Civil Rights Forum, Volume 9, Number 2, Summer 1995

   Published quarterly by the Civil Rights Division, U.S. Department of Justice  In This Issue:  Federal Conference Links Civil Rights and Environmental Enforcement  So Ordered...Court Cases of Note        Supreme Court Requires "Strict Scrutiny" in Federal      Preference Programs       Supreme Court Finds Desegregation Remedial Court Order Too      Broad       _Certiorari_ Denied in Single-Race Scholarship Case       Restoration Act Does Not Mean Coverage of a Whole City         Training by Federal Agency is Federal Financial                    Assistance       University Failed to Offer Equal Athletic Opportunities       Justice Believes Damages Available for Unintentional      Discrimination       Justice's Title VI Education Lawsuits Advance       Agencies Meet to Discuss Improving Enforcement Efforts       What If There's A Statute But No Regulation?       Justice Begins Training Program       Around the Agencies...       Introducing Loretta King...  *Federal Conference Links Title VI and Environmental Enforcement*       The Department of Justice and the Environmental Protection Agency (EPA) co-sponsored a Conference on Environmental Justice on May 15-16, 1995, at the U.S. Geological Survey's facility in Reston, Virginia.  The conference, which was attended by more than 150 Federal agency staff members, provided cross-training in civil rights and environmental laws to personnel responsible for implementing the requirements of Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations" (February 11, 1994).        The conference addressed key concepts of Title VI of the Civil Rights Act of 1964 and the National Environmental Policy Act, the prevention of environmental justice controversies, possible remedies, public participation, and tribal jurisdiction issues.  Justice's Community Relations Service discussed the role that alternative dispute resolution strategies can play in resolving environmental justice disputes.       The conference also included demonstrations by EPA and Justice staff on the use of two technological aids in the identification and investigation of environmental justice cases.  EPA's "Landview II," an innovative software tool in the format of an electronic atlas, is published on a series of CD-ROM disks and is usable on standard personal computers.  It displays with ease population statistics, roads, waterways, political and census boundaries, and potential pollution sources for any given location in the country.  (For more information on this system, contact EPA's Emergency and Right-to-Know Information Hotline: 1- (800) 535-0202.)       Justice's "ArcView" is a sophisticated geographic information system that can be customized for individual users.  It can array in graphic form a variety of information including racial demographics by geographic location, which can assist in voting, environmental justice, and housing investigations.  (For more information on this system, contact Deserene Worsley at Justice: (202) 616-3971.)       The conferees were welcomed by Lois Schiffer, Justice's Assistant Attorney General for Environment and Natural Resources, and Dan Rondeau, Director of EPA's Office of Civil Rights.  Jean C. Nelson, EPA's General Counsel, opened the second day.  Loretta King, Deputy Assistant Attorney General of Justice's Civil Rights Division, closed the conference with a reminder of the importance of environmental justice to minority communities.  Far too often, she said, minority communities are not involved in decisionmaking with respect to programs, policies, and activities that have a disproportionately adverse environmental impact on their communities.       "The conference was well attended and very successful. It provided civil rights and environmental staff with knowledge of each others' responsibilities, which is essential to an effective environmental justice enforcement program," said Cathy Sheafor, Justice's Director of Environmental Justice.  Both agencies are considering another such conference in the fall of 1995.  *So Ordered...Court Cases of Note*       *Supreme Court Requires "Strict Scrutiny" in Federal      Affirmative Action Programs*       In a five-to-four decision on June 12, 1995, the Supreme Court has applied "strict scrutiny" to Federal affirmative action programs.  The _Adarand_ case involved a constitutional challenge to the Department of Transportation's use of race-conscious criteria in a subcontracting compensation clause.       The Court held that all racial classifications, whether imposed by Federal, State, or local governments, must be analyzed by a reviewing court under strict scrutiny.  The Court effectively overturned that part of _Metro Broadcasting_ v. _FCC_, 497 U.S. 547 (1990), which had enunciated an "intermediate scrutiny" standard for congressionally mandated race-based remedial programs.       The Court summarized the strict scrutiny analysis, taken from its decision in _City of Richmond_ v. _Croson_, 488 U.S. 469 (1989), to require that remedial programs be narrowly tailored to meet a compelling governmental interest.       The Court vacated and remanded the case to the lower courts for review of the Federal program under a strict scrutiny analysis.  _Adarand Constructors, Inc_. v. _Pena_, 115 S. Ct. 2097 (June 12, 1995).       