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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
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