Footnotes — Title IX Legal Manual
[1] In response to the Supreme Court's decision in Grove City College v. Bell, 465 U.S. 555, 571-72 (1984) that Title IX and other similar nondiscrimination statutes were program-specific and only applied to the particular portion of a recipient's program that actually received federal financial assistance, Congress passed the Civil Rights Restoration Act of 1987 which clarified the definition of "program or activity" to cover all the operations of an entity receiving federal financial assistance. For example, if a State prison receives federal aid, all of the operations of the state Department of Corrections would be covered by Title VI and Section 504 and all of its education and training programs and activities would be covered by Title IX. 20 U.S.C. 1687.
[2] As discussed later in the Manual, however, there are Constitutional issues presented as well.
[3] See OCR Policy Determination, 43 Fed. Reg. 84 (1978), for a discussion of when this exception allows single-sex classes on grounds of religious belief.
[4] In implementing this provision, the Department of Education requires a single-sex school for both sexes once it is provided for one sex. The Department of Education is currently reviewing provisions in its current Title IX regulations regarding single-sex programs to determine whether revised standards or further guidance on this issue may be appropriate.
[5] See Chapter V(E) for a detailed discussion of this important grievance procedure requirement.
[6] As enacted in Title IX, this provision provides: (b) Nothing contained in subsection (a) of this section shall be interpreted to require any educational institutional to grant preferential or disparate treatment to members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other areas: Provided, that this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this title of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex. 20 U.S.C. §1681(b).
[7] The Javitz Amendment was a compromise bill passed after congress rejected the Tower Amendment, an earlier proposal to either completely exclude intercollegiate athletics from Title IX or to exclude revenue-generating athletic programs. Pub. L. 93- 380, 88 Stat. 612 (1974). The HEW regulations are codified at 34 C.F.R. Part 106.
[8] The Court in Grove City College held that federal student financial assistance provided to a college established Title IX jurisdiction only over the college's financial aid program, not the entire college. This interpretation significantly narrowed the application of the prohibitions of Title IX and its counterparts, Title VI, the Age Discrimination Act of 1975, and Section 504.
[9] See 7 C.F.R. Part 15a published on April 11, 1979; and 10 C.F.R. part 1040 published on June 13, 1980, respectively.
[10] The participating agencies include: the Nuclear Regulatory Commission; Small Business Administration; National Aeronautics and Space Administration; Department of Commerce; Tennessee Valley Authority; Department of State; Agency for International Development; Department of Housing and Urban Development; Department of Justice; Department of Labor; Department of the Treasury; Department of Defense; National Archives and Records Administration; Department of Veterans Affairs; Environmental Protection Agency; General Services Administration; Department of the Interior; Federal Emergency Management Agency; National Science Foundation; Corporation for National and Community Service; and, the Department of Transportation. It should be noted that three agencies that participated in the Notice of Proposed Rulemaking – the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute of Museum and Library Services – are promulgating separate Title IX regulations, rather than participating in the final Title IX common rule.
[11] See 20 U.S.C. § 1681(a).
[12] 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 before and after the demotion, over a course of approximately twelve years. Id. at 1565-66. The court does not clearly address whether its conclusion was 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.
[13] Under the Title IX common rule, each federal agency that awards financial assistance is required to publish in the Federal Register a notice of the programs covered by Title IX. 65 Fed. Reg. 52874 § .600 (2000) .
[14] 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."
[15] "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." Id. at 569.
[16] 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).
[17] 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 (B)(3) of this Chapter.
[18] 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.
[19] Note that the written assurance may serve as the basis for a breach of contract action.
[20] 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," as described in Section E of this chapter.
[21] 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] The Court in Smith 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.
