Editor’s Note: In Chapter XII of this Manual, entitled “Private Right of Action and Individual
Relief through Agency Action,” the text notes that there was a split among the federal Circuits
as to whether plaintiffs had a private right of action to enforce disparate impact regulations
implementing section 602 of Title VI. The text further notes that the Supreme Court had
granted certiorari in one of these cases, Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), and
that the Court would “likely definitively decide the issue when it hears Sandoval.”
In 2001, the Supreme Court decided the issue. In Alexander v. Sandoval, 532 U.S. 275 (2001),
the Court held that there is no private right of action to enforce Title VI disparate impact
regulations; that only the funding agency issuing the disparate impact regulation has the
authority to challenge a recipient’s actions under this theory of discrimination. The Court held
that although Congress clearly intended to create a private cause of action to enforce section 601
of Title VI, id. at 279-280, 283, the question before the Court was whether Congress had also
intended these particular regulations to be privately enforced. The Court noted that there were
two types of regulations. Regulations that simply “apply,” “construe,” or “clarify[]” a statute
can be privately enforced through the existing cause of action to enforce the statute because a
“Congress that intends the statute to be enforced through a private cause of action intends the
authoritative interpretation of a statute to be so enforced as well.” Id. at 283-85. But regulations
that go beyond the statute require a separate cause of action, even if those regulations were a
valid exercise of Congress’s grant of rulemaking authority. Id. at 285-86.
In applying this dichotomy, the Court relied on its uncontested holding in prior cases that
section 601 prohibits only disparate treatment (i.e., intentional discrimination). Id. at 280. Since
the Title VI regulations expanded the section 601 definition of discrimination to include effects,
the disparate impact regulations could not be viewed merely as an interpretation or application
of section 601. Id. at 285-86. Accordingly, the Court concluded that Congress would have had
to create (either explicitly or implicitly) a separate private cause of action to enforce such
regulations. Id. at 285-87. Assessing the text and structure of the statute, the Court concluded
that Congress had intended only agency enforcement of disparate impact regulations and had
not intended to create a private right of action to enforce those regulations that went beyond the
statute. Id. at 290-93.
On October 26, 2001, the Assistant Attorney General for the Civil Rights Division issued a
memorandum for “Heads of Departments and Agencies, General Counsels and Civil Rights
Directors” that clarified and reaffirmed the vitality of the disparate impact regulations in light
of Sandoval. The memorandum noted that although Sandoval foreclosed private judicial
enforcement of Title VI disparate impact regulations, it did not undermine the validity of those
regulations or otherwise limit the authority and responsibility of Federal grant agencies to
enforce their own implementing regulations. Therefore, the agencies’ disparate impact
regulations continue to be a vital administrative enforcement mechanism.

U.S. Department of Justice
Civil Rights Division
P.O. Box 66560
Washington, D.C. 20035-6560
January 11, 2001

TITLE VI LEGAL MANUAL TABLE OF CONTENTS
Introduction
Table of Authorities
I.

Overview: Interplay of Title VI with Title IX, Section 504, the Fourteenth
Amendment, and Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

Synopsis of Legislative History and Purpose of Title VI . . . . . . . . . . . . . 3

III.

Title VI Applies to "Persons" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

IV.

"In the United States" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

V.

Federal Financial Assistance Includes More Than Money . . . . . . . . . . 10
A.
B.
C.

VI.

What is a Recipient? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A.
B.
C.
D.
E.
F.
G.

VII.

Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Direct Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indirect Recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transferees and Assignees . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Primary/Subrecipient Programs . . . . . . . . . . . . . . . . . . . . . . . . .
Contractor and Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Recipient v. Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20
21
22
24
25
25
26

"Program or Activity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
A.
B.
C.
D.
E.
F.
G.

VIII.

Examples of Federal Financial Assistance . . . . . . . . . . . . . . . . . 11
Direct and Indirect Receipt of Federal Assistance . . . . . . . . . . . 14
Federal Action That Is Not Federal Financial Assistance . . . . . . 15

Initial Passage and Judicial Interpretations . . . . . . . . . . . . . . . .
Grove City College . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Civil Rights Restoration Act . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State and Local Governments . . . . . . . . . . . . . . . . . . . . . . . . . .
Educational Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Corporations and Private Entities . . . . . . . . . . . . . . . . . . . . . . . .
Catch-All/Combinations of Entities . . . . . . . . . . . . . . . . . . . . . . .

29
30
31
32
35
37
40

What Constitutes Discriminatory Conduct? . . . . . . . . . . . . . . . . . . . . . . 42
A.
B.

Intentional Discrimination/Disparate Treatment . . . . . . . . . . . . . 43
Disparate Impact/Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

C.

D.

E.
IX.

Employment Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
A.
B.

X.

Scope of Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Regulatory Referral of Employment Complaints to the EEOC . . 70

Federal Funding Agency Methods to Evaluate Compliance . . . . . . . . . 72
A.

B.

C.
XI.

National Origin Discrimination and Services in Languages Other
than English . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
1.
Presidential Reaffirmance and Clarification of Lau
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
2.
The Four Factor Analysis: Reasonable Steps Toward
Reasonable Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Environmental Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
1.
Executive Order 12898: The Duty to Collect, Disseminate,
and Think . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
2.
EPA Guidance on Environmental Justice . . . . . . . . . . . . 61
3.
An Analytical Approach and Its Attendant Problems of
Timing and Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Pre-Award Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Assurances of Compliance . . . . . . . . . . . . . . . . . . . . . . .
2.
Deferral of the Decision Whether to Grant Assistance . .
3.
Pre-Award Authority of Recipients vis-a-vis
Subrecipients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.
Recommendations Concerning Pre-award Reviews . . . .
Post-Award Compliance Reviews . . . . . . . . . . . . . . . . . . . . . . . .
1.
Selection of Targets and Scope of Compliance Review .
2.
Procedures for Compliance Reviews . . . . . . . . . . . . . . . .
Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

72
72
73
76
76
77
78
78
81
82

Federal Funding Agency Methods to Enforce Compliance . . . . . . . . . . 84
A.

B.
C.

Efforts to Achieve Voluntary Compliance . . . . . . . . . . . . . . . . . .
1.
Voluntary Compliance at the Pre-Award Stage . . .
a.
Special Conditions . . . . . . . . . . . . . . . . . . .
b.
Use of Cautionary Language . . . . . . . . . . .
2.
Other Nonlitigation Alternatives . . . . . . . . . . . . . . .
"Any Other Means Authorized by Law:" Judicial
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Fund Suspension and Termination . . . . . . . . . . . . . . . . . . . . . .
1.
Fund Termination Hearings . . . . . . . . . . . . . . . . . . . . . . .
2.
Agency Fund Termination is Limited to the Particular
Political Entity, or Part Thereof, that Discriminated . . . . .

85
86
86
88
89
90
92
92
93

XII.

Private Right of Action and Individual Relief through Agency
Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
A.
B.
C.
D.

XIII.
Index

Entitlement to Damages for Intentional Violations . . . . . . . . . .
Availability of Monetary Damages in Other
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Recommendations for Agency Action . . . . . . . . . . . . . . . . . . .
States Do Not Have Eleventh Amendment Immunity
Under Title VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

102
104
104
105

Department of Justice Role Under Title VI . . . . . . . . . . . . . . . . . . . . . 108

Introduction
This manual provides an overview of the legal principles of Title VI of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §2000d, et seq. This document is intended
to be an abstract of the general principles and issues that concern Federal agency
enforcement, and is not intended to provide a complete, comprehensive directory of all
cases or issues related to Title VI. For example, this manual does not address all
issues associated with private enforcement. In addition, this manual has cited cases
interpreting Title VI to the fullest extent possible, although cases interpreting both Title
IX and Section 504 also are included. While statutory interpretation of these laws
overlap, they are not fully consistent, and this manual should not be considered to be
an overview of any statute other than Title VI.
It is intended that this manual will be updated periodically to reflect significant
changes in the law. In addition, policy guidance or other memoranda distributed by the
Civil Rights Division to Federal agencies that modify or amplify principles discussed in
the manual will be referenced, as appropriate. Comments on this publication, and
suggestions as to future updates, including published and unpublished cases, may be
addressed to:
Coordination and Review Section
Civil Rights Division
U.S. Department of Justice
Attention: Legal Manual Coordinator
P.O. Box 66560
Washington, D.C. 20035-6560
Telephone and TDD
FAX
E-mail

(202) 307-2222
(202) 307-0595
COR.CRT@USDOJ.GOV

This manual is intended only to provide guidance to Federal agencies and other
interested entities, and is not intended to, does not, and may not be relied upon to
create any right or benefit, substantive or procedural, enforceable at law by a party
against the United States.

TABLE OF AUTHORITIES
FEDERAL CASES
Adams v. Richardson, 356 F. Supp. 92 (D.D.C. 1973) . . . . . . . . . . . . . . . . . . . . . . . 100
Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)

..................... 6

Ahern v. Board of Educ., 133 F.3d 975 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 69
Alabama NAACP State Conference of Branches v. Wallace, 269 F. Supp. 346
(M.D. Ala. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . 32, 42, 43, 47, 99
Arlington Heights v. Metropolitan Hous. Redevelopment Corp., 429 U.S. 252 (1977). 44
Association Against Discrimination in Employment v. City of Bridgeport,
647 F.2d 256 (2d Cir. 1981), cert. denied, 455 U.S. 988 (1982) . . . . . . . . . . . . . . . . 68
Ayers v. Allain, 674 F. Supp. 1523 (N.D. Miss. 1987) . . . . . . . . . . . . . . . . . . . . . . . . 90
Baldwin v. University of Texas Med. Branch at Galveston, 945 F. Supp. 1022
(S.D.Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Balzac v. Puerto Rico, 258 U.S. 298 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Bass v. Board of County Comm’rs , 38 F. Supp. 2d 1001 (M.D. Fla. 1999) . . . . . . . . 68
Bentley v. Cleveland County Bd. of County Comm’rs, 41 F.3d 600 (10th Cir.
1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 33
Board of Pub. Instruction v. Cohen, 413 F.2d 1201 (5th Cir. 1969) . . . . . . . . . . . . . . 74
Board of Pub. Instruction v. Finch, 414 F.2d 1068 (5th Cir.
1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 94-95, 97-98
Bob Jones Univ. v. Johnson, 396 F. Supp. 597 (D. S.C. 1974),
aff'd, 529 F.2d 514 (4th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18, 22, 29
Brantley v. Independent Sch. Dist. No. 625, St. Paul Public Schools, 936 F. Supp. 649
(D. Minn. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Brown v. Board of Educ., 347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
-i-

Bryant v. New Jersey Dep;t of Transp., 998 F. Supp. 438 (D.N.J. 1998) . . . . . . . . . . . 6
Caddo Parish Sch. Bd. v. United States, 389 U.S. 840 (1967) . . . . . . . . . . . . . . . . . . 69
California Ass’n of the Physically Handicapped v. FCC, 840 F.2d 88 (D.C. Cir.
1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Cannon v. University of Chicago, 441 U.S. 677 (1979) . . . . . . . . . . . . . . 7, 99,100-103
Caulfield v. Board of Educ., 486 F. Supp. 862 (E.D.N.Y. 1979)

. . . . . . . . . . . . . . . 69

Chevron U.S.A. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Chicago v. Lindley, 66 F.3d 819 (7th Cir. 1995)

. . . . . . . . . . . . . . . . . . . . . . . . . 25, 48

City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702 (1978)

. 46

Coalition of Bedford-Stuyvesant Block Ass’n. v. Cuomo, 651 F. Supp. 1202 (E.D.N.Y.
1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Community Television of S. Cal. v. Gottfried, 459 U.S. 498 (1983) . . . . . . . . . . . . . . 15
Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) . . . . . . . . . . . . . . . . . . 1, 102
Contractors Ass’n of E. Pa. v. Secretary of Labor, 442 F.2d 159 (3d. Cir. 1971),
cert. denied., 404 U.S. 854 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Cooper v. Aaron, 358 U.S. 1 (1958)

...................................... 3

Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Davis v. Halpern, 768 F. Supp. 968 (E.D.N.Y. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . 66
DeLeo v. City of Stamford, 919 F. Supp. 70 (D. Conn. 1995) . . . . . . . . . . . . . . . . . 103
DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir.
1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18
Dekalb County Sch. Dist. v. Schrenko, 109 F.3d 680 (11th Cir. 1997) . . . . . . . . . . . . . 7
-ii-

Delmonte v. Department of Bus. Prof’l Regulation, 877 F. Supp. 1563
(S.D. Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14
District of Columbia v. Carter, 409 U.S. 418 (1973)

.......................... 8

Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) . . . . . . . . . . . . . . . . . 103
Downes v. Bidwell, 182 U.S. 244 (1901) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Elston v. Talladega County Bd. of Educ., 997 F.2d 1394 (11th Cir.), reh'g denied,
7 F.3d 242 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 42-44, 49-53
First Ala. Bank of Montgomery, N.A., v. Donovan, 692 F.2d 714 (11th Cir. 1982) . . . 78
Franklin v. Gwinett City Pub. Sch., 503 U.S. 60 (1990) . . . . . . . . . . . . . . . . . . . 101-104
Furnco Const. Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 45
Gallagher v. Croghan Colonial Bank, 89 F.3d 275 (6th Cir. 1996)

. . . . . . . . . . . . . . 16

Gardner v. Alabama, 385 F.2d 804 (5th Cir. 1967), cert. denied, 389 U.S. 1046
(1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Gautreaux v. Romney, 457 F.2d 124 (7th Cir. 1972) . . . . . . . . . . . . . . . . . . . . . . . 97-98
Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir.
1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 48, 50-51
Godby v. Montgomery County Bd. of Educ., 996 F. Supp. 1390 (M.D.Ala. 1998). . . 44
Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 (7th Cir. 1987) . . . . . . . . . . . . . 48
Graves v. Methodist Youth Servs., Inc., 624 F. Supp. 429 (N.D. Ill. 1985) . . . . . . . . 25
Griggs v. Duke Power, 401 U.S. 424 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Grove City College v. Bell, 465 U.S. 555 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 14, 22-23, 25, 27, 29-33, 36, 72-73
Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582
(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 32, 42, 47, 99, 101-102, 104
Hamilton v. Illinois Ctr. R.R. Co., 894 F. Supp. 1014 (S.D. Miss. 1995) . . . . . . . . . . 17
Hans v. Louisiana, 134 U.S. 1 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
-iii-

Herman v. United Bhd. of Carpenters, 60 F.3d 1375 (9th Cir. 1995) . . . . . . . . . . . 15-16
Hodges by Hodges v. Public Bldg. Comm’n of Chicago (I), 864 F. Supp. 1493
(N.D. Ill. 1994), reconsideration denied, 873 F. Supp. 128 (N.D. Ill. 1995) . . . . . . . . . 34
Horner v. Kentucky High School Athletic Ass’n, 43 F.3d 265 (6th Cir.
1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Huber v. Howard County, Md., 849 F. Supp. 407 (D. Md.1994), aff'd without opinion, 56
F.3d 61 (4th Cir. 1995), cert. denied, 516 U.S. 916 . . . . . . . . . . . . . . . . . . . . . . . 10, 33
In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931
N.D. Cal. 1975), . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Independent Hous. Servs. of San Francisco (IHS) v. Fillmore Ctr. Assoc., 840 F. Supp.
1328 (N.D. Cal. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . 46
Jacobson v. Delta Airlines, 742 F.2d 1202 (9th Cir. 1984)

. . . . . . . . . . . . . . . . . . 16-18

Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180 (4th Cir. 1999) . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 62-64, 99-100
Knight v. Alabama, 787 F. Supp. 1030 (N.D. Ala. 1991), aff'd in part, rev'd in part, and
vacated in part, 14 F.3d 1534 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Lane v. Peña, 518 U.S. 187 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 106
Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984)

. . . . . . . . . . . . . . . . . . . . . 43, 48-49, 51

Lau v. Nichols, 414 U.S. 563 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 48, 54-55, 99, 102
Leija v. Canutillo Indep. Sch. Dist., 887 F. Supp. 947 (W.D. Tex. 1995), rev'd on other
grounds, 101 F.3d 393 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Marable v. Alabama Mental Health Bd., 297 F. Supp. 291 (M.D. Ala. 1969) . . . . . . . 69
Marshall v. Barlow's Inc., 436 U.S. 307 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Mass v. Martin Marietta Corp., 805 F. Supp. 1530 (D. Colo. 1992) . . . . . . . . . . . . . . 17
Mathews v. Diaz, 426 U.S. 67 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . 44-45, 51
-iv-

Meek v. Martinez, 724 F. Supp. 888 (S.D.Fla. 1987)

. . . . . . . . . . . . . . . . . . . . . . . . 52

Meyers by and through Meyers v. Board of Educ. of the San Juan Sch. Dist.,
905 F. Supp. 1544 (D. Utah 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Moore v. Sun Bank, 923 F.2d 1423 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . 17
Muller v. Hotsy Corp., 917 F. Supp. 1389 (N.D. Iowa 1996) . . . . . . . . . . . . . . . . . . . 17
NCAA v. Smith, 525 U.S. 459 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24
New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65 (2d Cir.
2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 62, 64-65, 99
New York Urban League v. Metropolitan Transp. Auth., 905 F. Supp. 1266 (S.D.N.Y.
1995), vacated on other grounds, 71 F.3d 1031 (2d Cir. 1995) . . . . . . . . . . . . . . . . . 35
New York Urban League v. New York, 71 F.3d 1031 (2d Cir.
1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 48, 50, 52, 53
North Haven v. Bell, 456 U.S. 512 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 98
Pabon v. Levine, 70 F.R.D. 674 (S.D.N.Y. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Pandazides v. Virginia Bd. of Educ., 13 F.3d 823 (4th Cir. 1994) . . . . . . . . . . . . . . 101
Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1 (1981) . . . . . . . . . . . . . 104
Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Rannels v. Hargrove, 731 F. Supp. 1214 (E.D. Pa. 1990) . . . . . . . . . . . . . . . . . . . . . 16
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) . . . . . . . . . . . . . . . . 6, 102
Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523 (10th Cir. 1995) . . . . . 68
Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642 (8th Cir. 1994) . . . . . . . . . . . . . . 101
Sandoval v. Hagan, 7 F. Supp. 2d 1234 (M.D. Ala. 1998) . . . . . . . . . . . . . . . . 51-52, 55
Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), cert. granted sub. nom. Alexander v.
Sandoval, __ U.S. __, 121 S.Ct. 28, 68 U.S.L.W. 3749 (U.S. Sept. 26, 2000) (No. 991908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-49, 99
-v-

Schroeder v. City of Chicago, 927 F.2d 957 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . 34
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . . 106
Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (5th Cir. 1963), cert.
denied, 376 U.S. 938 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983), cert. denied, 466 U.S. 929
(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21
Stanley v. Darlington County Sch. Dist., 84 F.3d 707 (4th Cir. 1995) . . . . . . . . . . . . . . 7
Steptoe v. Savings of America, 800 F. Supp. 1542 (N.D. Ohio 1992) . . . . . . . . . . . . 16
Thornton v. National R.R. Passenger Corp., 16 F.Supp. 2d 5 (D.D.C. 1998) . . . . . . . 68
United States by Clark v. Frazer, 297 F. Supp. 319 (M.D. Ala. 1968) . . . . . . . . . . . . 70

United States Dep’t of Transp. v. Paralyzed Veterans, 477 U.S. 597 (1986) . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10, 11, 13, 16, 21, 23, 26-27
United States v. Alabama, 791 F.2d 1450 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039 (5th Cir. 1984),
cert. denied, 469 U.S. 1189 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 91, 101

United States v. City and County of Denver, 927 F. Supp. 1396 (D. Colo.
1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
United States v. City of Yonkers, 880 F. Supp. 212 (S.D.N.Y. 1995), vacated
and remanded on other grounds, 96 F.3d 600 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . 35
United States v. Harris Methodist Fort Worth, 970 F.2d 94 (5th Cir. 1992) . . . . . . 78-79
United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966) . . . . . .69
United States v. Marion County Sch. Dist., 625 F.2d 607 (5th Cir.), reh'g denied,
629 F.2d 1350 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981) . . . . . . . . . . . . 73, 90
United States v. Mississippi Power & Light Co., 638 F.2d 899 (5th Cir. 1981) . . . . . . 78
United States v. New Orleans Pub. Serv., 723 F.2d 422 (5th Cir.) reh’g en
banc denied, 734 F.2d 226 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 78-79, 81
-vi-

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 715 (1982) . . . . . . .45
Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 48
W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Williams v. City of Dothan, 745 F.2d 1406 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . 43
Waldrop v. Southern Co. Servs., 24 F.3d 152 (11th Cir. 1994) . . . . . . . . . . . . . . . . 101
Washington Legal Found. v. Alexander, 984 F.2d 483 (D.C. Cir. 1993) . . . . . . 100-101
Women’s Equity Action League v. Cavazos, 906 F.2d 742 (D.C. Cir. 1990) . . . . . . 100
Young by and through Young v. Montgomery County (Ala.) Bd. of Educ.,
922 F. Supp. 544 (M.D. Ala. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 43, 53

STATE CASES
Campaign for Fiscal Equity, Inc. v. State, 86 N.Y.2d 307, 655 N.E.2d 1178 (N.Y. Ct.
App. Jun 15, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
CONSTITUTION
U.S. Const. amend. XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

FEDERAL STATUTES

5 U.S.C. § 571 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5 U.S.C. § 3372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
20 U.S.C. § 1070(a)(5)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

20 U.S.C. § 1232i(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
20 U.S.C. § 1681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
42 U.S.C. § 2000d . . . . . . . . . . . . . . . . 1, 12, 16, 29, 33, 36, 39, 40, 42, 67, 72, passim
-vii-

42 U.S.C. § 6101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
42 U.S.C. § 12131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
REGULATIONS
3 C.F.R. § 859

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

5 C.F.R. § 900.403(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
15 C.F.R. § 8.4(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
24 C.F.R. § 1.2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
24 C.F.R. § 1.8(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
28 C.F.R. § 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 24-26, 30, 65, 69-72, passim
28 C.F.R. § 50.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-73, 75, 84-85, 90, 109

29 C.F.R. § 31.8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
29 C.F.R. § 31.8(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
29 C.F.R. §§ 1691.1 - 1691.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
32 C.F.R. § 195.6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

32 C.F.R. § 195.8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

34 C.F.R. § 100.3(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
34 C.F.R. § 100.8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

38 C.F.R. § 18.13(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
45 C.F.R. § 80.8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
45 C.F.R. § 80.8(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
49 C.F.R. § 21.23(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
48 Fed. Reg. 3570 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
59 Fed. Reg. 7629 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59-60
-viii-

65 Fed. Reg. 26464 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
65 Fed. Reg. 50121 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-55
65 Fed. Reg. 50123 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 56, 58

MISCELLANEOUS
Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003, 100 Stat.
1845 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 106
Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28
(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 29-33, 35, 37, 40, 94, 98, 103
6 Op. Off. Legal Counsel 83 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exec. Order No. 9981, 3 C.F.R. 722 (1943-1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exec. Order No. 10479, 3 C.F.R. 61 (1949-1953), as amended by Exec. Order No.
10482, 3 C.F.R. 968 (1949-1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exec. Order No. 11063, 3 C.F.R. 652-656 (1959-1963) , as amended by Exec. Order
No. 12259, 3 C.F.R. 307 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exec. Order No. 11197, 3 C.F.R. 1964-1965 Comp. 278. . . . . . . . . . . . . . . . . . . . . 108
Exec. Order No. 11246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 78, 79
Exec. Order No. 11247, 3 C.F.R. 1964-1965 Comp. 348 . . . . . . . . . . . . . . . . . . . . . 108
Exec. Order No. 11764, 3A C.F.R. § 124 (1974 Comp.) . . . . . . . . . . . . . . . . . . . . . 109
Exec. Order No. 12250, 28 C.F.R. Pt. 41, App. A . . . . . . . . . . . . . . . . . . . . . . . 108-109
Exec. Order No. 12898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60-61, 64
Exec. Order No. 12988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Exec. Order No. 13166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56, 61
Memorandum on Environmental Justice for the Heads of All Departments and
Agencies, 30 Weekly Comp. Pres. Doc. 279 (Feb. 11, 1994) . . . . . . . . . . . . . . . . 60-61

-ix-

I.

