Federal Funding Agency Methods to Evaluate Compliance
The federal agency providing the financial assistance is primarily responsible for enforcing Title IX as it applies to its recipients. Agencies have several mechanisms available to evaluate whether recipients are in compliance with Title IX, 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. Because Title IX was patterned after Title VI, the Title IX common rule incorporated by reference the enforcement procedures set forth in the Title VI regulations. 65 Fed. Reg. 52858, 52860 (2000). Accordingly, this section references Title VI cases as well as the Title VI Coordination Regulations and the "Guidelines for the Enforcement of Title VI, Civil Rights Act of 1964," (the "Title VI Guidelines"). See 28 C.F.R. §§ 42.101-42.412 and 28 C.F.R. § 50.3. The Assistant Attorney General for Civil Rights in a January 28, 1999 document entitled: Policy Guidance Document: Enforcement of Title VI of the Civil Rights Act of 1964 and Related Statutes in Block Grant-Type Programs97 relied on the Title VI Coordination Regulations for the guidance provided and specifically stated:
This document was drafted specifically with reference to enforcement of Title VI, 42 U.S.C. § 2000d, et seq., which prohibits discrimination on the basis of race, color, and national origin in all Federal programs receiving Federal financial assistance. However, the principles set forth are equally applicable to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., which prohibits discrimination on the basis of sex in education programs receiving Federal financial assistance; the federally assisted aspects of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in both federally assisted and federally conducted programs; and various fund-granting statutes that contain prohibitions against discrimination.
Note 1, January 28, 1999 Guidance Document
It is important to remember that the standard for an agency to determine whether a recipient has violated Title IX differs from the higher liability standard of proof that must be met in a court action before monetary damages are awarded. Recipients have an affirmative duty to correct Title IX violations even if no monetary damages would be awarded because of the violation. As the Supreme Court noted in Gebser, federal agencies have the power to "promulgate and enforce requirements that effectuate [Title IX"s] nondiscrimination mandate," even in circumstances that would not give rise to a claim for money damages. Gebser, 524 U.S. at 292. Moreover, it is the position of the Department of Justice that the standards an agency follows in finding a violation and seeking voluntary corrective action also would apply to private actions for injunctive and other equitable (as opposed to monetary) relief. See brief of the United States as Amicus Curiae in Davis v. Monroe County.
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 nondiscrimination mandates of Title IX and other nondiscrimination laws.
1. Assurances of Compliance
The Title IX common rule provides as follows:
Either at the application stage or the award stage, Federal agencies must ensure that applications for Federal financial assistance contain, be accompanied by, or be covered by a specifically identified assurance from the applicant or recipient, satisfactory to the designated agency official, that each education program or activity operated by the applicant or recipient and to which these Title IX regulations apply will be operated in compliance with these Title IX regulations.
65 Fed. Reg. 52867 §__.115. Regulations requiring applicants to execute an assurance of compliance as a condition for receiving assistance are valid. Grove City College, 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 IX (or similar nondiscrimination laws). Grove City College, 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 assurances. SeeUnited States v. Marion County Sch. Dist., 625 F.2d 607, 609, 612-13 (5th Cir.), reh'g denied, 629 F.2d 1350 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981).98
2. Deferral of the Decision Whether to Grant Assistance
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" (or Title IX). 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.99
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).100
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 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 IX], "the agency head may defer action on the application pending prompt initiation and completion of [statutory remedial] procedures." Id. II.A.2 (emphasis added).101
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).
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 IX compliance] procedures.
Thus, the Title VI Guidelines support federal agencies requiring that recipients/subgrantors obtain assurances of compliance from subrecipients.102 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 Title VI 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 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 Title IX Common Rule incorporates agencies" Title VI procedures, as each agency participating in the common rule has its own provision adopting the Title VI procedures.103See, e.g., 28 C.F.R. §54.605 (Department of Justice); 15 C.F.R. §8a.605 (Department of Commerce); 22 C.F.R. §146.605 (Department of State); 29 C.F.R. §36.610 (Department of Labor); 32 C.F.R. §196.605 (Department of Defense). DOJ's Title VI Coordinating 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.104 If limited resources are a problem, agencies should develop a system to target a significant proportion of assistance applications.105
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 are adopted.
Federal agencies are required to maintain an effective program of post-award compliance reviews.107 Federal agency Title VI regulations, which are incorporated into Title IX regulations,108 reiterate this requirement.109 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. (NOPSI III), 723 F.2d 422 (5th Cir.) rehearing en banc denied, 734 F.2d 226 (5th Cir. 1984) (E.O. 11246 compliance review unreasonable) (citing United States v. Mississippi Power & Light Co., 638 F.2d 899 (5th Cir. 1981)); and First Alabama Bank of Montgomery, N.A., v. Donovan, 692 F.2d 714, 721 (11th Cir. 1982) (Exec. Order No. 11246 compliance review reasonable); But seeMarshall v. Barlow's Inc., 436 U.S. 307 (1978).110
The Harris 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.
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:
Issues targeted in the agency's strategic plan, if any;
Issues frequently identified as problems faced by a particular recipient's program beneficiaries;
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;
Issues raised in a complaint or identified during a complaint investigation that could not be covered within the scope of the complaint investigation;
Problems identified to the agency by community organizations or advocacy groups that cite actual incidents to support their concerns;
Problems identified to the agency by its block grant recipients;111 and
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 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. SeeNOPSI III, 723 F.2d at 428. The written record 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 (incorporated into Title IX regulations) are silent as to procedures for conducting compliance reviews, although, as discussed, the Title VI Coordination Regulations provide general guidance as to the types of information to solicit. Federal agencies granting federal financial assistance are required to "establish and maintain an effective program of post-approval 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 Title VI 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).112 These Title VI requirements are applicable to Title IX as well.
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).
The Title VI 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 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 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 IX complaints, such as under certain block grant programs, the federal agency must ascertain whether the recipient's procedures for processing complaints are adequate. In such instances, the Title VI Coordination Regulations, which agencies with Title IX responsibilities can look to for guidance, 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).
Where an agency receives a complaint about a recipient that is funded by more than one federal agency, the funding agency may avoid duplicative compliance and enforcement procedures by sharing or delegating compliance information and enforcement responsibilities. Section 1-207 of Executive Order 12250 authorizes the Attorney General to initiate cooperative programs and agreements between federal agencies to promote the effective enforcement of, interalia, Title VI and IX. Seealso, 28 C.F.R. §§ 42.401-415.
Many agencies that fund entities that operate educational programs or activities have Title VI delegation agreements with the Department of Education (ED). However, only two of these agencies, the National Aeronautics and Space Administration and the Environmental Protection Agency, have Title IX delegation agreements with ED. Delegation Agreements help to avoid duplicative enforcement efforts since they give to lead agencies responsibilities for conducting investigations when more than one agency has jurisdiction over a case. The Coordination and Review Section of the Civil Rights Division is currently developing a comprehensive Title IX and Title VI interagency Delegation Agreement to include the remaining federal agencies that do not have Title IX delegation agreements.
Finally, the Title VI Coordination Regulations require that each federal agency, (and recipients that process Title VI complaints), maintain a log of complaints received. 28 C.F.R. § 42.408(d). The log shall include the following: the sex 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.