people. All of the people, their energy, the variety of their perspectives, their dedication and their talent. I will also miss the stimulation of this job. It's hard to imagine another job where one can say, as I can about this one, that I have never had a single dull day. What is stimulating about the job is that it is active and challenging on many different levels simultaneously.

FORUM: You said that the primary reason for leaving was your family. How do they feel about your decision?

DLP: (Laughter) I think they feel great. The evening that I sent my letter of resignation into the Oval Office, I left the West Wing with very mixed feelings about the decision. I called home and got my youngest daughter on the line and I said, "Katherine, I've resigned," and she said, "Daddy, does that mean you quit?" I said, "Yes, that's what it means," and she said, "Yessssss!"

My kids are proud of my work, they are proud of what I do. A couple of years ago, as part of a project explaining what their parents did, my oldest daughter Sarah described me as "trying to bring justice to people." They understand what I do with my colleagues here in the Division. I also am fortunate in that they are very clear about what their needs are, and they were willing to lend me to public service for a while. But as the end has drawn near, they've been very forthright about their interest in having me home again.

FORUM: Do you have any parting words for the Division's staff and the other civil rights staff throughout the Federal government who enforce Title VI?

DLP: My parting words are: "Keep the Faith." I believe that successful Title VI enforcement ultimately depends on the continuing initiative and commitment of career civil servants and not entirely on the so-called "political leadership" that comes and goes. Many of the best ideas generated by the Civil Rights Division originated with the staff, and we sent them up to the leadership of the Department, and from there they went to the White House. I'm sure other agencies have had that same experience.

"...[W]hat we tried to do here is enforce the civil rights laws without fear and without favor."

"...[M]y oldest daughter [as part of a school project] described me as `trying to bring justice to people'."

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Pinzler Tapped as Acting AAG for Civil Rights

Deputy Assistant Attorney General Isabelle Katz Pinzler has been named as the Civil Rights Division's Acting Assistant Attorney General. She will serve until a new Assistant Attorney General is nominated and confirmed.

As Deputy Assistant Attorney General since 1994, Ms. Pinzler directed the work of the Division in the enforcement of Federal civil rights laws in the areas of employment and education. She also supervised litigation in defense of Federal affirmative action programs and the work of the Division in the governmentwide review of Federal affirmative action programs.

Prior to joining the Civil Rights Division, Ms. Pinzler was for 15 years the Director of the Women's Rights Project of the American Civil Liberties Union. In that capacity, she became a nationally recognized expert in sex discrimination and civil rights law and practice.

Ms. Pinzler designed, supervised, and participated in major groundbreaking litigation and major amicus curiae briefs involving employment, education, public accommodations (including insurance), health care, and the military.

Prior to joining the ACLU staff, Ms. Pinzler served as Deputy Director of the National Employment Law Project (a Legal Services support center), and as a staff attorney with the Law Reform Unit of the Legal Aid Society of Cleveland.

A native New Yorker, Ms. Pinzler received her A.B. degree in history from Goucher College in 1967 and graduated from the Boston University School of Law in 1970.

In other front office moves, former Chief of Staff Susan Liss now serves as Chief of Staff to Mrs. Gore and Special Counsel to the Vice President. Former Deputy Assistant Attorney General Kerry Scanlon joined the Washington, D.C. office of Kaye, Scholer, Fierman, Hays & Handler, where he will head up a new civil rights practice group.

William Yeomans, formerly Counsel to the Assistant Attorney General, now serves as Acting Deputy Assistant Attorney General for Ms. Pinzler. Liz Savage, formerly Special Assistant to the Assistant Attorney General, now is Counsel on disability law and policy.

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Justice Initiative Underway to Combat Police Misconduct

The Justice Department's Civil Rights Division, at the request of the Attorney General, has launched a police misconduct initiative to combat and prevent law enforcement misconduct, both through deterrence and through education and training.

