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Civil Rights Forum
Winter-Spring 1996
Volume 10, Number 1
In This Issue...
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The Executive Order 12250 advisory group, comprised of representatives from 12 Federal
funding agencies, held its first meeting at the Department of Justice on February 13,
1996. The advisory group was established by the Civil Rights Division to provide advice
and recommendations for the improved governmentwide coordination and enforcement of Title
VI, Title IX, and similar grant-related civil rights statutes.
Deputy Assistant Attorney General Loretta King expressed her appreciation to the
participants for their dedication over the years to civil rights, and for their
willingness to explore new and innovative ways of effectively enforcing the civil rights
laws.
Merrily Friedlander, Chief of the Civil Rights Division's Coordination and Review
Section, which directs Executive Order 12250 coordination activities, also welcomed the
group. She explained that the advisory group concept was originally suggested by the
Department of Agriculture during the Section's series of individual meetings last fall
with the 28 Federal funding agencies.
Agency representatives identified various legal and programmatic topics for discussion
by the advisory group, resulting in the establishment of six subcommittees:
(1) planning, performance, and data reporting requirements; (2) civil rights compliance
functions and responsibilities in block grant programs; (3) the use and operation of
delegation agreements; (4) the use of program staff for civil rights compliance
activities; (5) application of the Attorney General's memorandum of July 14, 1994, on the
use of the disparate impact standard in Title VI administrative regulations; and (6) the
possible development of a Title VI conference.
The six subcommittees each include several agency representatives and a Coordination
and Review Section staff member. Each subcommittee will meet during the coming weeks and
will report to the full group at its regularly scheduled monthly meetings.
The advisory group consists of representatives from seven departments (Agriculture,
Education, Health and Human Services, Housing and Urban Development, Interior, Labor, and
Transportation); and five "small" agencies (the Corporation for National and
Community Service, the Environmental Protection Agency, the Federal Emergency Management
Agency, the General Services Administration, and the National Aeronautics and Space
Administration).
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In December 7, 1995, testimony before the House Judiciary Committee's Subcommittee on
the Constitution, Assistant Attorney General for Civil Rights Deval L. Patrick expressed
the Clinton Administration's opposition to proposed legislation to end racial and gender
"preferences" in Federal hiring and contracting programs. Patrick also
reiterated the Administration's support for affirmative action programs. Patrick was
testifying on the proposed Equal Opportunity Act (H.R. 2128/S. 1805, also known as the
Dole-Canady bill).
Patrick said that the bill's prohibition against intentional discrimination on the
basis of race, ethnicity, and gender would add nothing new to what already is prohibited
by the Constitution as interpreted by the courts and by various Federal laws. He further
said that the bill is redundant on the subject of quotas, which already are outlawed by
Executive Order 12246 and the Civil Rights Act of 1991, by the Constitution as interpreted
by the courts, and by the President, as a matter of public policy.
Patrick said that, in proposing to prohibit the use of numeric goals and timetables of
any kind, the bill reflects "an almost hysterical aversion to numbers." He noted
that goals and timetables are used to measure progress in a wide variety of business,
educational, and personal contexts. He stated that "[w]hen Americans believe
something is important, our tradition is to face the facts, decide where we have to go,
plot a course for getting us there, and measure our progress along the way. This is all
that goals and timetables are about."
Patrick stressed that "[i]n the context of affirmative action programs, goals and
timetables must be flexible, they must be sensibly related to a demonstrable pool of
qualified individuals and they must be fair." He declared that "[n]othing about
affirmative action -- or the use of goals and timetables to measure affirmative action --
requires the abrogation of common sense or simple fairness."
The Assistant Attorney General further stated that "[b]y completely prohibiting
otherwise lawful and flexible affirmative action and categorically rejecting several
decades of Supreme Court precedent imposing limits on affirmative action, this bill
attacks remedies that have evolved as a modest, but helpful response to the deep
intransigence of institutions which persist in viewing African Americans, Hispanic
Americans, Native Americans, Asian Americans, and women as less deserving of jobs,
business opportunities and places in universities."
Patrick referred to President Clinton's pledge to "mend, not end,"
affirmative action programs. He noted that the Department of Justice is continuing its
review of all Federal affirmative action programs to ensure that they comply with
Administration policies and the Supreme Court's decision in _Adarand_ v. _Pena_. (See the
Fall, 1995 issue of the _Civil Rights Forum_.)