Note: On June 28, 1995, the Department of Justice's Office of Legal Counsel issued a memorandum to Federal agency General Counsels setting forth preliminary legal guidance on reviewing affirmative action programs in light of the _Adarand_ decision.       *Supreme Court Finds Desegregation Remedial Court Order Too      Broad*       In a five-to-four decision, the Supreme Court reversed the Eighth Circuit's decision in a school desegregation case involving the Kansas City, Missouri, school district.  The district had been operating under a desegregation plan that included a number of educational programs partially funded by the State of Missouri.  Rejecting the State's attempt to be relieved of financial responsibility for the programs, the Eighth Circuit refused to hold that the school system's educational programs had achieved unitary status.       The Supreme Court disagreed.  Because the segregation that created the State and local obligation was limited to segregation within the Kansas City district alone (an intra-district violation), the district court could not require the State to take actions designed to provide an inter-district remedy.  Therefore, the Supreme Court held that to the extent that the salary increases and, more importantly, the educational and capital improvements within Kansas City, were actions designed to make the district more attractive to persons outside the district -- and thereby encourage white students to return to Kansas City -- they are impermissible because they are designed to serve inter-district purposes beyond the finding of an intra-district violation.       The Supreme Court also stated that test scores usually should not be used to measure the extent to which educational deficits have been remedied, because too many factors unrelated to the effects of segregation on achievement may affect individuals' test scores.  The Court remanded the case for further proceedings to determine whether the State should be relieved of its financial obligations.  _Missouri_ v. _Jenkins_, 115 S. Ct. 2038 (June 12, 1995).       *Certiorari Denied in Single-Race Scholarship Case*       As reported in the Spring issue of the _Civil Rights Forum_, the Fourth Circuit has held that the Benjamin Banneker Scholarship Program at the University of Maryland at College Park, a merit-based scholarship for which only African-American students are eligible, violated the Fourteenth Amendment rights of an Hispanic student who was ineligible to compete for the scholarship because of his race.  On May 22, 1995, the Supreme Court denied certiorari in the case, so the Fourth Circuit's decision stands.  _Podberesky_ v. _Kirwan_, 115 S. Ct. 2001 (May 22, 1995).       *Restoration Act Does Not Mean Coverage of a Whole City*       Disagreeing with arguments that the Civil Rights Restoration Act confers jurisdiction over entire cities, a district court has held that the City of Chicago was not a "program or activity" for purposes of Title VI and its implementing regulations.  The court noted that despite the Act's expansion of the term "program or activity," the City, as a municipality, is not an "operation" of a "department...or other instrumentality of a State or of a local government"; nor does it fit any of the other entities enumerated in the Act.  According to the court, Congress did not intend to sweep in a whole State or local government when a single department is found to be liable for discrimination.  _Hodges_ v. _Public Building Commission of Chicago_, 873 F. Supp. 128 (N.D. Ill. 1995).       *Training by Federal Agency is Federal Financial Assistance*       A Florida district court has ruled that no-cost training provided to State law enforcement officers by the FBI, the Drug Enforcement Administration, and the Department of the Treasury constitutes Federal financial assistance pursuant to Section 504 of the Rehabilitation Act of 1973.  The case is significant for Title VI and Title IX because the definition of "Federal financial assistance" is the same under all three statutes.  _Delmonte_ v. _Dept. of Business & Professional Regulation_, 877 F. Supp. 1563 (S.D. Fla. 1995).       *University Failed to Offer Equal Athletic Opportunities*       A district court has found Brown University in violation of Title IX because it offered unequal opportunities to women in its athletic programs.  In its March 29, 1995 decision, the court found that the gender balance of Brown's intercollegiate athletic program enrollment did not substantially mirror student enrollment.  Moreover, Brown had failed to show continuous program expansion for women.  Finally, Brown could not demonstrate that the interests and abilities of women were being fully and effectively accommodated by its present program.       The court did not specify the remedial action needed.  Instead, the court left it to Brown's discretion to decide how to balance its programs.  _Cohen_ v. _Brown University_, 879 F.Supp. 185 (D.R.I. 1995).  *Justice Believes Damages Available for Unintentional ADA Discrimination*       The Department of Justice has taken the position that private plaintiffs are entitled to damages both for intentional and unintentional discrimination under Title II of the Americans with Disabilities Act (ADA).  