Civil Rights Forum
Spring 2000
Volume 14, Number 2
In This Issue...
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Department of Justice and Montgomery County, Maryland
enter into voluntary agreement addressing police practices
On January 14, 2000, the Department of Justice (DOJ) entered into a Memorandum of
Agreement with Montgomery County, Maryland, the Montgomery County Department of Police
(MCPD), and the Fraternal Order of Police, Montgomery County Local 35 (FOP), resolving a
discrimination complaint filed by the Montgomery County Chapter of the NAACP. This
Agreement, negotiated under the authority of Title VI of the Civil Rights Act of 1964 and
the Omnibus Crime Control and Safe Streets Act of 1968, establishes new and enhanced
procedures for managing the MCPD, including guidelines for traffic enforcement,
documentation of traffic stops, public outreach and public reporting, complaint
procedures, and supervision and training.
Title VI and the Safe Streets Act together prohibit discrimination on the basis of
race, color, national origin, sex, or religion by law enforcement agencies that receive
financial assistance from DOJ.
The Civil Rights Divisions Coordination and Review Section began investigating
this complaint in March 1997. The complaint alleged that MCPD officers engaged in racially
discriminatory treatment of African Americans, including the use of excessive force;
discourteous conduct; the discriminatory selection of persons for traffic stops,
pedestrian stops, and searches; and failing to adequately receive, investigate, and
monitor discrimination complaints filed by minority citizens. The NAACP forwarded to the
Section more than 150 complaints from individuals who believed Montgomery County officers
discriminated against them because of their race or national origin. These individuals
also filed complaints with the MCPDs Office of Internal Affairs.
In October 1999, Bill Lann Lee, Acting Assistant Attorney General for Civil Rights;
Lynne Battaglia, United States Attorney for the District of Maryland; Noel Brennan, Deputy
Assistant Attorney General for the Office of Justice Programs; and other DOJ officials met
with Montgomery County officials and the President of the FOP to summarize the Division's
investigation and recommendations for compliance, and to offer an opportunity to engage in
voluntary compliance negotiations as provided by Title VI and the Safe Streets Act. The
County, the MCPD, and the FOP expressed an interest in entering into negotiations to
resolve the complaint. This
Agreement is DOJ's first negotiated settlement resolving a police misconduct case that
includes the FOP as a party.
Under the Agreement, MCPD officers will document all traffic stops (regardless of
whether a citation is issued) by recording the driver's race, ethnic origin, and gender,
as well as information about the reason for the stop and the nature of any post-stop
action. MCPD will enter this data into a computer and analyze it to determine the need for
appropriate nondisciplinary actions, including changes in policies and practices,
additional training, counseling, or supervisory monitoring. The MCPD also is implementing
a new computerized system for tracking all complaints and investigations, and it has
changed the way complaints are accepted, investigated, and resolved to ensure timely,
complete, and fair investigations.
Further, the MCPD will engage in community outreach to explain the duties of officers,
dangers of the job, and methods for filing complaints or compliments. It will hire an
expert to review and evaluate its training program, and will provide new and increased
training for officers and supervisors. The MCPD will issue semiannual public reports
providing traffic stop statistics by race as well as summary information on compliments
and complaint investigations. Finally, the parties to the Agreement will select an
independent consultant to monitor the MCPD's implementation of the Agreement. The
consultant also will assist the MCPD with compliance efforts and issue periodic public
reports.
The Agreement reflects the commitment of the County, the MCPD, and the FOP to provide
nondiscriminatory law enforcement for Montgomery County. It illustrates how parties can
work together to amicably resolve complaints without resort to contested litigation. It
also illustrates how the administrative processes of Title VI and the Safe Streets Act can
be used to ensure nondiscriminatory police services. These laws supplement the police
misconduct provisions of the Violent Crime Control and Law Enforcement Act of 1994, which
is enforced by the Civil Rights Divisions Special Litigation Section. DOJ has
entered into three consent decrees resulting from suits filed under this latter statute
(Steubenville, Ohio; Pittsburgh, Pennsylvania; and the State of New Jersey, which also was
filed under the Safe Streets Act) . There is contested litigation under this statute in
process involving Columbus, Ohio, and the Special Litigation Section also currently is
conducting 13 "pattern or practice" police misconduct investigations.
A copy of the Memorandum of Agreement and the cover letter transmitting it can be found
on the Coordination and Review Sections website at www.usdoj.gov/crt/cor.
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Federal
agencies to revise Title VI, Section 504, and Age Discrimination Act regulations
Pursuant to Executive Order 12250, Acting Assistant Attorney General Bill Lann Lee
recently requested Federal agencies that grant financial assistance to jointly issue
amendments to their regulations implementing Title VI of the Civil Rights Act of 1964,
Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975, to
incorporate the broadened definitions of "program" and "program or
activity" contained in the Civil Rights Restoration Act of 1987 (CRRA).