A primary focus of the initiative is the enforcement of recent legislation that provides "pattern or practice" civil litigation authority to the Justice Department to remedy police misconduct. Under the Violent Crime Control and Law Enforcement Act of 1994, the Department may file suit where there is a pattern or practice of misconduct that violates the Constitution or Federal law.

Importantly, this authority allows the Department to address law enforcement management practices that countenance misconduct. The Department for many years has criminally prosecuted individual police officers who abuse their authority. However, criminal prosecutions do not directly confront broader management problems.

The police misconduct initiative also addresses discriminatory law enforcement practices prohibited under Title VI of the Civil Rights Act of 1964 and the Omnibus Crime Control and Safe Streets Act of 1968. Thousands of law enforcement agencies receive financial assistance from the Department, and thus are prohibited from discriminating on the basis of race, color, national origin, sex, or religion. Law enforcement agencies also are prohibited from discriminating on the basis of disability under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

On February 26, 1997, the Justice Department filed its first lawsuit resulting from the Police Misconduct Initiative, against the city of Pittsburgh, Pennsylvania. On the same day, the Department and the city filed a proposed consent decree, which sets forth comprehensive guidelines for the training, supervision, and discipline of Pittsburgh police.

Numerous other police misconduct investigations are underway. They address a variety of issues, including allegations of excessive force and discriminatory traffic stops, and involve law enforcement agencies across the country.

The Civil Rights Division also is examining how to assist law enforcement agencies to develop and implement sound management practices. The Division has participated in policy forums and training sessions attended by law enforcement executives. It also is cooperating with the Department's fund-granting agencies to explore how State and local police integrity initiatives may receive Federal financial support.

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College Board Revises Test to Improve Chances for Girls to Win Scholarships

The College Board and the Educational Testing Service (ETS) have agreed to revise the Preliminary Scholastic Assessment Test (PSAT), the main determinant in awarding National Merit Scholarships. Each year over one million high school juniors compete for a share of the $27 million awarded through these prestigious scholarships.

The changes to the PSAT come in response to a 1994 civil rights complaint filed by the National Center for Fair and Open Testing (Fair Test) with the Department of Education. Fair Test charged disparity in the awarding of National Merit Scholarships.

The complaint was filed under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in any education program receiving Federal financial assistance. The College Board and ETS, which administers the standardized test, both receive Federal financial assistance from the Department of Education.

Fair Test alleged that girls tended to score lower on the PSAT even though their high school and college grades were better than their male classmates. As a result, about 60 percent of the scholarships typically go to boys out of a pool of test takers that typically is 60 percent female.

The College Board will add a multiple choice section to the test in 1997 to measure writing aptitude, which will include questions involving the structure of language and standard written English. The College Board and ETS are confident that the addition of the nonessay writing test is likely to provide a more accurate measure for the award of National Merit Scholarships and provide equal opportunity for girls to receive these scholarships.

Advocacy groups such as Fair Test and the American Civil Liberties Union Women's Rights Project remain skeptical. Representatives of both organizations advocate that the National Merit Scholarship selection process should be changed to reduce the emphasis on PSAT scores and introduce high school grades and class rank into the early stages of the selection process, rather than the final stages. These groups are not convinced that test scores alone accurately predict who will be the better student.

The College Board states that the merit selection process was already skewed to try to compensate for girls' lower math scores by counting the verbal score twice and the math score only once. The Department of Education's Office for Civil Rights will monitor the revised PSAT to see whether the gap closes between male and female National Merit Scholarship winners.

The College Board and ETS have agreed to undertake a research project to see how high school grades might be incorporated into the selection criteria at the early stages of the scholarship award process. They also will explore other possible changes in the PSAT.

The question remains: Do standardized test scores result in a disproportionately lower number of financial scholarships being awarded to girls? At least one Federal court seems to think so. A Federal district court ruled in 1989 that the New York State Regents Scholarships, which are determined by SAT scores, discriminated against girls. When New York State relied on standardized tests, girls won only 43 percent of the scholarships. One year later, when the State also took grades into consideration, girls were awarded 51 percent of the scholarships. Sharif v. New York State Education Department, 709 F.Supp. 345 (1989).