[23] One district court has held that because the transfer of property in issue occurred before the effective date of Section 504 HUD regulations, the purchaser of the land was not considered a transferee with obligations under Section 504 but, instead, was merely a beneficiary of federal financial assistance with no obligations to comply with Section 504. Independent Hous. Servs. of San Francisco v. Fillmore Ctr. Assocs., 840 F. Supp. 1328, 1341 (N.D. Ca. 1993). However, it should be noted that the standard Office of Management and Budget assurance form used by most federal agencies includes language that requires recipients who enter into contracts to ensure that contractors comply with various antidiscrimination statutes, including Title IX. In addition, the language binding subsequent transferees, etc. has been in most Title VI regulations for over 30 years. Thus, recipients are aware of the fact that nondiscrimination statutes such as Title VI and Title IX, which are triggered by receipt of federal financial assistance, are binding on transferees, etc. Since Title IX is based on Title VI, the Title VI provisions on coverage of transferees are applicable to Title IX. Moreover, although most agencies" Title IX regulations did not become effective until August 30, 2000, Title IX itself has been in effect since 1972. Thus, it is the Department of Justice's view that Title IX statutory obligations are binding on all recipients, successors, transferees, assignees, and contractors who receive federal financial assistance, both before and after the date of the Title IX regulations, despite the one district court case cited above.
[24] 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] It should be remembered that federal assistance may include, not only, the payment of money to an ultimate beneficiary, but also the provision of subsidized services, e.g. job training, elementary and secondary education, prison job skills programs, etc.
[26] Title IX broadly defines the term "educational institution" to include "any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education..." 20 U.S.C. § 1681.
[27] Throughout the remainder of this section, discussion of what constitutes a covered "education program or activity" and related references are intended to apply only to Title IX's scope of coverage outside traditional educational institutions.
[28] It should be noted that the 1984 House Report regarding an earlier version of the CRRA, which defined "recipient" rather than "program or activity," also described coverage as limited to "education." This description is instructive since sponsors of the CRRA, as eventually enacted, later noted that, despite the new language, coverage would operate in the same manner envisioned for the prior bill. Thus, it is worth noting that the 1984 House Report described Title IX's scope of coverage as follows:
An education recipient has a different scope of coverage depending upon whether the entity receiving federal funds has education as a primary purpose. If the recipient does have education as its primary purpose, such as colleges, universities, school districts, training institutes, and academies, then the federal funds result in institution-wide coverage. If the entity receiving federal funds does not have education as a primary purpose yet engages in educational functions, then all of its education-related functions are covered. For this entity, its other functions are not necessarily covered unless there is a link between the education function and the non-education functions.
H.R. Rep. No. 98-829, at 27.
[29] Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998); Grove City College v. Bell , 465 U.S. 555, 566 (1984); Cannon v. University of Chicago , 441 U.S. 677, 684-85 (1979); Cohen v. Brown Univ., 101 F.3d 155, 170 (1st Cir. 1996), cert denied, 520 U.S. 1186 (1997); Yusuf v. Vassar College, 35 F.3d 709, 714 (2 nd Cir. 1994). Indeed, one of the earlier legislative proposals of what ultimately became Title IX sought to amend Title VI itself by adding sex as one of its prohibited bases of discrimination. See North Haven , 456 U.S. at 546 (Powell, J., dissenting).
[30] However, as previously discussed, Title IX's coverage is limited to education programs and activities.
[31] U.S. Const., Art. I, §8, cl. 1. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998); Smith v. Metropolitan Sch. Dist., Perry Township, 128 F.3d 1014, 1028 (7th Cir. 1997), cert. denied, 524 U.S. 951 (1988).
[32] Pederson v. Louisiana State Univ., 201 F.3d 388, 406 (5th Cir. 2000), aff"d in part, rev"d in part, 213 F.3d 858 (5 th Cir. 2000). For a discussion of the scope of Congress's independent enforcement authority under Section 5 of the Fourteenth Amendment, see United States v. Morrison , __ U.S. at __, 120 S.Ct. 1749, 1755-59; Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80, 120 S.Ct. 631, 644 (2000).
[33] Disparate treatment is also referred to as "intentional," "purposeful," or "invidious" discrimination.
[34] In many areas Title VII case law is also looked to for guidance in how to establish a Title IX violation.
[35] Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11 th Cir. 1993), rehearing denied, 7 F.3d 242 (11 th Cir. 1993), cert. denied, 502 U.S. 910 (1991), (quoting Williams v. City of Dothan, 745 F.2d 1406, 1414 (11 th Cir. 1984)).