These statutes (and Title IX of the Education Amendments of 1972) apply to
"programs" or "programs or activities" that receive Federal financial
assistance. Prior to the CRRA, the statutes applied only in the particular portion of the
entity that received the assistance. The CRRA broadened the definitions of
"program" and "program or activity," so that all the operations of an
entity that receives assistance are covered, not just the particular part receiving the
funds. For thirteen years it has been the governments position that the broadened
definitions effectively amended any prior regulatory definitions, even if the regulations
had not been amended to reflect the later statutory amendments. However, a recent Third
Circuit decision in Cureton v. NCAA, 198 F.3d 107 (1999), held that, since the Title VI
regulations of the Department of Health and Human Services (HHS) and the Department of
Education (ED) do not incorporate the broad statutory definitions contained in the CRRA,
the disparate effects standard contained in the agencies Title VI regulations apply
only to those programs that actually receive Federal financial assistance.
Plaintiffs had sued on behalf of a class of African American student-athletes, claiming
that NCAA minimum requirements for freshman students to compete in intercollegiate
activities and to receive athletic scholarships, such as minimum SAT scores and a minimum
grade point average, have a discriminatory impact on African Americans in violation of
Title VI. Cureton reverses a district court decision that the NCAA is subject to Title VI
because it is an indirect recipient of Federal funds through its member schools, and that
requirements imposing minimum SAT scores did have a disparate impact and therefore were
illegal. (See Cureton v. NCAA, 37 F. Supp. 687 (E.D. Pa. 1999)).
On appeal, the Third Circuit considered the issue of whether the NCAA is subject to the
nondiscrimination requirements of Title VI, and whether there is a private right of action
to enforce Federal agency Title VI
regulations prohibiting practices that have the effect of discriminating. The Department
of Justice argued in its amicus brief that the HHS and ED Title VI regulations prohibited
grant recipients from discriminating "through contractual or other means" by
utilizing criteria or methods of administration that have a racially disproportionate
impact.
The Third Circuit observed in Cureton that the discriminatory effects test was created
by regulation and not by Title VI itself. The court noted that the HHS and ED regulations
implementing Title VI do not incorporate the broad statutory definitions of
"program" and "program or activity" contained in the CRRA. Therefore,
the court concluded that the disparate effects standard contained in the Title VI
regulations applies only to those programs that actually receive Federal financial
assistance. The Department of Justice filed an amicus brief in support of appellees
petition for rehearing en banc. In that brief, the Department argued that the broadened
definitions contained in the CRRA should be read into existing Title VI regulations,
despite the fact that the regulations were never amended to incorporate those statutory changes. The petition
for rehearing was denied on February 9, 2000.
Although Federal agencies continue to believe that the broadened statutory definitions
of "program" and "program or activity" should be read into existing
Title VI regulations, the Civil Rights Division is taking steps, in light of the Cureton
decision, to amend all Title VI regulations to reflect the CRRA. Because Section 504 and
the Age Discrimination Act also were amended by the CRRA, agencies are working to revise
their regulations implementing those statutes as well. (The broadened definitions of
"program" and "program or activity" already have been incorporated
into the proposed common Title IX rule for 24 agencies. 64 Fed. Reg. 58568 (Oct. 29,
1999).) Although these modifications are considered to be technical in nature, the
agencies are proceeding by notice and comment rulemaking as suggested by the Cureton
court.
In light of the differences in regulatory text among the various agencies, the agencies
are proposing to issue a "joint" rather than a "common" rule. In a
joint rule, all agencies share the same preamble, but each agency has its own regulatory
text. HHS and ED, the two agencies implicated in the Cureton decision, are proceeding
individually, rather than as part of the joint rule. ED published its proposed regulation
to amend its Title VI , Section 504, Age Discrimination Act, and Title IX regulations
(since ED is not part of the Title IX common rule) on May 5, 2000. 65 Fed. Reg. 26464 (May
5, 2000).
The proposed joint rule would impose no new substantive or procedural obligations on
entities receiving Federal financial assistance. Rather, it would simply preserve the
interpretation of the regulations that existed prior to the Cureton decision.
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Civil
Rights Division undertakes interagency housing and schools initiative
Since January 1999, the Department of Justices Civil Rights Division has
undertaken a collaborative effort between its Educational Opportunities Section and its
Housing and Civil Enforcement Section to promote voluntary residential integration that
will assist school systems in operating desegregated schools. This effort, entitled the
Schools and Housing Opportunity Initiative, is designed to address continuing residential
segregation, particularly in school districts that have been required to desegregate their
schools. As part of the Initiative, an interagency working group composed of
representatives from the Departments of Justice, Education, and Housing and Urban
Development, meets quarterly to discuss schools and housing issues.
