Civil Rights Forum

A Department of Justice Title VI public service announcement (PSA) -- recorded by Ed Bradley of CBS television's "60 Minutes" and by actor Edward James Olmos (both in Spanish and in English)

-- began airing on minority-market radio stations nationwide beginning this Fall.

The Department of Justice distributed the 60-second PSA to approximately 600 radio stations, especially those that broadcast African-American, Spanish, and Urban Contemporary formats.

The PSA is part of Assistant Attorney General for Civil Rights Deval L. Patrick's efforts to stimulate a renewed interest in Title VI enforcement, and to inform citizens of their rights under the broad coverage provided by this 32 year-old statute.

The PSA describes the kinds of federally assisted programs that are covered by the nondiscrimination provisions of Title VI. It also announces the Department of Justice's new toll-free Title VI telephone information line for individuals to call for more information or to file a complaint. (See the related article on page 2).

Mr. Bradley is in his fifteenth season as "60 Minutes" co-editor and correspondent. He has reported over 300 stories for the newsmagazine, which have taken him to 58 countries and almost every State.

Mr. Bradley's report on the cancer-causing potential of Alar in apple crops resulted in the removal of the product from the market by its manufacturer. Alar subsequently was banned by the Environmental Protection Agency. This year, a report called "Summer Camp" not only spurred donations and volunteers for a camp for children with AIDS, but prompted at least one viewer to start a similar program.

Mr. Olmos recently starred in the television miniseries "Dead Man's Walk" and completed the movie "The Limbie Region" for MGM Showtime. Earlier in his career, Mr. Olmos received an Emmy award for his role as Lieutenant Castillo in the hit television series "Miami Vice." He also was nominated for an Academy Award in 1988 for his portrayal of an eccentric but dedicated math teacher in the movie "Stand and Deliver."

Mr. Olmos is the Executive Director of the Lives in Hazard Educational Project, a national gang prevention program funded by the Department of Justice, which has been cited by President Bill Clinton and Attorney General Janet Reno. Mr. Olmos also is a national spokesperson for the Southwest Voter Registration Project, the Juvenile Diabetes Foundation, and the AIDS Awareness Foundation. Mr. Olmos speaks on average at about 150 schools, charities, and juvenile institutions each year.

Mr. Bradley recorded the PSA this summer at the CBS studios in New York. Mr. Olmos recorded the PSA in July at the Federal Bureau of Investigation's studio in Washington. D.C. .

The radio PSA was the brainchild of the Federal Coordination and Compliance Section's Deputy Chief (Program), Ted Nickens, who also wrote and produced it.

In a significant amicus curiae brief, the Department of Justice has argued that Title VI proscribes disparate impact against minority communities resulting from grants of permits by a State environmental agency.

Justice took this position in a brief filed on August 23, 1996, in the case of Chester Residents for Quality Living v. Seif, No. 96-CV-3960 (E.D. Pa. 1996). This case involves allegations that the Pennsylvania Department of Environmental Protection violated Title VI 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.

The Justice brief is a result of a collaborative effort involving the Coordination and Review, Housing, and Appellate Sections of the Civil Rights Division, the Environment and Natural Resources Division, and the U.S. Environmental Protection Agency. The U.S. Attorney's Office for the Eastern District of Pennsylvania also joined in the brief.

The United States has a significant interest in the Chester case, which raises what are known as "environmental justice" issues. Under Executive Order 12898, issued by President Clinton in 1994, each Federal agency is required to "make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations."

Executive Order 12898 also directs Federal agencies to attempt to ensure compliance with Title VI in federally assisted programs that affect human health or the environment. Under Executive Order 12250, which was issued in 1980, the Civil Rights Division is charged with coordinating the governmentwide enforcement of Title VI.

The amicus brief argues that a motion to dismiss filed by State defendants in July 1996 should be denied. The defendants' motion to dismiss argued that a Title VI claim such as is raised in this case requires proof of intentional discrimination, which was not presented. The Justice amicus brief challenges the premise of this claim and sets forth well-established precedent that a violation of Title VI can be established through a disparate impact analysis, such as that alleged in the complaint, if the applicable Federal agency's implementing regulations so provide.