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Department of Education and Courts Address Sexual Harassment in Schools

The Department of Education is finalizing its review of comments received on two draft policy guidance documents concerning sexual harassment in schools.

In August 1996, the Department published a Federal Register notice requesting comments on a draft policy applying Title IX of the Education Amendments of 1972 to student-on-student sexual harassment. In September 1996, the Department published a second notice requesting comments on a draft policy applying Title IX to sexual harassment of students by school employees. The September notice advised that after the comments are reviewed, a single document would be prepared setting forth the standards followed by the Education Department's Office for Civil Rights in this area.

One of the key issues under Title IX concerns the circumstances in which a school system may be held responsible because of sexual harassment by an employee or student. There is little debate about school responsibility for an employee's "quid pro quo harassment" (i.e., where the employee seeks to trade an education-related decision or participation in an educational program or activity for unwelcome sexual conduct).

However, the scope of school responsibility is less clear where sexual harassment by an employee creates a "hostile environment," but there is no element of quid pro quo. In several cases, the Fifth Circuit has taken a narrow view. Most recently, in Rosa H. v. San Elizaro Independent School District, 1997 WL 66087 (February 17, 1997), the court held that a school system is liable for its employees' actions only if a school official with supervisory authority over the harasser had actual notice of the abuse and failed to stop it. Nonetheless, the court noted that if the final Department of Education guideline provides for broader liability, that standard may apply where a school system accepts Federal funding after the guideline is issued.

Where the harassment in student-on-student, the question is whether a school is liable under Title IX if it knew or should have known of the harassment but failed to take appropriate measures to stop it.

A panel of the Eleventh Circuit adopted the "know or should have known" standard, but the ruling was vacated for a rehearing en banc and a decision is pending. Davis v. Monroe County Board of Education, 74 F.3d 1186, vacated and reh'ing en banc ordered, 91 F.3d 1418 (1996).

A panel of the Fifth Circuit took a narrow view, stating that even a failure to take remedial action in the face of known sexual harassment would not trigger Title IX liability. Instead, the court said that a school could be held responsible under Title IX only if it treated peer harassment of one gender differently than peer harassment of the other gender. Rowinsky v. Bryan Independent School District, 80 F.3d 1006, cert. denied, 117 S. Ct. 165 (1996).

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So Ordered...Court Cases of Note

a.  Supreme Court Declines to Hear Appeal Regarding Private Damages in Title IX Employment Case

On October 21, 1996, the Supreme Court denied the petition for writ of certiorari in Lakoski v. University of Texas Medical Branch at Galveston, 117 S. Ct. 357 (1996), a case in which a female university professor had obtained damages for employment discrimination under Title IX of the Education Amendments of 1972.

The Fifth Circuit reversed the district court judgment, ruling that victims of employment discrimination may not sue for damages under Title IX, regardless of the fact that the discrimination was perpetrated by a federally funded educational institution. Lakoski v. James, 66 F.3d 751 (1995). The appeals court held that Title VII of the Civil Rights Act of 1964 provides the exclusive remedy for such damage claims, but reserved the question whether declaratory and injunctive relief still may be obtained under Title IX.

The Department of Justice filed a brief as amicus curiae in support of the plaintiff's unsuccessful request for Supreme Court review.

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b.  Fourth Circuit Declines to Hear Appeal in Environmental Justice Case

On January 30, 1997, the Fourth Circuit declined to hear an interlocutory appeal of a Pennsylvania district court's decision in an environmental justice case. Chester Residents Concerned for Quality Living v. Seif, CV-96-3960 (E.D. Pa.). The Justice Department had filed an amicus curiae brief in support of the appeal.

In its November 5, 1996 decision, the district court found that there is no private right of action to enforce Title VI of the Civil Rights Act of 1964 under the implementing regulations of the Environmental Protection Agency (EPA), and it dismissed those claims with prejudice. Chester, 944 F.Supp. 413 (E.D. Pa. 1996). The district court also found that plaintiffs must allege discriminatory intent when pleading a statutory violation of Title VI, and it gave the plaintiffs leave to amend their complaint to do so.