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Two ninety-minute sessions of a high school assembly promoting AIDS awareness did not
create a sexually hostile school environment in violation of Title IX, according to the
First Circuit. The plaintiffs had alleged that the assembly program contained extremely
sexually explicit monologues and skits and, among other things, used lewd and lascivious
language in advocating and approving a variety of sexual activities and practices.
The court explicitly embraced Title VII case law in analyzing the claim of a hostile
environment. The panel applied the four-part test enunciated in the Supreme Court case of
_Harris_ v. _Forklift Sys. Inc._, 114 S. Ct. 367, 371 (1993), looking for evidence of an
objective or subjective hostile environment.
The court found that one-time exposure, in this case, was not "frequent"; the
comments made during the program were not severe; the comments were not physically
threatening or humiliating, but were made in the context of a presentation and designed to
create a humorous environment for the assembly; and the remarks did not significantly
alter the educational environment, even though they may have led to weeks of coarse
jesting addressed to the students who did not accept the message of the assembly. With
respect to this last element of the test, the court concluded that the evidence showed
discrimination, if any, based on viewpoint, not gender. _Brown_ v. _Hot, Sexy and Safer
Productions, Inc._, No. 95-1275, 1995 WL 610915 (lst Cir. Oct. 23, 1995).
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The Second Circuit has reversed and remanded a case in which a district court had
issued a preliminary injunction against a New York Mass Transit Authority (MTA) subway
fare increase. The district court had enjoined the increase because of its view that an
adverse impact on minorities in violation of Title VI would result. The district court
based its decision, in part, on the Attorney General's July 14, 1994, memorandum
(reprinted in the Spring, 1995 _Civil Rights Forum_) regarding the use of the adverse
impact standard in Title VI regulations.
The district court used a Title VII adverse impact analysis in applying the U.S.
Department of Transportation's Title VI regulation to the fare increase. It found that
roughly 60% of working commuters riding on the bus and subway system were members of
racial and ethnic minority groups, as contrasted to roughly 40% of rail commuters. MTA was
increasing both subway and rail fares. However, the proposed percentage increase was 20%
on subway and bus fares but only 9% on rail commuter fares. Unpersuaded that capital
accounts or that something other than fare box costs should be considered, the court found
that the subway fare increase adversely impacted on minorities in violation of Title VI.
The district court dismissed arguments that, because it applied equally to minority and
nonminority riders, the subway fare increase was nondiscriminatory. It also rejected as a
business necessity defense the contention that pollution would increase if suburban
commuters were encouraged to drive to work because of the higher rail fare. The court
enjoined the increase in subway fares, although it allowed implementation of the rail
commuter fare increase. _New York Urban League, Inc._ v. _Metropolitan Transit Authority_,
905 F. Supp 1266 (S.D.N.Y. Nov. 8, 1995).
On an expedited appeal, the Second Circuit reversed and remanded the case. The
appellate court found that the district court decision was based on insufficient findings
to support the disparate impact conclusion. It further found that the evidence did not
support rejection of the proffered justification for any disparity. Finally, it held that
enjoining the scheduled fare increases was an inappropriate remedy even if the plaintiffs
were successful in the case on the merits. _New York Urban League, Inc._ v. _Metropolitan
Transit Authority_, ___ F.3rd ____, 64 USLW 2400 (2d Cir. Dec. 7, 1995).
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The Fifth Circuit has reversed a jury verdict of liability in a Title IX employment
case. A three-judge panel unanimously held that Title VII provides the exclusive remedy
for persons seeking money damages who allege sex discrimination in employment by
educational institutions receiving Federal financial assistance.
The heart of the court's position is that Title IX was not intended as a bypass of the
balanced remedial process laid out by Title VII for addressing employment discrimination.
The court noted that "[t]ermination of federal funding is the sole remedy expressly
available for violations of Title IX."
The panel distinguished Supreme Court cases that found private rights of action for
money damages under Title IX by noting that none of the cases addressed the relationship
between Title IX and Title VII. The court also rejected the argument that 42 U.S.C. ? 1983
could be used derivatively to indirectly provide money damages in circumvention of the
remedies provided by Title VII. In reaching its conclusion, the court explicitly withheld
opinion on whether employment suits seeking only declaratory or injunctive relief were
likewise available exclusively under Title VII. _Lakoski_ v. _James_, 66 F.3d 751 (5th
Cir. Oct. 3, 1995).