Overview: Interplay of Title VI with Title IX, Section 504, the
Fourteenth Amendment, and Title VII
Title VI prohibits discrimination on the basis of race, color, or national origin in

programs and activities receiving Federal financial assistance. Specifically, Title VI
provides that
[n]o person in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance.
42 U.S.C. § 2000d. Title VI is the model for several subsequent statutes that prohibit
discrimination on other grounds in federally assisted programs or activities, including
Title IX (discrimination in education programs prohibited on the basis of sex) and
Section 504 (discrimination prohibited on the basis of disability). See United States
Dep’t. of Transp. v. Paralyzed Veterans, 477 U.S. 597, 600 n.4 (1986); Grove City
College v. Bell, 465 U.S. 555, 566 (1984) (Title IX was patterned after Title VI);
Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) (Section 504 patterned after
Titles VI and IX).1/ Accordingly, courts have "relied on case law interpreting Title VI as
generally applicable to later statutes," Paralyzed Veterans, 477 U.S. at 600 n.4.
It is important to note, however, that not all issues are treated identically in the
three statutes. For example, Title VI statutorily restricts claims of employment
discrimination to instances where the "primary objective" of the financial assistance is to
provide employment. 42 U.S.C. § 2000d-3. No such restriction applies to Title IX or
Section 504. See North Haven v. Bell, 456 U.S. 512, 529-30 (1982) ("The meaning and
applicability of Title VI are useful guides in construing Title IX, therefore, only to the
1

In addition, Title II of the Americans with Disabilities Act of 1990, as amended, is
patterned after Section 504. 42 U.S.C. § 12131.

extent that the language and history of Title IX do not suggest a contrary
interpretation."); Bentley v. Cleveland County Bd. of County Comm’rs, 41 F.3d 600 (10th
Cir. 1994) (Section 504 claim alleging discriminatory termination of former employee).
Apart from the provisions common to Title VI, Title IX, and Section 504, courts
also have held that Title VI adopts or follows the Fourteenth Amendment's standard of
proof for intentional discrimination, and Title VII's standard of proof for disparate impact.
See Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1405 n.11, 1407 n.14
(11th Cir.), reh'g denied, 7 F.3d 242 (11th Cir. 1993); (see Chapter VIII). Accordingly,
cases under these constitutional and statutory provisions may shed light on an analysis
concerning the applicability of Title VI to a given situation.

-2-

II.

Synopsis of Legislative History and Purpose of Title VI
The landmark Civil Rights Act of 1964 was a product of the growing demand

during the early 1960s for the Federal Government to launch a nationwide offensive
against racial discrimination. In calling for its enactment, President John F. Kennedy
identified "simple justice" as the justification for Title VI:
Simple justice requires that public funds, to which all taxpayers of all races
contribute, not be spent in any fashion which encourages, entrenches,
subsidizes, or results in racial discrimination. Direct discrimination by Federal,
State, or local governments is prohibited by the Constitution. But indirect
discrimination, through the use of Federal funds, is just as invidious; and it
should not be necessary to resort to the courts to prevent each individual
violation.
See H.R. Misc. Doc. No. 124, 88th Cong., 1st Sess. 3, 12 (1963).
Title VI was not the first attempt to ensure that Federal monies not be used to
finance discrimination on the basis of race, color, or national origin. For example,
various prior Executive Orders prohibited racial discrimination in the armed forces, in
employment by federally funded construction contractors, and in federally assisted
housing.2/ Various Federal court decisions also served to eliminate discrimination in
individual federally assisted programs.3/
Congress recognized the need for a statutory nondiscrimination provision such
as Title VI to apply across-the-board "to make sure that the funds of the United States

2

Exec. Order No. 11063, 3C.F.R. 652-656 (1959-1963) (equal opportunity in
housing), as amended by Exec. Order No. 12259, 3 C.F.R. 307 (1981); Exec. Order No.
10479, 3 C.F.R. 61 (1949-1953), as amended by Exec. Order No. 10482, 3 C.F.R. 968
(1949-1953) (equal employment opportunity by government); Exec. Order No. 9981, 3
C.F.R. 722 (1943-1948) (equal opportunity in the armed services).
3

See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958); Simkins v. Moses H. Cone
Memorial Hosp., 323 F.2d 959 (5th Cir. 1963), cert. denied, 376 U.S. 938 (1964).
-3-

are not used to support racial discrimination." 110 Cong. Rec. 6544 (Statement of Sen.
Humphrey). Senator Humphrey, the Senate manager of H.R. 7152, which became the
Civil Rights Act of 1964, identified several reasons for the enactment of Title VI. Id.
First, several Federal financial assistance statutes, enacted prior to Brown v. Board of
Education, 347 U.S. 483 (1954), expressly provided for Federal grants to racially
segregated institutions under the "separate but equal" doctrine that was overturned by
Brown. Although the validity of these programs was doubtful after Brown, this decision
did not automatically invalidate these statutory provisions. Second, Title VI would
eliminate any doubts that some Federal agencies may have had about their authority to
prohibit discrimination in their programs.
Third, through Title VI, Congress would "insure the uniformity and permanence
to the nondiscrimination policy" in all programs and activities involving Federal financial
assistance. Id. Thus, Title VI would eliminate the need for Congress to debate
nondiscrimination amendments in each new piece of legislation authorizing Federal
financial assistance.4/ As stated by Congressman Celler:
Title VI enables the Congress to consider the overall issue of racial
discrimination separately from the issue of the desirability of particular
Federal assistance programs. Its enactment would avoid for the future
the occasion for further legislative maneuvers like the so-called Powell
amendment.

4

See 6 Op. Off. Legal Counsel 83, 93 (1982) ("The statutes [Title VI, Title IX,
Section 504, and the Age Discrimination Act] . . . [are] intended to apply to all programs
or activities receiving federal financial assistance without being explicitly referenced in
subsequent legislation. They should therefore be considered applicable to all
legislation authorizing federal financial assistance . . . unless Congress evidences a
contrary intent.")
-4-

110 Cong. Rec. 2468 (1964).5/
Fourth, the supporters of Title VI considered it an efficient alternative to litigation.
It was uncertain whether the courts consistently would declare that government funding
to recipients that engaged in discriminatory practices was unconstitutional. Prior court
decisions had demonstrated that litigation involving private discrimination would
proceed slowly, and the adoption of Title VI was seen as an alternative to such an
arduous route. See 110 Cong. Rec. 7054 (1964) (Statement by Sen. Pastore).
Further, despite various remedial efforts, racial discrimination continued to be
widely subsidized by Federal funds. For example, Senator Pastore addressed how
North Carolina hospitals received substantial Federal monies for construction, that such
hospitals discriminated against blacks as patients and as medical staff, and that, in the
absence of legislation, judicial action was the only means to end these discriminatory
practices.
That is why we need Title VI of the Civil Rights Act, H.R. 7152 - to prevent such
discrimination where Federal funds are involved. . . . Title VI is sound; it is
morally right; it is legally right; it is constitutionally right. . . . What will it
accomplish? It will guarantee that the money collected by colorblind tax
collectors will be distributed by Federal and State administrators who are equally
colorblind. Let me say it again: The title has a simple purpose - to eliminate
discrimination in Federally financed programs.
Id.
President Lyndon Johnson signed the Civil Rights Act of 1964 into law on July 2,
1964, after more than a year of hearings, analyses, and debate. During the course of
congressional consideration, Title VI was one of the most debated provisions of the Act.
5

These amendments were so named because of their proponent, Congressman
Adam Clayton Powell. See 110 Cong. Rec. 2465 (1964) (Statement by Cong. Powell).
-5-

III.

Title VI Applies to "Persons"
Title VI states "no person" shall be discriminated against on the basis of race,

color, or national origin. While the courts have not addressed the scope of "person" as
that term is used in Title VI, the Supreme Court has addressed this term in the context
of challenges brought under the Fifth and Fourteenth Amendments. See, e.g., Plyler v.
Doe, 457 U.S. 202 (1982); Mathews v. Diaz, 426 U.S. 67 (1976). The Supreme Court
has held that undocumented aliens are considered "persons" under the equal
protection and due process clauses of the Fifth and Fourteenth Amendments. Plyler,
457 U.S. at 210-211; Mathews, 426 U.S. at 77. Since rights protected by Title VI, at a
minimum, are analogous to such protections under the Fifth and Fourteenth
Amendments, these cases provide persuasive authority as to the scope of "persons"
protected by Title VI. See Guardians Ass’n. v. Civil Serv. Comm’n, 463 U.S. 582
(1983); Regents of the Univ. of Cal. v Bakke, 438 U.S. 265 (1978).6/ Thus, one may
assume that Title VI protections are not limited to citizens.
Related to the scope of coverage of Title VI is the issue of standing to challenge
program operations as a violation of Title VI. Individuals may bring a cause of action
under Title VI if they are excluded from participation in, denied the benefits of, or
subjected to discrimination under, any Federal assistance program. See Coalition of
Bedford-Stuyvesant Block Ass’n, v. Cuomo, 651 F. Supp. 1202, 1209 n.2 (E.D.N.Y.
1987); Bryant v. New Jersey Dep’t of Transp., 998 F.Supp. 438 (D.N.J. 1998). At least
two courts of appeal have ruled that a city or other instrumentality of a State does not
6

Fifth and Fourteenth Amendment equal protection claims are coextensive, and
"indistinguishable." Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 217 (1995).
-6-

have standing to bring suit against the State under Title VI. In United States v.
Alabama, 791 F.2d 1450 (11th Cir. 1986), the United States, later joined by intervenors,
Alabama State University (ASU), a majority-black institution, along with faculty, staff,
students, and graduates of ASU, filed suit against the state of Alabama, state
educational authorities, and all state four-year institutions of higher education, claiming
that Alabama operates a dual system of segregated higher education. Based on its
review of Title VI and its legislative history, the court concluded that neither the statute
nor the legislative history of Title VI provided for a state instrumentality to be considered
“a person” protected by Title VI, and the court “decline[d] to infer such a right of action
by judicial fiat.” Id. at 1456-57. The court further stated there are other avenues of
recourse to remedy Title VI violations, including a private right of action for individuals
under Title VI and Title VI’s comprehensive scheme of administrative enforcement.7/
Id. at 1456, (citing Cannon v. University of Chicago, 441 U.S. 677, 696-97 (1978)).
See also Dekalb County Sch. Dist. v. Schrenko, 109 F.3d 680, 689 (11th Cir. 1997)
(concluding that a political subdivision created by the state has no standing to bring a
Title VI claim against the state); Stanley v. Darlington County Sch. Dist., 84 F.3d 707,
717 n.2 (4th Cir. 1995) (finding no authorization under Title VI for a political subdivision
to sue the state).

7

See discussion infra Chs. XI and XII for a discussion of these remedies. This may
mean that although a subrecipient could not sue a state recipient of Federal financial
assistance for alleged discriminatory allocation of funds among subrecipients,
aggrieved individuals may be able to bring suit against the state recipient for
discriminatory distribution of funds.
-7-

IV.

"In the United States"
Title VI states that no person “in the United States" shall be discriminated against

on the basis of race, color, or national origin by an entity receiving Federal financial
assistance. Agency Title VI regulations define "recipients" or "United States" to
encompass, inter alia, territories and possessions.8/ No court has addressed the scope
of "United States" or the validity of the regulations including territories and possessions,
although we believe such regulations are valid. Cases interpreting the Fifth and
Fourteenth Amendments again provide guidance in this analysis.
The Fourteenth Amendment only prohibits violations by the States, and does not
encompass the territories. District of Columbia v. Carter, 409 U.S. 418, 424 (1973)
(Territories are not "States" and are not subject to the Fourteenth Amendment). The
Fifth Amendment equal protection guarantees, however, do apply to the territories. In
re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931, 940-41 (N.D. Cal.
1975), citing Balzac v. Puerto Rico, 258 U.S. 298, 312-13 (1922) (Fifth Amendment
applies to territories); Downes v. Bidwell, 182 U.S. 244, 282-83 (1901) (same). Thus,
all areas under the sovereignty of the United States fall within the combined jurisdiction
of the Fifth and Fourteenth Amendments. Accordingly, since Title VI is at least
coextensive with the Fifth and Fourteenth Amendments (for purposes of intentional

8

See e.g., 5 C.F.R. § 900.403(f) (Office of Personnel Management's definition of
"recipient"); 24 C.F.R. § 1.2(d) (Housing and Urban Development's definition of "United
States"); 28 C.F.R. § 42.102(b) (Department of Justice's definition of "United States");
29 C.F.R. § 31.2(j) (Department of Labor's definition of "United States"); 38 C.F.R.
§ 18.13(d) (Veterans Administration’s definition of "United States"); 45 C.F.R.
§ 80.13(e) (Health and Human Services’ definition of "United States"); and 49 C.F.R. §
21.23(f) (Department of Transportation's definition of "recipient").
-8-

violations), to construe Title VI to apply to the States yet not to the territories would be
inconsistent with its constitutional underpinnings, as well as congressional intent that
Title VI be interpreted broadly to effectuate its purpose. See 110 Cong. Rec. 6544
(Statement of Sen. Humphrey); S. Rep. No. 64, 100th Cong., 2d Sess. 4-5 (1988),
reprinted in 1988 U.S.C.C.A.N. 3, 6-7.

-9-

V.

Federal Financial Assistance Includes More Than Money
Title VI states that no program or activity receiving "Federal financial assistance"

shall discriminate against individuals based on their race, color, or national origin. The
clearest example of Federal financial assistance is the award or grant of money.
Federal financial assistance, however, also may be in nonmonetary form. See United
States Dep’t of Transp. v. Paralyzed Veterans, 477 U.S. 597, 607 n.11 (1986). As
discussed below, Federal financial assistance may include the use or rent of Federal
land or property at below market value, Federal training, a loan of Federal personnel,
subsidies, and other arrangements with the intention of providing assistance. Federal
financial assistance does not encompass contracts of guarantee or insurance,
regulated programs, licenses, procurement contracts by the Federal government at
market value, or programs that provide direct benefits. It is also important to remember
that not only must a program receive Federal financial assistance to be subject to Title
VI, but the entity also must receive Federal assistance at the time of the alleged
discriminatory act(s). See Huber v. Howard County, Md., 849 F. Supp. 407, 415 (D.
Md.1994) (Motion to dismiss claim of discriminatory employment practices under § 504
denied as defendant received Federal assistance during the time of probationary
employment and discharge.), aff'd without opinion, 56 F.3d 61 (4th Cir. 1995), cert.
denied, 516 U.S. 916 (1995); see also Delmonte v. Department of Bus. Prof’l
Regulation, 877 F. Supp. 1563 (S.D. Fla. 1995).9/
9

In Delmonte, the plaintiff alleged that he was demoted in 1990 on a prohibited
basis in violation of Section 504. 877 F. Supp. at 1564. The court held that the
defendant received Federal financial assistance through its participation in at least 10
Federal training programs (consisting of less than one to three-day programs) both
-10-

A.

Examples of Federal Financial Assistance

Agency regulations use similar, if not identical, language to define Federal
financial assistance:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than a
casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the recipient,
or in recognition of the public interest to be served by such sale or lease
to the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has as
one of its purposes the provision of assistance.
28 C.F.R. § 42.102(c).10/ No extended discussion is necessary to show that money,
through Federal grants, cooperative agreements and loans, is Federal financial
assistance within the meaning of Title VI. See Paralyzed Veterans, 477 U.S. at 607.
For example:

#

A State health department receives $372,000 in Federal funds from the
Department of Health and Human Services to be distributed to private hospitals

before and after the demotion, over a course of approximately twelve years. Id. at
1565-66. The court does not clearly address if its conclusion is based on training in the
aggregate, or if a single training session (with the required contractual assurances of
compliance with nondiscrimination), is sufficient. Id. at 1566.
10

Agency Title VI regulations include an appendix that sets forth examples of the
types of Federal financial assistance provided through the agency's programs. This list
can provide guidance, although it should not be considered (and may specifically state
that it is not) an exhaustive list of all Federal financial assistance provided by that
agency. Agencies should amend the appendix, "at appropriate intervals," to include
programs enacted after issuance of the regulations. See 28 C.F.R. § 42.403(d).
-11-

for emergency room services. The funds constitute Federal financial assistance
to the State health department as well as the private hospitals that are funded,
and thus Title VI would apply to all of these entities. See 42 U.S.C. §§ 2000d4a(1)(a), 4a(3)(A)(ii).

#

White patients are treated more expeditiously than minority patients at the
emergency room of HealWell Hospital, even though the minority patients'
medical needs are similar. HealWell receives Medicare funds through its
patients. Partial payments by Medicare funds constitute Federal financial
assistance to HealWell. See United States v. Baylor Univ. Med. Ctr., 736 F.2d
1039 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985).

#

United States military veterans are enrolled at Holy University, a private, religious
university. The veterans receive payments from the Federal government for
educational pursuits and such monies are used by the veterans to pay a portion
of their respective tuition payments at Holy University. Although Federal
payments are direct to the veterans and indirect to Holy University, the university
is receiving Federal financial assistance. See Grove City College v. Bell, 465
U.S. 555 (1984).
As set forth in the regulations, Federal financial assistance may be in the form of

a grant or donation of land or use (rental) of Federal property for the recipient at no or
reduced cost. Since the recipient pays nothing or a lower amount for ownership of land
or rental of property, the recipient is being assisted financially by the Federal agency.
Typically, assurances state that this type of assistance is considered to be ongoing for
as long as the land or property is being used for the original or a similar purpose for
which such assistance was intended. E.g., 28 C.F.R. § 42.105. Moreover, regulations
bind the successors and transferees of this property, as long as the original purpose, or
a similar objective, is pursued. Id. Thus, if the recipient uses the land or rents property
for the same purpose at the time of the alleged discriminatory act, the recipient is
receiving Federal financial assistance, irrespective of when the land was granted or

-12-

donated.11/
For example:

#

Sixteen years ago, the Department of Defense (DOD) donated land from a
closed military base to a State as the location for a new prison. Currently, the
prison has been built and houses 130 inmates. Black and Hispanic inmates
complain that they tend to be in long-term segregation more often than white
inmates, and allege racial discrimination by the prison administrators. Because
the State still uses the land donated to it by the DOD for its original (or similar
purpose), the State is still receiving Federal financial assistance. See 32 C.F.R.
§ 195.6.

#

A police department has a branch office located in a housing project built,
subsidized, and operated with Housing and Urban Development (HUD) funds.
The police department is not charged rent. Thus, the police department is
receiving Federal financial assistance and is subject to Title VI.
Under the Intergovernmental Personnel Act of 1970, Federal agencies may allow

a temporary assignment of personnel to State, local, and Indian tribal governments,
institutions of higher education, Federally funded research and development centers,
and certain other organizations for work of mutual concern and benefit. See 5 U.S.C.
§ 3372. This detail of Federal personnel to a State or other entity is considered Federal
financial assistance, even if the entity reimburses the Federal agency for some of the
detailed employee's Federal salary. See Paralyzed Veterans, 477 U.S. at 612 n.14.
However, if the State or other entity fully reimburses the Federal agency for the
employee's salary, it is unlikely that the entity receives Federal financial assistance. For
example:

#

Two research scientists from the National Institute of Health (NIH) are detailed to
a research organization for two years to help research treatments for cancer.
NIH pays for three-fourths of the salary of the two detailed employees, while the
11

Regulations also typically bind the successors and transferees of this property, as
long as the original purpose, or a similar objective, is pursued. Id.
-13-

organization pays the remaining portion. The research organization is
considered to be receiving Federal financial assistance since the Federal
government is paying a substantial portion of the salary of the detailed Federal
employees. The research organization is thus now subject to Title VI.
Another common form of Federal financial assistance provided by many
agencies is training by Federal personnel. For example:

#

A city police department sends several police officers to training at the FBI
Academy at Quantico without cost to the city. The police department is
considered to have received Federal financial assistance. See Delmonte v.
Department of Bus. & Prof’l Regulation, 877 F. Supp. 1563 (S.D. Fla. 1995).
B.

Direct and Indirect Receipt of Federal Assistance

Federal financial assistance may be received directly or indirectly.12/ For
example, colleges indirectly receive Federal financial assistance when they accept
students who pay, in part, with Federal financial aid directly distributed to the students.
Grove City College v. Bell, 465 U.S. 555, 564 (1984)13/; see also Bob Jones Univ. v.
Johnson, 396 F. Supp. 597, 603 (D.S.C. 1974), aff'd, 529 F.2d 514 (4th Cir. 1975). In
Bob Jones Univ., the university was deemed to have received Federal financial
assistance for participating in a program wherein veterans received monies directly
from the Veterans Administration to support approved educational pursuits, although

12

It is often difficult to separate discussions of closely linked concepts, such as what
is a recipient and what is Federal financial assistance. Accordingly, the concept of
"direct" and "indirect" are discussed both in terms of "direct/indirect recipient" and
"directly receive/indirectly receive Federal financial assistance."
13

"With the benefit of clear statutory language, powerful evidence of Congress'
intent, and a longstanding and coherent administrative construction of the phrase
'receiving federal financial assistance,' we have little trouble concluding that Title IX
coverage is not foreclosed because federal funds are granted to Grove City's students
rather than directly to one of the College's educational programs." Grove City College
v. Bell, 465 U.S. 555, 569.
-14-

the veterans were not required to use the specific Federal monies to pay the schools for
tuition and expenses. 396 F. Supp. at 602-03 & n.22. Even if the financial aid to the
veterans did not reach the university, the court considered this financial assistance to
the school since this released the school's funds for other purposes. Id. at 602. Thus,
an entity may be deemed to have "received Federal financial assistance" even if the
entity did not show a "financial gain, in the sense of a net increment in its assets." Id. at
602-03. Aid such as this, and noncapital grants, are equally Federal financial
assistance. Id.
C.

