Coordination and Review Section

Pages 1--12 from Untitled

Page 1 2
U. S. Department of Justice
Civil Rights Division

CIVIL RIGHTS FORUM Volume 15, No. 1 Winter 2002

R alph F. Boyd, Jr. assumed his new position as Assistant Attorney General for Civil Rights on
July 30, 2001, following his unanimous consent confirmation by the Senate. Mr. Boyd was
nominated by President George W. Bush in March 2001 to head theDepartment of Justice's
Civil Rights Division.

Attorney General John Ashcroft, in a statement announcing Mr. Boyd's
confirmation, said that "Ralph Boyd will play a key role in our duty to protect the
rights of all Americans." The Attorney General continued: "Under his
leadership, the Civil Rights Division will be guided by the principle that no one

should feel outside the protection of the law. We will all benefit from his years
of experience and his dedication to the pursuit of justice. I am pleased to
welcome him to the Department, and I look forward to working with him."

Mr. Boyd returns to the Department of Justice from the law firm of Goodwin
Procter in Boston, where he was a partner in the trial department. From
1991 to 1997, Mr. Boyd served as an Assistant United States Attorney in the
major crimes unit of the United States Attorney's office in Boston, where he
investigated and prosecuted bank fraud, firearms, homicide, narcotics trafficking,
and gang violence cases. Boston Police Continued on page 2

In This Issue . . .
° Ralph Boyd takes helm as Assistant Attorny General for
Civil Rights . . . . . . . . . . . . . . 1
° Civil Rights Division combats "backlash" discrimination
in the wake of terrorist attacks . . . . . . . . . . . . . . . . . 2

° Assistant Attorney General Boyd issues clarifying memorandum
concerning access to programs for limited English proficient
individuals . . . . . . . . . . . 3
° Civil Rights Division produces Award-winning Title VI video . . 4

° Civil Rights Division publishes Title IX Legal Manual
and revised Title VI Legal Manual . . . . . . . . . . . 6

° Federal Highway Administration responds favorably to Civil
Rights Division's Title VI Technical Assistance Review
recommendations . . . . . . 6
° Collecting federal data on race and ethnicity: toward a more

accurate reflection of American diversity . . . . . . 7

° Department of Justice Guidance Document addresses
nondiscrimination in federally conducted education and
training programs . . . . . 8
° So ordered . . . Court cases o f n o t e . . . . . . . . . . . . . . . . . . . . . 9

Ralph Boyd takes helm as Assistant Attorney General
for Civil Rights

Ralph Boyd is congratulated by U. S. District Court Judge Joseph H. Young after being sworn in
as Assistant Attorney General for Civil Rights. 1
1 Page 2 3
Commissioner Paul Evans credited Mr. Boyd for the dramatic drop in deadly
street violence in Boston through Mr. Boyd's work with a Boston police task
force of state and federal prosecutors, police officers, streetworkers, and
probation officers.

The son of the founder of the Schenectady Chapter of the NAACP in
New York, Mr. Boyd has been recognized for his efforts as a strong
advocate for civil rights and life in urban America. He served on the
Governor's Diversity Advisory Board,

S ince the terrorist attacks of September 11, 2001, over 200 discriminatory, retaliatory acts have
allegedly been directed against Arab Americans, Muslim Americans, Sikh
Americans, and South Asian Americans, and others perceived to be of Middle
Eastern descent. The Civil Rights Division responded immediately to
reports of these actions by investigating these allegations of national origin and
religion-based discrimination, including murders, assaults, arson, vandalism, and
threats.

2 Winter 2002
Ralph Boyd takes helm Continued from page 1 the Governor's Judicial Nominating Committee,
and the Diversity Committee of the Boston Bar Association. Mr. Boyd represented low-income
tenants in a Boston dispute over unsafe and substandard housing, and was given a
Pro Bono Award by the Massachusetts Tenants Association in 1990. He also
received the Greater Boston Federal Executive Board African American
Achievement Award in 1996.

Mr. Boyd is a graduate of Haverford College and Harvard Law School, where
he edited the Civil Rights --Civil Liberties Law Review. He also interned
with the Southern Poverty Law Center and clerked for U. S. District Court Judge

Joseph H. Young. From 1986-1990, Mr. Boyd was a litigation associate at the
Boston law firm of Ropes and Gray.