[36] See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 726-730 (1982) (maintenance of single sex nursing school as compensation for assumed prior discrimination rejected as perpetuating sex stereotypes); United States v. Virginia, 518 U.S. 515, 534-46 (1996) (benign justification in defense of a categorical exclusion does not block inquiries into actual purposes of and factual support for the exclusion). It should be noted that both of these cases are Constitutional cases, not Title IX cases.
[37] See Village of Arlington Heights v. Metro. Hous. Redevelopment Corp., 429 U.S. 252, 266-68 (1977)(evaluation of intentional discrimination claim under the Fourteenth Amendment); Elston, 997 F.2d at 1406.
[38] See Baldwin v. University of Texas Med. Branch at Galveston, 945 F. Supp. 1022, 1031 (S.D. Tex. 1996), aff"d, 122 F.3d 1066 (5 th Cir. 1997); Brantley v. Independent Sch. Dist. No. 625, St. Paul Pub. Sch., 936 F. Supp. 649, 658 n.17 (D. Minn. 1996).
[39] 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. 711, 715 (1982) (quoting Furnco Construction 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 Douglas, 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 (5 th Cir. 2000)(internal citations omitted); see also Pivirotto v. Innovative Systems, Inc. , 191 F.3d 344, 354 (3 rd Cir. 1999); Jackson v. Richards Med. Co., 961 F.2d 575, 587 n.12 (6 th Cir. 1992).
[40] See International Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977); McDonnell Douglas, 411 U.S. at 802.
[41] See Reeves v. Sanderson Plumbing Prod., Inc., __ U.S. __, 120 S. Ct. 2097, 2108 (2000) (finder of fact may infer the ultimate fact of discrimination from the falsity of an employer's explanation); St. Mary's Honor Ct. v. Hicks, 509 U.S. 502, 514 (1993) (burden on complainant to establish that challenged conduct "was the product of unlawful discrimination").
[42] International Bhd. of Teamsters, 431 U.S. at 336.
[43] Id.
[44] Id. at 362.
[45] See City of Los Angeles, Dep't of Water and Power v. Manhart, 435 U.S. 702 (1978).
[46] Disparate impact is also referred to as "disproportionate impact" or "adverse impact." Regardless of the descriptive phrase used, all refer to the process of evaluating facially neutral policies or practices that in fact result in the burdens of a policy or practice being borne more heavily by members of one sex(or race or national origin) than another.
[47] Cohen v. Brown Univ., 101 F.3d at 172.
[48] Guardians Ass"n v. Civil Serv. Comm"n, 463 U.S. 582, 584 (1983) (Title VI); Alexander v. Choate , 469 U.S. 287, 293 (1985) (Title VI); Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1253 (M.D. Ala. 1998), aff"d, 197 F.3d 484 (11 th Cir. 1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S. Ct. 28, 2000 WL 718812 (U.S. Sep 26, 2000)(NO. 99-1908); Haffer v. Temple Univ., 678 F. Supp. 517, 539 (E.D. Pa. 1987)(Title IX).
[49] New York Urban League v. New York , 71 F.3d 1031, 1036-40 (2 nd Cir. 1995) (incorporating the Title VII disparate impact analysis as part of an identical analysis under Title VI).
[50] Guardians Ass"n v. Civil Serv. Comm"n, 463 U.S. 582, 584 (1983) (Title VI); Alexander v. Choate , 469 U.S. 287, 293 (1985) (Title VI).
[51] See Larry P. v. Riles, 793 F.2d 969, 982 (9 th Cir. 1984); Elston, 997 F.2d at 1407 (citing Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11 th Cir. 1985)); Sharif v. New York State Educ. Dep"t, 709 F. Supp. 345, 361-62 (S.D.N.Y. 1989).
[52] New York City Ent"l Justice Alliance (NYCEJA) v. Giuliani, 214 F.3d 65, 69 (2d Cir. 2000).
[53] New York Urban League v. New York , 71 F.3d at 1037-38.
[54] Georgia State Conference, 775 F.2d at 1417.
