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"Title VI: In the Beginning"

September/October 2010 issue of Poverty & Race

We are pleased to print this excerpt of our late colleague Bill Taylor’s engaging 2004 memoir, The Passion of My Times: An Advocate’s Fifty-Year Journey in the Civil Rights Movement, which gives a fascinating inside-the-Beltway side of an important American story that started in the streets and churches of the Jim Crow South. Bill, who passed away in July of this year (see our tribute to him in the July/Aug. P&R at p. 5), was present in many of these Washington back rooms (as well as on the front lines) where our national civil rights policies were framed. His reflections on Title VI are particularly relevant to current efforts to re-energize enforcement of the 1964 Act and we follow his piece with an overview of the challenges and opportunities facing Title VI enforcement today.

The Leadership Conference on Civil and Human Rights, with whom Bill worked for decades, is holding a memorial service for him on Oct. 8, 10 am, at AFL-CIO, 815 16th Street NW, Washington, DC; if you would like to attend, please email Kat Milligan, or phone her (or Lisa Haywood) at 202/466-1884.

PRRAC also has a limited number of copies of Bill’s 251-page book (Carroll & Graf Publishers). We’ll be happy to send you a free copy, but do send us a check for $2.70 to cover the (book-rate) postage cost.

— Phil Tegeler & Chester Hartman

The '64 Act

In the fall of 1963 I received a call from Senator Humphrey's office, asking me to meet with his legislative director, John Stewart, and Senator Javits's chief legislative aide, Steve Kurzman. Both were talented lawyers and legislative analysts. When we met, they told me that both senators were thinking of proposing a strong provision on federal funding that would require mandatory action against recipients that persisted in discrimination. To start the process moving, they wanted to draft a letter from their senators to the administration and every federal agency asking them what discriminatory practices existed in their grant programs at that time, whether they believed they had enough authority to deal with them, and what additional authority they needed from Congress to do the job.

What Kurzman and Stewart wanted from me was help in drafting the letters, as they considered me to be expert in this area. It took about ten days for me to put everything together, after which the senators sent the letters to the administration. About a week later, I got a call from Lee White, the chief White House aide on civil rights. "We have received letters from Senators Humphrey and Javits asking questions about federal funding and discrimination, and you are the only person who knows enough to answer them," he said. "Please take on this assignment," he added.

Thus I had the surprising opportunity to answer my own letter, writing in the name of the Kennedy administration to reply to the questions of two prominent senators that had been drafted by me. I had been in a similar situation in 1961. Harris Wofford got the idea that it would be good to have a report from the Civil Rights Commission reviewing progress made since Lincoln's Emancipation Proclamation, the centennial of which was coming up in January 1963. Harris asked me to draft a letter to the commission from the president asking that it undertake the project. The commission was receptive to the idea but thought the administration should make available special funds for the study. So I drafted a letter for John Hannah, chairman of the commission, asking for the funds. Top officials of the administration decided that funds could not be made available. So I drafted another letter from President Kennedy declining the request for funds but hoping the commission would undertake the report anyway. It did so.

But this new version of "I'm gonna sit right down and write myself a letter" had potentially more far-reaching consequences. During the weeks that followed Lee White's assignment, I contacted federal agencies throughout the government, asking them about practices of discrimination by their grantees, and whether they believed they had the legal authority to deny grants to discriminators, or whether legislation would be necessary before they could do so. In doing this, I compiled a large list of discriminatory practices throughout American society—segregation in hospitals that received funds under the federal Hill Burton law; exclusion of black people from federally sponsored employment training and apprenticeship programs; the continuation of segregation and discrimination in public schools—all assisted by federal funds. I had to swallow hard in dealing with the question of executive authority. Although I believed that the president had ample authority to issue executive orders and directives to bar discrimination in the use of federal funds, it was clear by now that many top federal officials held different views, whether based on the law or political considerations. Ironically, the administration's position that it had limited authority actually strengthened the case for legislation. By January 1964, all agencies had completed their responses except the Department of Health, Education, and Welfare
HEW) and the Department of the Interior. At a subcabinet meeting, Lee White asked me to help expedite these replies.

