Civil Rights Forum, Volume 9, Number 1, Spring 1995

 Civil Rights Forum, Volume 9, Number 1, Spring 1995  Published quarterly by the Civil Rights Division, U. S. Department of Justice  IN THIS ISSUE...       A Message from Deval L. Patrick       Attorney General Affirms Use of Disparate Impact Standard       Restoration Act Clarifies Meaning of "Program or Activity"       So Ordered...Court Cases of Note       Around the Agencies...       Alternative Dispute Resolution Aids Justice Investigations       The Computer, Data, and Discrimination   *A Message from the Assistant Attorney General*       [Photo] I am pleased to use this first issue of the reinstituted Civil Rights Forum as a place to announce the recent reorganization of the Civil Rights Division.   On March 1, 1995, all of the disability-related coordination and enforcement responsibilities of the Coordination and Review Section under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 were transferred to the new Disability Rights Section, formerly the Public Access Section.         A major purpose of this reorganization is to refocus the Coordination and Review Section on the task for which it was originally established: implementation of Executive Order 12250, which requires the Department of Justice to ensure consistent and effective enforcement of statutes prohibiting discrimination in federally funded programs and activities, in particular Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.  (Section 504 will be coordinated by the Disability Rights Section.)         The reorganization will streamline our operations, increase our efficiency and, most of all, greatly enhance our ability to undertake an active, comprehensive and well-coordinated effort to reinvigorate Title VI and other statutes covered by Executive Order 12250.  Resuming publication of the Civil Rights Forum after a ten-year hiatus is part of this effort.         Full implementation of Executive Order 12250 is a high priority for the Division, as well as a personal priority of mine.  However, another priority is to ensure that the Department of Justice's own recipients provide their services and programs in a nondiscriminatory manner.  Thus, in addition to its responsibilities under the Executive Order, the Coordination and Review Section also is being given major new duties to ensure nondiscrimination by recipients of Federal financial assistance from the Department of Justice.       We anticipate that the Section will be conducting post-award compliance reviews of Department of Justice recipients, and it will also be investigating complaints of discrimination in services on the basis of race, color, national origin, sex, age, and religion by Department recipients, which include vast numbers of law enforcement agencies, jails, and state prisons.  On May 5, 1995, I plan to meet with the civil rights directors of agencies that administer federally assisted programs, to discuss their ideas and my agenda for the implementation of Executive Order 12250 and for ensuring nondiscrimination in programs funded by the Department of Justice.  We intend to hold similar meetings with representatives of civil rights and other organizations.  I am counting on you to join me in recommitting ourselves to ensuring nondiscrimination and providing equality of opportunity for all Americans.  *Attorney General Affirms Use of Disparate Impact Standard* [reprinted memorandum]  July 14, 1994  Memorandum for Heads of Departments and Agencies that Provide Federal Financial Assistance  From:     The Attorney General  Subject:  Use of the Disparate Impact Standard in Administrative           Regulations Under Title VI of the Civil Rights Act of           1964        This month marks the 30th anniversary of the passage of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-6), which prohibits discrimination on the basis of race, color, or national origin in programs and activities that receive Federal financial assistance.  The anniversary of this landmark legislation is a fitting time to remind agencies that admini- strative regulations implementing Title VI apply not only to intentional discrimination but also to policies and practices that have a discriminatory _effect_.  In _Guardians Association_ v. _Civil Service Commission_, 463 U.S. 582 (1983), the Supreme Court held that while Title VI itself requires proof of discriminatory intent, agencies may validly adopt regulations implementing Title VI that also prohibit discriminatory effects.  Nearly all agencies have adopted such regulations.  In _Alexander_ v. _Choate_, 469 U.S. 287 (1985) (construing Section 504 of the Rehabilitation Act of 1973), a unanimous Supreme Court restated the holding in _Guardians_ that disparate impact violations could be addressed through regulations implementing Title VI.       This Administration will vigorously enforce Title VI.   As part of this effort, and to make certain that Title VI is  not violated, each of you should 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.       Enforcement of the disparate impact provisions is an essential component of an effective civil rights compliance program.  Individuals continue to be denied, on the basis of their race, color, or national origin, the full and equal opportunity to participate in or receive the benefits of programs assisted by Federal funds.  