Federal Action That Is Not Federal Financial Assistance

To simply assert that an entity receives something of value in nonmonetary form
from the Federal government's presence or operations, however, does not mean that
such benefit is Federal financial assistance. For example, licenses impart a benefit
since they entitle the licensee to engage in a particular activity, and they can be quite
valuable. Licenses, however, are not Federal financial assistance. Community
Television of S. Cal. v. Gottfried, 459 U.S. 498, 509 (1983) (The Federal
Communications Commission is not a funding agency and television broadcasting
licenses do not constitute Federal financial assistance); California Ass’n. of the
Physically Handicapped v. FCC, 840 F.2d 88, 92-93 (D.C. Cir. 1988) (same); see
Herman v. United Bhd. of Carpenters, 60 F.3d 1375, 1381-82 (9th Cir. 1995)
(Certification of union by the National Labor Relations Board is akin to a license, and
not Federal financial assistance under § 504.).
Similarly, statutory programs or regulations that directly or indirectly support, or
establish guidelines for, an entity's operations are not Federal financial assistance.
-15-

Herman, 60 F.3d at 1382 (Neither Labor regulations establishing apprenticeship
programs nor Davis-Bacon Act wage protections are Federal financial assistance.);
Steptoe v. Savings of America, 800 F. Supp. 1542, 1548 (N.D. Ohio 1992) (Mortgage
lender subject to Federal banking laws does not receive Federal financial assistance.);
Rannels v. Hargrove, 731 F. Supp. 1214, 1222-23 (E.D. Pa. 1990) (Federal bank
regulations are not Federal financial assistance under the Age Discrimination Act).
Furthermore, programs "owned and operated" by the Federal government, such
as the air traffic control system, do not constitute Federal financial assistance.
Paralyzed Veterans, 477 U.S. at 612; Jacobson v. Delta Airlines, 742 F.2d 1202, 1213
(9th Cir. 1984) (air traffic control and national weather service programs do not
constitute Federal financial assistance).14/
It also should be noted that, while contracts of guaranty and insurance may
constitute Federal financial assistance, Title VI specifically states that it does not apply
to “Federal financial assistance...extended by way of a contract of insurance or
guaranty.” 42 U.S.C. § 2000d-4; see Gallagher v. Croghan Colonial Bank, 89 F.3d 275,
14

As stated by then-Deputy Attorney General Nicholas deB. Katzenbach to Hon.
Emanuel Celler, Chairman, Committee on the Judiciary, House of Representatives
(December 2, 1963):
Activities wholly carried out by the United States with Federal funds, such as
river and harbor improvements or other public works, defense installations,
veteran's hospitals, mail service, etc. are not included in the list [of federally
assisted programs]. Such activities, being wholly owned by, and operated by or
for, the United States, cannot fairly be described as receiving Federal
'assistance.' While they may result in general economic benefit to neighboring
communities, such benefit is not considered to be financial assistance to a
program or activity within the meaning of Title VI.
110 Cong. Rec. 13380 (1964).
-16-

277 (6th Cir. 1996) (Default insurance for bank's disbursement of Federal student loans
is a "contract of insurance," and excluded from Section 504 coverage by agency
regulations). But see Moore v. Sun Bank, 923 F.2d 1423, 1427 (11th Cir. 1991) (loans
guaranteed by the Small Business Administration constituted Federal financial
assistance since Section 504 does not exclude contracts of insurance or guaranty from
coverage as does Title VI).
Procurement contracts also are not considered Federal financial assistance.15/
DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir. 1990);
Jacobson, 742 F.2d at 1209; Muller v. Hotsy Corp., 917 F. Supp. 1389, 1418 (N.D. Iowa
1996) (procurement contract by company with GSA to provide supplies is not Federal
financial assistance); Hamilton v. Illinois Cent. R.R. Co., 894 F. Supp. 1014, 1020 (S.D.
Miss. 1995). A distinction must be made between procurement contracts at fair market
value and subsidies; the former is not Federal financial assistance although the latter is.
Jacobson, 742 F.2d at 1209; Mass v. Martin Marietta Corp., 805 F. Supp. 1530, 1542
15

In response to specific questions from Senator John Sherman Cooper, Attorney
General Robert F. Kennedy explained the exclusion of procurement contracts from Title
VI:
Title VI does not apply to procurement contracts, or to other business
contracts which do not involve financial assistance by the United States.
It does apply to grant and loan agreements, and to certain other contracts
involving financial assistance (for example, those research "contracts"
which are essentially grants in nature). In those cases in which Title VI is
applicable, section 602 would apply to a person or corporation who
accepts a direct grant, loan, or assistance contract from the Federal
Government. But, as indicated, the fact that the title applied would not
authorize any action, except with respect to discrimination against
beneficiaries of the particular program involved.
110 Cong. Rec. 10075 (1964).
-17-

(D. Co. 1992) (Federal payments for goods pursuant to a contract, even if greater than
fair market value, do not constitute Federal financial assistance). As described in
Jacobson and followed in DeVargas, there need not be a detailed analysis of whether a
contract is at fair market value, but instead a focus on whether the government
intended to provide a subsidy to the contractor. DeVargas, 911 F.2d at 1382-83;
Jacobson, 742 F.2d at 1210. In DeVargas, a Department of Energy contract, issued
through a competitive bidding process after a determination that a private entity could
provide the service in a less costly manner, evidenced no intention to provide a subsidy
to the contractor. Id. at 1382-83. For example:

#

DOD contracts with SpaceElec, a private aerospace company, to develop and
manufacture parts for the space shuttle. Under the contract, full price is paid by
the DOD for the goods and services to be provided by SpaceElec. Because this
is a direct procurement contract by the Federal government, the funds paid to
SpaceElec by the DOD do not subject SpaceElec to Title VI.
Finally, Title VI does not apply to direct, unconditional assistance to ultimate

beneficiaries, the intended class of private citizens receiving Federal aid. For example,
social security payments and veterans’ pensions are not Federal financial assistance.
Soberal-Perez v. Heckler, 717 F.2d 36, 40 (2d Cir. 1983), cert. denied, 466 U.S. 929
(1984); Bob Jones Univ., 396 F. Supp. at 602, n.16.16/ Members of Congress,
responding to criticisms about the scope of Title VI, repeatedly explained during the
congressional hearings in 1964 that Title VI does not apply to direct benefit programs:
16

The court in Bob Jones Univ., distinguished pensions from payments to veterans
for educational purposes since the latter is a program with a requirement or condition
that the individual participate in a program or activity. 396 F. Supp. at 602 n.16. For a
more detailed discussion of when assistance to a beneficiary may constitute indirect
assistance to a recipient, see discussion of indirect recipient in section (VI)(C) of this
chapter.
-18-

The title does not provide for action against individuals receiving funds
under federally assisted programs -- for example, widows, children of
veterans, homeowners, farmers, or elderly persons living on social
security benefits.
110 Cong. Rec. 15866 (1964) (Statement of Senator Humphrey); see 100 Cong. Rec.
6544 (1963) (Statement of Senator Humphrey). See also 110 Cong. Rec. 1542 (1964)
(Statement of Rep. Lindsay); 110 Cong. Rec. 13700 (1964) (Statement of Sen. Javits).

-19-

VI.

What is a Recipient?
A.

Regulations

A "recipient" receives Federal financial assistance and/or operates a "program or
activity," and therefore its conduct is subject to Title VI. All agency Title VI regulations
use a similar if not identical definition of "recipient," as follows:
The term recipient means any State, political subdivision of any State, or
instrumentality of any State or political subdivision, any public or private agency,
institution, or organization, or other entity, or any individual, in any State, to
whom Federal financial assistance is extended, directly or through another
recipient, for any program, including any successor, assign, or transferee
thereof, but such term does not include any ultimate beneficiary under any such
program.
The term primary recipient means any recipient which is authorized or required to
extend Federal financial assistance to another recipient for the purpose of
carrying out a program.
28 C.F.R. § 42.102(f), (g) (emphasis in original).
Several aspects of the plain language of the regulations should be noted. First,
a recipient may be a public (e.g., a State, local or municipal agency) or a private entity.
Second, Title VI does not apply to the Federal government. Therefore, a Federal
agency cannot be considered a “recipient” within the meaning of Title VI. Third, there
may be more than one recipient in a program; that is, a primary recipient (e.g., State
agency) that transfers or distributes assistance to a subrecipient (local entity) for
distribution to an ultimate beneficiary.17/ Fourth, a recipient also encompasses a
successor, transferee, or assignee of the Federal assistance (property or otherwise),
under certain circumstances. Fifth, as discussed in detail below, there is a distinction
17

An ultimate beneficiary usually does not receive a “distribution” of the federal
money. Rather, he or she enjoys the benefits of enrollment in the program.
-20-

between a recipient and a beneficiary. Finally, although not addressed in the
regulations, a recipient may receive Federal assistance either directly from the Federal
government or indirectly through a third party, who is not necessarily another recipient.
For example, schools are indirect recipients when they accept payments from students
who directly receive Federal financial aid.
B.

Direct Relationship

The clearest means of identifying a "recipient" of Federal financial assistance is
to determine whether the entity has voluntarily entered into a relationship with the
Federal government and receives Federal assistance under a condition or assurance of
compliance with Title VI (and/or other nondiscrimination obligations). Paralyzed
Veterans, 477 U.S. at 605-06.
By limiting coverage to recipients, Congress imposes the obligations of §
504 [and Title VI] upon those who are in a position to accept or reject
those obligations as part of the decision whether or not to "receive"
federal funds.
Id. at 606; see also Soberal-Perez, 717 F.2d at 41. It is important to note that by
signing an assurance, the recipient is committing itself to complying with the
nondiscrimination mandates. Even without a written assurance, courts describe
obligations under nondiscrimination laws as similar to a contract, and have thus
concluded that "the recipients' acceptance of the funds triggers coverage under the
nondiscrimination provision." Paralyzed Veterans, 477 U.S. at 605. In this scenario,
the recipient has a direct relationship with the funding agency and, therefore, is subject
to the requirements of Title VI. For example:

#

Airport operators are recipients of Federal financial assistance pursuant to a
statutory program providing funds for airport construction and capital
-21-

development. Id. at 607.

#

Hall City Police Department (HCPD) received a grant from the U. S. Department
of Justice for community outreach programs. HCPD is considered to be a
recipient of Federal financial assistance.

#

Six years ago, LegalSkool, a law school at a university, was built partly with
Federal grants, loans, and interest subsidies in excess of $7 million from the
Department of Education (ED). The law school is a “recipient” because of the
funding from ED for construction purposes.
While showing that the entity directly receives a Federal grant, loan, or contract,

(other than a contract of insurance or guaranty) is the easiest means of identifying a
Title VI recipient, this direct cash flow does not describe the full reach of Title VI.18/
C.

Indirect Recipient

A recipient may receive funds either directly or indirectly. Grove City, 465 U.S. at
564-65.19/ For example, educational institutions receive Federal financial assistance
indirectly when they accept students who pay, in part, with Federal loans. Although the
money is paid directly to the students, the universities and other educational institutions
are the indirect recipients. Id.; Bob Jones Univ., 396 F. Supp. at 602.
In Grove City, the Supreme Court found that there was no basis to create a
distinction not made by Congress regarding funding paid directly to or received

18

It should be noted that the remaining text of this section distinguishes various
scenarios for recipients and beneficiaries. While captions are used to separate
different circumstances, courts do not uniformly use the same phrase to explain the
same funding pattern. Thus, a court may refer to an "indirect recipient" when the
situation more closely fits the paradigm of "primary recipient/subrecipient." See
discussion infra Section E.
19

While the court's analysis in Grove City of the scope of "program or activity" was
reversed by the Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28
(1988), the Court's discussion of other principles, including direct and indirect
recipients, remains undisturbed.
-22-

indirectly by a recipient. 465 U.S. at 564-65. In reaching its conclusion, the Court
considered the congressional intent and legislative history of the statute in question to
identify the intended recipient. The Court found that the 1972 Education Amendments,
of which Title IX is a part, are "replete with statements evincing Congress' awareness
that the student assistance programs established by the Amendments would
significantly aid colleges and universities. In fact, one of the stated purposes of the
student aid provisions was to ‘provid[e] assistance to institutions of higher education.’
Pub. L. 92-318, § 1001(c)(1), 86 Stat. 831, 20 U.S.C. § 1070(a)(5) " Id. at 565-66.
Finally, the Court distinguished student aid programs that are "designed to assist"
educational institutions and that allow such institutions an option to participate in, or
exclude themselves from, other general welfare programs where individuals, including
students, are free to spend the payments without limitation. Id. at 565 n.13.
In contrast, as subsequently explained by the Supreme Court in Paralyzed
Veterans, it is essential to distinguish aid that flows indirectly to a recipient from aid to a
recipient that reaches a beneficiary.
While Grove City stands for the proposition that Title IX coverage extends to
Congress' intended recipient, whether receiving the aid directly or indirectly, it
does not stand for the proposition that federal coverage follows the aid past the
recipient to those who merely benefit from the aid.
Paralyzed Veterans, 477 U.S. at 607 (citing Grove city, 465 U.S. at 564).
Along these lines, the Supreme Court in NCAA v. Smith, 525 U.S. 459, 470
(1999), citing both Grove City and Paralyzed Veterans, stated that while dues paid to
an entity (NCAA) by colleges and universities, who were recipients of federal financial
assistance, “at most ... demonstrates that it [NCAA] indirectly benefits from the federal
-23-

assistance afforded its afforded members.” But the Court stated, “This showing,
without more, is insufficient to trigger Title IX coverage. Id. at 468.20/
D.

Transferees and Assignees

Agency regulations and assurances often include specific statements on the
application of Title VI to successors, transferees, assignees, and contractors. For
example, the Department of Justice's regulations state:
In the case where Federal financial assistance is to provide or is in the form of
personal property, or real property or interest therein or structures thereon, such
assurance shall obligate the recipient, or in the case of a subsequent transfer,
the transferee, for the period during which the property is used for a purpose for
which the Federal financial assistance is extended or for another purpose
involving the provision of similar services or benefits . . . . The responsible
Department official shall specify the form of the foregoing assurances for each
program, and the extent to which the assurances will be required of subgrantees,
contractors, and subcontractors, transferees, successors in interest, and other
participants in the program.
28 C.F.R. § 42.105(a)(1) (emphasis added).
Furthermore, land that originally was acquired through a program receiving
Federal financial assistance shall include a covenant binding on subsequent purchasers
or transferees that requires nondiscrimination for as long as the land is used for the
original or a similar purpose for which the Federal assistance is extended. 28 C.F.R.
§ 42.105(a)(2).21/

20

The Court in Smith specifically did not address the Department’s argument that
“when a recipient cedes controlling authority over a federally funded program to another
entity, the controlling entity is covered by Title IX regardless whether it is itself a
recipient. Id. at 469-471.
21

In contrast, in Independent Hous. Servs. of San Francisco (IHS) v. Fillmore Ctr.
Assoc., 840 F. Supp. 1328, 1341 (N.D. Ca. 1993), the transfer of property in issue
occurred before the effective date of HUD regulations that stated transferees or
purchasers of real property are subject to Section 504. Accordingly, in IHS, a San
-24-

E.

Primary/Subrecipient Programs

Many programs have two recipients. The primary recipient directly receives the
Federal financial assistance. The primary recipient then distributes the Federal
assistance to a subrecipient to carry out a program. See, e.g., 28 C.F.R. § 42.102(g).
Both the primary recipient and subrecipient are covered by and must conform their
actions to Title VI. For example:

#

A State agency, such as the Department of Children and Family Services,
receives a substantial portion of its funding from the Federal government. The
State agency, as the primary recipient or conduit, in turn, funds local social
service organizations, in part, with its Federal funds. The local agencies receive
Federal financial assistance, and thus are subject to Section 504 (and Title VI,
and other nondiscrimination laws). See Graves v. Methodist Youth Servs., Inc.,
624 F. Supp. 429 (N.D. Ill. 1985).22/

#

Under the Older Americans Act, funds are given by the Department of Health
and Human Services to State agencies which, in turn, distribute funds according
to funding formulas to local agencies operating programs for elderly Americans.
Title VI applies to the programs and activities of the State agencies because of
each agency’s status as a direct conduit recipient passing Federal funds on to
subrecipients. Title VI also applies to the local agencies as subrecipients of
Federal financial assistance. See Chicago v. Lindley, 66 F.3d 819 (7th Cir.
1995).
F.

Contractor and Agent

A recipient may not absolve itself of its Title VI obligations by hiring a contractor
or agent to perform or deliver assistance to beneficiaries. Agency regulations

Francisco agency was a recipient of funds under a block grant to assemble and clear
land for redevelopment, and the purchaser of the land, who built housing units, was
considered a beneficiary. Id.
22

The Graves court described the local agency as an "indirect" recipient since the
Federal money flowed "through another recipient," and compared this situation to Grove
City College's indirect receipt of BEOG funds from students. Id. at 433. Given that the
funding was distributed to a State agency and a portion allocated to a local entity, the
more accurate description is that of primary/subrecipient.
-25-

consistently state that prohibitions against discriminatory conduct, whether intentional or
through race neutral means with a disparate impact, apply to a recipient, whether
committed "directly or through contractual or other arrangements." E.g., 28 C.F.R. §§
42.104(b)(1), (2) (emphasis added). For example:

#

A recipient public housing authority contracts with a residential management
company for the management and oversight of a public housing authority.
Employees of the contractor reject prospective tenants based on their race,
color, or national origin. The recipient is liable under Title VI for the contractor's
actions as the contractor is performing a program function of the recipient.
One also should evaluate the agency's assurances or certifications; such

documents can provide an independent basis to seek enforcement. For example, the
assurance for the Office of Justice Programs, within the Department of Justice, states,
inter alia,
It [the Applicant] will comply, and all its contractors will comply, with the
nondiscrimination requirements of the [Safe Streets Act, Title VI, Section 504,
Title IX . . . .] (emphasis added).
G.

Recipient v. Beneficiary

Finally, in analyzing whether an entity is a recipient, it is necessary to distinguish
a recipient from a beneficiary; the former is covered by Title VI while the latter is not.23/
Paralyzed Veterans, 477 U.S. at 606-07. An assistance program may have many
beneficiaries, that is, individuals and/or entities that directly or indirectly receive an
advantage through the operation of a Federal program. Beneficiaries, however, do not
enter into any formal contract or agreement with the Federal government where

23

Most agency Title VI regulations state that the term recipient "does not include any
ultimate beneficiary under the program." See, e.g., 28 C.F.R.
§ 42.102(f) (DOJ).
-26-

compliance with Title VI is a condition of receiving the assistance.24/ Id.
In almost any major federal program, Congress may intend to benefit a large
class of persons, yet it may do so by funding - that is, extending federal financial
assistance to - a limited class of recipients. Section 504, like Title IX in Grove
City [465 U.S. 555 (1984)], draws the line of federal regulatory coverage
between the recipient and the beneficiary.
Id. at 609-10. Title VI was meant to cover only those situations where Federal funding
is given to a non-Federal entity which, in turn, provides financial assistance to the
ultimate beneficiary, or disburses Federal assistance to another recipient for ultimate
distribution to a beneficiary. It is important to note that the Supreme Court has firmly
established that the receipt of student loans or grants by an entity renders the entity a
recipient of Federal financial assistance. See Grove City, 456 U.S. at 596
In Paralyzed Veterans, a Section 504 case decided under Department of
Transportation regulations, the Court held that commercial airlines that used airports
and gained an advantage from the capital improvements and construction at airports
were beneficiaries, and not recipients, under the airport improvement program. 477
U.S. at 607. The airport operators, in contrast, directly receive the Federal financial
assistance for the airport construction. The Court examined the program statutes and

24

For example, in Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000) plaintiffs, the
Knights of the Ku Klux Klan, brought suit against the Missouri Highway and
Transportation Commission (State) for denying its application to participate in Missouri’s
Adopt-A-Highway program. Among the State’s reasons for denying the application was
that allowing the Klan to participate in the Adopt-A-Highway program would violate Title
VI of the Civil Rights Act of 1964 and would cause the state to lose its federal funding.
The Eighth Circuit ruled that “Title VI clearly does not apply directly to prohibit the Klan’s
discriminatory membership criteria” and that the Klan is not a direct recipient of federal
financial assistant through the Adopt-A-Highway program, but merely a beneficiary of
the program. Therefore, the State’s denial of the Klan’s application was invalid. Id. at
710.
-27-

concluded:
Congress recognized a need to improve airports in order to benefit a wide variety
of persons and entities, all of them classified together as beneficiaries. [note
omitted]. Congress did not set up a system where passengers were the primary
or direct beneficiaries, and all others benefitted by the Acts are indirect recipients
of the financial assistance to airports.
The statute covers those who receive the aid, but does not extend as far as
those who benefit from it. . . Congress tied the regulatory authority to those
programs or activities that receive federal financial assistance.
Id. at 607-09.

-28-

VII.

"Program or Activity"
Title VI prohibits discrimination in "any program or activity," any part of which

receives Federal financial assistance. Initially, it should be understood that
interpretations of "program or activity" depend on whether one is analyzing the scope of
Title VI's prohibitions or evaluating what part of the entity is subject to a potential fund
termination or refusal. Further, the Civil Rights Restoration Act of 1987 (CRRA)
amended Title VI and related statutes by adding an expansive definition of "program or
activity." As described more fully below, the CRRA was passed to restore broad
interpretations, consistent with original congressional intent, and to reverse the
Supreme Court's narrow ruling in Grove City, 465 U.S. 555.
A.

Initial Passage and Judicial Interpretations

When enacted in 1964, Title VI did not include a definition of "program or
activity."25/ Congress, however, made its intentions clearly known: Title VI's
prohibitions were meant to be applied institution-wide, and as broadly as necessary to
eradicate discriminatory practices supported by Federal funds. 110 Cong. Rec. 6544
(Statement of Sen. Humphrey); see S. Rep. No. 64, 100th Cong., 2d Sess. 5-7 (1988),
reprinted in 1988 U.S.C.C.A.N. 3, 7-9.
The courts, consistent with congressional intent, initially interpreted “program or
activity” broadly to encompass the entire institution in question. For example, all of the
services and activities of a university were subject to Title VI even if the sole Federal
assistance was Federal financial aid to students. See Bob Jones Univ., 396 F. Supp. at
25

See, e.g., 42 U.S.C. § 2000d (1964), 42 U.S.C. § 2000d-1 (1964), and 42 U.S.C.
§ 2000d-4 (1964).
-29-

603; S. Rep. No. 64 at 10, reprinted in 1988 U.S.C.C.A.N. at 12.26/
B.

Grove City College

In 1984, however, the Supreme Court in Grove City, severely narrowed the
interpretation of "program or activity." 465 U.S. at 571-74. The Court ruled that Title
IX's prohibitions against discrimination applied only to the limited aspect of the
institution's operations that specifically received the Federal funding. Since the college
received Federal funds as a result of Federal financial aid to students, the "program or
activity" was the college's financial aid program. Id. at 574. The Court rejected the
court of appeal's analysis that receipt of Federal funds for one purpose (financial aid)
freed up school funds for other purposes (e.g., athletics) to render the entire university
(or at least the other programs that benefitted from 'freed up' funds) a "program or
activity." Id. at 572.
Further, the Court held that, although the Federal money was added to the
college's general funds, the purpose of the monies was for financial aid, and, therefore,
the covered program or activity was the financial aid program. Id. Thus, the receipt of
Federal financial aid by some of the students of the college did not subject an entire
college to Title IX, but only the operations of the financial aid program. Finally, the
Court noted that earmarked funds, such as the Federal financial aid monies, increase
resources and obligations of the recipient, while non-earmarked funds are unrestricted
in use and purpose. Id. at 573.

26

Agency regulations, while broad in scope, provide limited, specific guidance. See,
e.g., 28 C.F.R. § 42.102(d).
-30-

C.

Civil Rights Restoration Act

The Grove City interpretation of "program or activity" lasted for four years, until
Congress passed the Civil Rights Restoration Act of 1987 (CRRA), Pub. L. No. 100259, 102 Stat. 28 (1988). Congress’ intent in passing the CRRA was clear. As the
Senate Report states:
S.557 was introduced . . . to overturn the Supreme Court's 1984 decision
in Grove City College v. Bell, . . . and to restore the effectiveness and
vitality of the four major civil rights statutes [Title IX, Title VI, Section 504,
and the Age Discrimination Act of 1975] that prohibit discrimination in
federally assisted programs.
S. Rep. No. 64 at 2, reprinted in 1988 U.S.C.C.A.N. at 3-4.27/ The CRRA includes
virtually identical amendments to broadly define "program or activity" (for coverage
purposes) for the four cross-cutting civil rights statutes.
The Senate Report provides extensive detail about the history of these statutes,
including Congress' original intent that they be broadly interpreted and enforced; the
consequences of Grove City, i.e., the narrow interpretations by courts and agencies that
relieved entities of liability for apparent acts of discrimination because of the new,
constricted interpretation of program or activity; and detailed explanations of the Act's
language. Id. at 5-20.28/
As explained in Chapter VIII, Title VI prohibits intentional discrimination, and

27

The Senate further stated:
The purpose of the Civil Rights Restoration Act of 1987 is to reaffirm pre-Grove
City judicial and executive branch interpretations and enforcement practices
which provided for broad coverage of the anti-discrimination provisions of these
civil rights statutes. Id.

28

No House Report or Conference Report was submitted with the legislation.
-31-

agency Title VI regulations prohibit conduct that has an unjustified discriminatory effect.
See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983) and Alexander v.
Choate, 469 U.S. 287, 293 (1985). In 1999, the Third Circuit held that the CRRA's
statutory definition of “program or activity” did not apply to the effects test created by
Title VI regulations. Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999) (appeal pending).
The court reasoned that since the Title VI regulations in question had not been
amended to reflect the CRRA's definition, the effects test only applied to specifically
funded programs.29/ In response to the decision, federal agencies took steps to
amend their regulations to make clear that the broad definition of program or activity
applies to claims brought under the effects test enunciated in regulations, as well as to
intentional discrimination.30/
D.

State and Local Governments

The CRRA defines coverage in specific areas. As to State and local
governments, Title VI now states:
For the purposes of this subchapter, the term "program or activity" and the
term "program" mean all of the operations of-(A)

a department, agency, special purpose district, or other
instrumentality of a State or of a local government; or

29

The Cureton court implied that the CRRA definition of “program or activity”
applied to the regulations dealing with the disparate treatment or intent standard.
However, it specifically refused to rule on the issue, because the allegations in the case
were solely based upon the regulatory disparate impact theory. 198 F.3d at 116.
30

See, e.g., the Department of Education Notice of Proposed Rulemaking. 65 Fed.
Reg. 26464 (2000) (to be codified at 34 C.F.R. pts. 100, 104, 106, & 110) (proposed
May 5, 2000); the Department of Health and Human Services Notice of Proposed
Rulemaking, 65 Fed. Reg. 64194 (2000) (to be codified at 45 C.F.R. pts. 80, 84, 86, 90,
91) (proposed Oct. 26, 2000).
-32-

(B)

the entity of such State or local government that distributes such
assistance and each such department or agency (and each other
State or local government entity) to which the assistance is
extended, in the case of assistance to a State or local government;

any part of which is extended Federal financial assistance.
42 U.S.C. § 2000d-4a(1) (emphasis added).
Two courts of appeals and several district courts have interpreted this language,
and most of the cases have concerned the scope of § 504. Generally, the entire
department or office within a State or local government is identified as the "program or
activity."31/ For example, if a State receives funding that is designated for a particular
State prison, the entire State Department of Corrections is considered the covered
“program or activity” (but not, however, the entire State).
In Huber v. Howard County, Md, 849 F. Supp. 407, 415 (D. Md. 1994), the court
held that the county fire department received Federal financial assistance under § 504
upon evidence that a subunit within the fire department received Federal funds and the
salary of one employee was partially paid with Federal funds. The court stated:
While the receipt of federal financial assistance by one department or agency of
a county does not render the entire county subject to the provisions of § 504,
and while such assistance to one department does not subject another
department to the requirements of § 504, if one part of a department receives
federal financial assistance, the whole department is considered to receive
federal assistance as to be subject to § 504. Id.
Thus, while the CRRA overruled Grove City's narrow interpretation, the amendments
were not so broad as to cover an entire local or State government as part of a "program

31

At least one court, however, has held that an entire county was the "program or
activity." See Bentley v. Cleveland County Bd. of Comm’rs, 41 F.3d 600 (10th Cir.
1994).
-33-

or activity." See Hodges by Hodges v. Public Bldg. Comm’n of Chicago (I), 864 F.
Supp. 1493, 1505 (N.D. Ill. 1994), reconsideration denied, 873 F. Supp. 128, 132 (N.D.
Ill. 1995) (City of Chicago "is a municipality and, as such, it does not fit within the
definition of 'program or activity' for purposes of Title VI.");32/ see also Schroeder v.
City of Chicago, 927 F.2d 957, 962 (7th Cir. 1991).33/
Examples:

#

If Federal health assistance is extended to a part of a State health department,
the entire health department would be covered in all of its operations. However,
the entire State government is not considered a recipient just because the health
department receives Federal financial assistance.