"The Civil Rights Division's interagency coordination activities under
Executive Order 12250 provide a vehicle for increasing the effectiveness of the
federal government's overall civil rights enforcement in the administration of
federally assisted programs," Mr. Boyd said. " I look forward to strengthening
our partnership with other agencies, and to providing whatever assistance we can
to help them in their own enforcement efforts." F

To ensure that these and other allegations of violence or discrimination
are addressed promptly and effectively, Assistant Attorney General Ralph F.
Boyd, Jr. directed the Civil Rights Division's National Origin Working
Group (NOWG) to help combat the post-September 11 discriminatory
backlash by referring allegations of discrimination to the appropriate
authorities and by conducting outreach to vulnerable communities to provide
information about government services.

Outreach to the affected communities dealing with post-September 11th
backlash discrimination has been a major tool in combating such discrimination.
On October 9, 2001, the Division's Coordination and Review Section, in
conjunction with the NOWG, organized a community forum in the Chicago area
to address the concerns of that area's sizeable Arab, Muslim, Sikh, and South
Asian American communities. Similar forums were held in Dearborn, Michigan
on November 20 and in Arlington, Virginia on January 16, 2002.

Civil rights representatives of several federal agencies including the
Department of Transportation, the Equal

Civil Rights Division combats "backlash" discrimination in the wake of terrorist attacks
C o o rdination and Review Section attorney Selin Cherian-Rivers provides an overview of federal
a g e n c i e s ' actions at a November 1 interagency meeting. Panelists Assistant Attorney General
Ralph Boyd; Special Counsel on the Post-9/ 11 Discriminatory Backlash, Joseph Zogby; and
Equal Employment Opportunity Commission attorney John Schmelzer look on.

Continued on page 3

CI V I L RI G H T S FO R U M 2
2 Page 3 4
CI V I L RI G H T S FO R U M 3 Winter 2002
Employment Opportunity Commission, the Department of Education, the
Department of Health and Human Services, the Department of Housing
and Urban Development, the U. S. Attorney's Office for the Northern
District of Illinois, and the Department of Justice's Community Relations
Service, participated in a panel presentation of their agencies'
jurisdiction and a Question and Answer session with the audience on national
origin and religious discrimination.

The coordination of federal agency efforts to combat backlash discrimination
also has been a major focus of the Division. On November 1, 2001, the
Coordination and Review Section met with civil rights officials from 32 federal
agencies and other components of the Justice Department at an Executive
Order 12250 interagency meeting. A major agenda item at that meeting was a
discussion of activities that agencies have undertaken to address retaliatory
discrimination since September 11th.

For updated information on the Division's activities in response to
backlash discrimination, refer to the National Origin Working Group's
website at: http:// www. usdoj. gov/crt/nordwg. html. The website also provides
access to other agency websites and further information on their activities in
addressing retaliatory discrimination.

Assistant Attorney General Boyd issues
clarifying memorandum
concerning access to programs for limited
English proficient individuals

O n August 11, 2000, former President Clinton signed Executive Order 13166, "Improving Access
to Services for Persons with Limited English Proficiency." The Executive Order requires each
agency that provides federal financial assistance to publish guidance clarifying and explaining
Title VI obligations toward limited English proficient (LEP) persons. The Civil Rights Division
must approve these documents before publication.
The legal basis for Executive Order 13166 is explained in policy guidance
published by the Department of Justice on the same day entitled "Enforcement
of Title VI of the Civil Rights Act of 1964 -National Origin Discrimination
Against Persons With Limited English Proficiency." This "DOJ LEP
Guidance" was referenced in and issued concurrently with the Executive Order.

As the DOJ LEP Guidance details, Title VI of the Civil Rights Act of 1964
prohibits discrimination on the basis of race, color, or national origin in any
program or activity receiving federal financial assistance. Department of
Justice regulations enacted to effectuate this prohibition bar recipients of federal
financial assistance from "utiliz[ ing] criteria or methods of administration
which have the effect of subjecting individuals to discrimination" because of
their race, color, or national origin. As applied, the regulations have been
interpreted to require foreign language assistance in certain circumstances.

On October 26, 2001, Assistant Attorney General Ralph Boyd issued a

clarifying memorandum to all federal departments and agencies stressing the
Administration's commitment to the goals of Executive Order 13166 and re-affirming
the earlier DOJ LEP Guidance on the factors to consider when
addressing the needs of LEP individuals under Title VI of the Civil Rights Act of
1964. The memorandum notes that the Supreme Court case, Alexander v.
Sandoval, 121 S. Ct. 1511 (2001), did not invalidate Title VI's disparate impact
regulations, nor did it invalidate Executive Order 13166. That case
simply held that there is no private right of action to enforce the regulations. In
that same memorandum, Mr. Boyd emphasized the Administration's desire
that the public be afforded an opportunity to comment on proposed
agency LEP guidance and directed that each agency determine whether notice
and comment under the Administrative Procedure Act and formal regulatory
impact review is appropriate.
"As evidenced by my action clarifying my resolve on this issue, the
letter and spirit of Executive Order 13166 remains," stated Mr. Boyd in
connection with the issuance of his October 26 memorandum. "The
flexible, four-factor LEP analysis continues to be our recommended
approach to identifying and addressing the needs of LEP individuals; and our
commitment to effective and meaningful access to all federally conducted and
federally assisted programs and activities has not lessened."