[55] Board of Educ. v. Harris, 444 U.S. 130 (1979) ("educational necessity" analogous to "business necessity").
[56] Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1253 (M.D. Ala. 1998), aff"d, 197 F.3d 484 (11 th Cir. 1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S. Ct. 28, 2000 WL 718812 (U.S. Sep 26, 2000)(NO. 99-1908) quoting Elston, 997 F.2d at 1413).
[57] Georgia State Conference, 775 F.2d. at 1418. See, e.g., Elston, 997 F.2d at 1412-13.
[58] See generally , Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975)
[59] Sharif, 709 F. Supp. at 364.
[60] Larry P. at 983.
[61] Sandoval, 7 F. Supp. 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. New York, 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); Sharif v. New York State Educ. Dep"t, 709 F. Supp. at 362 (Prima facie case established by statistical evidence and expert testimony showing that under-representation of women among scholarship winners not likely due to random distribution).
[62] See Elston, 997 F.2d at 1407.
[63] 71 F.3d at 1039.
[64] 922 F.Supp 544 (M.D. Ala. 1996).
[65] Id. at 551.
[66] Elston, 997 F.2d at 1407; see also Young by and through Young, 922 F.Supp at 551 (goals of addressing illegal recruiting and improving quality of schools were substantial legitimate justifications for policy imposing loss of athletic eligibility after interschool transfer, and plaintiffs failed to demonstrate existence of an equally effective alternative practice).
[67] See, e.g., Preston v. Com. Of Va. ex rel. New River Community College, 31 F.3d 203, 205-06 n. 2 (4 th Cir. 1994); Nelson v. University of Maine System, 923 F.Supp 275, 279-80 (D.Me. 1996); Clay v. Board of Trustees of Neosho Community College, 905 F.Supp. 1488, 1495 (D.Kan. 1995).
[68] See, e.g., 28 C.F.R. §42.107(e) (Department of Justice Title VI Regulation).
[69] See, e.g., Benson v. Little Rock Hilton Inn, 742 F.2d 414, 416-17 (8 th Cir. 1984) (discussing remedial purpose of retaliation complaints and irrelevance of merits of underlying discrimination claim).
[70] One court in a private suit has read Title IX as prohibiting retaliation only for the exercise of personal rights. Holt v. Lewis, 955 F.Supp. 1385, 1389 (N.D.Ala. 1995), aff"d, 109 F.3d 771 (11 th Cir. 1997), cert. denied, 522 U.S. 817, 118 S.Ct. 67. But see, e.g., Trafficante v. Metropolitan Life Ins., 409 U.S. 205, 211 (1972) (white residence of apartment complex entitled to bring fair housing case based on discrimination against black applicants); Austen v. Hawaii, 759 F.Supp. 612, 627-28 (D.Ha. 1991), aff"d, 967 F.2d 583 (1991) (Title VII claim stated where evidence showed retaliation due to plaintiff's advocacy of women's issues); Maldonado v. METRA, 743 F.Supp. 563, 568 (N.D.Ill. 1990) (Title VII prima facie case stated where plaintiff had complained about discrimination against minorities generally).
[71] See North Haven v. Bell, 456 U.S. at 521, quoting United States v. Price, 383 U.S. 787, 801 (1966) (Title IX entitled to "a sweep as broad as its language.").
[72] See, e.g., Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5 th Cir. 1969).
[73] See David v. Halpern, 768 F.Supp. 968, 985 (E.D.N.Y. 1991).
[74] This is not to say that the employment practices of a recipient of non-employment related assistance will always be beyond the reach of Title VI. Where such employment discrimination so infects the tone and tenor of a program or activity that it subjects beneficiaries to an oppressive discriminatory atmosphere, enforcement action under Title VI is authorized. See, e.g., 28 C.F.R. §42.104(c)(2) (DOJ Title VI Regulations); 15 C.F.R. §8.4(c)(2) (Commerce Title VI Regulations); 34 C.F.R. §100.3(c)(2) (Education Title VI Regulations). See also, Ahern v. Board of Educ. of the City of Chicago, 133 F.3d 975 (7 th Cir. 1998); United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 883 (5 th Cir. 1966), cert. denied, 389 U.S. 840 (1967).