#

If the office of a mayor receives Federal financial assistance and distributes it to
departments or agencies, all of the operations of the mayor's office are covered
along with the departments or agencies which actually receive the aid from the
Mayor's office.
It is significant to note that some courts have held that a State need not be a

"program or activity" to be a defendant under Title VI. A State is properly included as a
defendant if it is partly responsible for or participates in the discriminatory conduct. See

32

In the first opinion, the District Court recognized that the Public Building
Commission (PBC) could be subject to Title VI even if it did not directly receive Federal
funds (as part of a larger program or activity). Conclusory allegations of PBC's
contractual relationship with the Board of Education (CBOE), which received Federal
funds, were insufficient to survive a motion to dismiss. "These conclusory allegations
are insufficient to show that the PBC administered the CBOE's funds, benefitted from
the CBOE's funds, or was connected in any other way to the Federal funds received by
the CBOE." Id. at 1507.
33

In Schroeder, the court stated:
But the amendment was not, so far as we are able to determine--there are no
cases on the question--intended to sweep in the whole state or local
government, so that if two little crannies (the personnel and medical
departments) of one city agency (the fire department) discriminate, the entire city
government is in jeopardy of losing its federal financial assistance. Id.
-34-

United States v. City of Yonkers, 880 F. Supp. 212, 232 (S.D.N.Y. 1995) vacated and
remanded on other grounds, 96 F. 3d 600 (2d Cir. 1996); New York Urban League v.
Metropolitan Transp. Auth., 905 F. Supp. 1266, 1273 (S.D.N.Y. 1995), vacated on other
grounds, 71 F.3d 1031 (2d Cir. 1995).
In United States v. City of Yonkers,the court rejected the State's argument that
sovereign immunity applied since it is not a "program or activity." 880 F. Supp. at 232.
The court stated that not only does the plain language of § 2000d-7 defeat the State's
assertion, but also that
nothing in the legislative history of Title VI compels the conclusion that an entity
must be a 'program' or 'activity' to be a Title VI defendant. . . .We therefore hold
that the State of New York can be sued under Title VI as long as it, along with
those of its agencies receiving federal financial assistance, is alleged to have
been responsible for a Title VI violation. Id. (note omitted).34/
E.

Educational Institutions

The CRRA also defines "program or activity" in an educational context. Title VI
(and Title IX, Section 504 and the ADEA of 1975) now provide:
For the purposes of this subchapter, the term "program or activity" and the
term "program" mean all of the operations of-(2)(A) a college, university, or other postsecondary institution, or a public
system of higher education; or

34

Plaintiffs had alleged that the State, through its legislature, contributed to the
alleged school segregation by passing laws that impeded desegregation efforts and
providing limited financial assistance for such efforts. Id. at n.25. It is unclear whether
evidence of such allegations was introduced. In a subsequent opinion, the court did not
address these facts and rejected plaintiffs' arguments that a State, solely by its failure
to prevent alleged discrimination, could be held vicariously liable for the discriminatory
acts of a local education agency under either an intent or impact theory. United States
v. City of Yonkers, 880 F. Supp. 591, 597-98 (S.D.N.Y. 1995), vacated and remanded,
96 F. 3d 600 (2d Cir. 1996).
-35-

(B)

a local educational agency (as defined in section 8801 of
Title 20), system of vocational education, or other school
system;

any part of which is extended Federal financial assistance.
42 U.S.C. § 2000d-4a(2) (emphasis added). It is section 2(A) that specifically overturns
the Grove City decision by including all of the operations of a postsecondary institution
when any part of that institution is extended Federal financial assistance.35/ See
Knight v. Alabama, 787 F. Supp. 1030, 1364 (N.D. Ala. 1991) (entire Statewide
university system constituted "program or activity," notwithstanding limited autonomy of
institutions and even though not all institutions received Federal assistance), aff'd in
part, rev'd in part, and vacated in part, 14 F.3d 1534 (11th Cir. 1994).
Senate Report 64 provides several examples of the scope of an educational
"program or activity." Federal funding to one school subjects the entire school system
to Title VI. S. Rep. No. 64 at 17, reprinted in 1988 U.S.C.C.A.N. at 19. For example,
Federal aid to one of three schools operated by the Catholic Diocese would subject all
three schools to Title VI. Further, Congress explained that "all of the operations of"
encompasses, but is not limited to, "traditional educational operations, faculty and
student housing, campus shuttle bus service, campus restaurants, the bookstore, and
other commercial activities." Id.
The courts have followed this broad interpretation by ruling that a local
educational agency includes school boards, their members, and agents of such boards.
35

"Postsecondary institution is a generic term for any institution which offers
education beyond the twelfth grade. Examples of postsecondary institutions would
include vocational, business and secretarial schools." S. Rep. No. 64 at 16, reprinted in
1988 U.S.C.C.A.N. at 18.
-36-

Meyers by and through Meyers v. Board of Educ. of the San Juan Sch. Dist., 905 F.
Supp. 1544 (D. Utah 1995)36/; Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d
265, 272 (6th Cir. 1994) (Title IX case); see also Young by and through Young v.
Montgomery County (Ala.) Bd. of Educ., 922 F. Supp. 544 (M.D. Ala. 1996) (Court
addressed the merits of Title VI claims against the county board of education without
comment or question as to the propriety of such claims). In Horner, the Sixth Circuit
held that both the school board and its agent for intercollegiate athletics were subject to
Title IX. The court addressed this issue in terms of identifying a "program or activity"
and "recipient" interchangeably. Id. at 271-72. The court reasoned that the State
Department of Education receives the Federal funds, and the Board statutorily "controls
and manages," on behalf of the Department, the operations of the schools.
Furthermore, the Board's agent (a high school athletic association) was also a recipient
since it had statutory authority to perform the Board's functions and received dues from
schools that received Federal funds. Id.
F.

Corporations and Private Entities

The CRRA also defines "program or activity" to include certain private entities.
The scope of "program or activity" as it applies to a corporation or other private entity
depends on the operational purpose of the entity, the purpose of the funds, and the
structure of the entity. Title VI provides:
For the purposes of this subchapter, the term "program or activity" and the
term "program" mean all of the operations of-36

The court in Meyers opined that the Department of Education's regulations have a
more narrow definition of "program or activity" than is set forth in the statute. Id. at
1574 n.37.
-37-

(3)(A) an entire corporation, partnership, or other private
organization, or an entire sole proprietorship--

(B)

(i)

if assistance is extended to such corporation,
partnership, private organization, or sole
proprietorship as a whole; or

(ii)

which is principally engaged in the business of
providing education, health care, housing,
social services, or parks and recreation; or

the entire plant or other comparable, geographically
separate facility to which Federal financial assistance is
extended, in the case of any other corporation, partnership,
private organization, or sole proprietorship;

any part of which is extended Federal financial assistance.
42 U.S.C. § 2000d-4a(3) (emphasis added).
Generally, funds are given to an entity "as a whole" when such funds further the
central or primary purpose of the entity, or the funds are not for a specific, narrow
purpose. Senate Report No. 64 provides several examples regarding the application of
this section. S. Rep. No. 64 at 17-18, reprinted in 1988 U.S.C.C.A.N. at 19-20. The
following principles can be identified based on examples set forth in the Senate Report:
a.

Funds provided to ensure the continued operation of a corporation are

assistance to the entity "as a whole," and thus all operations of the entire corporation
are subject to Title VI. Federal financial assistance extended to a corporation or other
entity "as a whole" refers to situations where the corporation receives general
assistance that is not designated for a particular purpose. For example:

#

b.

Federal financial assistance to the Chrysler Company for the purpose of
preventing the company from going bankrupt would be an example of
assistance to a corporation "as a whole." Id.;

When any recipient is principally engaged in the business of providing education,
-38-

health care, housing, social services, or parks and recreation, and any part of this entity
is extended Federal financial assistance, then "program or activity" encompasses all of
the operations of the entire entity. For example:

c.

#

If a private hospital corporation receives Federal funds to operate its
emergency room, all of the operations of the hospital (e.g., the operating
rooms, pediatrics, discharge and admissions offices, etc.) are subject to
Title VI.

#

Nursewell Corporation owns and runs a chain of five nursing homes as its
principal business. One of the five nursing homes receives Federal
financial assistance under the Older Americans Act. Because the
corporation is principally engaged in the business of providing social
services and housing for elderly persons, aid to one home will subject the
entire corporation to the requirements of Title VI. See 42 U.S.C. § 2000d4a(3)(A)(ii); S. Rep. No. 64 at 18, reprinted in 1988 U.S.C.C.A.N. at 20.

Funds for a specific purpose or funds that support one of several functions of the

recipient would not be considered assistance "as a whole," and thus only that aspect of
the recipient's operations would be subject to Title VI. For example:

d.

#

A grant to a religious organization to enable it to extend assistance to
refugees would not be assistance to the religious organization as a whole
if the funded program is only one among a number of activities of the
organization.

#

Federal aid which is limited in purpose, e.g., Job Training Partnership Act
(JTPA) funds, is not considered aid to the corporation as a whole, even if
it is used at several facilities and the corporation has the discretion to
determine which of its facilities participate in the program.

When Federal assistance is extended to a plant or any other comparable,

geographically separate business facility of a corporation or other private entity, only the
operations of the specific plant or facility are a "program or activity" subject to Title VI.
Further, Federal financial assistance that is earmarked for one or more facilities of a
private corporation or other private entity when it is extended is not assistance to the
-39-

entity "as a whole." Id. For example:

#

The Dearborn, Michigan plant of General Motors is extended Federal financial
assistance for first aid training through the State department of health. All of the
operations of the Dearborn plant are covered by Title VI, as well as the State
health department that distributed the Federal money. However, other
geographically separate facilities of General Motors are not considered to be
covered just because of the assistance to the Dearborn plant. See S. Rep. No.
64 at 18, reprinted in 1988 U.S.C.C.A.N. at 20-21.

e.

The theory of "freeing up" funds for other purposes due to the receipt of Federal

aid does not expand the application of Title VI beyond the principles described
above.37/
G.

Catch-All/Combinations of Entities

Finally, the CRRA defines "program or activity" to include the operations of
entities formed by any combination of the aforementioned entities. Title VI is amended
to read:
For the purposes of this subchapter, the term "program or activity" and the
term "program" mean all of the operations of-(4) any other entity which is established by two or more of the entities
described in paragraph (1), (2), or (3);
any part of which is extended Federal financial assistance.
42 U.S.C. § 2000d-4a(4) (emphasis added).
Since any entity under this provision will include a partnership with a public
entity, coverage will extend to the entire entity.
[A]n entity which is established by two or more entities described in [Paragraphs]
37

Nor does S. 557 embody a notion of "freeing up." Federal financial assistance to
a corporation for particular purposes does not become assistance to the
corporation as a whole simply because receipt of the money may free up funds
for use elsewhere in the company. Id.
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(1), (2), or (3) is inevitably a public venture of some kind, i.e., either a
government-private effort (1 and 3), a public education-business venture (2 and
3) or a wholly government effort (1 and 2). It cannot be a wholly private venture
under which limited coverage is the general rule. The governmental or public
character helps determine institution-wide coverage. . . . Even private
corporations are covered in their entirety under (3) if they perform governmental
functions, i.e., are “principally engaged in the business of providing education,
health care, housing, social services, or parks and recreation.”
S. Rep. No. 64 at 19-20, reprinted in 1988 U.S.C.C.A.N. at 21-22. Thus, all of the
operations of a partnership between a public and private entity, such as a school and a
private corporation, would be subject to Title VI. The Senate Report also notes that
coverage under Paragraph (4) applies to the newly created entity; coverage of the
separate entities that comprise the partnership or joint venture must be determined
independently. Id. at 20, reprinted in 1988 U.S.C.C.A.N. at 22.

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VIII.

What Constitutes Discriminatory Conduct?
Title VI prohibits discrimination on the basis of “race, color, or national origin . . .

under any program or activity receiving Federal financial assistance.” 42 U.S.C. §
2000d. The purpose of Title VI is simple: to ensure that public funds are not spent in a
way which encourages, subsidizes, or results in racial discrimination. Toward that end,
Title VI bars intentional discrimination. See Guardians, 463 U.S. at 607-08; Alexander
v. Choate, 469 U.S. 287, 293 (1985). In addition, Title VI authorizes and directs
Federal agencies to enact “rules, regulations, or orders of general applicability” to
achieve the statute’s objectives. 42 U.S.C. § 2000d-1. Most Federal agencies have
adopted regulations that prohibit recipients of Federal funds from using criteria or
methods of administering their programs that have the effect of subjecting individuals to
discrimination based on race, color, or national origin. The Supreme Court has held
that such regulations may validly prohibit practices having a disparate impact on
protected groups, even if the actions or practices are not intentionally discriminatory.
Guardians, 463 U.S. at 582; Alexander v. Choate, 469 U.S. at 292-94; see Elston v.
Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir.), reh'g denied, 7 F.3d
242 (11th Cir. 1993).
Thus, Title VI claims may be proven under two primary theories: intentional
discrimination/disparate treatment and disparate impact/effects. Under the first theory,
the recipient, in violation of the statute, engages in intentional discrimination based on
race, color, or national origin. The analysis of intentional discrimination under Title VI is
equivalent to the analysis of disparate treatment under the Equal Protection Clause of
the Fourteenth Amendment. Elston, 997 F.2d at 1405 n. 11; Guardians, 463 U.S. at
-42-

582, Alexander, 469 U.S. at 287, 293; Georgia State Conference of Branches of
NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).
Under the second theory, a recipient, in violation of agency regulations, uses a
neutral procedure or practice that has a disparate impact on individuals of a particular
race, color, or national origin, and such practice lacks a “substantial legitimate
justification.” Larry P. v. Riles, 793 F.2d 969, 983 (9th Cir. 1984); New York Urban
League v. New York, 71 F.3d 1031, 1038 (2d Cir. 1995); Elston, 997 F.2d at 1407. Title
VI disparate impact claims are analyzed using principles similar to those used to
analyze Title VII disparate impact claims. Young by and through Young v. Montgomery
County (Ala.) Bd. of Educ., 922 F. Supp. 544, 549 (M.D. Ala. 1996).
A.

Intentional Discrimination/Disparate Treatment

An intent claim alleges that similarly situated persons are treated differently
because of their race, color, or national origin. To prove intentional discrimination, one
must show that “a challenged action was motivated by an intent to discriminate.” Elston,
997 F.2d at 1406. This requires a showing that the decisionmaker was not only aware
of the complainant’s race, color, or national origin, but that the recipient acted, at least
in part, because of the complainant’s race, color, or national origin. However, the
record need not contain evidence of “bad faith, ill will or any evil motive on the part of
the [recipient].” Elston, 997 F.2d at 1406 (quoting Williams v. City of Dothan, 745 F.2d
1406, 1414 (11th Cir. 1984)).
Evidence of discriminatory intent may be direct or circumstantial and may be
found in various sources, including statements by decisionmakers, the historical
background of the events in issue, the sequence of events leading to the decision in
-43-

issue, a departure from standard procedure (e.g., failure to consider factors normally
considered), legislative or administrative history (e.g., minutes of meetings), a past
history of discriminatory or segregated conduct, and evidence of a substantial disparate
impact on a protected group. See Arlington Heights v. Metropolitan Hous.
Redevelopment Corp., 429 U.S. 252 at 266-68 (1977) (evaluation of intentional
discrimination claim under the Fourteenth Amendment); Elston, 997 F.2d at 1406.
Direct proof of discriminatory motive is often unavailable. In the absence of such
evidence, claims of intentional discrimination under Title VI may be analyzed using the
Title VII burden shifting analytic framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).38/ See Baldwin v. Univ. of
Texas Med. Branch at Galveston, 945 F.Supp. 1022, 1031 (S.D.Tex. 1996); Brantley v.
Independent Sch. Dist. No. 625, St. Paul Public Schools, 936 F.Supp. 649, 658 n.17
(D.Minn. 1996).39/
Applying the McDonnell Douglas principles to a Title VI claim, the investigating
agency must first determine if the complainant can raise an inference of discrimination
by establishing a prima facie case. The elements of a prima facie case may vary
depending on the facts of the complaint, but such elements often include the following:
1.

that the aggrieved person was a member of a protected class;

2.

that this person applied for, and was eligible for, a federally assisted

38

At least one court, however, has declined to apply the McDonnell Douglas burden
shifting framework to the analysis of a Title VI claim. See Godby v. Montgomery County
Bd. of Educ., 996 F. Supp. 1390, 1414 n.17 (M.D. Ala. 1998).
39

The Civil Rights Act of 1991 amended Title VII to clarify the burdens of proof in
disparate impact cases. 42 U.S.C. § 2000e-2.
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program that was accepting applicants;
3.

that despite the person’s eligibility, he or she was rejected; and,

4.

that the recipient selected applicants of the complainant’s qualifications -or that the program remained open and the recipient continued to accept
applications from applicants of complainant’s qualifications.40/

If the case file contains sufficient evidence to establish a prima facie case of
discrimination, the investigating agency must then determine if the recipient can
articulate a legitimate, nondiscriminatory reason for the challenged action. See
McDonnell Douglas, 411 U.S. at 802. If the recipient can articulate a nondiscriminatory
explanation for the alleged discriminatory action, the investigating agency must
determine whether the case file contains sufficient evidence to establish that the
recipient’s stated reason was a pretext for discrimination. Id. In other words, the
evidence must support a finding that the reason articulated by the recipient was not the
40

It is important to remember that the “prima facie case method established in
McDonnell Douglas was ‘never intended to be rigid, mechanized or ritualistic. Rather, it
is merely a sensible, orderly way to evaluate the evidence in light of common
experience as it bears on the critical question of discrimination.’” United States Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 715 (1982) (quoting Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978)).
For example, it should be noted that the McDonnell Douglas prima facie
framework for Title VII claims does not require that the applicant selected for the
position be of a different race, color, or national origin than the complainant. Under
McDonnell Douglass, the complainant only needs to show that “after his rejection, the
position remained open and the employer continued to seek applicants from persons of
complainant’s qualifications.” McDonnell Douglas, 411 U.S. at 802. Several courts
dealing with this issue in the Title VII context have noted that the fact that the applicant
selected in place of the complainant is of a different race “may help to raise an
inference of discrimination,” but it is not necessarily dispositive on the question of
discriminatory intent. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir.
2000) (internal citations omitted); see also Pivirotto v. Innovative Systems, Inc., 191
F.3d 344, 354 (3d Cir. 1999); Jackson v. Richards Med. Co., 961 F.2d 575, 587 n.12
(6th Cir. 1992).
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true reason for the challenged action, and that the real reason was discrimination based
on race, color, or national origin.
Similar principles may be used to analyze claims that a recipient has engaged in
a “pattern or practice” of unlawful discrimination. Such claims may be proven by a
showing of “more than the mere occurrence of isolated or ‘accidental’ or sporadic
discriminatory acts.” See International Bhd. of Teamsters v. United States, 431 U.S.
324, 336 (1977). The evidence must establish that a pattern of discrimination based on
race, color, or national origin was the recipient’s “standard operating procedure the
regular rather than the unusual practice.” Id. Once the existence of such a
discriminatory pattern has been proven, it may be presumed that every disadvantaged
member of the protected class was a victim of the discriminatory policy, unless the
recipient can show that its action was not based on its discriminatory policy. Id. at 362.
It is also important to remember that some claims of intentional discrimination
may involve the use of policies or practices that explicitly classify individuals on the
basis of membership in a particular group. Such “classifications” may constitute
unlawful discrimination if based on characteristics such as race, color, national origin,
sex, etc. For example, the Supreme Court held in a Title VII case that a policy that
required female employees to make larger contributions to the pension fund than male
employees created an unlawful classification based on sex. See City of Los Angeles,
Dep’t of Water and Power v. Manhart, 435 U.S. 702 (1978). The investigation of such
claims should focus on the recipient’s reasons for utilizing the challenged classification
policies. Most such policies will be deemed to violate Title VI, unless the recipient can
articulate a lawful justification for classifying people on the basis of race, color, or
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national origin.
B.

Disparate Impact/Effects

The second primary theory for proving a Title VI violation is based on Title VI
regulations and is known as the discriminatory “effects” or disparate impact theory. As
noted previously, Title VI authorizes Federal agencies to enact regulations to achieve
the statute’s objectives. Most Federal agencies have adopted regulations that apply the
disparate impact or effects standard. For example, the Department of Justice
regulations state:
(2) A recipient, in determining the type of disposition,
services, financial aid, benefits, or facilities which will be
provided under any such program, or the class of individuals
to whom, or the situations in which, such will be provided
under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program,
may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration
which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin,
or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program as
respects individuals of a particular race, color, or national
origin.
28 C.F.R. § 42.104(b)(2) (emphasis added).
Pursuant to such regulations, all entities that receive Federal funding enter into
standard agreements or provide assurances that require certification that the recipient
will comply with the implementing regulations under Title VI. Guardians, 463 U.S. 582,
642 n. 13. The Supreme Court has held that these regulations may validly prohibit
practices having a disparate impact on protected groups, even if the actions or
practices are not intentionally discriminatory. Guardians, 463 U.S. at 582, Alexander v.
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Choate, 469 U.S. at 293.
Many subsequent cases have also recognized the validity of Title VI disparate
impact claims. See Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996); New York Urban
League v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995); Chicago v. Lindley, 66 F.3d
819 (7th Cir. 1995); David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988); Gomez v. Illinois
State Bd. Of Educ., 811 F.2d 1030 (7th Cir. 1987); Georgia State Conference of
Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985); Larry P. v. Riles, 793
F.2d 969 (9th Cir. 1984). 41/ In addition, by memorandum dated July 14, 1994, the
Attorney General directed the Heads of Departments and Agencies to "ensure that the
disparate impact provisions in your regulations are fully utilized so that all persons may
enjoy equally the benefits of Federally financed programs."
Under the disparate impact theory, a recipient, in violation of agency regulations,
uses a neutral procedure or practice that has a disparate impact on protected
individuals, and such practice lacks a substantial legitimate justification. The elements
of a Title VI disparate impact claim derive from the analysis of cases decided under
Title VII disparate impact law. New York Urban League, 71 F.3d at 1036.
In a disparate impact case, the focus of the investigation concerns the
consequences of the recipient's practices, rather than the recipient's intent. Lau v.
Nichols, 414 U.S. 563 at 568 (1974). For example, in Sandoval v. Hagan, 197 F.3d 484

41

While there is no question that a Federal funding agency can enforce its Title VI
regulations providing for a disparate impact standard of proof, several courts of appeals
have held that plaintiffs have a private right of action to enforce the disparate impact
regulations implementing Section 602 of Title VI, as well. See Chapter XII for further
discussion of this issue.
-48-

(11th Cir. 1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S.Ct.
28, 68 U.S.L.W. 3749 (U.S. Sept. 26, 2000) (No. 99-1908) plaintiffs filed a private
action under Title VI claiming that Alabama’s English-only driver’s license exam policy,
although facially neutral, had a disparate impact on the basis of national origin in
violation of section 602 of Title VI. The court observed that the defendant-recipients,
the Alabama Department of Public Safety, did not contest the district court’s finding of
fact “as to the disparate impact of the [English-only] policy on non-English speaking
license applicants,” nor the “disparate impact their English-only policy visits on Alabama
residents of foreign descent.” Id. at 508. Instead, the court stated that the defendants
argued “that an English language policy, even if exerting a disparate impact on the
basis of national origin, cannot ever constitute national origin discrimination.” Id. The
court rejected this claim, concluding that regardless of whether language may serve as
a proxy for national origin discrimination in an intentional discrimination claim, claims
brought under section 602 of Title VI do not involve an intent requirement. Id. at 50809. Rather, in order to establish a disparate impact claim under section 602, plaintiffs
need only show that the policy “has a ‘disparate impact on groups protected by the
statute, even if those actions are not intentionally discriminatory.’” Id. at 509 (quoting
Elston, 997 F.2d at 1407).
To establish discrimination under a disparate impact scheme, the investigating
agency must first ascertain whether the recipient utilized a facially neutral practice that
had a disproportionate impact on a group protected by Title VI.42/ Larry P. v. Riles,
42