Prior to Mr. Boyd's memorandum, several agencies had published guidance
to their recipients on how to ensure meaningful access to programs and
activities for LEP persons in compliance with the disparate impact regulations of
Title VI of the Civil Rights Act of 1964. Many other agencies were poised to
publish similar guidance but held off in expectation of the Assistant Attorney
General's action. In accordance with this memorandum, all agencies,
including those which previously published guidance, will be required to
solicit additional public comment on their proposed LEP guidance.

Civil Rights Division combats
"backlash" discrimination in
the wake of terrorist attacks

Continued from page 2

Continued on page 4 3
3 Page 4 5
CI V I L RI G H T S FO R U M 4 Winter 2002
A video produced by the Civil Rights Division's Coordination and Review Section (COR), entitled
"Understanding and Abiding by Title VI of the Civil Rights Act," has won the Bronze Summit
Creative Award for COR contractor, SRB Productions, Inc., of Washington, D. C.,
in an international competition among more than 3,000 entries.

The 23-minute video familiarizes applicants, recipients, and beneficiaries
of federally assisted programs, federal funding agencies, and the general public
about what Title VI and its regulations require, how they apply to federally
assisted programs, how they are enforced, and how voluntary compliance
with their requirements can be achieved. Title VI is the landmark civil rights
statute that prohibits discrimination on the basis of race, color, or national origin
by recipients of federal financial assistance.

Continued on page 5

Assistant Attorney General Boyd issues
clarifying memorandum Continued from page 3

LEP recipient guidance documents.
In addition to requiring further guidance to assist recipients in

addressing the needs of LEP beneficiaries, Executive Order 13166
went a step further --it also required that each federal agency create and
implement a plan that ensures similar meaningful access to LEP persons for
the agency's federally conducted programs and activities. Thus, the
Executive Order applies the same standards for LEP access to the federal
government that it applies to recipients of federal assistance. In response, over
forty agencies had submitted final or preliminary plans (called "federally
conducted plans" or "LEP implementation plans") prior to Mr.
Boyd's October 26 action. Links to some of these plans appear on COR's
website at: http:// www. usdoj. gov/ crt/ cor /13166. htm.

"This was an important step," said Merrily Friedlander, Chief of the
Coordination and Review Section, which

is charged with ensuring the effective implementation of Executive Order
13166. She continued: "While many agencies, such as the Social Security
Administration, the Federal Emergency Management Agency, and others already
were taking steps toward ensuring meaningful access to persons who are
LEP, the legal requirements of Title VI itself do not apply to federal agencies.
With the Executive Order's requirement for all agencies to provide such access,
recipients can see that we are only holding them to the same standards we
apply to ourselves."
"While we cannot declare victory simply by virtue of having guidance
documents and plans in place, the government has moved closer to
defeating national origin discrimination in this country over the last year," said
Ms. Friedlander. "We expect Assistant Attorney General Boyd's action to
accelerate these efforts with our partners in federal civil rights offices and with
recipients across the nation." F

Civil Rights Division produces award-winning Title VI video

Jim Vance, a Washington, D. C. television news anchor, explains the historical
significance of Title VI of the Civil Rights Act of 1964 in a new video produced by the
Civil Rights Division's Coordination and Review Section.

"Effective and long-lasting implementation demands two goals: (1)
LEP measures which meaningfully bridge the language divide encountered
by LEP individuals, and (2) LEP measures which are practically possible
and fiscally achievable by program managers seeking to bridge that divide,"
declared Mr. Boyd. "The August 11, 2000 DOJ LEP Guidance, further
clarified by my October 26 memorandum, is intended to, and I
believe, does, ensure that both these important goals have their place in
addressing the needs of limited English proficient individuals."

Mr. Boyd subsequently issued another memorandum to all federal
funding agencies. In that January 11, 2002 memorandum, he urged the
agencies to expedite publication of their 4

4 Page 5 6
CI V I L RI G H T S FO R U M
Jim Vance, a local television news anchor in Washington, D. C., narrates the
video. The close-captioned video briefly introduces Title VI and explains its
significance Ð a historical reminder, perhaps, for Baby Boomers and their
parents but, increasingly, a necessity for the generation or more that has come of
age, or to this country, since the enactment of Title VI in 1964.