[75] See, e.g., North Haven v. Bell,456 U.S. 515, 537 (1982).
[76] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (hereinafter referred to as "the Title IX common rule"), 65 Fed. Reg. 52858 (August 30, 2000), § _.500(a).
[77] Johnson v. Baptist Med. Ctr., 97 F.3d 1070, 1072 (8 th Cir. 1996), rehearing denied, 114 F.3d 189 (8 th Cir. 1997). See also Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8 th Cir. 1996); Brine v. University of Iowa, 90 F.3d 271, 276 (8 th Cir. 1996), cert. denied, 519 U.S. 1149, 117 S.Ct. 1082; Doe v. Oyster River Co-Op Sch. Dist., 992 F.Supp. 467, 474 (D.N.H. 1997) (reference to Title VII provides helpful guidance). But see Chance v. Rice Univ., 984 F.2d 151 (5 th Cir. 1993), rehearing denied, 989 F.2d 179 (5 TH Cir. 1993) (claim of discrimination properly reviewed under the intentional discrimination standard of Title VI rather than the standards under Title VII).
[78] 29 C.F.R. §1691.4. This provision is part of general regulations adopted jointly by the Department of Justice and the Equal Employment Opportunity Commission governing the handling of employment discrimination complaints received by federal funding agencies. Those general regulations are discussed more fully in subsection B.6 of this Chapter.
[79] It is important to note, however, that Title VII case law does not apply with equal symmetry in the area of harassment claims. For a discussion of Title IX harassment claims, see section D of this Chapter.
[80] See, e.g., Henschke v. New York Hosp.-Cornell Med. Ctr., 821 F. Supp. 166, 172-73 (S.D.N.Y. 1993).
[81] See, e.g., Storey v. Board of Regents of the Univ. of Wisconsin, 604 F. Supp. 1200, 1205 (W.D. Wis. 1985).
[82] See "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).
[83] See Title IX common rule § .500(a)(2) and (3); § .505.
[84] See Title IX common rule, Subpart E, §§___.500-___.550.
[85] See, e.g., Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991).
[86] 28 C.F.R §§42.601-42.613 (DOJ); 29 C.F.R. §§1691.1- 1691.13 (EEOC)(hereinafter cited as "Joint Complaint Procedures"). The Joint Complaint Procedures do not apply to complaints under Executive Order 11246 (which is enforced by the Office of Federal Contract Compliance Programs), the Omnibus Crime Control and Safe Streets Act, as amended, or the Juvenile Justice and Delinquency Prevention Act (which are enforced by the Department's Office of Justice Programs). Id. at §42.601 and §1691.1.
[87] 48 Fed.Reg. 3570(1983).
[88] 28 C.F.R. 42.605(a).
[89] Id. at 42.605(b).
[90] The phrase "special circumstances" is used throughout the Joint Complaint Procedures. In using this phrase, the Joint Complaint Procedures seek to recognize the need for administrative flexibility in processing complaints. For example, an agency might conclude that special circumstances argue in favor of retaining a complaint that ordinarily should be referred to the EEOC where the complaint was related to or in furtherance of a pending investigation of the same recipient.
[91] In addition to Title IX, there are also Constitutional issues involved as discussed earlier in this Manual.
[92] Recipients must ensure that equitable opportunities are provided for the receipt of scholarships by both the men's and women's athletic programs. See "Guidance on the Awarding of Athletic Financial Assistance," (OCR Letter to Bowling Green, July 23, 1998).
[93] The following agencies also have Title IX regulations with similar requirements: The Department of Agriculture, 7 C.F.R. part 15a; the Department of Energy, 10 C.F.R part 1040; and the Department of Health and Human Services, 45 C.F.R. part 86.
[94] The Department of Education regulations differ slightly by requiring an assurance each time an application is made. See 34 C.F.R. §106.4(a).
[95] This does not apply to recipients that are exempted from the admissions provisions in Subpart C of the Title IX regulations – e.g., private undergraduate institutions and military schools. 34 C.F.R. §106.9(a).