By this time, public support for strong civil rights legislation had grown enormously in the wake of President Kennedy's assassination and his successor's call for a strong law. The two major additions in the House's pending legislation were a fair employment practices provision and a strengthened version of Title VI, the provision to withhold federal funds from institutions that practiced discrimination. As one example of the failure of civil rights opponents to understand the changing terrain, Howard Smith of Virginia, the chair of the Rules Committee, allowed an amendment to the fair employment section providing a remedy for sex discrimination. He thought the new provision would surely kill the bill. Instead it passed handily.
In the Senate, Richard Russell of Georgia was the leader of the opposition and was widely regarded by friend and foe as a superb tactician. But Russell focused almost all his energy on the fair employment section, while Senators Humphrey, Javits, and others were using the record we had compiled to make the case for Title VI, potentially a stronger tool in eradicating discrimination. In the end, Title VI and the rest of the law passed by a wide margin.

With the perspective of almost forty years of experience, it has become clear how central the enactment of Title VI was in protecting the rights of all Americans. Perhaps the most dramatic illustration of this came shortly after passage. For a decade after the Supreme Court's decision in Brown, Southern resistance had kept public schools rigidly segregated, with only about two percent of Negro children in the Old South attending schools with whites. A year after passage of the 1964 act, Congress passed the Elementary and Secondary Education Act, providing for the first time substantial federal aid to public education.

The funding was terribly important to school districts, and Lyndon Johnson, in an act of courage, told HEW secretary John Gardner that he was free to withhold federal funds from districts that would not desegregate their schools. Although the opponents of Title VI had claimed that Southern officials would spurn federal funds and that children would suffer the consequences, that is not what happened. Faced with losing the money, most school districts decided to obey the law. By the end of the decade, with Title VI and Justice Department lawsuits, more than half of black children were attending desegregated public schools.

Title VI also helped end a debate about whether rules against discrimination should apply only to government or to other important institutions in our society. Those who took the government-only position pointed to the fact that the Fourteenth Amendment commanded only that "no state" should deny to people the equal protection of the laws. But with the growing involvement of government in what once had been thought to be private institutions—hospitals and private colleges, for example—making a principled distinction became harder. In the end it was recognized that race should not bar anyone from having access to all of American society's important institutions. And that recognition signaled an end to segregated waiting rooms and hospital wards and to so many other racial anomalies that prevailed before the 1960s.

Title VI also served as the model for similar legislation enacted in the 1970s to protect other groups from discrimination. Title IX of the Education Amendments of 1972 required that federal grants to educational institutions be conditioned on the elimination of sex discrimination. Title IX, although best known for ushering in a revolution in women's participation in athletics, also opened the way for breaking down barriers in academia that relegated women to stereotyped roles. The law is now so rooted in our society that when the second Bush administration tried to water down the regulations, a public outcry forced it to back down. So, too, enactment of Section 504 of the Vocational Rehabilitation Act was one of the first steps to require major institutions to offer equal opportunity in jobs and services to people with disabilities. The law not only changed practices but helped break down the stereotype that people with disabilities could not be full participants in the life of the nation.

Finally, Title VI as it has been interpreted and administered over the last forty years has provided a lever for ending many needless practices that hurt minorities even if they were not intended to discriminate. When Title VI was enacted, it required that the president and all federal departments and agencies adopt regulations to implement the law. I was on the team that helped draft the regulations. Again, I profited from the experience of some of my friends and colleagues who had worked with state civil rights agencies. Proving that practices that harmed people of color were motivated by invidious racial intent was often difficult, they said, particularly as such blatant bias became less and less acceptable in polite company. Rather, they argued that it should be sufficient to establish that the practice worked to the disadvantage of minorities and could not be justified as necessary to the operations of the institution. With that reasoning, Pete Libassi [Bill’s associate] and I were able to insert into the regulations a provision that said fund recipients may not "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color, or national origin."

We did not realize at the time how important that brief sentence would turn out to be. As the Supreme Court became more conservative in the 1970s, a majority began to insist that, in order to prove a violation of the Fourteenth Amendment, a showing of invidious intent was necessary. Because Title VI was viewed as a reflection of the Fourteenth Amendment it, too, was interpreted as requiring a demonstration of intent. But the Court also said that it was legally appropriate for the Title VI regulations to go beyond the statute and bar practices that had a discriminatory effect, regardless of what was known about their intentions.

The importance of what came to be called the "disparate impact" standard can be seen in the fact it remains a battleground. For the last thirty years, I and others have been fighting with Senator Orrin Hatch to stave off his efforts to repeal the disparate impact standard as it is reflected in civil rights laws and regulations. In 2001 Supreme Court Justice Antonin Scalia wrote an opinion holding that, while victims of discrimination have a right to sue in federal court to enforce Title VI, they have no right to sue to enforce the regulations. He also hinted broadly that the regulations could be repealed. The current Bush administration has not repealed the regulations, but neither has it brought proceedings to enforce the law.

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