Using professional actors, the video employs several vignettes based on real-life
situations to illustrate examples of intentional discrimination and retaliation
and policies that result in unjustified disparate effects. The video also
illustrates national origin discrimination that may result from a failure to provide
services in languages other than English for individuals who are limited English
proficient. Each vignette concludes by demonstrating how potentially unlawful
discriminatory actions could have been avoided.

Early viewer feedback has been very positive. Audiences have commented
favorably on the use of realistic, program-based scenarios to illustrate and
buttress the video's straightforward discussions of legal requirements and
theories of discrimination. Other viewers liked the video's emphasis on
practical solutions to everyday situations and challenges, which promote
voluntary compliance with the nondiscrimination requirements of Title
VI and its regulations.

The Title VI video is one component of COR's technical assistance and
outreach initiatives under Executive Order 12250, which assigns
responsibility to the Department of Justice for coordinating the
governmentwide enforcement of Title VI and related statutes. COR has
distributed the video to federal funding agencies and to public entities and
private organizations that previously expressed interest in receiving Title VI
training and outreach materials. Close-captioned versions of the video are
available in Spanish, Korean, Vietnamese, and Chinese.

Organizations interested in receiving a copy of the Title VI video should write
to:

Video Request
Coordination and Review Section
Civil Rights Division,
Department of Justice,
P. O. Box 66560
Washington, D. C. 20035-6560

or e-mail COR at:
www. corcrt@ usdoj. gov. F

Winter 2002 5
Civil Rights Division produces award-winning
Title VI video Continued from page 4

In one of the video's vignettes, "Mr. Burley" wonders whether he is being
discriminated against, as his attempts to obtain referrals from a federally funded
employment services agency don't seem to pan out.

The employment services agency's "Joanna" doesn't react well to Mr. Burley's
announcement that he is filing a discrimination complaint. She may be retaliating
against him in violation of Title VI. 5
5 Page 6 7

CI V I L RI G H T S FO R U M 6 Winter 2002
Civil Rights
Division publishes
Title IX Legal
Manual and
revised Title VI
Legal Manual

T he Civil Rights Division's Coordination and Review Section published on January 11, 2001 a
Title IX Legal Manual, which provides an overview of the legal principles of
Title IX of the Education Amendments of 1972 and its
regulations. The Manual, which is available on the COR website at
www. usdoj. gov/ crt/ cor/ coord/ixlegal. html, provides guidance to
federal agencies concerning a wide variety of federally assisted education
and training programs and activities covered by Title IX that are operated
by recipients other than "traditional" education institutions, such as
colleges, universities, or elementary and secondary schools.

"Nontraditional" recipients that administer educational and training
programs, such as libraries, museums, arts organizations, and law
enforcement training academies, have been covered by Title IX since its
enactment in 1972. However, many of them became subject to Title IX
regulations for the first time when the Title IX common rule was published
by 21 federal agencies on August 20, 2000. Therefore, the Manual was
developed to provide a general guide for these recipients by focusing on
court cases, regulations, and issues related to Title IX compliance. The

Manual contains specific sections on the scope of Title IX's coverage of
educational and training programs and activities; employment
discrimination; sexual harassment; and the various specific Title IX
prohibitions.

Traditional education institutions have been subject to Department of
Education regulations and guidance since 1975. For more specific
information on Title IX issues in the context of these traditional
educational institutions, readers should contact the Department of
Education's Office for Civil Rights or review the materials on their website
at: www. ed. gov/ offices/ OCR/ ocrprod.html.

On January 11, COR also published a revised version of its
Title VI Legal Manual, first published in 1998, which reflects developments
in the law relating to the enforcement of Title VI of the Civil Rights Act of
1964 and its regulations. This Manual also is available on the COR
website at www. usdoj. gov/ crt/ cor/coord/ vimanual. html. The revised
Manual is more user-friendly and contains an Index and a Table of
Authorities.

Aside from issues unique to each statute, both Manuals address various
topics applicable both to Title VI and Title IX, and their regulations,
including: federal financial assistance; recipients; disparate
treatment and disparate impact theories of discrimination; retaliation;
agency methods to evaluate compliance and enforce compliance;
private right of action and individual relief through agency action; and the
Department of Justice's role in enforcing each statute. F

Federal Highway Administration
responds favorably to recommendations
of Civil Rights Division's Title VI
Technical Assistance Review

The Federal Highway Administration (FHWA) has adopted, in whole or in part,
virtually all of the 21 recommendations resulting from the Civil Rights
Division's Technical Assistance Review of Title VI enforcement in the
Federal Aid Highway Program. This review was undertaken with the full
cooperation and support of FHWA.