The policy or procedure in question need not be formalized in writing, but can also
be a practice that is understood as a "standard operating procedure" by its employees
-49-

793 F.2d 969, 982; Elston, 997 F.2d at 1407 (citing Georgia State Conference of
Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985)). The agency
must show a causal connection between the facially neutral policy and the
disproportionate and adverse impact on a protected Title VI group.
In New York City Envtl. Justice Alliance (NYCEJA) v. Giuliani, 214 F.3d 65, 69
(2d Cir. 2000), plaintiffs sought to enjoin the City of New York from selling or bulldozing
certain city-owned lots containing 600 community gardens mainly located in minority
neighborhoods. They alleged that the city’s actions would violate the Environmental
Protection Agency’s Title VI implementing regulations because the actions would have
a disproportionately adverse impact on the city’s minority residents. 214 F. 3d 65, 67.
Although plaintiffs “alleged in substance that white community districts tend to
have access to more open space than minority ones, and that the sale of community
gardens would perpetuate and exacerbate this disparity,” the court found that the
evidence plaintiffs presented in support of their claim consisted of broad conclusive
statements or flawed statistics. 214 F.3d 65, 69-71. Accordingly, the court dismissed
plaintiff’s motion for preliminary injunction for failure to present adequate proof of
causation. Id. at 69. In order to establish causation, plaintiffs were required “to employ
facts and statistics that ‘adequately capture[d]’ the impact of the city’s plans on similarly
situated members of protected and non-protected groups.” 214 F. 3d 65, 70 quoting
New York Urban League, 71 F. 3d 1031, 1037.
If the evidence establishes a prima facie case, the investigating agency must

or others who implement it.
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then determine whether the recipient can articulate a “substantial legitimate justification”
for the challenged practice. Georgia State Conference, 775 F.2d at 1417. “Substantial
legitimate justification” is similar to the Title VII concept of “business necessity,” which
involves showing that the policy or practice in question is related to performance on the
job. Griggs v. Duke Power, 401 U.S. 424 (1971).
To prove a “substantial legitimate justification,” the recipient must show that the
challenged policy was “necessary to meeting a goal that was legitimate, important, and
integral to the [recipient’s] institutional mission.” Sandoval v. Hagan, 7 F.Supp. 2d
1234, 1278 (M.D. Ala. 1998), aff’d, 197 F.3d 484 (11th Cir. 1999), cert. granted sub.
nom. Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 28, 68 U.S.L.W. 3749 (U.S. Sept.
26, 2000) (No. 99-1908) (quoting Elston, 997 F.2d at 1413). The justification must bear
a “manifest demonstrable relationship” to the challenged policy. Georgia State
Conference, 775 F.2d. at 1418. See, e.g., Elston, 997 F. 2d at 1413 (In an education
context, the practice must be demonstrably necessary to meeting an important
educational goal, i.e. there must be an “educational necessity” for the practice).
If the recipient can make such a showing, the inquiry must focus on whether
there are any “equally effective alternative practices” that would result in less racial
disproportionality or whether the justification proffered by the recipient is actually a
pretext for discrimination. Id. See generally, McDonnell Douglas, 411 U.S. 792.
Evidence of either will support a finding of liability.
Courts have often found Title VI disparate impact violations in cases where
recipients utilize policies or practices that result in the provision of fewer services or
benefits, or inferior services or benefits, to members of a protected group. In Larry P. v.
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Riles, 793 F.2d 969 (9th Cir. 1984), the Ninth Circuit applied a discriminatory effects test
to analyze the Title VI claims of a class of black school children who were placed in
special classes for the “educable mentally retarded” (“EMR”) on the basis of nonvalidated IQ tests. The Ninth Circuit upheld the district court’s finding that use of these
IQ tests for placement in EMR classes constituted a violation of Title VI. Id. at 983.
Similarly, in Sandoval, the court held that discrimination on the basis of language, in the
form of an English-only policy, had an unjustified disparate impact on the basis of
national origin, and thus violated Title VI. Sandoval, 7 F.Supp. 2d at 1312. See Meek
v. Martinez, 724 F.Supp. 888 (S.D.Fla. 1987) (Florida’s use of funding formula in
distributing aid resulted in a substantially adverse disparate impact on minorities and
the elderly). See also, Campaign for Fiscal Equity, Inc. v. State, 86 N.Y.2d 307, 655
N.E.2d 1178 (N.Y. Ct. App. Jun 15, 1995) (Prima facie case established where
allocation of educational aid had a racially disparate impact).
In evaluating a potential disparate impact claim under Title VI, it is important to
examine whether there is a substantial legitimate justification for the challenged practice
and whether there exists an alternative practice that is comparably effective with less of
a disparate impact. See Elston, 997 F.2d at 1407.

For example, the Second Circuit

in New York Urban League, reversed the district court’s preliminary injunction for its
failure to consider whether there was a “substantial legitimate justification” for a subway
fare increase that had an adverse impact. 71 F.3d at 1039.
[B]ut the district court did not consider, much less analyze, whether the
defendants had shown a substantial legitimate justification for this
allocation. The MTA and the State identified several factors favoring a
higher subsidization of the commuter lines. By encouraging suburban
residents not to drive into the City, subsidization of the commuter rails
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minimizes congestion and pollution levels associated with greater use of
automobiles in the city; encourages business to locate in the City; and
provides additional fare-paying passengers to the City subway and bus
system. In these respects and in others, subsidizing the commuter rails
may bring material benefits to the minority riders of the subway and bus
system. The district court dismissed such factors, concluding that the
MTA board did not explicitly consider them before voting on the NYCTA
and commuter line fare increases. That finding is largely irrelevant to
whether such considerations would justify the relative allocation of total
funds to the NYCTA and the commuter lines. (Emphasis added) 43/
Similarly, in Young by and through Young, 922 F.Supp at 544, the court ruled
that even if a disparate impact were assumed, the defendants had established a
“substantial legitimate justification.”
[T]he Defendants presented evidence that Policy IDFA was adopted to
address concerns that the M to M transfer program was being used to
facilitate athletic recruiting in the Montgomery County school system and
to help revitalize Montgomery’s west side [minority] high schools. Both of
these justifications are substantial and legitimate because they evince a
genuine attempt by the Board of Education to improve the quality of
education offered in [the] County.
Id. at 551.
If a substantial legitimate justification is identified, the third stage of the disparate
impact analysis is the plaintiff’s demonstration of a less discriminatory alternative.
Elston, 997 F. 2d at 1407; see also, Young by and through Young, 922 F. Supp. at 551
(where defendants established a substantial legitimate justification, plaintiffs failed to
demonstrate existence of an equally effective alternative practice).
43

It is interesting to note that this opinion suggests that post-hoc justifications, be
they “substantial and legitimate,” will be considered. Furthermore, these justifications
also are arguably tangential in their alleged benefits to the minority riders disparately
affected by the fare increase. However, it also should be remembered that this case
was on review of a preliminary injunction, where plaintiffs must show a likelihood of
success on the merits to receive an injunction. New York Urban League, 71 F. 3d at
1039.
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C.

National Origin Discrimination and Services in Languages Other
than English

Since its adoption and initial implementation, Title VI regulations have barred
utilization of criteria and methods of administration which have, among other results,
“the effect of defeating or substantially impairing accomplishment of the objectives of
the program as respect individuals of a particular race, color or national origin.”44/ This
universal regulatory language incorporates a disparate impact standard into Title VI.45/
In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court faced a challenge by
Chinese-speaking students to a school district’s policy of offering instruction only in
English. Siding with the students, the Court concluded that the failure to provide
information and services in languages other than English could result in discrimination
on the basis of national origin where the failure to do so resulted in a significant number
of limited English proficiency (LEP) beneficiaries from the same language minority
being unable to fully realize the intended benefits of a federally assisted program or
activity.
[i]t seems obvious that the Chinese-speaking minority receive fewer
benefits than the English-speaking majority from respondents’ school
system which denies them a meaningful opportunity to participate in the
educational program - all earmarks of the discrimination banned by [the
Title VI implementing regulations].”46/
Lau has its clearest application in the educational setting. However, Lau’s reach

44

65 Fed. Reg. 50121, 50123.

45

See discussion supra Section B of this chapter for a discussion of the disparate
impact standard.
46

Lau v. Nichols, 414 U.S. at 568.
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is not limited to educational programs or activities. The core holding in Lau -- that the
failure to address limited English proficiency among beneficiary classes could constitute
national origin discrimination -- has equal vitality with respect to any federally assisted
program or activity providing services to the public.47/
1.

Presidential Reaffirmance and Clarification of Lau Obligations

Recently, the obligation to eliminate limited English proficiency as an artificial
barrier to full and meaningful participation in all federally assisted programs and
activities was reaffirmed and clarified by the President. See Executive Order 13166, 65
Fed. Reg. 50121 (August 16, 2000).48/
The Federal Government is committed to improving the accessibility
of...services to eligible [limited English proficiency] persons, a goal that
reinforces its equally important commitment to promoting programs and
activities designed to help individuals learn English....Each Federal
agency shall...work to ensure that recipients of Federal financial
assistance (recipients) provide meaningful access to their LEP applicants
and beneficiaries....[R]ecipients must take reasonable steps to ensure
meaningful access to their programs and activities by LEP persons.49/
The Executive Order requires each federal agency to develop, after consultation

47

See e.g., Sandoval v. Hagen, 7 F. Supp. 2d 1234 (driver’s licence examinations);
Pabon v. Levine, 70 F.R.D. 674 (S.D.N.Y. 1976) (unemployment insurance
information).
48

Executive Order 13166 also expanded the obligation to address the language
needs of Limited English Proficiency (LEP) persons beyond federally assisted programs
and activities to include federally conducted programs and activities. The Executive
Order makes clear that the same compliance standards expected of recipients of
federal financial assistance are applicable to Federal agencies themselves in the
conduct of their own programs and activities. See Section 2, Executive Order 13166,
65 Fed. Reg. at 50121.
49

Section 1, Executive Order 13166.
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with appropriate program and activity stakeholders50/, agency-specific LEP guidance
for recipients of federal financial assistance.51/ As an aid in developing this guidance,
the Executive Order incorporates the Department of Justice LEP Guidance (LEP
Guidance) issued contemporaneously with the Executive Order.52/ The LEP Guidance
“sets forth the compliance standards that recipients must follow to ensure that programs
and activities they normally provide in English are accessible to LEP persons.”53/
Agency-specific LEP guidance for recipients is to be “consistent with the standards set
forth in the [DOJ] LEP Guidance.”54/
2.

The Four Factor Analysis: Reasonable Steps Toward Reasonable
Measures

Title VI, Executive Order 13166, and the LEP Guidance do not require a recipient
to re-invent or mirror a federally assisted program or activity solely because a significant
number or proportion of its beneficiary class are LEP persons. Indeed, in some

50

Id. at Section 4. “Stakeholders” are persons and organizations having an interest
in the administration and operation of particular programs and activities providing
services or benefits to the public. For the purposes of documents developed in
furtherance of Executive Order 13166, “stakeholders” includes, but is not necessarily
limited to, “LEP persons and their representative organizations, recipients, and other
appropriate individuals or entities.” Id.
51

Id. at Section 3. Agency-specific LEP Guidance for recipients must be submitted
to the Department of Justice for review and approval prior to final issuance. Approval
responsibility for the Department has been assigned to the Coordination and Review
Section of the Civil Rights Division, Department of Justice.
52

Policy Guidance Document: Enforcement of Title VI of the Civil Rights Act of 1964
- National Origin Discrimination Against Persons with Limited English Proficiency, dated
August, 11, 2000, reprinted at 65 Fed. Reg. 50123 (August 16, 2000).
53

See Executive Order 13166 at Section 1.

54

Id. at Section 3.
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circumstances, the creation of separate but equal language-based mirror programs
could itself be questioned under Title VI. Nor do they require recipients to add nonEnglish modules to a program or activity where English competency is an essential
element (such as providing employment examinations only in English when English
proficiency is a legitimate job requirement).55/ Rather, recipients are required to
address, consistent with the core objectives of the federally assisted programs or
activities, the specific language needs of their LEP beneficiaries which operate as
artificial barriers to full and meaningful participation in the federally assisted program or
activity. This requires that recipients evaluate how a LEP person’s inability to
understand oral and written information provided by and about a federally assisted
program or activity might adversely impact his or her ability to fully participate in or
benefit from that program or activity. The LEP Guidance provides a structure through
which these various aspects of a program or activity can be consistently evaluated.
Given the wide range of programs and activities receiving Federal financial
assistance, no single uniform rule of compliance is either possible or reasonable.
Instead, the LEP Guidance incorporates “reasonableness” as its guiding principle.
Toward that end, the LEP Guidance articulates a flexible four-factor analysis requiring
reasonable steps to identify and implement reasonable measures to mitigate those
55

See 65 Fed. Reg. at 50125, n. 13. The fact that English competency is a core
element of the federally assisted program or activity does not necessarily mean that a
recipient is alleviated from an LEP obligations to program beneficiaries. Recipients
should undertake a separate analysis for each aspect of their program or activity (e.g.,
application, admission, instruction/service, referral, recruitment, outreach, etc.) to
ensure that some specific language need on the part of LEP persons does not operate
directly or indirectly as an artificial barrier to full and meaningful participation in the
English proficiency portion of the federally assisted program or activity.
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aspects of beneficiaries’ limited English proficiency that act as artificial barriers to
“accomplishment of the objectives of the program as respects individuals of a particular
race, color or national origin.”56/
Title VI and its regulations require recipients to take reasonable steps to
ensure “meaningful” access to the information and services they provide.
What constitutes reasonable steps to ensure meaningful access will be
contingent on a number of factors. Among the factors to be considered
are the number or proportion of LEP persons in the eligible service
population, the frequency with which LEP individuals come in contact with
the program, the importance of the service provided by the program, and
the resources available to the recipient.57/
Under the DOJ four-factor analysis, the search for “reasonableness” flows from a
balancing or blending of all four factors to determine what, if any, language mitigation
measures are reasonably necessary to eliminate or minimize LEP as a barrier to
participation in or receipt of the benefits of a federally assisted program or activity.
Under this approach, no single factor alone is determinative and no single factor is
entitled to greater weight in isolation from the other three. Finally, separate analyses
should be undertaken with respect to each different language group within the
recipient’s beneficiary class.
D.

Environmental Justice and Title VI

“Although the term ‘environmental justice’ is of fairly recent vintage, the concept
is not.”58/ For thirty-five years, Title VI has prohibited methods of administration or the

56

See 65 Fed. Reg. at 50123.

57

See 65 Fed. Reg. at 50124 (LEP Guidance).

58

Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 195 (4th Cir.
1999) (King, Circuit Judge, concurring). To highlight his point, Judge King recalled an
observation made almost thirty years ago that continues to have validity. “‘As often
-58-

use of criteria which had the effect of discriminating on the basis of race, color or
national origin. The application of this result-oriented analysis to criteria used or not
used in decision-making on projects or activities affecting the human environment is a
logical extension of Title VI. Indeed, the core tenet of environmental justice – that
development and urban renewal benefitting a community as a whole not be unjustifiably
purchased through the disproportionate allocation of its adverse environmental and
health burdens on the community’s minority – flows directly from the underlying
principal of Title VI itself.
1. Executive Order 12898: The Duty to Collect, Disseminate and
Think
In 1994, the President issued Executive Order 12898 entitled “Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations.”59/ While that Executive Order creates no new obligations or rights, it
does clarify existing Title VI requirements on Federal officials and those that receive
federal financial assistance to incorporate into their respective cost-benefit analyses a
meaningful consideration of possible disproportionate adverse environmental and
health impacts on minority and low-income populations.
[Executive Order 12898] is designed to focus Federal attention on the
environmental and human health conditions in minority communities and
low-income communities with the goal of achieving environmental justice.
That order is also intended to promote non-discrimination in Federal

happens with interstate highways, the route selected was through the poor area of
town, not through the area where the politically powerful people live’.” Id. quoting
Triangle Improvement Council v. Ritchie, 402 U.S. 497, 502 (1971) (per curiam)
(Douglas, J., dissenting).
59

59 Fed. Reg. 7629 (1994), codified at 3 C.F.R. § 859 (1995).
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programs substantially affecting human health and the environment, and
to provide minority communities and low-income communities access to
public information on, and an opportunity for public participation in,
matters relating to human health or the environment.60/
In order to accomplish its goals, Executive Order 12898 requires each federal
agency to develop, under the guidance of an Interagency Working Group on
Environmental Justice, a written strategy to identify and address disproportionately high
and adverse human health or environmental effects of its programs, policies, and
activities on minority and low-income populations. That strategy is to reflect agency
efforts to re-focus and, if necessary re-tool, its programs, policies, planning and public
participation processes, enforcement, and/or rulemaking related to human health or the
environment to:
(1) promote enforcement of all health and environmental statutes in areas
with minority populations and low-income populations; (2) ensure greater
public participation; (3) improve research and data collection relating to
the health of and environment of minority populations and low-income
populations; and (4) identify differential patterns of consumption of natural
resources among minority populations and low-income populations.61/
In sum, Executive Order 12898 requires agencies to develop and implement an
integrated approach to realizing environmental justice through the collection, analysis
and dissemination of understandable62/ and useful information on the adverse

60

Presidential Memorandum for the Heads of all Departments and Agencies, 30
Weekly Comp. Pres. Doc. 279 (February 11, 1994) (“Presidential Memorandum”).
61

59 Fed. Reg. 7629, 7630 at §1-103(a).

62

In this regard, Executive Order 12898 directs federal agencies to ensure that
public documents, notices and hearing are “concise, understandable, and readily
accessible to the public.” Executive Order 12898, §5-5(c). In addition, where
practicable and appropriate, agencies are authorized to translate crucial environmental
or health information into languages other than English. Id., §5-5(b). For a discussion
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environmental and health impacts on protected populations. Armed with this
information, decision-making on projects and proposals affecting the social and
physical environment should be enriched to the benefit of both decision-makers and the
public.
2. EPA Guidance on Environmental Justice
While the concept of environmental justice is applicable to any federally assisted
program or activity involving potential environmental or health burdens, it has its
clearest impact with respect to undertakings which also trigger federal obligations under
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §321, et seq, or its
state and local progeny.63/ Such undertakings generally involve changes to a
community’s land use patterns or physical environment and include, but are not limited
to, such things as highways, water/sewer/power lines, mass transit projects, urban redevelopment and other activities associated with community infrastructure construction.
Consistent with its leadership role over federal environmental policy and its
enhanced obligations under Executive Order 12898,64/ the Environmental Protection

of where such translations may be required under Executive Order 13166, issued six
years after Executive Order 12898, see pp. 59-65 in this chapter.
63

As clarified by the President when he issued Executive Order 12898, the duty to
engage in an environmental justice analysis is coextensive with the duty to engage in
an environmental analysis under NEPA. See Presidential Memorandum.
64

In addition to its environmental justice responsibilities share in common with other
federal departments and agencies, EPA is directed to ensure as part of its reviews
under Section 309 of the Clean Air Act, 42 U.S.C. § 760, that the environmental effects
of proposed action on minority and low-income communities have been fully analyzed,
including all human health, social, and economic effects. See Presidential
Memorandum.
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Agency is currently finalizing two environmental guidance documents focusing on the
application of environmental justice concepts in the permitting context.65/ The first
outlines EPA’s policies on recipients’ existing environmental justice obligations under
Title VI of the Civil Rights Act of 1964, as amended. The second details the internal
investigative procedures and criteria that will be used by EPA to investigate Title VI
complaints containing environmental justice concerns. Through these documents, EPA
intends to address questions raised over how to achieve environmental justice in this
important yet difficult area. Notwithstanding their focus on permitting, the EPA
guidance documents offer valuable assistance in clarifying environmental justice
questions raised in other areas. These documents are available on the EPA Office of
Civil Rights website at www.epa.gov/civilrights.
3. An Analytical Approach and its Attendant Problems of Timing and
Proof
Two recent cases illustrate the approach and inherent difficulties of timing and
proof associated with environmental justice actions. The first, Jersey Heights
Neighborhood Ass’n v. Glendening, 174 F.3d 180 (4th Cir. 1999) highlights the
consequences of lack of meaningful notice on the ability to seek environmental justice
through litigation. The second, New York City Envtl. Justice Alliance v. Giuliani, 214
F.3d 65 (2d Cir. 2000) [hereinafter NYCEJA], sets out one approach to analyzing
environmental justice claims but highlights the difficulties of proof a complainant faces
in establishing a prima facie case.
65

“Draft Title VI Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs” and “Revised Draft Guidance for Investigating Title
VI Administrative Complaints Challenging Permits,” 65 Fed. Reg. 39650 (2000).
-62-

In Jersey Heights, an African-American community challenged under Title VI,
among other grounds, a decision to route a highway bypass through their community.
The challenged route, initially chosen in 1985, confirmed in 1989 and revised in 1991,
placed the path of the bypass adjacent to Jersey Heights, a local community whose
population was more than 90% African-American. The other route under consideration
in 1985, running through a predominantly white area of the city, was rejected after
residents of that area voiced strong and timely objections to its selection. The
residents of the predominantly white area had received individual notice in 1985 of the
planning process while the residents of Jersey Heights had not. Planning officials did
not specifically meet with Jersey Heights residents until 1992, after the bypass routing
decision had already been made.66/ When administrative remedies under Title VI
failed to address their concerns, the residents resorted to their judicial remedies in
1997. On appeal, the Fourth Circuit Court of Appeals sustained a dismissal of the
action as untimely.
In connection with the plaintiff’s Title VI claim against state official,67/ the court in
Jersey Heights first held that Title VI actions were subject to the state’s three-year
limitation period.68/ Because the final route decision was made in 1989 and in light of

66

Jersey Heights, 174 F.3d at 195.

67

The court affirmed dismissal of parallel claims against federal official under Title VI
as barred by sovereign immunity and, with respect to a claimed abdication of
enforcement duty, unauthorized. Id. at 191.
68

In so doing, the court acknowledged that the question of which limitations period
applied to Title VI actions had not been definitively addressed in the Fourth Circuit. In
addition, finding no state statute comparable to Title VI, the court concluded that the
applicable limitation period of that applied to personal injuries. Id. at 187.
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evidence indicating that at least some of the residents of Jersey Heights had actual or
imputed knowledge of the decision at that time, their 1997 action was time-barred. In
reaching this result, the court rejected argument that Title VI is triggered by the final
commitment of federal assistance to the project rather than the local decision to
proceed with the project. It also refused to adopt the “continuing violation” theory, citing
established Circuit law that a “‘continuing violation is occasioned by continual unlawful
acts, not continual ill effects from an original violation.’”69/ Finally, while recognizing the
desirability of resort to administrative remedies, the court declined to hold that the
limitations period was tolled during the administrative complaint process.70/
In large measure, Executive Order 12898 seeks to address the Jersey Heights
result by mandating timely and effective notice to minority and low-income populations
as part of any planning process. In drafting guidance or conducting program reviews,
agency officials should focus specific attention on the public notice and participation
procedures employed by themselves and their recipients to ensure compliance with the
public consultation requirements of Executive Order 12898.
Even where notice is sufficient, environmental justice litigants must overcome the
inherent difficulties of providing adequate proof of discrimination.71/ In NYCEJA, a
panel of the Second Circuit Court of Appeals confronted a challenge to a proposed

69

Id. at 189 (quoting National Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th
Cir. 1991).
70

Id. at 191.

71

See supra pp. 55-57 for a discussion on NYCEJA and providing proof of disparate
impact.
-64-

auction of city-owned lots, most located in minority communities and used as
community gardens, for the asserted purpose of building new housing and fostering
urban renewal. 214 F. 3d 65. As discussed above in Section B of this Chapter, the
court rejected the plaintiffs’ proffered prima facie case because it was not based on an
“appropriate measure” that “adequately captured” the nature and scope of the asserted
adverse impact borne specifically and principally by the minority population in relation to
the non-minority population.72/
The decision in NYCEJA demonstrates that although the analytical approach to
environmental justice claims is relatively easy to articulate, they are difficult to resolve.
In such circumstances, the ability to isolate and prove adverse environmental and
health burdens disproportionately suffered by a minority which are not shared by other
parts of a community will play a determinative role in establishing a violation of Title VI
in the environmental justice setting.
E.