The defendants also argued that Title VI and the Constitution do not permit them to consider race in making their permitting decisions. The Justice brief points out that the complaint in this case does not rest on the defendants' failure to consider race during the permitting process. Rather, the brief states that plaintiffs may be able to show that Title VI was violated solely because the defendants did not consider the racial effect of their decision during the permitting process. In addressing this claim, the Justice Department noted that it is well-established that, in assuring compliance with civil rights statutes, consideration of race is permissible.

In their motion to dismiss, the defendants also argued that they are immune from suit under the Eleventh Amendment. (See the related article on Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), on page 5.) However, the Justice Department explained in its brief that Congress enacted Title VI using a different authority, i.e., Section 5 of the Fourteenth Amendment. Alternatively, the brief asserts that Congress had the authority to attach conditions to the receipt of Federal funds under its spending power.

Editor's Note: On November 5, 1996, the district court granted defendants' motion to dismiss holding that plaintiffs were required to allege discriminatory intent under the Title VI statute but had not, and that plaintiffs could not rely on the "effects" standard set forth in the EPA regulations because there is no private cause of action under agency Title VI regulations. The court granted plaintiffs leave to file an amended complaint alleging a Title VI "intent" violation. See the next issue for details.

Individuals seeking information about Title VI, including how and where to file complaints, now can call a new Department of Justice telephone information line for answers. The system, which operates from 9:00 a.m. Mondays to 5:00 p.m. Fridays (EST), offers a menu of recorded information both in English and in Spanish. A Coordination and Review Section "professional of the day" is available to answer inquiries that may not be addressed by the recorded information options.

The toll-free telephone number for the Title VI information line is: 1-888-TITLE 06

Federal agencies have for many years neglected their responsibility to enforce Title VI of the Civil Rights Act of 1964, according to a 677-page assessment released by the United States Commission on Civil Rights on August 21, 1996.

The report, entitled "Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs," covered 20 years and examined 10 Federal agencies and 10 subagencies. The report found "an almost complete cessation of Title VI enforcement activities." The report cited "extensive deficiencies" in Title VI enforcement, although it acknowledged the modest improvements made by a few agencies.

The report further found that the Federal Government has in recent years "taken initial steps to renew its commitment" to carry out Title VI but has neither provided needed funds "nor clarified the extent of its commitment." The report, while emphasizing the more efficient use of resources, recommended that the President and Congress, as well as individual Federal agencies, provide the personnel and funding essential for Title VI enforcement.

The report also expressed concern that Federal agencies have not acted to ensure that Title VI is enforced in the increasing number of State-administered federally assisted programs.

The Commission's report contains numerous detailed recommendations to improve the overall leadership and direction for Title VI enforcement, and to improve individual agencies' compliance programs. The Commission recommended that Congress exert forceful oversight, that the President issue a new Federal Executive Order making explicit the Justice Department's authority over other agencies, that the President and the Attorney General publicly demonstrate a strong commitment to civil rights enforcement, and that comprehensive training be instituted for personnel who enforce Title VI.

The report also recommended the creation of an independent agency to oversee the enforcement of civil rights laws and policies, including Title VI.

The Commission, in a statement accompanying the release of the report, stated that it "was pleased to learn that the Department of Justice already has begun to implement many of the reforms recommended by the report." The Commission specifically mentioned Justice's meetings with individual agencies to determine their needs, the formation of the Executive Order 12250 Advisory Group, the provision of Title VI basic training to at

least 13 Federal agencies and subagencies [now more than 20], the development of Title VI manuals, the reinstitution of the Forum, and the development of a Title VI public service announcement.

A number of Justice's Title VI initiatives were underway before -- in some cases, nearly a year and a half before -- the issuance of the Commission's final report. For example, Assistant Attorney General for Civil Rights Deval L. Patrick, in his letter to the Commission dated April 28, 1995, noted that "one of the major reasons for my proposal to reorganize the Division [effective on March 1, 1995] was so that the Federal Coordination and Compliance Section could refocus itself on the task for which it originally established: implementation of Executive Order 12250."