In a letter to the Coordination and Review Section, FHWA's Executive
Director stated that "[ i] mplementing the supportive recommendations
contained in the [Technical Assistance Review] report can be expected to
move the Federal Highway Administration's programs and
activities closer to constitutional ideals of fair and equitable treatment."

The review made findings and recommendations to enhance Title VI
planning, technical assistance, and training to recipients; to improve the
organization, staffing, and coordination necessary to implement a
comprehensive Title VI enforcement program in a large, complex, block
grant-type program such as the Federal Aid Highway Program; and to develop
improved Title VI policies and procedures, including complaint
investigation standards and procedures. The review endorsed Continued on page 7 6
6 Page 7 8

7 Winter 2002
FHWA's proactive, systematic, and interdisciplinary "preventing
discrimination" approach to Title VI compliance. This approach
incorporates civil rights concerns into all aspects of program implementation,
rather than relying primarily on formal legal enforcement to achieve
compliance with Title VI.

The review also offered various recommendations regarding civil
rights staff participation in FHWA's interdisciplinary teams, FHWA's
assessment of recipient compliance in the intergovernmental partnership
context of the highway program, and outreach to beneficiaries. The review
further encouraged and supported FHWA's efforts to develop "best practices,"
particularly for collecting and analyzing data to assess the impacts of transportation
investment decisions on minority communities, and for increasing the meaningful
participation and involvement of minority communities in transportation decisionmaking.

A Title VI Technical Assistance Review is a focused assessment of an
agency's compliance and enforcement of Title VI in a selected federally
assisted program. It is undertaken cooperatively with the funding agency to yield helpful and practical

recommendations to strengthen and improve that agency's enforcement of
Title VI. The FHWA review was the Coordination and Review Section's second Title VI Technical Assistance
Review. The first review, completed in 1999, focused on the General Services Administration's (GSA)

Surplus Personal Property Donation

Program. The recommendations of that review also were adopted and
resulted in establishment of a new, formal Title VI enforcement program
at GSA. A third review of Title VI enforcement in the Department of Labor's
Unemployment Insurance Program currently is underway. F

Collecting federal data on race and
ethnicity: toward a more accurate
reflection of American diversity

A re you a "Caublinasian"? Several years ago, Tiger Woods caught the public's
interest when he announced that he considered himself to be a Caublinasian --a term he
invented to describe his multi-racial identity. With Census 2000, the federal
government gave people such as Woods 57 new categories to
account for their diverse racial heritage.

The new categories provided in Census 2000 are a result of the federal
government's decision in 1997 to revise the standards for collecting
federal data on race and ethnicity. These standards require, among other
things, that federal agencies offer individuals the opportunity to select
one or more race categories for federal data collection purposes. The
standards are the result of a lengthy review by the Office of Management
and Budget (OMB), which began in 1993, and included active participation
by the general public and over 30 federal agencies. Census 2000 is the
first nationwide implementation of the revised standards.

According to OMB, all agency race tabulations should reflect a
minimum of ten categories:

Ð the five single race categories (American Indian or Alaska
Native; Asian; Black or African American; Native Hawaiian or
other Pacific Islander; and White);

Ð the four multiple race categories (American Indian or Alaska Native
and White; Asian and White; Black or African American and
White; American Indian or Alaska Native and Black or African
American); and

Ð a "balance" category that comprises all additional multiple
race combinations.

In addition, under the revised standards, the terms Hispanic and
Latino are considered ethnic, rather than racial, categories.

To help agencies implement these standards, OMB published a document
entitled "Provisional Guidance on the Implementation of the 1997 Standards
for the Collection of Federal Data on Race and Ethnicity" (Provisional
Guidance). This document, issued on December 15, 2000, updates earlier
guidance by an OMB led interagency group. To view the Provisional
Guidance, log on to the OMB website at http:// www. whitehouse. gov/ omb/
inforeg/ statpol. html. On January 16, 2001, OMB issued a notice in the
Federal Register of the availability of the Provisional Guidance and
requested that comments on the document be submitted to OMB by
March 19, 2001. See 66 Fed. Reg. 3829 (January 16, 2001).

CI V I L RI G H T S FO R U M

Continued on page 7
Federal Highway Administration responds
favorably to recommendations Continued from page 6 7
7 Page 8 9

8 Winter 2002
Early data from the 2000 Census indicate that many individuals availed
themselves of the option of selecting more than one race. For example,
1.76 million people who identified themselves as Black also indicated a
second racial designation. [See Washington Post, March 7, 2001, at
A01; see also www. census. gov].