Frequently discrimination results from policies and practice that are neutral on their face but  have the _effect_ of discriminating.  Those policies and practices must be eliminated unless they are shown to be necessary to the program's operation and there is no less discriminatory alternative.       Under Executive Order 12250, the Department of Justice  is responsible for ensuring that funding agencies meet their responsibilities under Title VI.  This Department is committed  to productive and effective enforcement of the civil rights  laws by each agency that extends Federal financial assistance.  Facially neutral policies and practices that act as arbitrary and unnecessary barriers to equal opportunity must end.  This  was the goal of Title VI when it became law and it remains one  of the highest priorities of this Administration.  *Restoration Act Clarifies Meaning of "Program or Activity"*        The Civil Rights Restoration Act of 1987 (Pub. L. No. 100- 259, 102 Stat. 28) reinstated the broad application of Title VI (as well as Title IX and Section 504) in effect prior to the Supreme Court's decision in _Grove City College_ v. _Bell_, 465 U.S. 555 (1984), by adding a new definition of "program or activity" to each statute.       Although this statute is eight years old, agencies should review their own compliance programs to ensure that decisions regarding jurisdiction currently reflect the Restoration Act's definition of program or activity.       In _Grove City_ the Court held that Federal aid to college students was Federal financial assistance to the college, but that Title IX coverage did not extend to the entire institution.  The Court ruled that the federally assisted program or activity covered as a result of the student aid was limited to the college's student aid program.       Congress enacted the Restoration Act to reverse the _Grove City_ decision.  It did so by defining "program or activity" and "program" as "_all of the operations_ of [the institution] -- _any part of which_ is extended Federal financial assistance" (emphasis added).  The legislative history states that these definitions "make clear that discrimination is prohibited throughout entire agencies or institutions if any part receives Federal financial assistance."  S. Rep. No. 64, 100th Cong., 2d Sess. 4 (1988)  Because Congress intended to reinstate the law as it was interpreted prior to _Grove City_, most courts have found that the Act applies retroactively.       The original regulations implementing Title VI and the other statutes reflect the broad interpretation of coverage that was reversed by the Supreme Court in _Grove City_ and restored by the Restoration Act.  Therefore, they should consistently apply the Act's definition to all of the activities of a recipient.  Post- Act cases reflecting the broad definition include:       --  Assistance from the Federal Emergency Management Agency for repairing hurricane damage results in coverage of the operations of the Puerto Rico Telephone Company.   _Rivera-Flores_ v. _Puerto Rico Telephone Co._, 840 F. Supp. 3 (D. P.R. 1993).       -- Federal financial assistance to any arm of an educational institution results in coverage of the whole institution.  _Cohen_ v. _Brown University_, 991 F.2d 888 (lst Cir. 1993).   *So Ordered...Court Cases of Note*       *14th Amendment Prohibits Single Race Scholarship*       The Fourth Circuit held that the University of Maryland's Banneker scholarship program, participation in which was limited to African-Americans, was not justified under the 14th Amendment's strict scrutiny standard of review for racial classifications.  (Many courts, including the District Court in this case, have found that standards are the same under both Title VI and the 14th Amendment.)       The University argued that the scholarship program is a remedial measure to overcome the present effects of past discrimination.  In analyzing the argument, the Fourth Circuit applied a two-step test.  First, the University had to demonstrate a strong basis in evidence that the remedial action was necessary.  Then the University had to demonstrate that the remedial measure was narrowly tailored to meet the remedial goal.       The University offered four present effects of past discrimination:  a poor reputation within the African-American community, underrepresentation of African-Americans in the student population, low retention and graduation rates of African-American students who enroll in the university, and a perceived campus atmosphere hostile to African-American students.  The Court found these arguments wanting.  It questioned the connection of a perceived hostile campus environment to past discrimination, noting that societal discrimination "cannot be used as a basis for supporting a race-conscious remedy."  The Court concluded that even if African-Americans were underrepresented and had a higher attrition rate as a result of past discrimination, the Banneker scholarship program still did not pass Constitutional muster.  The Court concluded that the program was not narrowly tailored to remedy these problems.         