In a May 16, 1995, amicus brief filed in a case involving a town that, among other things, failed to make its programs accessible, Justice rejected the argument that damages for private plaintiffs are limited to cases of intentional discrimination.  _Tyler_ v. _City of Manhattan Kansas_, No. 94-3344 (10th Cir.).  This position is relevant for cross-cutting statutes covered by Executive Order 12250 (Title VI, Title IX, and Section 504) because Title II of the ADA adopts the rights, remedies, and procedures of Section 504, which is patterned after Title VI.       The Justice brief points out that Congress amended Title VI in 1986 to expressly abrogate States' Eleventh Amendment immunity.  The amended language states that "remedies both at law and in equity" are available to the same extent against State defendants as they are against other defendants.  As noted by the Supreme Court in _Franklin_ v. _Gwinnett County Public Schools_, 503 U.S. 60 (1992), (a case involving Title IX which, like Section 504, is patterned after Title VI), "remedies at law" clearly includes damages.       In analyzing _Franklin_, the Justice brief states: "_Franklin_ did _not_ hold that discriminatory intent was a prerequisite for recovery of damages under Title IX or that the usual presumption [in favor of all available remedies] would not apply in the absence of such intent.  The Court simply had no occasion to decide that issue since the plaintiff in _Franklin_ alleged intentional discrimination."       It remains to be seen whether the Tenth Circuit will agree with Justice's position that the _Franklin_ presumption in favor of all available remedies applies in private suits, regardless of whether the discrimination is intentional or unintentional.  *Justice's Title VI Education Lawsuits Advance*      *Higher Education Desegregation Cases*       The Civil Rights Division's Educational Opportunities Section continues to prosecute Title VI lawsuits involving segregated State systems of higher education in Alabama, Mississippi, and Louisiana.  During the past year there has been substantial activity in each of these cases.       -- On March 7, 1995, the district court in _Ayers and United States_ v. _Fordice_, 879 F. Supp. 1419 (N.D. Miss.), the Mississippi higher education desegregation lawsuit, issued its Memorandum Opinion and Remedial Decree.  The case was back before the district court following the Supreme Court's decision in _United States_ v. _Fordice_, 112 S. Ct. 2727 (1992).  In that case, the Supreme Court held that where a State perpetuates policies and practices that continue to have segregative effects, and such policies are without sound educational justification and can be practicably eliminated, the State has not met its burden of proving that it has dismantled its prior system.  Finding liability in several areas, the district court issued a remedial decree that closely tracks the plan proposed by the State.         -- In the Alabama higher education desegregation lawsuit, _Knight and United States_ v. _State of Alabama_, 14 F.3d 1534 (11th Cir. 1994), the Eleventh Circuit remanded the case back to the district court.  Finding that the district court had not had the benefit of the Supreme Court's ruling in _Fordice_ when it decided the case in 1991, the Eleventh Circuit sent the case back to the district court so that it could consider several issues.       On remand, the district court considered whether the limited missions of Alabama's historically black universities, Alabama A&M and Alabama State, continue to have segregative effects that can be practicably eliminated.  It also considered whether the disparate funding of the land grant programs at Auburn University and Alabama A&M continues to have segregative effects that can be practically eliminated.       In addition, the court considered whether the curricula of the State's historically white public universities are deficient in the degree to which they incorporate African-American thought, culture, and history.  The remand hearing took place in January through March 1995, and a decision is awaited.       -- In the Louisiana higher education desegregation lawsuit, _United States_ v. _State of Louisiana_, the Civil Rights Division reached agreement with the State on all but one issue.  On November 14, 1994, the court approved a settlement agreement that provides for the development and implementation of new academic programs for the State's historically black universities (the Southern University and Grambling University systems) to assist in attracting students of other races.       The agreement also provides for improved facilities, development of a community college, scholarship aid to attract students of other races, joint and cooperative programs, and flexible admissions requirements.  The parties were not able to resolve the issue of disparate funding of land grant programs at historically black universities.  The court gave the parties an additional year to attempt to resolve that issue or take it to trial.       *Title VI Claims Dismissed in School District Case*       On May 25, 1995, the district court in _Sinajini_ v. _Board of Education of the San Juan County School District_ held that portions of the Civil Rights Division's complaint-in-intervention should be stricken to the extent they exceeded the scope of enforcement of prior orders and raised new issues.       