"conducted, operated, or undertaken by" an executive department or agency. The
federal government operates many such programs, some of which are long-term
formal academic institutions such as Department of Defense schools for the
dependent children of military personnel and elementary and secondary schools
operated by the Department of Interior's Bureau of Indian Affairs.

Other examples include the Graduate School operated by the
Department of Agriculture and the Department of Justice's law enforcement
training center in Quantico, Virginia. Executive Order 13160 also covers
shorter-term training programs such as employment discrimination training
conducted by the Equal Employment Opportunity Commission, crime
prevention training offered to the public, and job training programs for federal
employees. The Guidance Document addresses a number of important issues, including

the scope of covered programs, applicable legal principles, examples of
discriminatory conduct, enforcement procedures, remedies, and agency
reporting requirements. It also makes clear that the Civil Rights Division will
provide advice and technical assistance

to assist federal agencies in achieving full compliance with the requirements of
the Executive Order. Federal agencies (including the Department of Justice) are required by
Executive Order 13160 to establish procedures for receiving and reviewing
complaints within 90 days of the issuance of the Guidance Document. In
addition, the Guidance Document directs federal agencies to develop outreach
materials to advise individuals about their rights under the Executive Order
and the appropriate procedures for filing complaints. Agencies also must provide
to the Department of Justice reports of complaints received under Executive
Order 13160. The first report is due March 31, 2002.

Publication of this Guidance Document and the development of
agency enforcement procedures and outreach materials represent important
first steps in achieving the mandate of Executive Order 13160: to ensure equal
opportunity in all federally conducted education and training programs.

The Guidance Document can be accessed on the Coordination and
Review Section's website at www. usdoj. gov/ crt/ cor/ 13160. htm. F

CI V I L RI G H T S FO R U M
Collecting federal data on race and ethnicity: toward
a more accurate reflection of American diversity
Continued from page 6

Legislative redistricting and equal employment opportunity monitoring
are among the first statutory uses of the data collected on race and ethnicity
using the revised standards. OMB and the interagency group responsible for developing the

Provisional Guidance will continue to review and refine it, and subsequently
will issue a final version after all data from Census 2000 becomes available
and the standards are implemented. All new and revised recordkeeping or
reporting forms submitted to OMB for approval must conform to the 1997
standards. In addition, all existing record or reporting forms must be revised to
conform to these standards no later than January 1, 2003.
Pursuant to Executive Order 12250, which addresses the consistent and

effective governmentwide enforcement of Title VI of the Civil Rights Act of
1964 and related statutes, the Civil Rights Division notified the 28 federal
funding agencies on January 11, 2001 of their obligation to conform to the revised
standards. The Division's Coordination and Review Section is available to assist
agencies with any questions on this matter.
F

T he Department of Justice has provided guidance to assist federal agencies as they
implement Executive Order 13160's prohibitions against discrimination on the basis of race, sex,
color, national origin, disability, religion, age, sexual orientation, and status as a
parent in federally conducted education and training programs. This Guidance
Document, entitled "Ensuring Equal Opportunity in Federally Conducted Education and Training
Programs," was published in the Federal Register on January 18, 2001.

The premise of Executive Order 13160 (issued on June 23, 2000) is that the federal government
should hold itself to at least the same principles of nondiscrimination that it applies to the
educational programs of recipients of federal financial assistance. Toward that end, the
Executive Order mandates that no individual shall be excluded from
participation in, denied the benefits of, or subjected to discrimination on the
basis of a protected characteristic in any federally conducted education or training
program. Federally conducted education and training programs and activities include
all education programs or activities Department of Justice issues Guidance Document addressing
nondiscrimination in federally conducted education and training programs 8
8 Page 9 10

9 Winter 2002
So ordered . . . Court cases of
note Supreme Court addresses scope of private rights of action under Title
VI regulations

O n April 24, 2001, a closely divided Supreme Court issued its opinion in Alexander v. Sandoval,
121 S. Ct. 1511 (2001), holding that a private right of action does not exist
under Title VI of the Civil Rights Act of 1964 to enforce agency regulations
forbidding funding recipients from "utiliz[ ing] criteria or methods of
administration which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin." The
Supreme Court determined that neither as originally enacted nor as later
amended does Title VI display an intent to create a private right of action
against recipients of federal financial assistance to enforce these disparate
impact regulations.

