A. Examples of Federal Financial Assistance
A. Initial Passage and Judicial Interpretations
C. Civil Rights Restoration Act
D. State and Local Governments
C. National Origin Discrimination and Services in Languages Other than English
1. Presidential Reaffirmance and Clarification of Lau Obligations
2. The Four Factor Analysis: Reasonable Steps Toward Reasonable Measures
1. Executive Order 12898: The Duty to Collect, Disseminate, and Think
3. An Analytical Approach and Its Attendant Problems of Timing and Proof
2. Deferral of the Decision Whether to Grant Assistance
3. Pre-Award Authority of Recipients vis-a-vis Subrecipients
B. "Any Other Means Authorized by Law:" Judicial Enforcement
C. Fund Suspension and Termination
XII. Private Right of Action and Individual Relief through Agency Action
A. Entitlement to Damages for Intentional Violations
B. Availability of Monetary Damages in Other Circumstances
C. Recommendations for Agency Action
D. States Do Not Have Eleventh Amendment Immunity Under Title VI
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 Comments on this publication, and suggestions as to future updates, including published and unpublished cases, may be addressed to: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
950 Pennsylvania Avenue NW - NWB
Washington, D.C. 20530
Telephone and TDD (202) 307-2222
FAX (202) 307-0595
E-mail 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.
FEDERAL CASES
Adams v. Richardson, 356 F. Supp. 92 (D.D.C. 1973)
Adarand Constructors, Inc. v. Peņa, 515 U.S. 200 (1995)
Ahern v. Board of Educ., 133 F.3d 975 (7th Cir. 1998)
Alabama NAACP State Conference of Branches v. Wallace, 269 F. Supp. 346 (M.D. Ala. 1967)
Alexander v. Choate, 469 U.S. 287 (1985)
Arlington Heights v. Metropolitan Hous. Redevelopment Corp., 429 U.S. 252 (1977).
Association Against Discrimination in Employment v. City of Bridgeport, 647 F.2d 256 (2d Cir. 1981), cert. denied, 455 U.S. 988 (1982)
Ayers v. Allain, 674 F. Supp. 1523 (N.D. Miss. 1987)
Baldwin v. University of Texas Med. Branch at Galveston, 945 F. Supp. 1022 (S.D.Tex. 1996)
Balzac v. Puerto Rico, 258 U.S. 298 (1922)
Bass v. Board of County Comm'rs , 38 F. Supp. 2d 1001 (M.D. Fla. 1999)
Bentley v. Cleveland County Bd. of County Comm'rs, 41 F.3d 600 (10th Cir. 1994)
Board of Pub. Instruction v. Cohen, 413 F.2d 1201 (5th Cir. 1969)
Board of Pub. Instruction v. Finch, 414 F.2d 1068 (5th Cir. 1969)
Bob Jones Univ. v. Johnson, 396 F. Supp. 597 (D. S.C. 1974), aff'd, 529 F.2d 514 (4th Cir. 1975)
Brantley v. Independent Sch. Dist. No. 625, St. Paul Public Schools, 936 F. Supp. 649 (D. Minn. 1996)
Brown v. Board of Educ., 347 U.S. 483 (1954)
Bryant v. New Jersey Dep;t of Transp., 998 F. Supp. 438 (D.N.J. 1998)
Caddo Parish Sch. Bd. v. United States, 389 U.S. 840 (1967)
California Ass'n of the Physically Handicapped v. FCC, 840 F.2d 88 (D.C. Cir. 1988)
Cannon v. University of Chicago, 441 U.S. 677 (1979)
Caulfield v. Board of Educ., 486 F. Supp. 862 (E.D.N.Y. 1979)
Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
Chicago v. Lindley, 66 F.3d 819 (7th Cir. 1995)
City of Los Angeles, Dep't of Water and Power v. Manhart, 435 U.S. 702 (1978)
Coalition of Bedford-Stuyvesant Block Ass'n. v. Cuomo, 651 F. Supp. 1202 (E.D.N.Y. 1987)
Community Television of S. Cal. v. Gottfried, 459 U.S. 498 (1983)
Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984)
Contractors Ass'n of E. Pa. v. Secretary of Labor, 442 F.2d 159 (3d. Cir. 1971), cert. denied., 404 U.S. 854 (1971)
Cooper v. Aaron, 358 U.S. 1 (1958)
Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000.)
Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999)
David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988)
Davis v. Halpern, 768 F. Supp. 968 (E.D.N.Y. 1991)
DeLeo v. City of Stamford, 919 F. Supp. 70 (D. Conn. 1995)
DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir. 1990)
Dekalb County Sch. Dist. v. Schrenko, 109 F.3d 680 (11th Cir. 1997)
Delmonte v. Department of Bus. Prof'l Regulation, 877 F. Supp. 1563 (S.D. Fla. 1995)
District of Columbia v. Carter, 409 U.S. 418 (1973)
Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992)
Downes v. Bidwell, 182 U.S. 244 (1901)
Elston v. Talladega County Bd. of Educ., 997 F.2d 1394 (11th Cir.), reh'g denied, 7 F.3d 242 (11th Cir. 1993)
First Ala. Bank of Montgomery, N.A., v. Donovan, 692 F.2d 714 (11th Cir. 1982)
Franklin v. Gwinett City Pub. Sch., 503 U.S. 60 (1990)
Furnco Const. Corp. v. Waters, 438 U.S. 567 (1978)
Gallagher v. Croghan Colonial Bank, 89 F.3d 275 (6th Cir. 1996)
Gardner v. Alabama, 385 F.2d 804 (5th Cir. 1967), cert. denied, 389 U.S. 1046 (1968).
Gautreaux v. Romney, 457 F.2d 124 (7th Cir. 1972)
Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985)
Godby v. Montgomery County Bd. of Educ., 996 F. Supp. 1390 (M.D.Ala. 1998).
Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 (7th Cir. 1987)
Graves v. Methodist Youth Servs., Inc., 624 F. Supp. 429 (N.D. Ill. 1985)
Griggs v. Duke Power, 401 U.S. 424 (1971)
Grove City College v. Bell, 465 U.S. 555 (1984)
Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983)
Hamilton v. Illinois Ctr. R.R. Co., 894 F. Supp. 1014 (S.D. Miss. 1995)
Hans v. Louisiana, 134 U.S. 1 (1890)
Herman v. United Bhd. of Carpenters, 60 F.3d 1375 (9th Cir. 1995)
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)
Horner v. Kentucky High School Athletic Ass'n, 43 F.3d 265 (6th Cir. 1994)
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
In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975)
Independent Hous. Servs. of San Francisco (IHS) v. Fillmore Ctr. Assoc., 840 F. Supp. 1328 (N.D. Cal. 1993)
International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977)
Jacobson v. Delta Airlines, 742 F.2d 1202 (9th Cir. 1984)
Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180 (4th Cir. 1999)
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)
Lane v. Peņa, 518 U.S. 187 (1996)
Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984)
Lau v. Nichols, 414 U.S. 563 (1974)
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)
Marable v. Alabama Mental Health Bd., 297 F. Supp. 291 (M.D. Ala. 1969)
Marshall v. Barlow's Inc., 436 U.S. 307 (1978)
Mass v. Martin Marietta Corp., 805 F. Supp. 1530 (D. Colo. 1992)
Mathews v. Diaz, 426 U.S. 67 (1976)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
Meek v. Martinez, 724 F. Supp. 888 (S.D.Fla. 1987)
Meyers by and through Meyers v. Board of Educ. of the San Juan Sch. Dist., 905 F. Supp. 1544 (D. Utah 1995)
Moore v. Sun Bank, 923 F.2d 1423 (11th Cir. 1991)
Muller v. Hotsy Corp., 917 F. Supp. 1389 (N.D. Iowa 1996)
NCAA v. Smith, 525 U.S. 459 (1999)
New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65 (2d Cir. 2000)
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)
New York Urban League v. New York, 71 F.3d 1031 (2d Cir. 1995)
North Haven v. Bell, 456 U.S. 512 (1982)
Pabon v. Levine, 70 F.R.D. 674 (S.D.N.Y. 1976)
Pandazides v. Virginia Bd. of Educ., 13 F.3d 823 (4th Cir. 1994)
Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1 (1981)
Plyler v. Doe, 457 U.S. 202 (1982)
Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999)
Rannels v. Hargrove, 731 F. Supp. 1214 (E.D. Pa. 1990)
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)
Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523 (10th Cir. 1995)
Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642 (8th Cir. 1994)
Sandoval v. Hagan, 7 F. Supp. 2d 1234 (M.D. Ala. 1998)
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)
Schroeder v. City of Chicago, 927 F.2d 957 (7th Cir. 1991)
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)
Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (5th Cir. 1963), cert. denied, 376 U.S. 938 (1964)
Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983), cert. denied, 466 U.S. 929 (1984)
Stanley v. Darlington County Sch. Dist., 84 F.3d 707 (4th Cir. 1995)
Steptoe v. Savings of America, 800 F. Supp. 1542 (N.D. Ohio 1992)
Thornton v. National R.R. Passenger Corp., 16 F.Supp. 2d 5 (D.D.C. 1998)
United States by Clark v. Frazer, 297 F. Supp. 319 (M.D. Ala. 1968)
United States Dep't of Transp. v. Paralyzed Veterans, 477 U.S. 597 (1986)
United States v. Alabama, 791 F.2d 1450 (11th Cir. 1986)
United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985)
United States v. City and County of Denver, 927 F. Supp. 1396 (D. Colo. 1996)
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)
United States v. Harris Methodist Fort Worth, 970 F.2d 94 (5th Cir. 1992)
United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966)