The primary objective of the initiative is to develop and implement housing remedies
that expand housing opportunities for persons of all races, particularly in communities
with school desegregation plans. These remedies may include housing counseling programs,
marketing campaigns, subsidized housing mobility programs, home buyer and renter clinics,
down payment assistance and mortgage credit programs, and other housing remedies that
expand housing choice.
One example of the work being done through the Initiative is a recent Consent Order
filed in United States v. Tunica County School District, a long-standing Mississippi
school desegregation case. In 1999, the school district filed a motion with the Federal
district court for approval to build a new elementary school and to modify elementary
school attendance zone lines. This matter appeared ideal for a combined schools and
housing initiative because new housing was being planned in the community. After several
months of negotiations, the United States and the school district reached agreement upon a
different location for the new school and modified attendance zone lines.
Additionally, in connection with the provisions of the Consent Order with the Tunica
County School District, the county's Board of Supervisors has adopted a resolution to
implement a county-wide affordable housing plan. Under that plan, the county will provide
housing counseling services, home buyer seminars, and fair housing training. This plan
includes working with the North Delta Planning Development District, a regional planning
commission, to create developer incentives for construction of affordable housing in the
county, and the Mississippi Home Corporation, a State housing finance agency, to provide
funding for the county's counseling and education program and to develop afford able housing in the county. As part of the Order, the school
district has agreed to market the services of the affordable housing plan to families with
school age children, to make school facilities available for housing- related activities,
and to use a State mortgage assistance program for teachers as a marketing tool to attract
and keep teachers in the district.
The Educational Opportunities and Housing and Civil Enforcement Sections are
identifying additional cases that may benefit from the development of creative housing
choice remedies as a means to increase educational and housing opportunities, and to
promote both school and housing integration. In addition to cases currently being handled
by the Division, candidates for this initiative also may include matters under
investigation by the Department of Housing and Urban Developments Office of Fair
Housing and Equal Opportunity Office, and the Department of Educations Office for
Civil Rights.
The link between school and housing segregation is well known -- segregated
neighborhoods lead to segregated neighborhood schools. The persistent existence of
segregated neighborhoods also often reflects a history of intentional public and private
discrimination, as well as current discrimination in the housing market. This Initiative
reflects a cooperative effort by two Sections in the Division to work with other Federal
agencies, State and local governments, and private organizations to develop creative
approaches to promoting school and housing desegregation.
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So ordered . . . Court
cases of note
Eleventh Circuit affirms that Alabamas English-only drivers license
testing policy violates Title VI
The Eleventh Circuit Court of Appeals has affirmed a district court decision that
Alabamas English-only drivers license testing policy discriminates against
Alabamas residents with limited English proficiency. Sandoval v. Hagan, 7 F. Supp.
2d 1234 (M.D. Ala. 1998), affirmed, 197 F.3d 484, (11th Cir. 1999), rehearing and
suggestion for rehearing en banc denied, 211 F.3d 133 (11th Cir. Feb. 29, 2000)
(Table, No. 98-6598-II), petition for certiorari filed May 30, 2000 (No. 99- 1908),
concerns whether failure to provide federally assisted services to individuals with
limited English proficiency violates Title VI of the Civil Rights Act of 1964, and
clarifies the application of the Supreme Courts decision in Lau v. Nichols, 414 U.S.
563 (1974), in a noneducational context.
Neither the district court nor the Eleventh Circuit found it necessary to determine
what the adverse impact was on any particular national origin group. As the district court
stated:
"There is no dispute over the fact that persons who are not fluent in English are
much more likely than those who are fluent to have been born in a foreign country. Whether
persons who are fluent only in Spanish are natives of Spain, Mexico, or Argentina . . . is
irrelevant. Whatever foreign country they may be from, an English only rule would have a
disparate impact on the basis of their national origin."
On this issue, the Court of Appeals pointed out that Alabama did not contest the
district courts findings of fact " -- either as to the disparate impact of the
policy on non-English speaking license applicants or the pretextual nature of the policy
justifications offered by the State." (See the article in the Summer 1999 issue of
the Civil Rights Forum for a complete discussion of the district courts decision.)
Instead, the Court opined that Alabama challenged only the district court's conclusions of
law, arguing that "an English language policy, even if exerting a disparate impact on
the basis of national origin, cannot ever constitute national origin discrimination."
The Eleventh Circuit stated, "We conclude otherwise."
The decision also addressed a number of Title VI issues that have been recently
contested. The court held that the lawsuit was not barred under the Eleventh Amendment to
the Constitution; that Title VI creates an implied private cause of action to obtain
injunctive and declaratory relief under Federal regulations prohibiting disparate impact
discrimination against statutorily protected groups; and that the district court did not
err in deciding, on the merits, that Alabamas English-only official policy
constituted a disparate impact on the basis of national origin.