Mr. Patrick subsequently provided two progress reports to the Commission of Justice's efforts, initiated in May, 1995, to reinvigorate Title VI enforcement in four major areas: oversight, training and education, policy development, and hands-on experience.

The Commission reviewed the Department of Justice in its role as the governmentwide coordinator of Title VI enforcement under Executive Order 12250, and its Office of Justice Programs, which is the Department's major provider of Federal financial assistance.

The other agencies whose Title VI enforcement programs were examined were: the Departments of Agriculture, Education, Health and Human Services, Housing and Urban Development, Interior, Labor, and Transportation; the Environmental Protection Agency; and the Small Business Administration. The Commission further reviewed 10 subagencies within the Departments of Agriculture and Transportation, which have decentralized their Title VI enforcement.

Joint initiatives involving the Department of Housing and Urban Development's (HUD) civil rights, program, and legal offices have resulted in the negotiation of comprehensive conciliation agreements to remedy civil rights and program management violations in the public housing programs of Lafayette, Louisiana, and Las Vegas, Nevada.

In the Lafayette, Louisiana case, HUD received a series of complaints in 1993-1994 alleging that the city's housing authority maintained segregated housing sites and discriminated in the rental, terms and conditions of rental, and the provision of maintenance services in its low income public housing program in violation of Title VI, the Fair Housing Act, and Section 504.

HUD investigated and concluded that residents at the housing authority's projects were segregated by race. HUD also reviewed the program's overall operations in accordance with the Consolidated Annual Contributions Contract between HUD and the Lafayette Housing Authority.

HUD issued a final report in December 1994 that found the housing authority in nonconformance with applicable statutory, regulatory, contractual, and administrative requirements throughout the functional areas of its operations. The report also stated that the findings were of such significance as to cause the housing authority to be "designated as troubled ... and to warrant immediate corrective action."

HUD declared on February 27, 1995, that the housing authority was in substantial breach of the Consolidated Annual Contributions Contract. The agency subsequently exercised its contractual right and took possession of all property and assets of the housing authority.

HUD presided over the hiring of new senior management and instituted reforms in the housing authority's policies, practices, and procedures. However, HUD will continue to actively monitor operations until the housing authority is prepared to resume operations on its own in full compliance with all applicable laws.

The Offices of Fair Housing and Equal Opportunity, Public and Indian Housing, and General Counsel jointly developed a conciliation agreement that was negotiated with the housing authority and signed in May 1996. This document, which satisfied both program and civil rights requirements, addressed the common issues raised in the discrimination complaints. It also contained releases signed by the individual complainants.

Five separate agreements between HUD and the housing authority have been negotiated thus far to address the individual complaints. These individual agreements were attached as an amendment to the conciliation agreement.

In the Las Vegas case, HUD received a series of complaints in 1995 whose common allegation was that the housing authority provided inferior maintenance services on the city's predominately African-American west side when compared to the maintenance services provided on the city's integrated east side. The complaints alleged that these practices violated Title VI, the Fair Housing Act, and Section 504.

HUD reviewed the Las Vegas Housing Authority in 1995 and scored it as deficient in its Public Housing Management Assessment Program indicator scores, including an "F" in maintenance-related indicators. HUD also concluded that there was a disparity on the basis of race in the provision of maintenance services.

As in the Lafayette case, HUD's civil rights, program, and legal offices jointly developed a conciliation agreement and improvement plan that was negotiated with the Las Vegas Housing Authority and signed in January 1996. This document satisfied both civil rights and program office requirements and eliminated duplicative reporting requirements for the housing authority. The agreement also included releases signed by the individual complainants.

Fourteen separate agreements have been negotiated thus far to address the individual discrimination complaints. They were attached as an amendment to the conciliation agreement and improvement plan.