This case raises a question about what many assumed to be settled law, at least since
_Consolidated Rail Corp._ v. _Darrone_, 465 U.S. 624 (1984). There, the Supreme Court
found that Section 504 of the Rehabilitation Act, which is enforced like Title IX, created
a right to backpay and money damages for employment discrimination. In addition, the case
raises questions about the joint Department of Justice/Equal Employment Opportunity
Commission regulation governing complaints of employment discrimination filed against
recipients of Federal financial assistance, commonly known as the Title VI/Title VII rule.
That rule presumes the availability of backpay as a remedy for employment discrimination
covered by Title VI (which is enforced like Title IX) and Title VII.
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The Seventh Circuit has upheld an Illinois State regulation that implements the Federal
Older Americans Act. The city of Chicago claimed that the funding formula adopted by
Illinois to distribute funds provided by that Act violated Title VI because it used two
factors that adversely impacted on minorities. The two factors were increased funding for
people over 75 years of age and increased funding for persons living in rural areas.
The court, in a September 8, 1995, ruling, held that because the formula also contained
a factor for minorities, the formula as a whole did not create a disparate impact, despite
minority underrepresentation in the other two factors (75+ age and rural area residence).
The panel found that the formula did not discriminate on its face and, most importantly,
that the rural factor served a purpose of the Act, which specifically directed State
agencies to spend funds for "services to older individuals residing in rural
areas." _City of Chicago_ v. _Lindley_, 66 F.3d 819 (7th Cir. 1995).
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The Department of Health and Human Services (HHS) has entered into a formal settlement
agreement with the Connecticut Department of Social Services to ensure that home health
care providers receiving Medicaid funds will not refuse or limit services based on where a
person lives, a practice called "redlining."
The complainant in the case, an African-American resident of New Haven, alleged that
Staff Builders Services, Inc., a New York-based home health care agency, violated Title VI
of the Civil Rights Act of 1964 by terminating services to her and her severely disabled
minor son when they moved to the Eastern Circle housing complex. Staff Builders used
written employee safety guidelines that prohibited employees from visiting certain streets
and specific housing complexes. The areas so designated were predominately Hispanic and
African-American. Staff Builders has rescinded these guidelines.
Mr. Dennis Hayashi, Director of HHS's Office for Civil Rights, stated that
"[w]hile OCR previously found Staff Builders in violation of Title VI for practicing
medical redlining, this agreement addresses the issue of access in _all_ home health
agencies receiving funds through the State."
The State of Connecticut receives more than $1.3 billion in Federal financial
assistance from HHS.
The State has agreed to implement regulations prohibiting racial discrimination by home
health care providers. It also will ensure that such agencies do not refuse or limit
services to individuals based on where they reside, except when, in emergency situations,
they reasonably determine that unsafe conditions at a particular time and location place
employees in immediate jeopardy.
Home health agencies will provide, whenever possible in the event of an emergency,
alternative methods of service delivery, such as the use of escorts furnished without
extra cost to clients. In addition, agencies will take all steps necessary to ensure that
emergency suspensions of service are temporary, and that needed services are not denied or
terminated.
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The Town of Eastchester, New York, following arduous negotiations with the Department
of the Interior, has voluntarily agreed to take comprehensive measures to resolve Title VI
violations with respect to its operation of Lake Isle Park. Interior had found that the
park's fee structure, in effect, barred low income individuals and families, particularly
minorities, from participating in programs and activities offered at the park.
The town built the park in 1979 with two grants from the National Park Service
totalling $778,675, which were used to purchase a former country club. With five swimming
pools, an 18hole golf course, and multi-room clubhouse facilities, the 116acre Lake Isle
Park serves as the centerpiece of the town's public park system.
In the 1980's, the National Park Service warned the town that the fee structure at the
park violated Title VI. Reviews by Interior's Office for Equal Opportunity and Office of
the Solicitor concluded that the park's annual admission fees of $3,150 for families and
$1,575 for individuals prevented minority residents from participating in park programs
and activities. With such a fee structure, the park operated more like the country club it
once was.
In an "Affordability Plan" voluntarily adopted by the town and approved by
Interior, the town recently established an interracial Lake Isle Park Impact Committee to
work in partnership with representatives of Eastchester's minority community. The
committee's goal is to ensure that the park is affordable and readily accessible to all
people.