Retaliation

A complainant may bring a retaliation claim under Title VI or under a Title VI
regulation that prohibits retaliation. For example, most agency Title VI regulations
provide that “[n]o recipient or other person shall intimidate, threaten, coerce, or
discriminate against any individual for the purpose of interfering with any right or
privilege secured by [Title VI], or because he has made a complaint, testified, assisted,
or participated in any manner in an investigation, proceeding or hearing under this
subpart.” 28 C.F.R. § 42.108(e) (Department of Justice Regulation).

72

See NYCEJA, 214 F.3d 65, 69 (2d Cir. 2000).
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To establish a prima facie case of retaliation, the investigating agency must first
determine if the complainant can show (1) that he or she engaged in a protected
activity, (2) that the recipient knew of the complainant’s protected activity, (3) that the
recipient took some sort of adverse action against the complainant, and (4) that there
was a causal connection between the complainant’s protected activity and the
recipient’s adverse actions. See Davis v. Halpern, 768 F.Supp. 968, 985 (E.D.N.Y.
1991). (Defendants’s summary judgment motion to dismiss Title VI retaliation claim
was denied because plaintiff established evidence of prima facie case).
Once a prima facie case of retaliation has been established, the investigating
agency must then determine if the recipient can articulate a “legitimate nondiscriminatory reason” for the action. Id. If the recipient can offer such a reason, the
investigating agency must then show that recipient’s proffered reason is pretextual and
that the recipient’s actual reason was retaliation. Id. A showing of pretext is sufficient
to support an inference of retaliation. Id.

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IX.

Employment Coverage
A.

Scope of Coverage

While Title VI was not meant to be the primary Federal vehicle to prohibit
employment discrimination, it does forbid employment discrimination by recipients in
certain situations. If a primary objective of the Federal financial assistance to a
recipient is to promote employment, then the recipient's employment practices are
subject to Title VI. 42 U.S.C. § 2000d-3.73/
Nothing contained in [Title VI] shall be construed to authorize action under [Title
VI] by any department or agency with respect to any employment practice of any
employer, employment agency, or labor organization except where a primary
objective of the Federal financial assistance is to provide employment.

Id. (emphasis added). In addition, as explained below, a recipient's employment
practices also are subject to Title VI where those practices negatively affect the delivery
of services to ultimate beneficiaries.
For example, if a recipient built a temporary shelter with funds designed to
provide temporary assistance to dislocated individuals, the employment practices of the
recipient with respect to the construction of such facility are not subject to Title VI.
73

In contrast, if employment of potential beneficiaries was not a primary object of the
Federal assistance, the employment practices of a recipient are not covered by Title VI.

[S]ection 604 would be added, to preclude action by a Federal agency
under Title VI with respect to any employment practices of an employer,
employment agency, or labor organization, except where a primary
objective of the Federal financial assistance involved is to provide
employment. This provision is in line with the provisions of section 602
and serves to spell out more precisely the declared scope of coverage of
the title. 110 Cong. Rec. 12720 (1964) (Statement by Sen. Humphrey);
see 110 Cong. Rec. 2484 (1964) (Statement by Sen. Poff).
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However, if the recipient built the same facility with funds received through a public
works program whose primary objective is to generate employment, the employment
practices are subject to Title VI. In the former case, the program's benefit was to
provide shelter to dislocated individuals while, in the latter case, the benefit was the
employment of individuals to build the facility.
Thus, to sustain a claim of employment discrimination under Title VI, the plaintiff
has an additional threshold requirement: not only must the plaintiff establish that the
recipient receives Federal financial assistance, but also that the "primary objective" of
the Federal funding is to provide employment. Reynolds v. School Dist. No. 1, Denver,
Colo., 69 F.3d 1523, 1531 (10th Cir. 1995) (motion to dismiss granted due to plaintiff's
failure to show that the primary purpose of Federal assistance was to provide
employment); Association Against Discrimination in Employment v. City of Bridgeport,
647 F.2d 256, 276 (2d Cir. 1981) (failure to prove all elements of employment
discrimination claim due to lack of evidence of primary purpose of Federal funds), cert.
denied, 455 U.S. 988 (1982); Bass v. Board of County Comm’rs of Orange County, 38
F. Supp. 2d 1001 (M.D. Fla, 1999) (summary judgment against plaintiff due to lack of
evidence of primary purpose of Federal funds); Thornton v. National R.R. Passenger
Corp., 16 F. Supp. 2d 5 (D.D.C. 1998) (complaint dismissed because primary objective
of funding was to promote transportation, not employment).

In Reynolds, plaintiff's

assertion that Federal funds paid, in part, the salary of an employee was insufficient,
since plaintiff did not show that the primary objective of the Federal funds was
employment rather than general funding of school programs. Id. at 1532.
Further, where employment discrimination by a recipient has a secondary effect
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on the ability of beneficiaries to meaningfully participate in and/or receive the benefits of
a federally assisted program in a nondiscriminatory manner, those employment
practices are within the purview of Title VI.74/ Agency regulations specifically address
this principle in identical or similar language:
In regard to Federal financial assistance which does not have providing
employment as a primary objective, the provisions of paragraph (c)(1)
[prohibitions where objective is employment] apply to the employment practices
of the recipient if discrimination on the grounds of race, color, or national origin in
such employment practices tends, on the grounds of race, color, or national
origin, to exclude persons from participation in, to deny them the benefits of or to
subject them to discrimination under the program receiving Federal financial
assistance. In any such case, the provisions of paragraph (c)(1) of this section
shall apply to the extent necessary to assure equality of opportunity to and
nondiscriminatory treatment of beneficiaries.
28 C.F.R. § 42.104(c)(2); see also 15 C.F.R. § 8.4(c)(2) (Commerce); 34 C.F.R.
§ 100.3(c)(3) (Education). In this situation, there is a causal nexus between
employment discrimination and discrimination against beneficiaries. United States v.
Jefferson County Bd. of Educ., 372 F.2d 836, 883 (5th Cir. 1966) ("Faculty integration is
essential to student desegregation."), cert. denied. sub nom., Caddo Parish Sch. Bd. v.
United States, 389 U.S. 840 (1967); Ahern v. Board of Educ., 133 F. 3d 975 (7th Cir.
1998) (applying infection theory to public school plan for assignment of principals);
Caulfield v. Board of Educ., 486 F. Supp. 862, 876 (E.D.N.Y. 1979) (characterization of
infection theory where employment practices affect beneficiaries, i.e., students);
Marable v. Alabama Mental Health Bd., 297 F. Supp. 291, 297 (M.D. Ala. 1969)
(patients of State mental health system have standing to challenge segregated
employment practices which affect delivery of services to patients.).
74

This is oftentimes referred to as the "infection theory."
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Section 2000d-3 does not exempt a recipient's employment practices from other
applicable Federal statutes, executive orders, or regulations. United States by Clark v.
Frazer, 297 F. Supp. 319, 321-322 (M.D. Ala. 1968); see also, Contractors Ass'n. of E.
Pa. v. Secretary of Labor, 442 F.2d 159, 173 (3d. Cir. 1971), cert. denied., 404 U.S.
854 (1971). Furthermore, a recipient's compliance with State and local merit systems
for employment may not constitute compliance with Title VI. 28 C.F.R. § 42.409.
B.

Regulatory Referral of Employment Complaints to EEOC

In 1983, the Department of Justice and the Equal Employment Opportunity
Commission (EEOC) published "Procedures for Complaints of Employment
Discrimination Filed Against Recipients of Federal financial assistance." 28 C.F.R.
§§ 42.601-42.613 (DOJ); 29 C.F.R. §§ 1691.1 - 1691.13 (EEOC) (often referred to as
the Title VI/VII rule). In summary, the procedures provide that a Federal agency
receiving a complaint of employment discrimination against a recipient that is covered
by both Title VI (and/or other grant-related prohibitions against discrimination) and Title
VII should refer the complaint to the EEOC for investigation and conciliation.75/ 28
C.F.R. §§ 42.605(d), 42.609. If the EEOC determines that there is discrimination and is
unable to resolve the complaint, the rule calls for the funding agency to evaluate the
matter, "with due weight to the EEOC's determination that reasonable cause exists,"
and to take appropriate enforcement action. 28 C.F.R. § 42.610. Where complaints
75

If the complaint only alleges a violation of Title VII and not Title VI, the matter
should be transferred to the EEOC. In addition, the regulation exempts from its
application Executive Order 11246, which is enforced by the Office of Federal Contracts
Compliance Programs, and the Omnibus Crime Control and Safe Streets Act, as
amended, and the Juvenile Justice and Delinquency Prevention Act. 28 C.F.R.
§ 42.601.
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allege a pattern or practice of discrimination and there is dual coverage, agencies have
the option of keeping the complaint rather than referring it.
The reason for this regulation is clearly stated in the Preamble to the notice in
the Federal Register:
The rule . . . will reduce duplicative efforts by different Federal agencies to
enforce differing employment discrimination prohibitions and thereby will
reduce the burden on employers covered by more than one of those
prohibitions. At the same time it will allow the Federal fund granting
agencies to focus their resources on allegations of services discrimination.
48 Fed. Reg. 3570 (1983).

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X.

Federal Funding Agency Methods to Evaluate Compliance
The Federal agency providing the financial assistance is primarily responsible for

enforcing Title VI as it applies to its recipients. Agencies have several mechanisms
available to evaluate whether recipients are in compliance with Title VI, and additional
means to enforce or obtain compliance should a recipient's practices be found lacking.
Evaluation mechanisms, discussed below, include pre-award reviews, post-award
compliance reviews, and investigations of complaints.
A.

Pre-Award Procedures

Agencies should endeavor to ensure that awards of Federal financial assistance
are only granted to entities that adhere to the substantive antidiscrimination mandates
of Title VI and other nondiscrimination laws.
1. Assurances of Compliance
The Title VI Coordination Regulations, (as well as the Section 504 coordinating
regulation), require that agencies obtain assurances of compliance from prospective
recipients. 28 C.F.R. §§ 41.5(a)(2), 42.407(b). Regulations requiring applicants to
execute an assurance of compliance as a condition for receiving assistance are valid.
Grove City, 465 U.S. at 574-575 (Title IX assurances); Gardner v. Alabama, 385 F.2d
804 (5th Cir. 1967), cert. denied, 389 U.S. 1046 (1968) (Title VI assurances). If an
applicant refuses to sign a required assurance, the agency may deny assistance only
after providing notice of the noncompliance, an opportunity for a hearing, and other
statutory procedures. 42 U.S.C. § 2000d-1; 28 C.F.R. § 50.3 II.A.1. However, the
agency need not prove actual discrimination at the administrative hearing, but only that
the applicant refused to sign an assurance of compliance with Title VI (or similar
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nondiscrimination laws). Grove City, 465 U.S. at 575. Assurances serve two important
purposes: they remind prospective recipients of their nondiscrimination obligations, and
they provide a basis for the Federal government to sue to enforce compliance with
these statutes. See United States v. Marion County Sch. Dist., 625 F.2d 607, 609, 61213 (5th Cir.), reh'g denied, 629 F.2d 1350 (5th Cir. 1980), cert. denied, 451 U.S. 910
(1981).
2. Deferral of the Decision Whether to Grant Assistance
The “Guidelines for the Enforcement of Title VI, Civil Rights Act of 1964,” (the
“Title VI Guidelines”) specifically state that agencies may defer assistance decisions:
"In some instances . . . it is legally permissible temporarily to defer action on an
application for assistance, pending initiation and completion of [statutory remedial]
procedures--including attempts to secure voluntary compliance with title VI." 28 C.F.R.
§ 50.3 I.A. Thus, deferral may occur while negotiations are ongoing to special condition
the award, during the pendency of a lawsuit to obtain relief, or during proceedings
aimed at refusing to grant the requested assistance.76/
76

The Title VI Guidelines distinguish between the applicability of an agency's
deferral authority for initial or one-time awards versus continuing, periodic awards. The
Title VI Guidelines state, that agencies have deferral authority with regard to
"applications for one-time or noncontinuing assistance and initial applications for new or
existing programs of continuing assistance." 28 C.F.R. § 50.3 II.A. In contrast, if an
application for funds has been approved and a recipient is entitled to "future, periodic
payments," or if "assistance is given without formal application pursuant to statutory
direction or authorization," distribution of funds may not be deferred or withheld unless
all the Title VI statutory procedures for a termination of funds are followed. Id. II.B.
The Title VI Guidelines do not specify what may constitute "abnormal" or
exceptional circumstances to warrant deferral of a continuing grant. In these renewal or
continuation situations, the Title VI Guidelines indicate that an assurance of compliance
or a nondiscrimination plan may be required prior to continuing the payout of funds.
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This interpretation is a reasonable, and even necessary, application of the
statutory remedial scheme. The congressional authorization to obtain relief pre-award
would be sharply reduced, if not rendered a near nullity, if agencies could not postpone
the assistance decision while spending the time needed to conduct a full and fair
investigation and while seeking appropriate relief. Furthermore, the Attorney General's
administrative interpretation is entitled to deference. See, e.g., Chevron U.S.A. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984).77/
The Title VI Guidelines recommend that agencies adopt a flexible, case-by-case
approach in assessing when deferral is appropriate, and consider the nature of the
77

Subsequent to the adoption of Title VI, Congress on at least two occasions has
refused to prohibit agencies from exercising pre-award deferral authority. In 1966, in
considering the Elementary and Secondary Education Amendments of 1966, the House
adopted a provision that effectively would have prohibited pre-award deferrals of certain
education grants by the Department of Health, Education, and Welfare. The
amendment, offered by Representative Fountain, provided that no deferral could occur
unless and until there was a formal finding, after opportunity for hearing, that the
applicant was violating Title VI. 112 Cong. Rec. 25,573 (1966). Representative
Fountain argued that a deferral was the same as a refusal, and accordingly that
deferrals should be subject to the same hearing procedure required to refuse or
terminate assistance. Id. at 25,573-74. In opposition, Representative Celler argued
that the amendment would preclude HEW from obtaining pre-award relief since the
award procedure would be completed before the Title VI hearing could be held. Id. at
25,575. During the debate, Rep. Celler noted that HEW was acting pursuant to the
directives set out in the Title VI Guidelines. Id. The Senate version did not include any
limitation on deferrals. In conference, the prohibition was deleted and replaced with a
durational/procedural limitation on certain HEW deferrals. Conf. Rep. No. 2309, 89th
Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 3896. Codified at 42 U.S.C.
§ 2000d-5. Again in 1976, in adopting the Education Amendments of 1976, Congress
imposed a durational/procedural limitation on HEW deferral authority, codified at 20
U.S.C. 1232i(b), but rejected a House passed amendment effectively prohibiting
specified HEW deferrals. 122 Cong. Rec. 13411-13416; H.R. Conf. Rep. No. 1701,
94th Cong., 1st Sess. 242-43 (1976), reprinted in 1976 U.S.C.C.A.N. 4943-44. This
post-adoption legislative history buttresses the conclusion that deferrals are an
appropriate application of the pre-award remedial authority granted agencies by
Congress. Board of Pub. Instruction v. Cohen, 413 F.2d 1201 (5th Cir. 1969).
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potential noncompliance problem. Where an assistance application is inadequate on
its face, such as when the applicant has failed to provide an assurance or other
material required by the agency, "the agency head should defer action on the
application pending prompt initiation and completion of [statutory remedial] procedures."
28 C.F.R. § 50.3 II.A.1 (emphasis added). Where the application is adequate on its face
but there are "reasonable grounds" for believing that the applicant is not complying with
Title VI, "the agency head may defer action on the application pending prompt initiation
and completion of [statutory remedial] procedures." Id. II.A.2 (emphasis added).78/
When action on an assistance application is deferred, remedial efforts "should
be conducted without delay and completed as soon as possible." Id. I.A. Agencies
should also be cognizant of the time involved in a deferral to ensure that a deferral does
not become "tantamount to a final refusal to grant assistance." Id. II.C. The agency
should not completely rule out deferrals where time is of the essence in granting the
assistance, but should consider special measures that may be taken to seek expedited
relief (e.g., by referring the matter to the Department of Justice to file suit for interim
injunctive relief).
78

The Title VI Guidelines note that deferral may be more appropriate where it will
be difficult during the life of the grant to obtain compliance, e.g., where the application is
for noncontinuing assistance. On the other hand, deferral may be less appropriate
where full compliance may be achieved during the life of the grant, e.g., where the
application is for a program of continuing assistance. Where the grant of assistance is
not deferred despite a concern about noncompliance, the Title VI Guidelines advise that
the applicant should be given prompt notice of the asserted noncompliance;
funds should be paid out for short periods only, with no long-term commitment of
assistance given; and the applicant advised that acceptance of the funds carries
an enforceable obligation of nondiscrimination and the risk of invocation of
severe sanctions, if noncompliance in fact is found. Id. II.A.2.
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3.

Pre-Award Authority of Recipients vis-a-vis Subrecipients

The Title VI Guidelines provide that the "same [pre-award] rules and procedures
would apply" where a Federal assistance recipient is granted discretionary authority to
dispense the assistance to subrecipients. Id. III:
[T]he Federal Agency should instruct the approving agency -- typically a State
agency -- to defer approval or refuse to grant funds, in individual cases in which
such action would be taken by the original granting agency itself . . . . Provision
should be made for appropriate notice of such action to the Federal agency
which retains responsibility for compliance with [Title VI compliance] procedures.
Id.
Thus, the Title VI Guidelines support Federal agencies requiring that
recipients/subgrantors obtain assurances of compliance from subrecipients.79/ When
the recipient receives information pre-award that indicates noncompliance by an
applicant for a subgrant, recipients may defer making the grant decision, may seek a
voluntary resolution and, if no settlement is reached, (after complying with statutory
procedural requirements), may refuse to award assistance.
4.

Data Collection

Section 42.406(d) of the Coordination Regulations lists the types of data that
should be submitted to and reviewed by Federal agencies prior to granting funds. In
addition to submitting an assurance that it will compile and maintain records as
required, an applicant should provide: (1) notice of all lawsuits (and, for recipients,
complaints) filed against it; (2) a description of assistance applications that it has
pending in other agencies and of other Federal assistance being provided; (3) a
79

In the alternative, a Federal agency may obtain assurances directly from
subrecipients, if it so chooses.
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description of any civil rights compliance reviews of the applicant during the preceding
two years; and (4) a statement as to whether the applicant has been found in
noncompliance with any relevant civil rights requirements. Id.
The Coordination Regulations require that agencies "shall make [a] written
determination as to whether the applicant is in compliance with Title VI." 28 C.F.R.
§ 42.407(b). Where a determination cannot be made from the submitted data, the
agency shall require the submission of additional information and take other steps
necessary for making a compliance determination, which could include communicating
with local government officials or community organizations and/or conducting field
reviews. Id.
5.

Recommendations Concerning Pre-award Reviews

It is recommended that agencies implement an internal screening process
whereby agency officials are notified of potential assistance grants and are provided the
opportunity to raise a "red flag" or concern about the potential grant recipient.80/ If
limited resources are a problem, agencies should develop a system to target a
significant proportion of assistance applications.81/ As part of the Department of
Justice's oversight and coordinating function, each agency should submit to the
Department, as part of its annual implementation plan, any targeting procedures that

80

A further refinement would involve agencies sharing their lists of potential grantees
with other agencies, as appropriate. For example, there may be instances in which it
would be appropriate for HUD to share its lists with the Department of Justice, Civil
Rights Division's Housing and Civil Enforcement Section.
81

For example, pre-award reviews would not be necessary for applications that are
unlikely to be funded for programmatic reasons.
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are adopted.
B.

Post-Award Compliance Reviews82/

Federal agencies are required to maintain an effective program of post-award
compliance reviews.83/ Federal agency Title VI regulations reiterate this
requirement.84/ Compliance reviews can be large and complex, or more limited in
scope.
1.

Selection of Targets and Scope of Compliance Review

Federal agencies have broad discretion in determining which recipients and
subrecipients to target for compliance reviews. However, this discretion is not
unfettered. In United States v. Harris Methodist Fort Worth, 970 F.2d 94 (5th Cir.
1992), the Fifth Circuit found that a Title VI compliance review involves an
administrative search and, therefore, Fourth Amendment requirements for
“reasonableness” of a search are applicable. The Court considered three factors: (1)
whether the proposed search is authorized by statute; (2) whether the proposed search
is properly limited in scope; and (3) how the administrative agency designated the
target of the search. Id. at 101; United States v. New Orleans Pub. Serv. Inc., 723 F.2d
422 (5th Cir.) reh’g en banc denied, 734 F.2d 226 (5th Cir. 1984) [hereinafter NOPSI III]
(E.O. 11246 compliance review unreasonable) (citing United States v. Mississippi

82

Post-award reviews may be limited to a "desk audit," i.e., a review of
documentation submitted by the recipient, or may involve an on-site review. In either
case, an agency will demand the production of or access to records, and this discussion
addresses the limits on an agency's demand for such records.
83

See Coordination Regulations, 28 C.F.R. § 42.407(c).

84

See, e.g., Department of Justice Title VI Regulations, 28 C.F.R. § 42.107(a).
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Power & Light Co., 638 F.2d 899 (5th Cir. 1981)); and First Ala. Bank of Montgomery,
N.A., v. Donovan, 692 F.2d 714, 721 (11th Cir. 1982) (Exec. Order No. 11246
compliance review reasonable); see Marshall v. Barlow's Inc., 436 U.S. 307 (1978).85/
The Harris Methodist Court suggested that selection of a target for a compliance
review will be reasonable if it is based either on (1) specific evidence of an existing
violation, (2) a showing that "reasonable legislative or administrative standards for
conducting an . . . inspection are satisfied with respect to a particular [establishment],"
or (3) a showing that the search is "pursuant to an administrative plan containing
specific neutral criteria." Harris Methodist, 970 F.2d at 101 (internal citations omitted);
NOPSI III, 723 F.2d at 425.
In Harris Methodist, the court rejected the Department of Health and Human
Services’ (HHS’) attempts to gain access to records, including a vast array of records
associated with confidential, physician peer review evaluations, as part of a compliance
review of the hospital. The court held that signing an assurance gives consent “only to
searches that comport with constitutional standards of reasonableness.” 970 F.2d at
100. Where the proposed compliance review was not subjected to management review
and not based upon consideration of a management plan or objective criteria, the court
of appeals agreed that the HHS official acted “arbitrarily and without an administrative
plan containing neutral criteria. Id. at 103.

85

As mentioned above, it is assumed that the first two factors can be established.
First, that the access provision is an appropriate exercise of agency authority to issue
regulations consistent with the statute. Second, it is assumed that any data sought will
be relevant to an evaluation of whether the recipient's employment practices or delivery
of services are discriminatory.
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Thus, agencies are cautioned that they should not select targets randomly for
compliance reviews but, rather, they should base their decisions on neutral criteria or
evidence of a violation. A credible complaint can serve as specific evidence suggesting
a violation that could trigger a compliance review.
In developing targets for compliance reviews, agencies may wish to take into
consideration the following:
Y

Issues targeted in the agency’s strategic plan, if any;

Y

Issues frequently identified as problems faced by program
beneficiaries;

Y

Geographical areas the agency wishes to target because of the
many known problems beneficiaries are experiencing or because
the agency has not had a “presence” there for some time;

Y

Issues raised in a complaint or identified during a complaint
investigation that could not be covered within the scope of the
complaint investigation;

Y

Problems identified to the agency by community organizations or
advocacy groups that cite actual incidents to support their
concerns;

Y

Problems identified to the agency by its block grant recipients;86/
and

Y

Problems identified to the agency by other Federal, State, or local
civil rights agencies.

Apart from complying with the standards outlined above, it is recommended that
a decision to conduct a compliance review be set forth in writing and approved by
senior civil rights management. An agency may be required to show that it has

86

An agency may wish to consider involving the block grant recipient (generally, a
State agency) in the compliance review and in any subsequent negotiations to resolve
identified violations.
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selected its targets for compliance reviews in an objective, reasonable manner. A
contemporaneous, written record that reflects the factors considered will aid in refuting
allegations of bias or improper targeting of a recipient. See NOPSI III, 723 F.2d at 428.
The memorandum should identify any regulations or internal guidance that set forth
criteria for selection of targets for compliance reviews, and explain how such criteria are
met.
2.