On November 7, 1994, the Civil Rights Division, pursuant to a Title VI referral from the Department of Education, intervened in the lawsuit alleging that the school district violated Title VI by failing to appropriately identify and provide limited English speaking Navajo students with necessary assistance to overcome language barriers.  The lawsuit also alleged that Navajo and Ute students were being assigned to special education classes without determining whether poor performance was due to limited English speaking ability.  The school district had previously submitted a remedial plan to the Department of Education, but it had failed to implement the plan.       The Division also challenged the school district's distribution of funds among its schools: the predominantly Navajo schools are not funded at the same level as the predominantly white schools and, at the high school level, do not offer comparable educational programs or extracurricular activities.       In striking the claims, the district court made it clear that the Civil Rights Division could bring its new claims in a separate lawsuit or it could seek to raise them in several more recent lawsuits brought against the San Juan School District, rather than in the longstanding lawsuit.  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 telephone 202/307-2222; (TDD) 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  *Agencies Meet to Discuss Improving Enforcement Efforts*        More than 150 people representing 30 agencies met at the Department of Justice on May 5, 1995, as Assistant Attorney General Deval L. Patrick outlined his plans to reinvigorate the enforcement of the nondiscrimination statutes, including Title VI and Title IX, that cover federally assisted programs. [Photos]  *What If There's a Statute But No Regulation?*       Title VI of the 1964 Civil Rights Act, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act, and the Age Discrimination Act all call for agency implementing regulations.  Pursuant to Executive Order 12250, the Attorney General is responsible for approving regulations issued under the first three of these statutes.  The Secretary of Health and Human Services is responsible for approving regulations issued under the Age Discrimination Act.       The Attorney General also is responsible under Executive Order 12250 for coordinating the enforcement of all statutory provisions that prohibit discrimination on the basis of race, color, national origin, disability, religion, or sex in programs or activities that receive Federal financial assistance.       Almost all agencies covered by Title VI and Section 504 of the Rehabilitation Act of 1973 have implementing regulations.  However, many agencies covered by Title IX do not have implementing regulations.  This raises the question of whether the statutory obligations imposed by these laws are enforceable in the absence of implementing regulations.  The simple answer is yes.       Agencies cannot fail to enforce a duly enacted civil rights statute merely because implementing regulations have not been promulgated.  For example, under Section 504, at least one district court has refused to dismiss a private action against a recipient of Federal financial assistance from the Department of Housing and Urban Development even though that agency did not have an implementing regulation.  _Jordan_ v. _Southern_, 1988 WL 281595 (S.D. Ohio).       The Civil Rights Division has consistently advised agencies that they have a responsibility to enforce statutory prohibitions against discrimination even though there may be no implementing regulations.  In the Title IX area, agencies should look to the Department of Education's Title IX regulation for guidance.  While the lack of an implementing regulation may make an agency's enforcement task more difficult, it does not negate the agency's responsibility to enforce the statute.  *Justice Begins Training Program *       The Civil Rights Division's Coordination and Review Section now offers training on the basic compliance requirements of Title VI and Title IX.  (Section 504 training is provided by the Division's Disability Rights Section.)  This introductory training is designed for the civil rights, program, and legal staff of Federal agencies as well as their grantees (including State and local governments).       The Section recently conducted a joint training session for staff from the following ten Federal agencies: the General Services Administration, the National Science Foundation, the Small Business Administration, the Federal Emergency Management Agency, the Environmental Protection Agency, the Institute of Museum Services, the National Endowment for the Arts, the National Endowment for the Humanities, the Department of State, and the United States Information Agency.  Individual agency training sessions also have been conducted for the Department of Agriculture and the National Aeronautics and Space Administration.       In addition, the Section has begun training State agencies.  Title VI training was provided to various Tennessee State agencies, including the Treasury Department, the Department of State, and the Comptroller of the Currency.  Tennessee agencies, in addition to their responsibilities as Federal grantees under Title VI, also are covered by a State law patterned after Title VI.       