The Small Business Job Protection Act of 1996 has repealed the Metzenbaum Multiethnic Placement Act of 1994, 42 U.S.C. ｧ 5115a, and amended the Social Security Act to prohibit discrimination in multiethnic placements for adoption and foster care. H.R. 3448, ｧ 1808. The new provisions prohibit a State or other entity receiving Federal funds from delaying or denying an adoption or foster care placement based on the race or ethnicity of the prospective parent or child.

The new law is silent as to considerations of race or ethnicity of a prospective parent or child in making a placement decision, while the Metzenbaum provisions specifically allowed for considerations of the child's "cultural, ethnic, or racial background" as one of a number of factors.

Specifically, the new provisions prohibit any State or other entity receiving Federal funds from denying an individual the opportunity to be an adoptive or foster parent, and from denying or delaying the placement of any child in adoption or foster care, on the basis of the prospective parent's or child's race, color or national origin.

If a violation is found and corrective action is not taken within six months, the statute allows for graduated withholdings of 2%, 3% or 5% of Federal funds allocated for this program to the State for the first, second, or third findings within a fiscal year, respectively. All other entities in violation must remit the full amount of Federal funds allocated by the State for the fiscal year quarter(s) in violation.

In addition, the statute grants a private right of action for aggrieved persons with a two-year statute of limitations. The statute specifically states that noncompliance with these provisions is deemed to be a violation of Title VI.

Guidance on this subject is under review by the Department of Health and Human Services' Office for Civil Rights and the Administration on Children and Families.

On March 27, 1996, the Supreme Court issued its decision in Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, dramatically enlarging the scope of State immunity from citizen suit under the Eleventh Amendment. By a 5-to-4 vote, the Court overruled a prior plurality opinion and held that Congress lacks power under the Interstate and Indian Commerce Clauses to abrogate a State's Eleventh Amendment immunity so as to permit a private citizen to sue the State in Federal court. The decision does not affect the power of Congress to authorize suit by the United States against a State.

While the decision calls into question a whole range of Federal statutes that permit citizen suits against State entities, the impact on private enforcement of civil rights laws may be limited. The Court noted with approval its prior decision that allowed Congress to abrogate Eleventh Amendment immunity under Section 5 of the Fourteenth Amendment. As the Court explained in Seminole Tribe, "the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, . . . fundamentally altered the balance of state and federal power struck by the Constitution."

Subsequent to Seminole Tribe, the Civil Rights Division has filed numerous briefs (either as amicus curiae or as an intervenor) arguing that the Eleventh Amendment does not prevent suit against State officials by private citizens alleging violations of Federal civil rights statutes, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), and the Equal Pay Act. These briefs rely on the Fourteenth Amendment and, in addition, in Title VI, Title IX, and Section 504 cases, they argue that the Civil Rights Remedies Equalization Amendment of 1986, 42 U.S.C. ｧ 2000d7, conditions acceptance of Federal financial assistance by States on their waiver of Eleventh Amendment protection.

Thus far, two district courts have ruled in favor of the Division's position in cases in which it has participated. Armstrong v. Wilson, No. C-94-2307 CW (N.D. Cal. Sep. 20, 1996), appeal filed (ADA and Section 504); Lesage v. Texas, Civ. No. A96CA286JN (W.D. Tex. Oct. 9, 1996) (Title VI). In a third case, Chester Residents Concerned for Quality Living v. Seif, a Title VI environmental justice case discussed on page 2, the court did not decide the issue.

The Third Circuit, en banc, has declared that a New Jersey board of education violated Title VII of the Civil Rights Act of 1964 when it made race a factor in selecting which of two equally qualified employees to lay off.

The court agreed with the plaintiff, a white school teacher whose job was terminated because of downsizing, that the school board violated Title VII when it used race as a factor in choosing which teacher to terminate, absent a remedial purpose. The court also agreed with the plaintiff that the school board's goal of faculty diversity was an impermissible basis for affirmative action under Title VII.