Procedures for Compliance Reviews

Agency Title VI regulations are silent as to procedures for conducting compliance
reviews, although, as discussed, the Coordination Regulations provide general
guidance as to the types of data to solicit. Federal agencies granting Federal financial
assistance are required to "establish and maintain an effective program of postapproval compliance reviews" of recipients to ensure that the recipients are complying
with the requirements of Title VI. 28 C.F.R. § 42.407(a). Related to the reviews
themselves, recipients should be required to submit periodic compliance reports to the
agencies and, where appropriate, conduct field reviews of a representative number of
major recipients. Finally, the Coordination Regulations recommend that agencies
consider incorporating a Title VI component into general program reviews and audits.
28 C.F.R. § 42.407(c)(1).87/

87

"All Federal staff determinations of Title VI compliance shall be made by, or be
subject to the review of, the agency's civil rights office." 28 C.F.R. § 42.407(a). Where
regional or area offices of Federal agencies have responsibility for approving
applications or specific projects, the agency shall "include personnel having Title VI
review responsibility on the staffs" of these offices. These personnel will conduct the
post-approval compliance reviews. Id.
In this era of downsizing, it is understood that not all field offices will have Title VI
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Results of post-approval reviews by the Federal agencies should be in writing
and include specific findings of fact and recommendations. The determination by the
Federal agency of the recipient's compliance status shall be made as promptly as
possible. 28 C.F.R. § 42.407(c).
C.

Complaints

The Coordination Regulations require that Federal agencies establish
procedures for the "prompt processing and disposition" of complaints of discrimination
in federally funded programs. 28 C.F.R. § 42.408(a). Agency regulations with respect
to procedures for the investigation of complaints of discriminatory practices, however,
are typically brief, and lack details as to the manner or time table for such inquiry. See,
e.g., 28 C.F.R. § 42.107; 32 C.F.R. § 195.8. Generally, by regulation, an agency will
allow complainants 180 days to file a complaint, although the agency may exercise its
discretion and accept a complaint filed later in time. See, e.g., 28 C.F.R. § 42.107(b).
An agency is not obliged to investigate a complaint that is frivolous, has no apparent
merit, or where other good cause is present, such as a pending law suit. An
investigation customarily will include interviews of the complainant, the recipient's staff,
and other witnesses; a review of the recipient's pertinent records, and potentially its
facility(ies); and consideration of the evidence gathered and defenses asserted. If the
agency finds no violation after an investigation, it must notify, in writing, the recipient
and the complainant, of this decision. See, e.g., 28 C.F.R. § 42.107(d)(2). If the agency

staff. This element of review, however, should be conducted and reviewed by
experienced Title VI personnel, whether as a full time or collateral duty, and whether or
not as members of the office in issue.
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believes there is adequate evidence to support a finding of noncompliance, the first
course of action for the agency is to seek voluntary compliance by the recipient. See,
e.g., 28 C.F.R. § 42.107(d)(1). If the agency concludes that the matter cannot be
resolved through voluntary negotiations, the agency must make a formal finding of
noncompliance and seek enforcement, either through judicial action or administrative
fund suspension.
If an agency receives a complaint that is not within its jurisdiction, the agency
should consider whether the matter may be referred to another Federal agency that has
or may have jurisdiction, or to a State agency to address the matter. 28 C.F.R.
§ 42.408(a)-(b). If a recipient is required or permitted by a Federal agency to process
Title VI complaints, such as under certain block grant programs, the agency must
ascertain whether the recipient’s procedures for processing complaints are adequate.
In such instances, the Coordination Regulations require that the Federal agency obtain
a written report of each complaint and investigation processed by the recipient, and
retain oversight responsibility regarding the investigation and disposition of each
complaint. 28 C.F.R. § 42.408(c).
Finally, the Coordination Regulations require that each Federal agency, (and
recipients that process Title VI complaints), maintain a log of Title VI complaints
received. 28 C.F.R. § 42.408(d). The log shall include the following: the race, color, or
national origin of the complainant, the identity of the recipient, the nature of the
complaint, the date the complaint was filed, the investigation completed, the date and
nature of the disposition, and other pertinent information.

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XI.

Federal Funding Agency Methods to Enforce Compliance
Agencies should remember that the primary means of enforcing compliance with

Title VI is through voluntary agreements with the recipients, and that fund suspension or
termination is a means of last resort.88/ This approach is set forth in the statute, is a
reflection of congressional intent, and is recognized by the courts. See 42 U.S.C.
§ 2000d-1; Board of Pub. Instruction v. Finch, 414 F.2d 1068, 1075 n.11 (5th Cir. 1969)
(citing 110 Cong. Rec. 7062 (1964) (Statement of Sen. Pastore)). Accordingly, if an
agency believes an applicant is not in compliance with Title VI, the agency has three
potential remedies:
(1) resolution of the noncompliance (or potential noncompliance) "by voluntary
means" by entering into an agreement with the applicant, which becomes a condition of
the assistance agreement; or
(2) where voluntary compliance efforts are unsuccessful, a refusal to grant or
continue the assistance ; or
(3) where voluntary compliance efforts are unsuccessful, referral of the violation
to the Department of Justice for judicial action. 42 U.S.C. § 2000d-1. In addition,
agencies may defer the decision whether to grant the assistance pending completion of
a Title VI (Title IX, or Section 504) investigation, negotiations, or other action to obtain
remedial relief.89/

88

The discussion herein applies primarily to post-award enforcement. Subsections
address the extent to which enforcement may vary in a pre-award context.
89

In considering options for enforcement, agencies should consult the Title VI
Guidelines. 28 C.F.R. § 50.3.
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A.

Efforts to Achieve Voluntary Compliance

Under Title VI, before an agency initiates administrative or judicial proceedings to
compel compliance, it must attempt to obtain voluntary compliance from a recipient.
Compliance with any requirement adopted pursuant to this section may be
effected (1) by the termination of or refusal to grant or to continue
assistance under such program or activity to any recipient . . . or (2) by
any other means authorized by law: Provided, however, that no such
action shall be taken until the department or agency concerned . . . has
determined that compliance cannot be secured by voluntary means.
42 U.S.C. § 2000d-1 (emphasis in original); see Alabama NAACP State Conference of
Branches v. Wallace, 269 F. Supp. 346, 351 (M.D. Ala. 1967) (voluntary compliance is
to be effectuated if possible). Both the Coordination Regulations and the Title VI
Guidelines urge agencies to seek voluntary compliance before, and throughout, the
administrative or judicial process.90/ See 28 C.F.R. § 42.411(a) ("Effective
enforcement of Title VI requires that agencies take prompt action to achieve voluntary
compliance in all instances in which noncompliance is found."); 28 C.F.R. § 50.3 I.C.
Title VI requires that a concerted effort be made to persuade any noncomplying
applicant or recipient voluntarily to comply with Title VI. Efforts to secure
voluntary compliance should be undertaken at the outset in every noncompliance
situation and should be pursued through each state of enforcement action.
Similarly, when an applicant fails to file an adequate assurance or apparently
breaches its terms, notice should be promptly given of the nature of the
noncompliance problem and of the possible consequences thereof, and an
immediate effort made to secure voluntary compliance. Id.

90

Agencies are strongly encouraged to make use of alternative dispute resolution
(ADR), whenever appropriate. Both the President and the Attorney General have
encouraged the use of alternative dispute resolution in matters that are the subject of
civil litigation. See Executive Order 12988 and Attorney General Order OBD 1160.1.
The Administrative Dispute Resolution Act of 1996 authorizes the use of ADR to
resolve administrative disputes. 5 U.S.C. § 571 et seq.). ADR can consist of anything
from the use of a neutral third party or mediator to informally resolving a matter without
completing a full investigation.
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An agency is not required to make formal findings of noncompliance before
undertaking negotiations or reaching a voluntary agreement to end alleged
discriminatory practices. However, there must be a basis for an agency and recipient to
enter into such a voluntary agreement (e.g., identification of alleged discriminatory
practices, even if the parties do not agree as to the extent of such practices).91/

In

addition, throughout the negotiation process, agencies should be prepared with
sufficient evidence to support administrative or judicial enforcement should voluntary
negotiations fail.
An agency must balance its duty to permit informal resolution of findings of
noncompliance against its duty to effectuate, without undue delay, the national policy
prohibiting continued assistance to programs or activities which discriminate. Efforts to
obtain voluntary compliance should continue throughout the process, but should not be
allowed to become a device to avoid compliance.92/ Once an area of noncompliance
is identified, an agency is required to enforce Title VI.
1.

Voluntary Compliance at the Pre-Award Stage
a.

Special Conditions

As is done post-award, agencies may obtain compliance "by voluntary means" in

91

Where voluntary compliance is achieved, the agreement must be in writing and
specify the action necessary for the correction of Title VI deficiencies. 28 C.F.R.
§ 42.411(b).
92

Although Title VI does not provide a specific limit within which voluntary
compliance may be sought, it is clear that a request for voluntary compliance , if not
followed by responsive action on the part of the institution within a reasonable time,
does not relieve the agency of the responsibility to enforce Title VI by one of the two
alternative means contemplated by the statute. A consistent failure to do so is a
dereliction of duty reviewable in the courts. 28 C.F.R. § 42.411(b)
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the pre-award context by entering into an agreement with the applicant that enjoins the
applicant from taking specified actions, requires that specified remedial actions be
taken, and/or provides for other appropriate relief. The terms of the agreement become
effective once the assistance is granted, and typically are attached as a special
condition to the assistance agreement. Three issues arise by exercise of the voluntary
compliance authority at the pre-award stage: what is the appropriate scope of special
remedial conditions; what is the remedy if an applicant refuses to agree to a special
condition proposed by an agency; and what is the remedy if, post-award, the recipient
fails to comply with a special remedial condition of the assistance agreement.
When voluntary compliance is sought at the pre-award stage, agencies may
exercise greater flexibility in designing appropriate remedial conditions, for two reasons.
First, if the pre-award remedy does not fully resolve the discrimination concern,
agencies may have the opportunity to rectify this matter during the life of the assistance
grant. Second, since a pre-award investigation and remedial efforts likely would require
a deferral of the assistance award, it may be in the interest of the applicant (as well as
potentially the agency) that interim measures be agreed to that allow the award to go
forward while also addressing the discrimination concern. Thus, a pre-award special
condition may grant provisional relief, require that certain aspects of the recipient's
program be monitored, and/or require that the recipient provide additional information
relating to the discrimination allegations. Of course, the mere fact that relief may be
sought post-award does not necessarily mean that full relief, using voluntary means or
otherwise, should not be sought pre-award.
Agency authority to attach special conditions to assistance agreements extends
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no further than the agency’s authority to seek voluntary compliance. Thus, if an
applicant refuses to agree to a proposed special remedial condition, the agency either
would have to negotiate a different condition, award the assistance without the
condition, seek to obtain compliance "by any other means authorized by law," or initiate
administrative procedures to refuse to grant assistance. However, an agency may not
refuse to grant assistance based solely on an applicant’s refusal to accept a special
condition unless the agency is prepared to make a finding of noncompliance and
proceed to an administrative hearing. This is because the applicant has a right to
challenge a refusal to grant assistance through an administrative hearing. See 42
U.S.C. § 2000d-1.
Whether an agency may immediately suspend payment based on
noncompliance with a previously imposed special remedial condition depends on the
terms of the condition. As a general matter, if a recipient violates the terms of a special
remedial condition, the noncompliance must be remedied in the same manner that any
other post-award noncompliance is addressed -- through voluntary efforts, by the
government filing suit, or by the agency suspending or terminating the assistance
pursuant to the statutory procedure. If, however, as part of the remedial condition the
applicant agrees that the agency immediately may suspend payment if noncompliance
occurs, then that contractual provision would likely supersede the statutory protection
against instant fund suspension that the recipient otherwise enjoys.
b.

Use of Cautionary Language

If an agency has evidence at the time of the award which does not rise to the
level of an actual violation by an applicant, and thus does not warrant refusal of a grant
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award, the agency may consider notifying the recipient in the grant award letter that the
agency has a civil rights concern. The statement could acknowledge, where
appropriate, the applicant's cooperation with an ongoing civil rights investigation or its
attempts to resolve the concern.93/ By including this language, the applicant is on
notice that there may be a potential problem and that the funding arm is aware of what
the civil rights arm is doing. It also warns that a failure to cooperate could lead to a
denial of funds in the future. The language also may encourage the applicant to enter
into voluntary compliance negotiations and engage in alternative dispute resolution, in
appropriate cases, to resolve the alleged discrimination at issue without a formal finding
or the completion of an investigation. A major advantage of this approach is that it
avoids the due process concerns raised when deferral or special conditioning is utilized
because, in this case, the funds are being awarded, i.e., there is no "refusal to grant,"
which would trigger the right to an administrative hearing.
2.

Other Nonlitigation Alternatives

The Title VI Guidelines list four other approaches, short of litigation or fund
termination, that may be available when civil rights concerns are discovered. The

93

One example of language currently used by the Department of Justice's Office of
Justice Programs is as follows:
In reviewing an application for funding, we consider whether the applicant
is in compliance with federal civil rights laws. A determination of
noncompliance could lead to a denial of assistance or an award
conditioned on remedial action being taken. We are aware that the
Department's Civil Rights Division is conducting an investigation involving
possible civil rights violations. The Civil Rights Division has advised us
that your agency is cooperating with its investigation, and we have taken
that into account in deciding to approve your grant application.
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possibilities listed include:
(1) consulting with or seeking assistance from other Federal agencies . . . having
authority to enforce nondiscrimination requirements; (2) consulting with or
seeking assistance from State or local agencies having such authority; (3)
bypassing a recalcitrant central agency applicant in order to obtain assurances
from or to grant assistance to complying local agencies; and (4) bypassing all
recalcitrant non-Federal agencies and providing assistance directly to the
complying ultimate beneficiaries.
28 C.F.R. § 50.3 I.B.2. Agencies are urged to consider all of these options, as
appropriate.
B.

"Any Other Means Authorized by Law:" Judicial Enforcement

The Department of Justice's statutory authority to sue in Federal district court on
behalf of an agency for violation of Title VI is contained in the phrase "by any other
means authorized by law." See 42 U.S.C. § 2000d-1; United States. v. City and County
of Denver, 927 F. Supp. 1396, 1400 (D. Colo. 1996); Ayers v. Allain, 674 F. Supp.
1523, 1551 n.6 (N.D. Miss. 1987); United States v. Marion County Sch. Dist., 625 F.2d
607, 612-13 & n.14, reh’g denied, 629 F.2d 1350 (5th Cir. 1980), cert. denied, 451 U.S.
910 (1981). In addition, the Department of Justice may pursue judicial enforcement
through specific enforcement of assurances, certifications of compliance, covenants
attached to property, desegregation or other plans submitted to the agency as
conditions of assistance, or violations of other provisions of the Civil Rights Act of 1964,
other statutes, or the Constitution. See Marion County, 625 F.2d at 612; 28 C.F.R.
§ 50.3 I.B.
Agency regulations interpreting this phrase provide for several options including:
1) referral to the Department of Justice for proceedings, 2) referrals to State agencies,
and 3) referrals to local agencies. See, e.g., 29 C.F.R. § 31.8(a) (Labor); 34 C.F.R.
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§ 100.8 (Education); and 45 C.F.R. § 80.8(a) (HHS):
[C]ompliance may be effected by . . . other means authorized by law.
Such other means may include, but are not limited to, (1) a reference to
the Department of Justice with a recommendation that appropriate
proceedings be brought to enforce any rights of the United States under
any law of the United States (including other titles of the Act), or any
assurance or contractual undertaking and (2) any applicable proceedings
under State or local law.
In order to refer a matter to the Justice Department for litigation, agency
regulations require that the funding agency make a finding that a violation exists and a
determination that voluntary compliance cannot be achieved. The recipient must be
notified of its failure to comply and must be notified of the intended agency action to
effectuate compliance.94/ Some agency regulations require additional time after this
notification to the recipient to continue negotiation efforts to achieve voluntary
compliance.95/ It should be noted that the funding agency must in fact formally initiate
referral of the matter to the Justice Department, because there is no automatic referral
mechanism.
In United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039 (5th Cir. 1984), the Fifth
Circuit held that when a referral is made to the Department of Justice, and suit for
injunctive relief is filed, a court can order termination of Federal financial assistance as
a remedy. However, the termination cannot become effective until 30 days have
passed. The court reasoned that the congressional intent to allow a 30-day period
when the administrative hearing route is followed (see 42 U.S.C. 2000d-1, which

94

See, e.g., 24 C.F.R. § 1.8(d) (HUD); 29 C.F.R. § 31.8(c) (Labor).

95

For example, HUD regulations require that the agency continue negotiations for
ten days from the date of mailing the notice of noncompliance to the recipient. Id.
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provides that the agency must file a report with Congress and 30 days must elapse
before termination of the funds) evinces a congressional intent to likewise permit a 30day grace period before a court’s order to terminate funds takes effect.
C.

Fund Suspension and Termination

Several procedural requirements must be satisfied before an agency may deny
or terminate Federal funds to an applicant/recipient. A four step process is involved:
1) the agency must notify the recipient that it is not in compliance with the
statute and that voluntary compliance cannot be achieved;
2) after an opportunity for a hearing on the record, the "responsible Department
official;" must make an express finding of failure to comply.
3) the head of the agency must approve the decision to suspend or terminate
funds; and
4) the head of the agency must file a report with the House and Senate
legislative committees having jurisdiction over the programs involved and wait 30 days
before terminating funds.96/ The report must provide the grounds for the decision to
deny or terminate the funds to the recipient or applicant. 42 U.S.C. § 2000d-1; See,
e.g., 45 C.F.R. § 80.8(c) (HHS).
1.

Fund Termination Hearings

As noted above, funds cannot be terminated without providing the recipient an
opportunity for a formal hearing. See, e.g., 28 C.F.R. § 42.109(a). If the recipient
waives this right, a decision will be issued by the "responsible Department official"
based on the record compiled by the investigative agency. Hearings on terminations
cannot be held less than 20 days after receipt of notice of the violation. See, e.g., 45

96

The congressional intent behind the 30 day requirement was to include seemingly
neutral third parties, (the relevant Congressional committees), to ensure that the
decision to terminate funds was fair, reasoned, and not arbitrary. See 110 Cong. Rec.
2498 (1964) (Statement of Cong. Willis); 110 Cong. Rec. 7059 (1964) (Statement of
Sen. Pastore).
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C.F.R. § 80.9(a) (HHS).
Agencies have adopted the procedures of the Administrative Procedures Act for
administrative hearings. See, e.g., 28 C.F.R. § 42.109(d) (Justice); 45 C.F.R. § 80.9
(HHS). Technical rules of evidence do not apply, although the hearing examiner may
exclude evidence that is "irrelevant, immaterial, or unduly repetitious." See, e.g., 28
C.F.R. § 42.109(d); 45 C.F.R. § 80.9(d)(2) [HHS]. The hearing examiner may issue an
initial decision or a recommendation to the "responsible agency official." See, e.g., 28
C.F.R. § 42.110. The recipient may file exceptions to any initial decision. In the
absence of exceptions or review initiated by the "responsible department official," the
hearing examiner's decision will be the final decision. A final decision that suspends or
terminates funds, or imposes other sanctions, is subject to review and approval by the
agency head. Upon approval, an order shall be issued that identifies the basis for
noncompliance, and the action(s) that must be taken in order to come into compliance.
A recipient may request restoration of funds upon a showing of compliance with the
terms of the order, or if the recipient is otherwise able to show compliance with Title VI.
See, e.g., 28 C.F.R. § 42.110; 45 C.F.R. § 80.10(g). The restoration of funds is subject
to judicial review. 42 U.S.C. § 2000d-2. Moreover, as noted above, no funds can be
terminated until 30 days after the agency head files a written report on the matter with
the House and Senate committees having legislative jurisdiction over the program or
activity involved. 42 U.S.C. § 2000d-1.
2.

Agency Fund Termination is Limited to the Particular Political
Entity, or Part Thereof, that Discriminated

Congress specifically limited the effect of fund termination by providing that it

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...shall be limited to the particular political entity, or part thereof, or other
recipient as to whom such a finding has been made and, shall be limited
in its effect to the particular program, or part thereof, in which such
noncompliance has been so found, . . . .
42 U.S.C. § 2000d-1. This is called the "pinpoint provision." As discussed below, the
CRRA did not modify interpretations of this provision, but only affected the
interpretation of "program or activity" for purposes of coverage of Title VI (and related
statutes). See S. Rep. No. 64 at 20, reprinted in 1988 U.S.C.C.A.N. at 22.
Congress' intent was to limit the adverse affects of fund termination on innocent
beneficiaries and to insure against the vindictive or punitive use of the fund termination
remedy. Board of Pub. Instruction v. Finch, 414 F.2d 1068, 1075 (5th Cir. 1969).97/

97

Much of the legislative debate on Title VI centered on the potential scope of any
termination of assistance due to a failure to comply with the rules effectuating Section
601. The Dirksen-Mansfield substitute bill, which was developed through informal,
bipartisan conferences, sought to answer those concerns. For a listing and explanation
of specific changes made by the substitute see, 110 Cong. Rec. 12817-12820 (1964)
(Report of Senator Dirksen). Senator Humphrey explained the purpose behind the
substitute language.
Some Senators have expressed the fear that in its original form Title VI would
authorize cutting off of all federal funds going to a state for a particular program
even though only part of the state were guilty of racial discrimination in that
program. And some Senators have feared that the title would authorize
canceling all federal assistance to a state if it were discriminating in any of the
federally-assisted programs in that State.
As was explained a number of times on the floor of the Senate, these
interpretations of Title VI are inaccurate. The title is designed to limit any
termination of federal assistance to the particular offenders in the
particular area where the unlawful discrimination occurs. Since this was
our intention, we have made this specific in the provisions of Title VI by
adding language to 602 to spell out these limitations more precisely. This
language provides that any termination of federal assistance will be
restricted to the particular political subdivision which is violating
non-discriminatory regulations established under Title VI. It further
provides that the termination shall affect only the particular program, or
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"The procedural limitations placed on the exercise of such power were designed to
insure that termination would be 'pinpoint(ed) . . . to the situation where discriminatory
practices prevail.'" Id. (quoting 1964 U.S.C.C.A.N. 2512).
The seminal case on this issue is Finch, 414 F.2d at 1068. A Department of
Health, Education, and Welfare (HEW) hearing officer had found that the school district
had made inadequate progress toward student and teacher desegregation and that the
district had sought to perpetuate the dual school system through its construction
program. Based on these findings, a final order was entered terminating "any class of
Federal financial assistance" to the district "arising under any Act of Congress"
administered by HEW, the National Science Foundation, and the Department of the
Interior. Id. at 1071.
On appeal, the Fifth Circuit vacated the termination order, holding that it was in
violation of the purpose and statutory scope of the agency's power. The "programs" in
issue were three education statutes, yet the HEW officer had not made any specific
findings as to whether there was discrimination in all three programs, and/or if action in
one program tainted, or caused discriminatory treatment in, other programs. Id. at
1073-74, 79. The court paid considerable attention to the congressional intent of the
pinpoint provision: limiting the termination power to "activities which are actually
discriminatory or segregated" was designed to protect the innocent beneficiaries of
untainted programs. Id. at 1077. The court further held that it was improper to construe

part thereof, in which such a violation is taking place.
110 Cong. Rec. 12714-12715 (l964); see, 110 Cong. Rec. 1520 (1964) (Celler); 110
Cong. Rec. 1538 (1964) (Rodino); 110 Cong. Rec. 7061-7063 (1964) (Pastore).
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Section 602 as placing the burden on recipients to limit the effect of termination orders
by proving that certain programs are untainted by discrimination, rather than on an
agency to establish the basis for findings as to the scope of discrimination. Id.
As to the meaning of the term "program" in the pinpoint proviso, the court
concluded that the legislative history of Title VI evidenced a congressional intent that
the term refer not to generic categories of programs by a recipient, but rather to specific
programs of assistance, or specific statutes, administered by the Federal government.
Id. at 1077-78.98/ Further, even if "program" was meant to refer to generic categories
of aid, the parenthetical phrase, "or part thereof", must be given meaning. Thus, an
agency's fund termination order must be based on program-specific (i.e., grant statute
specific) findings of noncompliance. The Court reasoned that:
[T]he purpose of the Title VI [fund] cutoff is best effectuated by separate
consideration of the use or intended use of federal funds under each grant
statute. If the funds provided by the grant are administered in a
discriminatory manner, or if they support a program which is infected by a
discriminatory environment, then termination of such funds is proper. But
there will also be cases from time to time where a particular program,
within a state, within a county, within a district, even within a school (in
short, within a "political entity or part thereof"), is effectively insulated from
otherwise unlawful activities. Congress did not intend that such a program
suffer for the sins of others. HEW was denied the right to condemn
programs by association. The statute prescribes a policy of
disassociation of programs in the fact finding process. Each must be
considered on its own merits to determine whether or not it is in
compliance with the Act. In this way the Act is shielded from a vindictive
application. Schools and programs are not condemned enmasse or in
gross, with the good and the bad condemned together, but the termination
power reaches only those programs which would utilize federal money for
unconstitutional ends.