Eighth Circuit backs Ku Klux Klans participation in Missouri
Adopt-a-Highway Program
On March 31, 2000, the Eighth Circuit Court of Appeals issued a decision declaring that
the Missouri Department of Transportation (MDOT) may not deny an application by the
Knights of the Ku Klux Klan (the Klan) to participate in the States Adopt-A-Highway
program. Cuffey v. Mickes, 208 F.3d 702, Nos. 99- 2334, 99-2501 (8th Cir. Mar. 31, 2000),
petition for rehg and rehg en banc denied (May 22, 2000). The Klan had applied
to pick up litter along a part of Missouris interstate freeway system, as part of
Missouris Adopt-A-Highway program. Under the Adopt-A-Highway Program, organizations
volunteer to pick up litter along a portion of the roadway and the State places signs that
identify the volunteer organization.
In affirming the district courts grant of summary judgment for the Klan for
injunctive and declaratory relief, the Eighth Circuit repudiated several rationales given
by the MDOT for denying the Klans application. In addition, the court declared that
the "evidence leaves us with but one conclusion: that the State denied the
Klans application based on the Klans beliefs and advocacy."
The State of Missouri had stated, as one of its rationales, that allowing the Klan to
participate in the Adopt-A-Highway Program would violate Title VI of the Civil Rights Act
of 1964 and could cause the State to lose Federal highway funding. Citing to the Supreme
Courts decision in National Collegiate Athletic Assn v. Smith, 525 U.S. 459, 468 (1999), the Eighth Circuit first
determined that the Klan is not a direct recipient of Federal funds. The court then
determined that, "[s]o long as the State does not deny anyone an opportunity to adopt
a highway on an improper basis, the State does not violate Title VI," and that the
Klan, as a voluntary participant in the program, is free to determine its own membership.
In response to the States next rationale -- that the Klan does not adhere to all
State and Federal nondiscrimination laws -- the court stated that the direct application
of any such specific law would violate the Klans freedom of political association,
require the Klan to censor its message, and inhibit its constitutionally protected
conduct. The court then found to be pretextual another of the States rationales -- a
recent regulation prohibiting applicants with a history of unlawfully violent or criminal
behavior from participating in the Adopt-A Highway Program. The regulation had became
effective a year after the Klan filed its application, but the State had never asked an
applicant other than the Klan about its criminal history.
The fourth rationale given by the State -- that the MDOT is prohibited under a State
Executive Order from allowing discriminatory practices on State facilities and from
contracting with an organization that discriminates -- also was found to be pretextual by
the court. The court had discovered from the list of participants in the Adopt-A-Highway
Program that many other
adopters also have discriminatory membership criteria, and it used the Knights of Columbus
(which limits its membership to Catholic men) as an example.
The Civil Rights Division and the Civil Division of the Department of Justice (DOJ) had
filed an amicus brief with the Eighth Circuit in support of the MDOT. In its brief, DOJ
argued that Missouri must deny the Klans application in order to not violate Title
VI, since the MDOT receives Federal funds and the Adopt-A- Highway is a "program or
activity" subject to Title VIs prohibition on discrimination on the basis of
race, color, and national origin. DOJ also argued that, if Missouri allowed the Klan to
participate, the Klans racially exclusionary membership practices would be
incorporated into the MDOTs program. Accordingly, Missouri would be sanctioning
unlawful conduct that denied individuals the opportunity to participate in its
Adopt-A-Highway Program on the basis of race.
Further, DOJ argued that the district court incorrectly placed the burden of proof on
Missouri to show that its regulations are reasonable and viewpoint neutral. Because the
removal of litter does not constitute expressive activity, Missouri's regulations are not
restrictions on "speech." As a result, DOJ argued, it is the Klan's burden to
prove that a "substantial or sole motivating factor" behind Missouri's denial of
the application was the Klan's exercise of its First Amendment rights. DOJ also argued
that Missouri has greater leeway to regulate access to its Adopt-A- Highway Program
because it involves an element of "government speech" -- a sign placed by the
State to acknowledge participation.
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 Eric H. Holder
Deputy Attorney General
Daniel Marcus
Acting Associate Attorney General
Bill Lann Lee
Acting Assistant Attorney General
- William Yeomans
Chief of Staff
-
- Anita Hodgkiss
Stuart J. Ishimaru
Loretta King
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: Pam Brewington, Mona Diaz, Diane Houk (Housing and Civil
Enforcement Section), Elizabeth Keenan, Josh Mendelsohn, Allen Payne, Andrew Strojny
- 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).
Toll-free Title VI Information Line: 1-888-TITLE06
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