This issue arose in a private suit for injunctive relief brought by Martha
Sandoval, representing all otherwise qualified persons with limited English
proficiency seeking Alabama driver's licenses, challenging the State of
Alabama's decision to stop providing testing for driver 's licenses in
languages other than English. Prior to 1991, the Driver's License Division of
the Alabama Department of Public Safety (DPS) administered written
driver's license examinations in approximately 14 foreign languages.
In 1991, following ratification of a state constitutional amendment
declaring English the official language of Alabama, the DPS adopted an

"English-only" policy requiring that all portions of the driver's license
examination process be administered only in English, and forbidding the use
of interpreters, translation dictionaries, or other interpretive aids, even if
privately provided.

Before the Supreme Court, DPS did not challenge the validity of the
disparate impact regulations, nor did it challenge the district court's factual
findings that it had violated the regulations. Instead, it argued that
there was no private right of action for individuals to enforce the disparate
impact regulations.

In its majority opinion, the Court reaffirmed its prior decisions that
Congress had implicitly created a right of action under Title VI for individuals
alleging intentional race and national origin discrimination. However,
because discriminatory effects are prohibited only by the disparate
impact regulations and not by Title VI itself, the Court held that no private
cause of action exists to enforce the disparate impact regulations.

In a memorandum issued October 26, 2001 to all federal departments
and agencies on services to limited English proficient persons, Assistant
Attorney General Ralph Boyd addressed the impact of Sandoval on
federal enforcement of Title VI. Mr. Boyd rejected the view that Sandoval
impliedly invalidated Title VI's disparate impact regulations, noting
that Sandoval "holds principally that

there is no private right of action to enforce the Title VI disparate impact
regulations ... [and] did not address the validity of those regulations." As a
result, Mr. Boyd stressed, Executive Order 13166 regarding limited English
proficient persons remains in force.

Courts continue to address same-sex, peer-on-peer sexual harassment
issues

Recently, several courts have held that an individual who is harassed by a
homosexual peer of the same sex may have a claim under Title IX. This
usually occurs when a male student makes unwelcome sexual advances to
another male. But what about when the harasser (who is heterosexual) is
not asking for sexual favors but subjects the victim to a campaign of
taunts and other hostile actions because that person is perceived to be
gay? There has not always been a clear legal standard to address the
situation where harassment occurs on the basis of sexual orientation. Two
recent settlements shed light on this type of harassment based on sexual
orientation.

In Lovins and United States v. Pleasant Hill Public School District,
Case No. 99-0550-CV W-2 (W. D. Mo. 1999), Jeremy Lovins, a male student,
alleged that from the eighth grade through the eleventh grade, he was
subjected to harassment on the basis of sex (ostensibly because other students
believed that he was gay); that Jeremy and his parents repeatedly informed
school officials of the harassment but that the harassment continued; and that
Jeremy was eventually subjected to an assault and forced to leave school
because of the harassment.

On July 20, 2000, the Department of Justice filed a complaint-in-intervention
brief in this same-sex peer

CI V I L RI G H T S FO R U M

Continued on page 10 9
9 Page 10 11

10 Winter 2002
harassment case arguing that the school district violated Title IX and
the Equal Protection Clause of the Fourteenth Amendment by failing to
respond appropriately to the harassment of a student on the basis of
sex. In other words, the school district was deliberately indifferent to the
verbal and physical peer-on-peer harassment on the basis of sex
committed by students under the school's direct disciplinary authority.

The Department argued that the district violated federal law when it
failed to rectify the situation of which it had actual notice. The Department
sought judicial relief to ensure that the school district will operate a school
system that provides an educational environment that is free of sexual
harassment for its students.

The district court entered a consent order on July 31, 2000. In addition to
monetary relief for Jeremy Lovins, the school district agreed to injunctive
relief, including: conducting a climate assessment of student-to-student and
teacher-to-student relations within its schools; development of a
comprehensive plan to identify, prevent, and remedy harassment and
discrimination on the basis of sex and sexual orientation; educating and
training teachers, staff, and students about the operation of the policy and
procedures; maintaining written records of complaints and
investigations; and filing implementation reports with the
Justice Department and the district court.

The Department also filed an amicus brief in another same-sex peer
harassment case, Putman v. Board of Education of Somerset Independent
School, C. A. No. 00145 (E. D. Ky. 2000), in which Bradley Putman, a
high school student, alleged that the school district discriminated against
him on the basis of sex in violation of Title IX and the Equal Protection
Clause of the Fourteenth Amendment by failing to take appropriate steps to
end a campaign of sexual harassment Ð including taunts and conduct
connoting homosexuality Ð by his male peers. The harassment included
three written death threats; repeated, unwanted sexual contact; offensive
and hostile verbal abuse; and sexual intimidation and humiliation.