In its brief supporting a petition for a discretionary appeal by the plaintiffs, the Justice Department argued that agency regulations prohibiting disparate impact should be viewed as substantive regulations that have the force and effect of law. As such, a private right of action may be implied directly under the regulations. Thus, the Department contended, whether plaintiffs must prove intent is a controlling question of law in this litigation.

As reported in the Fall 1996 issue of the Civil Rights Forum, the Justice Department filed an amicus curiae brief in this case on April 23, 1996. That brief contended that regulations implementing Title VI proscribe disparate impact against minority communities resulting from a grant of a permit by a State environmental agency, unless the action is legally justified.

Plaintiffs in the Chester case allege that a regional office of the Pennsylvania Department of Environmental Protection violated Title VI and EPA's implementing regulations by granting permits for waste facilities and other polluting facilities in a manner that caused disproportionate and adverse human health, environmental, and other effects on minority populations.

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c.  Justice Department Files Briefs in Cases Addressing Coverage of State Prisons

The Justice Department has filed amicus curiae briefs in two cases asserting that Title II of the Americans with Disabilities Act (ADA), as well as Section 504 of the Rehabilitation Act of 1973, are applicable to State correctional institutions.

In Armstrong v. Wilson, 942 F. Supp. 1252 (N.D. Cal. 1996), a district court agreed with the position taken by the Justice Department and ruled that Title II applies to California State prisons. The case is on appeal before the Ninth Circuit, and the Justice Department filed an additional brief before that court restating its position.

The Justice Department filed a similar brief in Amos v. The Maryland Department of Public Safety and Correctional Services (4th Cir.), appealing a lower court's decision granting defendant State officials' motion for summary judgment dismissing a suit by prisoners with disabilities.

Both court cases involve allegations that State prison programs, services, and facilities are not adequately accessible to inmates with disabilities in violation of Title II and Section 504. The defendants in both cases argued that neither Title II nor Section 504 are applicable to State prisons. They also contended that even if Congress intended to apply the statutes, it lacked authority to do so and, in any event, the Eleventh Amendment barred any such suits.

The Justice Department asserted that both the plain language of the statutes and the Department's regulations support the applicability of the two statutes to State correctional institutions. In addition, the Justice Department asserted that the Rehabilitation Act and the ADA were enacted pursuant to the Fourteenth Amendment and, therefore, Congress had authority pursuant to Section 5 of the Fourteenth Amendment to waive a State's Eleventh Amendment immunity.

Decisions in these cases will affect the coverage of prisons under Title VI of the Civil Rights Act of 1964 (as well as Title IX of the Education Amendments of 1972) because Title II of the ADA is based on Section 504, and Section 504 is based on Title VI.

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Justice's Title VI Brochure Now Available in Spanish

The Department of Justice's Title VI brochure now is available in Spanish (above) from the Civil Rights Division's Federal Coordination and Compliance Section. The brochure, which addresses Title VI from a governmentwide perspective, describes the broad range of federally assisted programs covered by Title VI. It provides guidance on how and where to file complaints of discrimination and discusses the Department of Justice's role as the Title VI complaint "clearinghouse" under Executive Order 12250.

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

Civil Rights Forum
Federal Coordination and Compliance Section
Civil Rights Division
Department of Justice
P.O. Box 66560
Washington, D.C. 20035-6560

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

Janet Reno
Attorney General

Jamie Gorelick
Deputy Attorney General

John C. Dwyer
Acting Associate Attorney General

Isabelle Katz Pinzler
Acting Assistant Attorney General

Loretta King
William Yeomans (Acting)
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

Contributing to this issue: Mona Diaz, Joshua Mendelsohn, Ted Nickens, Allen Payne, Mark Posner

Logistics: Michael Espeut
Secretarial support: Rita Craig

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

Toll-free Title VI Information Line: 1-888-TITLE06


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