98

The court noted that each of the grant statutes affected by the order was
denominated "a program" by the terms of its own statutory scheme.
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Id. at 1078.99/
The specificity required for fund termination was also addressed by the Seventh
Circuit in Gautreaux v. Romney, 457 F.2d 124 (7th Cir. 1972). In Gautreaux, the court
reversed a district court's order approving Federal fund termination for a Housing and
Urban Development (HUD) program where there were no findings of discrimination in
such program, and where such action was pursued in an effort to pressure action to
remedy the defendant's discriminatory conduct in a wholly sparate HUD program. 457
F.2d at 127-128. The district court had previously found that defendants had violated
fair housing laws yet intended to withhold Model Cities Program funds, which primarily
support education, job training, and day care programs on behalf of low and moderate
income families. Although a small portion of Model Cities money also supported public
housing, there was no allegation or finding that any Model Cities program was operated
in a discriminatory fashion. Id. at 126. Accordingly, the court of appeals held that the
district court violated Section 602 of Title VI and the "mandate of" Finch, and abused its
discretion in withholding the Model Cities funds. Id. at 128.
It is equally critical to note that, notwithstanding the need for an independent
evaluation of each program, an agency (or reviewing court) must examine not only

99

The court also quoted Senator Long from the debate on passage of the Act:
Proponents of the bill have continually made it clear that it is the intent of
Title VI not to require wholesale cutoffs of Federal [f]unds from all Federal
programs in entire States, but instead to require a careful case-by-case
application of the principle of nondiscrimination to those particular
activities which are actually discriminatory or segregated.

Id. at 1075 (quoting 110 Cong. Rec. 7103 (1964)).
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whether the Federal funds are "administered in a discriminatory manner, . . . [but also] if
they support a program which is infected by a discriminatory environment." Finch, 414
F.2d at 1078 (emphasis added). Not all programs operate in isolation. Thus,
the administrative agency seeking to cut off federal funds must make findings of
fact indicating either that a particular program is itself administered in a
discriminatory manner, or is so affected by discriminatory practices elsewhere in
the [overall operation, e.g., school system] that it thereby becomes
discriminatory.
Id. at 1079; see North Haven, 456 U.S. at 539-540 (approval of HEW Title IX
regulations that adopt the Finch "infection" standard.) This latter analysis is often
referred to as the "infection theory." Although Finch and Gautreaux were decided prior
to passage of the CRRA, it is important to recognize that while the CRRA defined the
meaning of "program or activity" for purposes of prohibited conduct, it did not change
the definition of such terms for purposes of fund termination for a violation of Title VI. In
particular, the CRRA left intact the "pinpoint" provision that limits any fund termination
to the "program, or part thereof, in which noncompliance has been so found." 42
U.S.C. § 2000d-1.

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XII.

Private Right of Action and Individual Relief through Agency Action
The Supreme Court has established that individuals have an implied private right

of action under Title VI (and Title IX and Section 504). The Court has stated that it has
“no doubt that Congress...understood Title VI as authorizing an implied private right of
action for victims of illegal discrimination.” See Cannon v. University of Chicago, 441
U.S. 677 (1979) (holding that an individual has a private right of action under Title IX).
In addition, several courts of appeals have held that plaintiffs have a private right of
action to enforce the disparate impact regulations implementing Section 602 of Title VI.
See Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), cert. granted sub. nom.
Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 28, 68 U.S.L.W. 3749 (U.S. Sept. 26,
2000) (No. 99-1908).; Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999).
In Sandoval, the court found that a reading of Lau, Guardians, and Alexander, in
pari materia supported the finding of an implied private cause of action under Section
602 of Title VI. 197 F.3d 484, 507 (11th Cir. 1999). Likewise, in Powell v. Ridge, 189
F.3d 387, 397-400 (1999), the Third Circuit Court of Appeals recognized an implied
private right of action to enforce regulations promulgated pursuant to Section 602 of
Title VI. The Second Circuit, however, declined to reach the issue of whether a private
right of action may be brought under regulations implementing Section 602 and let
stand the lower court’s ruling that a private right of action is not available to plaintiffs
bringing suit pursuant to Section 602. NYCEJA, 214 F.3d at 72-73. The Supreme
Court will likely definitively decide the issue when it hears Sandoval.
Many circuits have ruled that individuals may not bring suit against the federal
government for failure to enforce Title VI (and Section 504 and Title IX). Jersey Heights
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Neighborhood Ass’n v. Glendening et al., 174 F.3d 180 (4th Cir. 1999); Washington
Legal Found. v. Alexander, 984 F.2d 483, (D.C. Cir. 1993); Women’s Equity Action
League v. Cavazos, 906 F.2d 742 (D.C. Cir. 1990) [hereinafter WEAL II]. In Jersey
Heights, plaintiffs, African-American landowners, filed suit against the U.S. Department
of Transportation, among others, claiming that it abdicated its duties under section 602
of Title VI to eliminate discrimination in federally-funded programs by failing to terminate
funds to recipients who failed to comply with Title VI. The Fourth Circuit found that Title
VI provides two avenues of recourse to address discrimination by federal funding
agencies: private right of action against recipients of Federal financial assistance and
petition to the federal funding agency to secure voluntary compliance by its recipients.
After reviewing the legislative history of Title VI, the court concluded that Congress did
not intend for aggrieved parties “to circumvent that very administrative scheme through
direct litigation against federal agencies.” 174 F.3d at 191.
Similarly, the court in WEAL II, ruled that, absent congressional authorization,
individuals do not have a private right of action against the federal government under
Title VI, Title IX, or Section 504.100/ 906 F.2d at 752. Citing the Supreme Court’s
examination of the legislative history of Title VI in Cannon, the court found that
Congress did not intend for private suits to be brought against the federal funding
agencies. Id. at 748. The WEAL II court further concluded that because individuals

100

The WEAL II decision brought to a close sub nom. the twenty year history of
litigation that began in 1970 under Adams v. Richardson, 356 F. Supp. 92 (D.D.C.
1973), a suit that challenged the Department of Health, Education, and Welfare’s
dereliction in enforcing Title VI.
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already have an adequate remedy through private rights of action against the recipients
of Federal financial assistance, individuals could not maintain a cause of action against
the federal funding agency to compel enforcement of Title VI under the Administrative
Procedure Act, the Mandamus Act, or the Constitution. Id. at 752. One possible
exception to these rulings might to be a situation where the federal funding agency
makes a finding that a recipient is in violation of Title VI but, nonetheless, refuses to
enforce its own determination. See Washington Legal Found. v. Alexander, 984 F.2d
at 488 101/.
The most common form of relief sought and obtained through a private right of
action is an injunction ordering a recipient to do something. See Cannon, 441 U.S.
667. See also, United States v. Baylor Univ. Med. Ctr., 736 F. 2d 1039, in which the
court ordered termination of funds. The Supreme Court also has held that individuals
may obtain monetary damages for claims of intentional discrimination under Title IX.
See Franklin v. Gwinett, 503 U.S. 60 (1990) at 75 n.8. 102/ As discussed below,
agencies are encouraged to identify and seek the full complement of relief for
complainants and identified victims, where appropriate, as part of voluntary settlements,

101

In this case, plaintiffs brought suit to enjoin the Department of Education from
allowing recipients of its funds to offer certain federally funded scholarships exclusively
to minorities. Id. at 486.
102

The broad reasoning employed in Franklin is equally applicable to Title VI
lawsuits, and the Franklin Court explicitly linked the availability of damages under Titles
VI and IX by its citation to Guardians. Subsequent to Franklin, courts of appeals have
unanimously extended the Franklin holding to Section 504 lawsuits. W.B. v. Matula, 67
F.3d 484, 494 (3d Cir. 1995); Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642, 644
(8th Cir. 1994); Waldrop v. Southern Co. Servs.,, 24 F.3d 152, 156 (11th Cir. 1994);
Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 831 (4th Cir. 1994).
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including, where appropriate, not only the obvious remedy of back pay for certain
employment discrimination cases, but also compensatory damages for violations in a
nonemployment context. Agencies are also asked to recommend the scope of relief to
be sought in referrals of matters to the Department of Justice for judicial enforcement.
A.

Entitlement to Damages for Intentional Violations

In addition to agency enforcement mechanisms, private individuals have an
implied right of action under Title VI (as well as Title IX and Section 504). See Cannon,
441 U.S. at 696 (private right of action recognized under Title IX, and citing with
approval cases finding a private right of action under Title VI).103/ In addition, the
Supreme Court has ruled that monetary damages are an available remedy in private
actions brought to enforce Title IX for alleged intentional violations. See Franklin, 503
U.S. at 72-75104/, Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630-31 (1984).
Franklin contains a detailed discussion on the merits of allowing monetary
damages for intentional violations of Title IX (as well as Title VI and Section 504). Id. at
71-76. The Court placed great reliance on the "longstanding rule" that where a Federal
statute provides (expressly or impliedly) for a right to bring suit, Federal courts

103

See Lane v. Peña, 518 U.S. 187, 202 & n.3 (1996) (Stevens, J., dissenting)
(citing uniform holdings of ten courts of appeals that Section 504 provides an implied
right of action). The Supreme Court had addressed the merits of two Title VI cases
brought by private plaintiffs without addressing the issue of whether a private right of
action exists. See, Bakke, 438 U.S. at 282; Lau, 414 U.S. 563.
104

Justice White authored the opinion for the Court in which five Justices joined.
Justice Scalia wrote an opinion concurring in the judgment, in which Chief Justice
Rehnquist and Justice Thomas joined. The Franklin Court also recognized that a
majority of justices in Guardians, notwithstanding the multiple opinions, opined that
private plaintiffs may obtain damages under Title VI to remedy intentional violations. Id.
at 70.
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"presume the availability of all appropriate remedies unless Congress has expressly
indicated otherwise." Id. at 66.105/ The Court found no congressional intent to
abandon this presumption in the enforcement of Title IX.106/ Accordingly, the Court
concluded that private individuals may obtain damages in appropriate cases.
Throughout its opinion, the Franklin Court broadly referred to the relief being
sanctioned as "monetary damages." Although the Court did not define this term, it
specifically rejected limiting Title IX plaintiffs to monetary relief that is equitable in
nature, such as backpay. See id. at 75-76. In these circumstances, it appears
appropriate to be guided by the traditional definition of "compensatory damages," which
includes damages for both pecuniary and nonpecuniary injuries.107/

105

The Court further stated, "absent clear direction to the contrary by Congress, the
federal courts have the power to award any appropriate relief in a cognizable cause of
action brought pursuant to a federal statute." Id. at 70-71.
106

The Court examined congressional intent expressed both prior to and after its
decision in Cannon. When Title IX was enacted, Congress was silent on the subject of
a private right of action, but the Court noted that Congress acted in the context of the
prevailing presumption in favor of all available remedies. Id. at 72. Following Cannon,
Title IX (Title VI, Section 504, and the Age Discrimination Act) were amended on two
occasions, although neither action evidenced congressional disagreement with this
presumption. Id. at 72-73. First, Congress added 42 U.S.C. § 2000d-7 through the
Rehabilitation Act Amendments of 1986, to abrogate the States' Eleventh Amendment
immunity in suits under these statutes. Second, Congress added 42 U.S.C. § 2000d-4a
under the CRRA to broaden the scope of programs covered by these statutes.
107

Section 903 of Restatement (Second) of Torts (1979) defines "compensatory
damages" as "the damages awarded to a person as compensation, indemnity or
restitution for harm sustained." Section 904 states that damages for nonpecuniary
harm include damages for bodily harm and emotional distress. See generally id.,
§§ 901-932.
Courts applying Franklin generally have interpreted it to permit the award of the
full range of compensatory damages, including damages for emotional distress. Doe v.
District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) (same); see also DeLeo v. City of
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B.

Availability of Monetary Damages in Other Circumstances

In Franklin, the Supreme Court was not called upon to rule whether monetary
damages are available where other types of discrimination are proven. Nonetheless,
the Court noted that unintentional discrimination may present a different legal question,
and damages may not be available. Id. at 74.108/ Awarding damages may be
particularly problematic where the violation rests on a "disparate impact" theory of
discrimination. See Guardians, 463 U.S. at 595-603 (Opinion of White, J.).
C.

Recommendations for Agency Action

In incorporating the damages remedy into agency compliance activities,
agencies will need to decide when damages should be sought as part of a voluntary
compliance agreement and, if damages are requested, the amount of emphasis to be
placed on the damages request in compliance negotiations. Agencies will want to
ensure that the damages remedy is implemented in a manner consonant with other

Stamford, 919 F. Supp. 70 (D. Conn. 1995) (citing cases equating monetary damages
with compensatory damages). Contra, Leija v. Canutillo Indep. Sch. Dist., 887 F. Supp.
947 (W.D. Tex. 1995), rev'd on other grounds, 101 F.3d 393 (5th Cir. 1996).
108

The Court explained that the problem with "permitting monetary damages for an
unintentional violation is that the receiving entity of federal funds lacks notice that it will
be liable for a monetary award." Id. at 74. The notice problem is a function of the
consensual nature of an entity's decision to accept Federal funds and the conditions
attached to their receipt. The entity weighs the benefits and burdens before accepting
the funds, including the nondiscrimination obligations that attach to the funding. The
concern is that where the violation is unintentional, particularly if it is a "disparate
impact" violation, the recipient may not have been sufficiently aware at the time the
funds were accepted that the nature and scope of the nondiscrimination obligation
included a prohibition on the specific behavior subsequently found to constitute unlawful
discrimination. Accordingly, responsibility for money damages may not have been
foreseen. See id.; Guardians, 463 U.S. at 596-597 (White, J., joined by Rehnquist, J.);
Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
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enforcement goals and policies, in a manner consistent among compliance
agreements, and in a manner that protects the flexibility of the voluntary compliance
process. To effectuate these goals, agencies may wish to draft written guidelines, and
establish special supervisory procedures and internal reporting requirements.
There are several considerations that may be relevant in deciding how to
exercise administrative discretion in applying the damages remedy in particular cases.
One factor may be the degree of seriousness of the violation. A second factor may be
whether the injury is substantial. A third factor may be whether the injury is pecuniary in
nature. Since pecuniary losses represent a concrete injury and are relatively
straightforward to measure, they may represent a type of loss for which damages
almost always should be sought. Injuries involving "emotional distress" also should be
addressed, but may require closer analysis. A fourth factor may be whether the
discrimination victim has a current, ongoing relationship with the recipient that involves
regular interactions between the two. If such a relationship exists and prospective relief
is obtained that benefits the victim, that may weigh against providing compensation for
any nonpecuniary injury that is relatively slight.
Another issue is how agencies should respond to requests by recipients that
discrimination victims sign a liability release in order to obtain a damage award through
a compliance agreement. As a practical matter, agencies likely will need to be open to
including such a release in any agreement that provides for damages, if requested by
the recipient.
D.

States Do Not Have Eleventh Amendment Immunity Under Title VI

The Eleventh Amendment bars a State from being sued by a citizen of the State
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in Federal court.109/ Since 1890, the Supreme Court has consistently held that this
Amendment protects a State from being sued in Federal court without the State's
consent. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 n.7 (1996) (cases
cited). However, Federal courts have jurisdiction over a State if the State has either
waived its immunity or Congress has abrogated unequivocally a State's immunity
pursuant to valid powers. See id. at 68. Congress has unequivocally done so with
respect to Title VI and related statutes.
In 1986, Congress enacted 42 U.S.C. § 2000d-7 as part of the Rehabilitation Act
Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003, 100 Stat. 1845 (1986), to
abrogate States' immunity from suit for violations of Section 504, Title VI, Title IX, the
Age Discrimination Act, and similar nondiscrimination statutes. See Lane, 518 U.S. at
199. Section 2000d-7 states:
(1) A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation
of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794], title IX
of the Education Amendments of 1972 [20 U.S.C. § 1681 et seq.], the Age
Discrimination Act of 1975 [42 U.S.C. § 6101 et seq.], title VI of the Civil
Rights Act of 1964 [42 U.S.C. § 2000d et seq.], or the provisions of any
other Federal statute prohibiting discrimination by recipients of Federal
financial assistance.
(2) In a suit against a State for a violation of a statute referred to in
paragraph (1), remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as such remedies are
available for such a violation in the suit against any public or private entity
other than a State.

109

U.S. Const. Amend. XI states: "The judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or subjects of any
Foreign State." See, Hans v. Louisiana, 134 U.S. 1 (1890).
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It is the position of the Department of Justice that Section 2000d-7 is an
unambiguous abrogation which gives States express notice that a condition for
receiving Federal funds is the requirement that they consent to suit in Federal court for
alleged violations of Title VI and the other statutes enumerated.

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XIII.

Department of Justice Role Under Title VI
The Department of Justice has two roles to play in Title VI enforcement:

coordination of Federal agency implementation and enforcement, and legal
representative of the United States. Pursuant to Exec. Order No. 12250, 28 C.F.R. Pt.
41, App. A, the Attorney General shall “coordinate the implementation and enforcement
by Executive agencies" of Title VI, Title, IX, Section 504 and "any other provision of
Federal statutory law which provides, in whole or in part, that no person in the United
States shall, on the ground of race, color, national origin, handicap, religion, or sex, be
excluded from participation in, be denied the benefits of, or be subject to discrimination
under any program or activity receiving Federal financial assistance. Exec. Order No.
12250 § 1-201. Except for approval of agency regulations implementing Title VI and
Title IX and the issuance of coordinating regulations, all other responsibilities have been
delegated to the Assistant Attorney General for Civil Rights. While each Federal
agency extending Federal financial assistance has primary responsibility for
implementing Title VI with respect to its recipients, overall coordination in identifying
legal and operational standards, and ensuring consistent application and enforcement,
rests with the Civil Rights Division of the Department of Justice.
Initially, the Title VI coordination responsibility was assigned to a President's
Council on Equal Opportunity, which was created by Exec. Order No. 11197, dated
February 5, 1965. Exec. Order No. 11197, 3 C.F.R. 1964-1965 Comp. 278. However,
the Council was abolished after six months and the responsibility was reassigned to the
Attorney General pursuant to Exec. Order No. 11247, dated September 24, 1965. 3
C.F.R. 1964-1965 Comp. 348. Exec. Order No. 11247 provided that the Attorney
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General was to assist Federal departments and agencies in coordinating their Title VI
enforcement activities adopting consistent, uniform policies, practices, and procedures.
During this period, the Department issued its "Guidelines for the Enforcement of Title
VI, Civil Rights Act of 1964," 28 C.F.R. § 50.3.
In 1974, the President signed Exec. Order No. 11764, which was designed "to
clarify and broaden the role of the Attorney General with respect to Title VI
enforcement." Exec. Order No. 11764, 3A C.F.R. § 124 (1974 Comp.). The Order
gave the Attorney General broad power to insure the effective and coordinated
enforcement of Title VI. Pursuant to this Executive Order, in 1976, the Department
promulgated its Coordination Regulations describing specific implementation,
compliance, and enforcement obligations of Federal funding agencies under Title VI.
See 28 C.F.R. §§ 42.401-42.415.110/ Every agency that extends Federal financial
assistance covered by Title VI is subject to the Coordination Regulations and Title VI
Guidelines issued by the Department of Justice.
Finally, on November 2, 1980, President Carter signed Exec. Order No. 12250,
which directs the Attorney General to oversee and coordinate the implementation and
enforcement responsibilities of the Federal agencies pursuant to Title VI. For the first
time, the President's approval power over regulations was delegated to the Attorney
General. See id. at § 1-1.111/ This Executive Order also requires agencies to issue

110

These regulations were amended slightly after the signing of Executive Order
12250 in 1980 to correctly identify the applicable Executive Order, but in substance they
are substantially as they were when issued in 1976.
111

Title VI provides that no rules, regulations and orders of general applicability
"shall become effective unless and until approved by the President." 42 U.S.C. §
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appropriate implementing directives either in the form of policy guidance or regulations
that are consistent with the requirements prescribed by the Attorney General. Id. at § 1402.
The Department of Justice's second role is as the Federal government's litigator.
As discussed in Chapter XI, the Department of Justice, on behalf of Executive
agencies, may seek injunctive relief, specific performance, or other remedies when
agencies have referred determinations of noncompliance by recipients to the
Department for judicial enforcement. Such litigation will be assigned to the
Department's Civil Rights Division. In addition, the Department is responsible for
representing agency officials should they be named in private litigation involving Title
VI.

2000d-1.
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Index
agency remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85-93, 103
aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
“Any other means authorized by law” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85-86, 90-92
assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12, 24, 26, 47, 72-73, 76, 90
Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17, 48, 74, 85, 108-110
beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20-21, 23, 25-28, 55-56, 58
cautionary language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88-89
Civil Rights Restoration Act of 1987 . . . . . . . . . . . . . . 22, 29-33, 35, 37, 40, 94, 98,103
compensatory damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102-104
complaints
investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 82-83
processing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82-83
referral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70-71, 84, 90-91,102
compliance
enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84-91
evaluations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-77
judicial enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90-91, 100, 104-105
non-litigation alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95-89
notice of concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88-89
post-award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78-81
data collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-77
review procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-77
review target selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78-80
voluntary . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 83, 88-89, 91-92, 100, 104-105
contracts of insurance or guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17, 22
contractor and agent, recipient responsibilities for . . . . . . . . . . . . . . . . . . . . . . . . 25-26
corporations or private entities as "program or activity" . . . . . . . . . . . . . . . . . . . . . 37-39
damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95-105
implementing remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104-105
under disparate impact theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
data collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-77
deferral of assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73-76
Department of Justice Title VI role
litigation to enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90-92, 108-110
coordinator of agency enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90-92
discriminatory conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-54
disparate impact/effects . . . . . . . . . . . . . . . . 2, 26, 32, 42-44, 47-54, 64, 99, 104
environmental justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58-65
evidence of . . . . . . . . . . . . . . . . . . . . . . . . 42-53, 66, 68, 57, 73, 88, 91, 95, 103
intentional discrimination/disparate treatment . . . 2, 31-32, 42-47, 49, 101, 104
“substantial legitimate justification” . . . . . . . . . . . . . . . . . . . . . . . . . 43, 48, 51-53
less discriminatory alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
limited English proficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-58

national origin discrimination . . . . . . . . . . . . 1, 3, 6, 26, 42-43, 45-46, 49, 54-68
pattern or practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 71
retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-66
Eleventh Amendment Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105-107
employment, coverage under Title VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 67-70
environmental justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58-65
exceptions to Title VI coverage
contracts of insurance or guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17, 22
employment discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 67-70
procurement contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17-18
Executive Orders
11197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
11246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 78-79
11247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
11764 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
12250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108-109
12898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 60-61, 64
13166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56, 61
Equal Employment Opportunity Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70-72
Federal financial assistance
contracts of insurance or guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17, 22
definition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-14
direct/indirect assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15
fair market value v. subsidy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18
land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12-13, 24
licenses not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15
money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11, 22, 25, 30, 40, 96
nonmonetary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15
personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11, 13-14
procurement contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17
programs owned and operated by the Federal government not . . . . . . . . . . . 16
property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-13
regulatory programs not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
social security payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19
veteran’s benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19
Fifth Amendment, applicability of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Fourteenth Amendment, applicability of . . . . . . . . . . . . . . . . . . . . . . . . 1,-2, 6, 8, 42, 44
funding
post-award compliance review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78-82
data collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-77
pre-award procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-78
fund termination hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92-93
fund suspension and termination process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92-98
infection theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 98
immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 63, 103, 105-108
"in the United States," definition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9
legislative history, Title VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5

LEP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-58
licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15
limitations on fund terminations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92-93
limited English proficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-58
monetary damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99-105
"persons," definition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
“pinpoint provision” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94-96, 98
prima facie case, intentional discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-47
prima facie case, disparate impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47-53
prima facie case, retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-66
primary recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22, 25
primary/sub-recipient programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
private right of action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 48, 99-108
procurement contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17
“program or activity”
catch all/combination of entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
definition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-41
recipient
assignees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
combination of entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
contractor and agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26
contract relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26
corporations and private entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-40
definition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
educational institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23, 35-37
indirect recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-24
primary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22, 25
subrecipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 20, 22, 25
transferees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13, 24
recipient v. beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-28
pattern or practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
referral of employment complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70-71
regulation approval
by the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
delegation to the Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-66
“simple justice” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
Title VI/Title VII rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67-71
Title IX/Section 504/Americans with Disabilities Act, relationship to Title VI . . . . . . . 1-2
theories of discrimination
intentional discrimination/disparate
treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 31-32, 42-47, 49, 101, 104
disparate impact/effects . . . . . . . . . . . . . . . . . . . 2, 26, 32, 42-44, 47-64, 99, 104
transferees and assignees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13, 24
ultimate beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26-27

voluntary compliance
need to determine not achievable prior to enforcement action . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84-89, 91-92, 100, 104-105
at the pre-award stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-79