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)
United States v. Mississippi Power & Light Co., 638 F.2d 899 (5th Cir. 1981)
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)
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 715 (1982)
Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996)
W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995)
Williams v. City of Dothan, 745 F.2d 1406 (11th Cir. 1984)
Waldrop v. Southern Co. Servs., 24 F.3d 152 (11th Cir. 1994)
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)
Young by and through Young v. Montgomery County (Ala.) Bd. of Educ., 922 F. Supp. 544 (M.D. Ala. 1996)
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)
CONSTITUTION
U.S. Const. amend. XI
FEDERAL STATUTES
5 U.S.C. § 571
5 U.S.C. § 3372
20 U.S.C. § 1070(a)(5)
20 U.S.C. § 1232i(b)
20 U.S.C. § 1681
29 U.S.C. § 794
42 U.S.C. § 2000d
42 U.S.C. § 6101
42 U.S.C. § 12131
REGULATIONS
3 C.F.R. § 859
5 C.F.R. § 900.403(f)
15 C.F.R. § 8.4(c)(2)
24 C.F.R. § 1.2(d)
24 C.F.R. § 1.8(d)
28 C.F.R. § 42
28 C.F.R. § 50.3
29 C.F.R. § 31.8(a)
29 C.F.R. § 31.8(c)
29 C.F.R. §§ 1691.1 - 1691.13
32 C.F.R. § 195.6
32 C.F.R. § 195.8
34 C.F.R. § 100.3(c)(3)
34 C.F.R. § 100.8
38 C.F.R. § 18.13(d)
45 C.F.R. § 80.8(a)
45 C.F.R. § 80.8(c)
49 C.F.R. § 21.23(f)
48 Fed. Reg. 3570 (1983)
59 Fed. Reg. 7629 (1994)
65 Fed. Reg. 26464 (2000)
65 Fed. Reg. 50121 (2000)
65 Fed. Reg. 50123 (2000)
MISCELLANEOUS
Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, Tit. X, § 1003, 100 Stat. 1845 (1986)
Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988)
6 Op. Off. Legal Counsel 83 (1982)
Exec. Order No. 9981, 3 C.F.R. 722 (1943-1948)
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)
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)
Exec. Order No. 11197, 3 C.F.R. 1964-1965 Comp. 278.
Exec. Order No. 11246
Exec. Order No. 11247, 3 C.F.R. 1964-1965 Comp. 348
Exec. Order No. 11764, 3A C.F.R. § 124 (1974 Comp.)
Exec. Order No. 12250, 28 C.F.R. Pt. 41, App. A
Exec. Order No. 12898
Exec. Order No. 12988
Exec. Order No. 13166
Memorandum on Environmental Justice for the Heads of All Departments and Agencies, 30 Weekly Comp. Pres. Doc. 279 (Feb. 11, 1994)
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 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.
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 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.
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.
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 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).
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 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.
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)
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:
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 donated. (11)
For example:
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:
Another common form of Federal financial assistance provided by many agencies is training by Federal personnel. For example:
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 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. 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, 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 (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:
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:
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).
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 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.
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:
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)
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 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 assistance afforded its afforded members." But the Court stated, "This showing, without more, is insufficient to trigger Title IX coverage. Id. at 468. (20)
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)
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 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 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:
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).
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 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 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.
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 603; S. Rep. No. 64 at 10, reprinted in 1988 U.S.C.C.A.N. at 12. (26)
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.
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. 100-259, 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 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
(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 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:
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 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 §&nbs