More advanced Title VI and Title IX training, involving investigative theories, techniques, and case study workshops, currently is being developed.  If your Federal, State, or local government agency has Title VI and/or Title IX responsibilities and wants training, please write to the Coordination and Review Section's Deputy Chief (Program), Ted Nickens (see address on page 4).  *Around the Agencies...*       *Health and Human Services Conducts Training*       The Office for Civil Rights and the Office of General Counsel jointly sponsored training for 60 headquarters and regional staff (the first of its kind in 15 years) on May 16-18, 1995.  The training addressed case theory development, fact-finding, negotiations, collaboration, and team-building.  Special presentations identified civil rights issues associated with the growth of managed health care programs and the implementation of the Multiethnic Placement Act.       *Agriculture Reorganization*       In an effort to reinvigorate its civil rights enforcement efforts, the Department of Agriculture is undergoing an extensive reorganization designed to: (l) refocus and simplify the Department's headquarters structure; (2) improve its accountability and service to customers by reforming the Department's management support systems; (3) reform the Department's field structure; and (4) reduce costs.  The reorganization will result in improved customer services and cost-effective civil rights enforcement.       *Memorandum of Understanding Strengthens Justice's Compliance Program*       The Civil Rights Division and the Office of Justice Programs (OJP) have entered into a Memorandum of Understanding to strengthen the Department of Justice's enforcement of Title VI and related statutes.  The Civil Rights Division is responsible for coordinating the governmentwide enforcement of these statutes under Executive Order 12250, which encourages the development of such memoranda of understanding.  OJP is Justice's major provider of Federal financial assistance.       Under the agreement, OJP and the Civil Rights Division's Coordination and Review Section will investigate complaints they receive that allege discrimination in the provision of services on the basis of race, color, national origin, sex, religion, and age.  OJP generally will investigate all employment and disability complaints, and conduct pre-award reviews.  Both the Section and OJP will conduct post-award compliance reviews of recipient services.       The Section is undertaking extensive outreach efforts to  inform community and advocacy groups, recipients, and the public  of their rights and obligations, and of Justice's expanded enforcement initiative.  The Section also will keep OJP informed of the Division's litigation activities involving OJP's recipients, which include large numbers of law enforcement agencies and prisons.       The working relationship between these two Justice components is not new.  The agreement builds upon coordinated activity that began with the investigation of complaints against State and local governments under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  The agreement will facilitate this cooperative relationship and strengthen Justice's efforts to ensure that its recipients comply with applicable civil rights laws.  *Introducing Loretta King...*       [Photo]  Loretta King was selected by Assistant Attorney General Deval L. Patrick as the Civil Rights Division's career Deputy Assistant Attorney General in 1994.  Her primary responsibilities include supervision of the Coordination and Review, Special Litigation, and Voting Rights Sections.       A graduate of Duke University and American University's Washington College of Law, Ms. King worked from 1980-1990 in the Employment Litigation Section, enforcing Title VII of the Civil Rights Act and Executive Order 12246.  After a stint in the Civil Division, Ms. King returned to the Division in 1992 as Deputy Chief in the Voting Section, where she focused considerable energy on the defense of cases challenging majority-minority districts.       Ms. King is a proud beneficiary of the civil rights laws passed during the 1960's, and thus has devoted her career to enforcing those very laws for the benefit of future generations.  Ms. King enthusiastically supports and is actively involved in the Coordination and Review Section's initiatives to reinvigorate the governmentwide enforcement of Title VI and Title IX.  "The Department of Justice has an important leadership role under Executive Order 12250," she said, "and we will exercise it so that the full potential of covered civil rights laws can be realized."  Ms. King added, "This is especially true with respect to Title VI and Title IX -- they finally will get the attention and emphasis they deserve and need."  [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 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, Coordination and Review Section Theodore R. Nickens, Deputy Section Chief (Program) Andrew M. Strojny, Acting Deputy Section Chief (Legal)  Editor: Allen Payne Contributing to this issue:  Jeremiah Glassman, Elizabeth Keenan, Wonder Moore-Davis, Daniel Searing, Richard Waters, 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; (TDD) 307-2678  
Updated August 6, 2015

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