The plaintiff contended that instead of taking prompt, reasonable,
and effective action to end this harassment, the school officials told
him, among other things, that "boys will be boys," and that even though
Bradley was clearly experiencing sexual harassment, they were not sure
what they could do for him because the school system's policy against
sexual harassment did not cover same-sex sexual harassment.

In its July 28, 2000 brief, the Department argued that the nature and
severity of the harassment Ð being repeatedly victimized by conduct of a
sexual nature Ð could constitute harassment on the "basis of sex" and
thus violate Title IX. Regardless of sexual orientation, all students are
protected under Title IX from sexual harassment and the unsafe hostile
environment that such harassment creates.

Following the amicus participation of the Department and mediation
between the plaintiff and defendants, the case settled. In addition to
monetary relief for the plaintiff, the school district modified its sexual
harassment policies (applicable to both students and employees) to prohibit
discrimination based on actual or perceived sexual orientation. The
modified policies also describe the school district's responsibilities and
the recourse available to victims.

CI V I L RI G H T S FO R U M
So ordered . . . Continued from page 9

Continued on page 11

Something to share? T h e
F o r u m is looking for a g e n c y
"happenings" and news of
i n t e rest to other a g e n c i e s
and the civil rights
c o m m u n i t y. Contact us at:
(202) 307-2222 (voice); (202)
307-2678 (TDD), or write to:

Civil Rights Forum
Coordination and Review
Section
Civil Rights Division
D e p a rtment of Justice
P. O. Box 66560
Washington, D. C. 20035-6560 10
10 Page 11 12

CI V I L RI G H T S FO R U M 11 Winter 2002
Supreme Court declines review of Ku Klux Klan matter

On March 5, 2001, the Supreme Court decided not to hear Missouri's
appeal of a federal court's decision that permits the Knights of the Ku
Klux Klan (the Klan) to participate in the state's Adopt-A-Highway Program.
By refusing to grant certiorari, the Supreme Court let stand the Eighth
Circuit Court of Appeals' decision declaring that the Missouri Highway
and Transportation Commission (MHTC) could not exclude the Klan's
application to participate in its Adopt-A-Highway Program solely on the
basis of the Klan's viewpoint. Cuffley v. Mickes, 208 F. 3d 702 (8th Cir.
2000).

Under MHTC's program, organizations adopt a portion of a state
highway by volunteering to remove litter from that portion. MHTC trains
and equips the volunteer organizations, and then recognizes that
group's efforts by erecting signs with the group's name at each end of the
adopted portion of highway.

The Eighth Circuit repudiated several arguments given by MHTC for
denying the Klan's application. The court concluded that the evidence
indicated "that the State denied the Klan's application based on the Klan's
beliefs and advocacy." DOJ's Civil Rights Division and the Civil Division
filed an amicus brief in that proceeding, arguing that Missouri
must deny the Klan's application in order not to violate Title VI. DOJ
argued that MHTC receives federal financial assistance and that the
Adopt-A-Highway Program is a "program or activity" subject to Title

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.

John Ashcroft
Attorney General

Larry D. Thompson
Deputy Attorney General

Jay B. Stephens
Associate Attorney General

Ralph F. Boyd, Jr.
Assistant Attorney General

Loretta King
Deputy Assistant Attorney General

Merrily A. Friedlander
Section Chief

And rew M. Strojny
Deputy Section Chief (Legal)

Mona Diaz
E d i t o r

Contributing to this issue:
Contributing to this issue: Sebastian Aloot,
Selin Cherian-Rivers, Mona Diaz,
Carolyn Kennedy, Ted Nickens, Allen Payne,
Beth Pincus, Christine Stoneman,
Andrew Strojny

S e c retarial support: Anika Gamble
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

VI's prohibition against discrimination on the basis of race, color, or national
origin.

The Solicitor General made these same arguments in an amicus brief of
January 2, 2001, urging the Supreme Court to grant certiorari and reverse
the Eighth Circuit. However, the Supreme Court issued its decision not
to hear Missouri's appeal without a published dissent or explanation.

Although it granted the Klan's application, as mandated by the
Supreme Court's action, the Missouri Department of Transportation
subsequently terminated the Ku Klux Klan's participation in the program
because it had failed to meet its obligation to clean up the litter along
its "adopted" portion of a highway.

So ordered . . . Continued from page 5 11
11 Page 12

U. S. Department of Justice
Civil Rights Division
Washington, D. C. 20530

O fficial Business
Penalty for Private Use $300

F I R S T-CLASS MAIL
P O S TAGE & FEES PA I D
D O J
Pe rmit No. G -7 1 12

Page Navigation Panel

1 2 3 4 5 6 7 8 9
10 11 12