The plan contains provisions for transporting children twice a week free of charge to
swim at the park; a $1.50 entrance fee per swimmer is the only charge. Family and
individual rates for residents were reduced 50% in all program and activity areas. An
affirmative employment plan was adopted by the town to increase minority employment at the
park, especially in service delivery areas, both in peak seasons and during the slowest
period of the year. The town agreed to broaden its outreach towards minority groups and
organizations to increase their participation in the park's programs and activities.
The town also has taken steps to publicize its nondiscrimination policies more
effectively. Further, the town was required by Interior to install park benches and picnic
tables at select locations in the park to facilitate leisure recreation visits.
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The National Police Academy, conducted at the FBI Academy in Quantico, Virginia, trains
law enforcement officials from around the United States and several foreign countries. The
curriculum traditionally includes a general presentation on civil rights law, focusing
primarily on issues relating to criminal civil rights violations involving the use of
excessive force. However, in November, 1995, representatives from the Department of
Justice's Civil Rights Division for the first time gave a brief presentation on the
civil--as opposed to criminal--statutes that affect police officers. A similar
presentation was made in February, 1996, by the Department of Justice's Office of Justice
Programs. That office and the Civil Rights Division will alternate giving the training
sessions at future classes, which meet at Quantico four times per year.
The session included an introduction to Title VI, Title IX, and other grant-related
civil rights statutes. It also included discussion of a recently enacted provision of the
Crime Control Act of 1994, which authorizes the Department of Justice to file civil
actions to remedy a pattern or practice of law enforcement conduct that violates the
Constitution or Federal laws.
Title VI and the other grant-related civil rights statutes prohibit discrimination in
the entire range of police services and functions. The grant-related statutes apply to
police departments that receive Federal financial assistance, either directly from the
Federal government or through block grants given to the States. Currently, about 80
percent of U.S. citizens are served by police departments that receive Federal financial
assistance from the Department of Justice's Community Oriented Policing Services program.
Moreover, attendance at the prestigious National Academy, the cost of which is covered by
the FBI, itself constitutes Federal financial assistance to the participating law
enforcement agencies.
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The Department of Justice has produced a brochure entitled "Your Rights Under
Title VI of the Civil Rights Act of 1964" that, for the first time, addresses Title
VI from a governmentwide perspective. It complements other publications designed by the
various funding agencies for recipients and beneficiaries of their own particular
federally assisted programs.
The brochure addresses the broad range of federally assisted programs covered by Title
VI. It provides guidance on how and where to file complaints of discrimination. The
brochure also discusses the Department of Justice's role as the governmentwide Title VI
complaint "clearinghouse" under Executive Order 12250.
Justice initially sent copies of the brochure to the various Federal funding agencies
to notify them that their Title VI complaints may increase in number as a result of the
anticipated wide distribution of this brochure.
The first printing of 5,000 brochures will be distributed to more than 60 civil rights
and grass roots organizations and their affiliates. These organizations have been asked to
duplicate and disseminate the brochures to their staffs, membership, and the public.
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The National Association of Attorneys General (NAAG) held its third annual Civil Rights
Conference on March 7-9, 1996, in Washington, D.C.. State and Federal officials met to
discuss key issues in civil rights enforcement and how to work together more effectively
to eradicate discrimination.
The Conference addressed key nationwide civil rights issues, including police
misconduct, civil rights issues in education and private club discrimination, and
post-_Adarand_ issues. Four task force working sessions also addressed housing
discrimination, bias-motivated crimes, mortgage lending discrimination, and discrimination
on the basis of disability in public accommodations. Attorneys from the U.S. Department of
Justice's Civil Rights Division participated as panel members in all of the task force
working sessions.
Grant Woods, Arizona Attorney General and chair of the NAAG Civil Rights Committee,
opened the conference and facilitated a plenary discussion on emerging issues in civil
rights law.
In his keynote speech, Deval L. Patrick, Assistant Attorney General for Civil Rights,
stressed the need for greater cooperation between the States and the Federal government.
He stated that now "is a time for coming together, for taking advantage of the
benefits of collaboration." He noted, by way of example, that Federal and State
officials are working together in several cases involving church bombings in Alabama and
clinic entrance access in Connecticut. He concluded by stating that civil rights is the
struggle for America's conscience, and that when one stands up for his or her rights, that
person "stands up for all of us."
Under a Memorandum of Understanding, NAAG and the Civil Rights Division are cooperating
to further communication between States and the Federal government, to share information
and expertise, and to coordinate resources to target violations of civil and criminal
civil rights laws. The Memorandum is expected to be amended shortly to include U.S.