[96] The Department of Education regulations require that the notice also be published in local newspapers. 34 C.F.R. §106.9(2)(i). The Title IX common rule does not include this requirement.
[97] This document was issued pursuant to the Assistant Attorney General authority under Executive Order 12250. This Order charges the Attorney General with with the responsibility for ensuring for the consistent and effective implementation of various laws prohibiting discriminatory practices in federal programs and programs receiving federal financial assistance, including Title IX among other statutes. The Attorney General's authority under the Executive Order, except for the approval of regulations, was delegated to the Assistant Attorney General for Civil Rights. 28 C.F.R. §0.51.
[98] See Chapter VI, Section A for a detailed discussion of assurances of compliance with Title IX.
[99] 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.
[100] 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. See Board of Pub. Instruction of Palm Beach County, Fla. v. Cohen, 413 F.2d 1201 (5th Cir. 1969).
[101] 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.
[102] In the alternative, a federal agency may obtain assurances directly from subrecipients, if it so chooses.
[103] As discussed earlier, the Title IX Common Rule and this Manual do not cover the Department of Education and its recipients, which have long been subject to the Department of Education's Title IX regulations and guidance. Nor are preaward reviews and related requirements delegable to the Department of Education absent its consent.
[104] A further refinement would involve agencies sharing their lists of potential grantees with other agencies, as appropriate.
[105] For example, pre-award reviews would not be necessary for applications that are unlikely to be funded for programmatic reasons.
[106] 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.
[107] See Title VI Coordination Regulations, 28 C.F.R. § 42.407(c).
[108] Each federal agency participating in the Title IX common rule published a provision adopting the Title VI procedures. See, e.g., Department of Education Title IX regulation at 28 C.F.R. §54.605.
[109] See, e.g., Department of Justice Title VI Regulations, 28 C.F.R. § 42.107(a).
[110] 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.
[111] 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.
[112] "All Federal staff determinations of Title VI, (as well as Title IX) 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 IX staff. This element of review, however, should be conducted and reviewed by experienced Title IX personnel, whether as a full time or collateral duty, and whether or not as members of the office in issue.
[113] The discussion herein applies primarily to post-award enforcement. Subsections address the extent to which enforcement may vary in a pre-award context.
[114] In considering options for enforcement, agencies should consult the Title VI Guidelines. 28 C.F.R. § 50.3.
[115] 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.
[116] Where voluntary compliance is achieved, the agreement must be in writing and specify the action necessary for the correction of Title VI or Title IX deficiencies. 28 C.F.R. § 42.411(b).
[117] Although Title VI (and, thus, Title IX), do not provide a specific limit to the time period 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 IX 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).
[118] 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.
[119] See, e.g., 24 C.F.R. § 1.8(d) (HUD); 29 C.F.R. § 31.8(c) (Labor).
[120] 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.
[121] 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).
[122] 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 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).
[123] 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.
[124] 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)).
[125] 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.
[126] 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. 983 F.2d at 486.
[127] 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.
[128] 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 (and Title VI, Section 504, and the Age Discrimination Act) were amended on two occasions, and 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 Civil Rights Restoration Act of to restore the broad scope of programs covered by these statutes.
[129] 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).
[130] 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, 11 (1890).
[131] The participating agencies include: the Nuclear Regulatory Commission; Small Business Administration; National Aeronautics and Space Administration; Department of Commerce; Department of Labor; Tennessee Valley Authority; Department of State; Agency for International Development; Department of Housing and Urban Development; Department of Justice; Department of Labor; Department of the Treasury; Department of Defense; National Archives and Records Administration; Department of Veterans Affairs; Environmental Protection Agency; General Services Administration; Department of the Interior; Federal Emergency Management Agency; National Science Foundation; Corporation for National and Community Service; and, the Department of Transportation.
[132] See 64 Fed. Reg. 58567 (1999). Three agencies that participated in the Notice of Proposed Rulemaking, the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute of Museum and Library Services are promulgating separate Title IX regulations, rather than participate in the final Title IX common rule.
[133] See 65 Fed. Reg. 52858 (2000).
