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"Title VI Enforcement in the Post-Sandoval Era,"

by Philip Tegeler September/October 2010 issue of Poverty & Race

Enforcement of our preeminent civil rights era statute, Title VI of the Civil Rights Act of 1964, has been essentially sidelined since the Supreme Court’s 2001 decision in Alexander v. Sandoval, holding that “disparate impact” liability claims under the Title VI regulations could not be filed by private parties in court. Racial impact claims against recipients of federal government funding could in theory still be filed administratively in the civil rights division of the responsible federal agency, but private Title VI cases filed in court were now limited to claims of intentional discrimination prohibited by the statute itself.

The scope of what civil rights advocates and their clients lost in Sandoval is staggering—in the decade or more prior to the decision, advocates and researchers had begun to develop a more complete understanding of the mechanisms of structural disadvantage built into policies and practices of a wide range of government-funded programs, and filed compelling impact litigation to reform these systems. These claims addressed environmental justice, health equity, municipal services, transportation equity, law enforcement and K-12 education systems.

Just a few examples of these pre-Sandoval racial impact claims include Linton v. Commissioner of Health and Environment (1990), where the NAACP Legal Defense Fund brought a successful claim against a Tennessee policy reducing the number of hospital beds for Medicaid recipients; Labor/Community Strategy Center and Bus Riders Union et al. v. Los Angeles County Metropolitan Transportation Authority (consent decree 1996), a class action challenging a separate and unequal system of transportation for people of color in Los Angeles (arguing that MTA spent 70% of its operating budget on 6% of its ridership who are rail passengers, instead of their bus ridership who were 81% black, Latino and Asian and 60% poor); and Mussington v. St. Luke's Roosevelt Hospital Center (1994), a challenge to the relocation of in-patient maternal and child care services away from medically underserved areas of New York City.

After Sandoval, in theory, enforcement of such racial impact claims could have been taken up administratively by the federal government, in the civil rights offices of the appropriate federal agencies. However, the timing of the Sandoval decision (2001) coincided with the arrival of a new federal administration that had little interest in pursuing racial impact claims, and as a result virtually none were pursued during the next eight years.

At the same time, after 2001, advocates made repeated and unsuccessful efforts in Congress to “fix” Sandoval with an amendment to Title VI clarifying that racial impact claims can be brought directly in court. Barring a statutory amendment, advocates’ focus is now turning back to the potential for administrative enforcement of the Title VI regulations.

For a federal administrative enforcement strategy for Title VI to succeed, several ingredients are necessary. First, social science researchers and Legal Services and civil rights advocates need to continue to work intentionally together to analyze the racial impacts of government policies affecting low-income families—and the precise mechanisms that create these impacts. Second, communities need to be educated and mobilized around these discriminatory impacts. Third, the capacity of state and local legal advocacy groups needs to be enhanced to support the prosecution of these complex claims over a period of years.

Finally, for a Title VI administrative enforcement strategy to succeed, the federal government’s investigative and enforcement budget will need to be dramatically increased—impact claims are complex and time-consuming, and many agency Offices of Civil Rights (OCRs) are laboring under large backlogs, and not enough staff. In a series of reports from the U.S. Civil Rights Commission from 2002-2006 (before the Commission was taken over by opponents of civil rights), the Commission found that “insufficient funding and inefficient, thus ineffective, use of available funds” across agencies and departments were the “greatest hindrances to fulfilling… civil rights obligations.” Similarly, in Rosemere Neighborhood Association v. EPA (2009), the 9th Circuit observed that the “EPA failed to process a single complaint from 2006 or 2007 in accordance with its regulatory deadlines,” and showed a “pattern of delay.” (EPA’s backlog of Title VI complaints has since then been significantly reduced.) And at least one federal agency—the Department of Treasury—still has no Title VI rules or enforcement mechanism.

In response to these concerns, the Obama Administration has begun the process of restoring Title VI investigative and enforcement capability across federal agencies. The Civil Rights Division at the Department of Justice is taking a lead role in this process, through its federal Coordination and Compliance Section. The Division is also taking a more active role in its own Title VI enforcement work, exemplified by the recent complaint against the Maricopa County (AZ) Sheriff's Office for its failure to turn over documents in an investigation of the County’s police practices and jail operations.

Most federal agencies have requested budget increases for 2011 for their OCRs—increases that would help agencies continue to reduce their investigative backlogs. And at least one administrative complaint—in Urban Habitat Program et al. v. Bay Area Rapid Transit (2009), filed with the OCR at the Department of Transportation by the Public Advocates office in California, met with substantial success in redirecting federal transportation funding from a high-priced airport connector to uses benefiting low-income and minority residents of the region (see Poverty & Race, July/August 2010).

The political tensions that Bill Taylor describes at the inception of Title VI are still with us today, and preserving and enforcing the adverse impact standard is as important today as it was in 1964. Ultimately, the ruling in Sandoval needs to be reversed in Congress to restore the ability to file lawsuits to enforce the racial impact standard against state and local governments and other federal grantees (the Civil Rights Act of 2009 was the most recent legislative effort). In the meantime, advocates need to expand their use of the Title VI administrative process to attack structural discrimination embedded in government policies and practices.

Philip Tegeler is Executive Director of PRRAC.

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