Because the Court found that the University did not show that "its programs and quota goals are narrowly tailored," it reversed the District Court's summary judgment for the University.  _Podberesky_ v. _Kirwan_, 38 F.3d 147 (4th Cir. 1994)       *Damages Available Under Title IX*       The Supreme Court unanimously concluded that monetary damages are available in a private suit under Title IX.  The plaintiff was a female high school student who alleged that she had been sexually harassed by a member of the school's faculty, and that school officials knew of the harassment but took no action to stop it.  This landmark decision, which involved intentional discrimination, greatly expanded the remedies available to persons bringing lawsuits under Title IX.  The case is significant for Title VI because the remedies under the two statutes are the same.  _Franklin_ v. _Gwinnett County Public Schools_, 503 U.S. 60 (1992).       *State High School Athletic Association Subject to Title IX*       In a decision that significantly extends Title IX's reach, the Sixth Circuit ruled that the Kentucky High School Athletic Association and the Kentucky State Board for Elementary and Secondary Education were "recipients" of Federal financial assistance.  The Board was a part of the Kentucky Department of Education, which received over $396 million in federal funds.  On behalf of the Department, the Board controlled and managed all programs conducted in state schools.  State law, however, expressly permitted the Board to designate an agent, i.e., the Association, to manage interscholastic athletics.  The court concluded that the Association acted as an "agent" for the Board and indirectly received Federal funds, and it was therefore subject to Title IX.  _Horner_ v. _Kentucky High School Athletic Ass'n._, F.3rd 265 (6th Cir. 1994)       *Title IX Covers State Prison Educational Programs*       The Ninth Circuit held that Title IX requires that State prisons receiving Federal assistance provide female inmates reasonable opportunities for studies similar to those provided male inmates.  In this case, the evidence reflected that the Oregon prison system provided better educational and vocational programs for its male inmates than it did for its female inmates.        The court concluded that, due to the unique needs for prison safety, identical classes may not be required.  However, there must be reasonable opportunities for parallel studies at the women's prison, and females must have an equal opportunity to participate in educational programs.  _Jeldness_ v. _Pearce_, 30 F.3d 1220 (9th Cir. 1994)  We're back!!!       The Civil Rights Forum is back in business.  Our goal is to provide our readers -- civil rights professionals in federal agencies, the civil rights community, and interested members of the public -- with information on policies, practices, and legal and programmatic developments that affect (and hopefully will assist and help improve) civil rights enforcement.         Our focus will be on the enforcement of laws that prohibit discrimination on the basis of race, color, national origin, sex, and religion in federally assisted programs.  This is your forum, too, so let us know what you would like to see us cover, and don't be shy about letting us know what you're up to!!!             *Around the Agencies....*       *Education Revamps Investigation Procedures*       The Department of Education's recently redesignated Case Resolution Manual provides more flexible, less complex, and less bureaucratic procedures for the processing of complaints of discrimination.  Changes incorporated into the manual, which was developed as part of the strategic planning process, permit the Office for Civil Rights to maximize the impact of its existing resources.  As a result, Education has devoted increased resources to complaints and compliance reviews that affect the greatest number of students, and that address the most acute civil rights problems in education.       New processing procedures reflect the recognition that not all complaints require a complete investigation to achieve a resolution that is consistent with the requirements of the civil rights laws.  Expedited approaches to case resolution include: facilitation by the Office for Civil Rights of a resolution satisfactory both to the complainant and the recipient without the necessity of an investigation and formal determination; conferences and other methods of expedited fact-finding; and providing the recipient the opportunity to fully resolve all allegations to Education's standards.       *Interior Begins Reinvention Laboratory*       A newly established "reinvention laboratory" will review the Department of the Interior's federally assisted and federally conducted civil rights compliance programs, according to Ms. E. Melodee Stith, Director of the Office for Equal Opportunity.  This initiative, part of the National Performance Review, responds to Vice President Gore's challenge to create a government that works better and costs less.       The National Performance Review defines a reinvention laboratory as "a place that cuts through red tape, exceeds customer expectations, and unleashes innovations for improvement from its employees."  