The court relied on the two-prong test for Title VII affirmative action plans articulated in the Supreme Court's decision in United Steelworkers v. Weber, 433 U.S. 193 (1979). First, affirmative action plans should be designed to break down old patterns of racial segregation and hierarchy, which may encompass racial imbalances in employment practices as well as outright prior discrimination. Second, affirmative action plans should not unnecessarily trammel the interests of white employees. They should be temporary and have standards and goals to work toward an attainment, not a maintenance, of a racially balanced workforce. Thus, plans that do not serve a remedial purpose or are devoid of goals and standards may violate Title VII. The court found that the school board met neither prong of this test.

The Third Circuit noted that Title VII's goals are to end discrimination in employment on the basis of race, color, religion, sex, or national origin, and to remedy the segregation and underrepresentation of minorities that discrimination has caused in the work force. Racial diversity is not recognized as a goal in the statute or legislative history. Title VII affirmative action plans with a goal of diversity would continue discriminatory hiring and layoffs well beyond the point necessary for any remedial purpose, and would not bear any relationship to the harm caused by prior discrimination or imbalance.

The Third Circuit next distinguished between the Equal Protection Clause and Title VII, stating that the Supreme Court has not yet held that an affirmative action purpose that satisfies the Constitution under an equal protection analysis must necessarily satisfy Title VII. The court distinguished between the factual predicate that employers must offer to prove the need for remedial action under Title VII and what must be shown to support affirmative action under the Equal Protection clause.

Finally, the court distinguished between its holding and the Supreme Court's decisions in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990). In Bakke, the Supreme Court found constitutionally permissible the goal of a diverse student body leading to a robust exchange of ideas between students of different races and cultures. In Metro Broadcasting, the Supreme Court upheld the Federal Communications Commission's minority preference policies to achieve the constitutionally permissible goal of a diversity of views and information on the airwaves. The court found these diversity interests inapplicable to the Title VII case under consideration. Taxman v. Board of Education of the Township of Piscataway, __ F.3d __, 65 USLW 2118, 1996 WL 445267 (3rd Cir. 1996).

The Sixth Circuit has ruled that, because neither Title VI nor its implementing regulations provide meaningful standards, criteria, or priorities for a court to use in analyzing the sufficiency of the Department of Health and Human Services' (HHS) data collection activities, such data collection is left to the discretion of HHS and is not subject to judicial review.

The court dismissed a lawsuit brought under Title VI and the Administrative Procedure Act alleging that HHS had failed to comply with its own Title VI implementing regulation. This regulation requires HHS to collect data and information from recipients of HHS assistance sufficient to permit the effective enforcement of Title VI.

The court noted that the HHS Title VI regulation does not require recipients to provide reports until HHS determines them to be necessary and proscribes their form and content. Thus, the court concluded that the collection of data is discretionary and not mandatory. The court also concluded that Title VI imposes a duty upon HHS to ensure the compliance of each recipient of Federal funds through a variety of means, only one of which is data collection.

The court also examined the Department of Justice's coordination regulation, 28 C.F.R. ｧｧ 42.401-.415, which requires Federal agencies to provide for the collection of data and information sufficient to permit the effective enforcement of Title VI, and to publish guidelines concerning data collection. The court concluded that, when read together, the HHS Title VI regulation and the Justice coordination regulation do not "mandate the collection of specific data. . . " Therefore, the court further concluded that the Justice coordination regulation leaves to each Federal agency the determination as to what data collection is sufficient to effectively enforce Title VI in its programs.

The court noted that the Justice coordination regulation also requires agencies to make a written public determination when they conclude that guidelines are inappropriate with regard to a particular program. However, the court dismissed any argument based on this provision, noting that plaintiffs were not contending that HHS failed to provide such a determination.

This is the first decision to determine the scope and effect of the Justice coordination regulation with respect to data collection. Madison-Hughes v. Shalala, 80 F.3d 1121 (6th Cir. 1996).

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

Contributing to this issue: Jennifer Levin, Joshua Mendelsohn, Ted Nickens, Allen Payne, Mark Posner, Elizabeth Ryan (HUD), Andrew Strojny