Title VI
What Does It Say?
What Does It Do?
How Is It Enforced?
and
What Can the Feds Really Do to You?
I. Title VI.
No 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.”
A. Prohibits Discrimination on basis of race, color, and national origin by recipients of Federal Financial Assistance.
1. What is Federal financial Assistance?
a. Federal financial assistance is more than just money. It includes:
i. Money.
ii. Provision of valuable services.
iii. Training.
iv. Commodities.
v. Use or interest in land.
b. Finding that a recipient gained a net financial increase in assets or obtained valuable benefits directly from the government is not necessary. For example, aid which enhances the ability to improve or expand allocation of a recipient=s own resources constitutes assistance. For example,
i. Student aid (releases recipient=s funds for other uses).
ii. Training of employees (permits better use by the employer).
c. Contracts of insurance or guarantee, though they might be considered financial assistance, are specifically excluded by Title VI from being covered by prohibition against discrimination.
2. What is a recipient? Recipient@ is normally the administrative entity which receives assistance and whose conduct is subject to the nondiscrimination requirement.
a. Direct recipients. Those with a direct relationship with the funding agency.
i. Standard recipient
ii. Primary/conduit recipient
b. Secondary or subrecipient. Those with an indirect relationship with the funding agency.
3. Who is the beneficiary?
B. What is covered?
1. Does not cover assistance extended by way of a contract of insurance or guaranty.
2. Does not cover employment discrimination unless:
a. Employment is a primary objective of the Federal assistance,
b. Discrimination in employment would lead to discrimination in the service provided by the Federally assisted program.
c. The Title VI/VII rule provides that most covered employment complaints should be investigated by EEOC.
d. Sex discrimination is not prohibited by Title VI. However, other statutes do prohibit sex discrimination, for example, Title IX of the Education Amendments of 1972, which prohibits sex discrimination in Federally assisted education programs.
A. Specifics.
1. Title VI applies to persons in the United States.
2. Title VI applies to programs or activities that receive Federal financial assistance. The term is defined by statute to mean all of the operations of:
a. A department, agency, special purpose district, or other instrumentality of a state or local government receiving assistance.
b. The entity of a State or local government that distributes assistance and each department and agency (and each State and local government entity) to which assistance is extended.
c. A college, university, or other postsecondary institution or public system of high education receiving assistance.
d. A local education agency as defined by statute receiving assistance.
e. An entire corporation, partnership, or private organization, if
i. Assistance is extended to such corporation, etc. as a whole, or
ii. Which is principally engaged in the business of education, health care, housing, social services, or parks and recreation.
.D. What is discrimination. Title VI states no person on the basis of race, color, or national origin shall “be excluded from participation in, be denied the benefits of or be subjected to discrimination under . . . ”
1. Concerns a difference in treatment.
2. What must be shown?
a. Under the statute intent must be shown.
b. Under the regulations an effects or adverse impact standard can be used.
3. Intentional discrimination.
a. What does it mean?
b. What must be shown?
4. Adverse impact discrimination
a. What does it mean?
b. What must be shown?
5. Are the two mutually exclusive?
a. What are the enforcement ramifications?
b. What are the proof ramifications?
6. How does Executive Order 13166 concerning provision of services to those with limited English proficiency (LEP) fit into this. The four factor analysis
a. Number or proportion of LEP individuals.
b. Frequency of contact with the program.
c. Nature and importance of the program.
d. Resources available.
7. Retaliation
E. Ensuring Nondiscrimination.
1. Complaint Investigations – What will the Feds do.
a. Receive and review complaint.
b. Is it timely?
c. Determine jurisdiction and identify issues.
d. Approaches to complaint resolution.
e. Complaint investigation.
f. Investigative report.
g. Letters of findings and resolutions.
h. Settlement agreements.
i. Monitoring.
2. Compliance Reviews – What the Feds do
3. Pre-award Reviews – What the Feds do
a. What to check for.
i. Regulatory requirements.
ii. Practical requirements.
b. What if a problem is discovered?
i. Deferral of action on application.
ii. Special conditioning.
iii. Cautionary letter.
iv. Denial of Funding.
F. Title VI Enforcement Mechanism
1. Administrative Enforcement.
a. Investigation.
b. Finding.
c. A determination that voluntary compliance cannot be achieved.
2. Formal enforcement action:
a. A fund termination proceeding.
b. Referral to the Department of Justice for other action as authorized by law, i.e. a lawsuit.
3. Federal enforcement options.
a. Federal administrative enforcement
i. Conduct an administrative hearing.
ii. If hearing examiner determines there is noncompliance, the appropriate agency official approves the finding,
iii. If the finding is approved notify the relevant Congressional committees and wait 30 days,
iv. And if compliance has not been achieved, terminate funding. However, such termination shall be limited to the particular political entity, or part thereof, or other recipient as whom such finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been found.
b. Referral to the Department of Justice option.
i. Funding agency must have made a finding of noncompliance.
ii. Funding agency has made a determination that voluntary compliance cannot be achieved.
iii. Funding agency refers the matter to the matter to the Department of Justice.
4. Private right of action exists under Title VI.
a. Court decisions construed Title VI as providing a private right of action.
b. Title VI amended to waive 11th Amendment immunity.
c. Exhaustion of administrative remedies is NOT required.
d. However, the plaintiff must prove intentional discrimination.
II. Practical Considerations when Feds Show Up.
A. What is the source of the funding for the program they are investigating.
B. What is your relationship with the Federal funding entity
1. Are you a direct recipient?
2. Are you an indirect recipient?
3. Are you a recipient at all or a contractor?
4. Why does it matter?
C. How long ago did the alleged discrimination happen?
D. Is there Federal funding traceable to the part of a program alleged to be discriminating?
E. Even
if there is little or no discrimination is it the right thing to do?