Interior defines it as "an experiment in changing the way we conduct business to improve products or services to [our] customers..." and heavily involves "customers" and "stakeholders" in its review.       A Civil Rights Compliance and Enforcement Team has been named, consisting of civil rights specialists, state and local government representatives, a citizen representative, and a team leader.  A facilitator and an eight-member management advisory group assist the team's efforts, which will culminate in a report to the Vice President, and should yield improved planning, quality control, and product and service delivery.       *Health and Human Services' Strategic Plan Approved*        On January 20, 1995, Secretary Donna Shalala approved a Civil Rights Strategic Plan intended to create a more effective civil rights compliance, outreach, and enforcement program throughout the agency.  Its three major goals are:  (1) to strengthen the agency-wide scope of civil rights initiatives; (2) to concentrate on priority civil rights issues, develop partnerships with state and local agencies and providers, streamline case processing; and (3) to "redevelop the infrastructure" of the Office for Civil Rights (OCR) through training, leadership, and culture change initiatives.         During the next several months, pilot projects will be undertaken to implement key elements of the plan, such as increasing equitable access to department services.  An Implementation Team is reviewing proposals from five regions to carry out six-month pilot projects:  to reduce case "backlog" through regional innovation; to process high-priority cases by involving both the national and regional offices; and to re- design and streamline OCR's Investigative Procedures Manual.       *Transportation Reorganization Underway*       The Departmental Office of Civil Rights is undergoing a major reorganization.  Six regional offices are being established to consolidate the department's internal equal opportunity enforcement.  The reorganization also will expand and strengthen Transportation's capacity to coordinate and provide policy guidance for its "external" civil rights programs through the establishment of an External Policy and Program Development Division.      *Social Security a "New" Agency*       The Social Security Administration (SSA), which administers Federal financial assistance as well as direct benefits programs, became independent on March 31, 1995.  SSA has begun to develop a compliance program to ensure nondiscrimination by its recipients.  *Alternative Dispute Resolution Aids Justice Investigations*       Using alternative dispute resolution techniques in complaint investigations produces results and saves time, the Department of Justice has concluded.  The Civil Rights Division's Coordination and Review Section has employed alternative dispute resolution techniques in its complaint processing under Title II of the Americans with Disabilities Act (ADA) since the ADA became effective in January 1992.   The ADA specifically encourages the use of such techniques, and the Department of Justice's large caseload has provided an additional incentive.  Alternative dispute resolution techniques include:       --  expedited processing of complaints alleging imminent harm, generally involving a modified mediation process (generally by telephone) and the provision of technical assistance;       -- a formal offer of settlement negotiations at the point of notification and data request to an entity, if the case is amenable to alternative dispute resolution, thereby allowing the entity to avoid the burden of a full investigation;        -  a less formal resolution process whereby the entity is contacted, notified of the allegations, and provided technical assistance by telephone.  The entity then submits a letter explaining the corrective action it has committed to or has taken.       Some form of alternative dispute resolution was offered or used in virtually every case that the Section processed under Title II of the ADA.  Where an investigation was required, settlement still was discussed with the entity throughout the investigation.       Under Title II, the Section has achieved more than 115 informal case resolutions and negotiated 27 formal settlement agreements prior to the completion of investigations and the issuance of formal Letters of Findings.  Thus, it has substantially reduced the need to conduct full investigations and issue formal Letters of Findings, while at the same time expediting corrective action and relief for complainants.  The Department of Justice anticipates applying its experience with alternative dispute resolution under the ADA to  complaints it will be processing under the civil rights statutes that apply to federally assisted programs.  *Something to share? *  We are looking for agency "happenings" and news of interest to other agencies and the civil rights community.  Contact us at telephone (202) 307-2222; TDD (202) 307-2678, 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 COMPUTER, DATA, AND DISCRIMINATION       All discrimination cases start with someone being treated differently from someone else.  Someone gets a benefit, someone else does not.  Someone gets a job, someone doesn't.  