Attorneys.
A panel facilitated by Loretta King, Deputy Assistant Attorney General in the Civil
Rights Division, examined permissible actions based on race or ethnicity in light of the
Supreme Court's decision in _Adarand_. Another group dealt with police misconduct issues
including harassment and physical violence toward minorities by police officers. State
enforcement tools that can be used against these police officers and the inadequacy of
sensitivity training were addressed.
The conference also examined barriers to State enforcement of civil rights. Many State
Attorney General offices lack express statutory authority to enforce State and Federal
civil rights laws. As an alternative, a number of offices rely on the general subpoena
power granted under their consumer protection laws to conduct investigations into civil
rights violations. In addition, NAAG endorsed in 1992 a proposed Federal statute that
would give State Attorneys General the authority to enforce Federal civil rights statutes
and file cases in Federal court using their _parens patriae_ authority.
The growing problem of racial and sexual harassment of students in America's schools
was addressed by representatives from the Department of Education's Office for Civil
Rights. They discussed the First Amendment ramifications of investigations on harmful
language, and guidelines for investigating cases involving these allegations.
Twenty-three State Attorney General offices were represented at the conference, as were
nine U.S. Attorneys offices, the Civil Rights Division of the Department of Justice, the
Equal Employment Opportunity Commission, the Department of Education, the Department of
Housing and Urban Development, and other Federal agencies with civil rights enforcement
responsibilities.
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Mr. George S. Robertson is currently the Acting Director, Civil Rights, Department of
Agriculture. The position of Director formerly was held by Mr. David Montoya.
Mr. Courtland V. Cox, formerly the Acting Director, is now the Director, Office for
Civil Rights, Department of Commerce.
Ms. Elizabeth Julian, formerly the Acting Deputy Assistant Secretary, is now the Deputy
Assistant Secretary for Policy and Initiatives, Office of Fair Housing and Equal
Opportunity, Department of Housing and Urban Development.
Mr. George E. Reese is currently the Acting Associate Administrator for Equal
Opportunity Programs, National Aeronautics and Space Administration. The position was
formerly held by Dr. Yvonne B. Freeman, who left the agency on January 22, 1996.
Ms. Jean Riggs, formerly Acting Coordinator, has been designated as the Director,
Office of Equal Opportunity, National Science Foundation.
Please note the following changes to the list of agency civil rights directors and
their addresses, which was published in the Fall, 1995 issue:
General Services Administration: Ms. Yvonne T. Jones, Room 5123.
Office of Justice Programs: telephone number (202) 307-0690.
Tennessee Valley Authority: Mr. George H. Provost, new area code (423).
Department of the Treasury: Mr. Robert Breivis, Room 4150.
United States Information Agency: Ms. Hattie P. Baldwin, Room 858.
Department of Veterans Affairs: Mr. Gerald K. Hinch, 810 Vermont Avenue, N.W.
And at the Department of Justice's Civil Rights Division:
Mr. William R. Yeomans will become Acting Deputy Assistant Attorney General with
responsibility for the Voting, Special Litigation, and Coordination and Review Sections
when Deputy Assistant Attorney General Loretta King begins her maternity leave begins in
late March. He currently is Counsel to the Assistant Attorney General.
Mr. Andrew M. Strojny is now Deputy Section Chief (Legal) in the Coordination and
Review Section. He had been Acting Deputy Section Chief (Legal).
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 (202) 307-2222
(voice); (202) 307-2678 (TDD), or write to:
- Civil Rights Forum Coordination and Review Section
- Civil Rights Division
- Department of Justice
- P.O. Box 66560
- Washington, D.C. 20035-6560
The 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
- Susan M. Liss
- Chief of Staff
- Loretta King
- Isabelle Katz Pinzler
- Kerry Scanlon
- Deputy Assistant Attorneys General
- Merrily A. Friedlander
- Section Chief
- Theodore R. Nickens
- Deputy Section Chief (Program)
- Andrew M. Strojny
- Deputy Section Chief (Legal)
- Allen Payne
- Editor
Contributing to this issue: Melvin Fowler (Interior), Joshua Mendelsohn, Allen Payne,
Lisa Silverberg (HHS), Andrew Strojny, Margay Williams, 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 (voice) or (202) 307-2678 (TDD).
This page was last updated on February 07, 2001
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