If it can be demonstrated that this difference in treatment is the impermissible result of race, color, sex, national origin, disability or some other basis that Congress has determined is unlawful, the law has been broken.  Once this determination is made, a Federal agency or a court will take action to remedy the situation.       The first step, however, is to determine whether there is a difference in treatment based on some prohibited ground.  If there is no difference, there is no next step to take.  It takes data to objectively make this initial determination.  That is why the Department of Justice regulation for coordinating Title VI enforcement requires Federal grant agencies to collect data by race and other grounds on who is eligible to be served by a grantee's program and who is actually served.  _See_ 28 C.F.R. sec. 42.406       Analyzing this data is a time consuming task.  But, as in many areas, the computer can help.  The Civil Rights Division has developed a Geographic Information System (GIS).  This system can graphically display data in a manner that instantly makes clear differences in treatment.       This same kind of analysis and graphic portrayal can be done for the racial demographics of grantee service areas, eligible populations, and the populations actually served.  For example, GIS could generate a map showing the locations of eligible service populations by race.  An overlay could show the population by race actually served.  The result may assist with determining whether further inquiry is necessary.       The Civil Rights Division's GIS system uses census data.  It can also incorporate data from other sources.  The Division's GIS can analyze and map data at the census block level, the smallest aggregate level provided by the Census Bureau.  Many people are familiar with the concept of the census tract.  What most don't know is that a census tract is made up of census blocks.  In many urban areas, a census block is literally a city block.  The Division's GIS uses two types of census data: Tiger Lines that  provide the geographic references for creating maps, and Public Law 94-171 data that provide various aggregations of demographic data collected by the Census Bureau.  Using this data, GIS can produce extremely detailed maps.  For example, if one wanted a series of maps for a geographic area showing households without indoor plumbing broken out by race, income, education, and age of the head of the household, GIS could produce it down to the city block level.  GIS can also create maps using postal zip code areas if the situation warrants it.       The Civil Rights Division originally developed the GIS system as an aid in meeting statutory deadlines in clearing submissions required under the Voting Rights Act.  Currently, GIS only has data on those states and counties covered by the Act.  However, GIS will soon have data for all 50 states.  The Civil Rights Division's GIS Group is currently updating their GIS capabilities so all of this information is "on-line."  This will enhance their ability to respond to user requests and also give users the ability to create their own maps.  Their primary user application, the Justice Application, was designed so that end users with approximately two hours of training can do any number of analytical tasks and generate presentation quality color maps.  The Justice application is described as so user friendly that even a lawyer can use it.  Once this technological enhancement is completed, GIS will be unique in that it will be the one of very few civil rights enforcement systems that provide demographic data for the entire United States at the block level.       GIS use has already grown well past just enforcement of the Voting Rights Act.  It has been used to look for possible discrimination in mortgage lending and insurance coverage.  Its ability to geographically portray racial demographics and income levels along with environmental variables has been used in  analyzing environmental justice issues.       GIS could be useful to Federal grant agencies in monitoring recipient compliance with civil rights laws.  For additional information on GIS use and capabilities, Federal agencies should contact:  Deserene Worsley, Director, GIS Group, Civil Rights Division, Department of Justice, P.O. Box 65310, Washington, D.C.  20035-5310, (202) 616-3971.  [Seal]  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 S. Gorelick, Deputy Attorney General John R. Schmidt, Associate Attorney General  Deval L. Patrick, Assistant Attorney General Civil Rights Division Loretta King, Isabelle Katz Pinzler, Kerry Scanlon Deputy Assistant Attorneys General  Merrily A. Friedlander, Acting Section Chief  Theodore R. Nickens, Deputy Section Chief (Program) Andrew M. Strojny, Acting Deputy Section Chief (Legal)  Editor: Allen Payne  Contributing to this issue: Sara Kaltenborn, Elizabeth Keenan, Catherine O'Brien, Louis Stewart, Joseph Talian, Margay Williams  Research and logistics: Michael Espeut, Steven Harris, Linda King, William Worthen  Secretarial support: Rita Craig, Henrietta Bowden, Leonaye Simpson  This newsletter is available in alternate formats.  Contact the Coordination and Review Section at (202) 307-2222; (TDD) (202) 307-2678.   
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Updated August 6, 2015

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