By Jonathan Smith
This year marks the 60th anniversary of the Civil Rights Act of 1964. It is not an understatement to say that this landmark civil rights legislation, enacted in the heart of the Civil Rights Movement, has transformed American society. Title II of the Civil Rights Act, which prohibited discrimination in places of “public accommodation,” was prominently utilized during the 1960s to combat lunch counters, restaurants, hotels, and other commercial establishments that refused to serve Black Americans. Title IV empowered the federal Departments of Education and Justice to hold accountability school districts who failed to comply with Brown v. Board of Education. Title VII, perhaps the most well-known provision of the law, prohibited discrimination in employment discrimination, led to the creation of the Equal Employment Opportunity Commission, and has been used by millions of Americans. Yet there is one provision of the Civil Rights Act that, by almost all accounts, has failed to live up to its potential: Title VI.
Title VI of the Civil Rights Act has a lofty objective. It provides that recipients of federal financial assistance (i.e., mostly federal funding) cannot discriminate on the basis of race, color, or national origin. Considering that each year the federal government provides billions of dollars to practically every major aspect of American life—schools, transportation, law enforcement, prisons, health care, agriculture—the reach of Title VI is massive. As President John F. Kennedy explained when signing the legislation:
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.
And Title VI’s reach is not limited to only intentional discrimination (i.e., disparate treatment). Shortly after the enactment of the Civil Rights Act, the Department of Justice recognized that Title VI also prohibits actions that are facially nondiscrimination but nonetheless result in discrimination (i.e., disparate impact). The unutilized potential of Title VI has not gone unnoticed. Some prominent civil rights leaders have referred to Title VI as the “sleeping giant” of the Civil Rights Act. For decades, many civil rights advocates, especially in the environmental justice moment, have demanded that the federal government use Title VI more aggressively to address the discrimination and pollution impacting frontline communities and other communities that are most directly impacted by environmental harms. In the aftermath of the killing of Michael Brown by law enforcement officials in Ferguson, Missouri and then the killings of George Floyd and Breonna Taylor by the Minneapolis and Louisville Police Departments respectively, racial justice advocates argued that Title VI should be utilized to hold law enforcement agencies accountability for the unjustified killing of Black and Brown individuals and that the federal government, including the Department of Justice, withhold funding from agencies involved in such conduct.
In response to these calls, there have been recent efforts to bolster Title VI enforcement efforts. President Biden, at the start of his administration, signed a number of executive orders designed to address systemic discrimination and increase equal opportunity. In implementing those executive orders, a number of federal agencies took steps to enhance their Title VI programs. Relatedly, in September 2021, the U.S. Department of Justice’s Associate Attorney General, Vanita Gupta, ordered a review of the Justice Department’s implementation and administrative enforcement of Title VI and other analogous statutes that prohibit discrimination in federal financial assistance. In a June 2022 blogpost where she outlined the steps the Department will take to bolster its Title VI protocol following the review, she quoted President John J. Kennedy in writing: “Simply justice requires that public funds, to which taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, or results in racial discrimination.”
Yet despite these actions, Title VI has retained its more limited profile. And there are reasons why Title VI has not gained the prominence other provisions of the Civil Rights Act have enjoyed. First, unlike other sections of the legislation, Title VI places a heavy premium on “voluntary compliance.” While Titles II, IV, and VII allow a relatively straightforward path for individuals who believe they are harmed to file suit in federal court, Title VI erects a number of roadblocks for federal agencies who provide the federal funding before they are authorized to file suit. For example, those agencies are required, at each step of the process, to engage with their federal funding recipients to explore whether they are willing to pursue voluntary compliance. Additionally, federal agencies may feel constrained in suspending or terminating funding to an entity in response to a finding of discrimination. (For example, suspending federal funding to a hospital that has engaged in discrimination but is otherwise providing life-saving medical care may have unintended consequences.)
Second, in 2001, the Supreme Court issued its opinion in Alexander v. Sandoval, where it held that Title VI’s private right of action only extend to claims of disparate treatment, not disparate impact. As such, only the federal agency that provided the federal funding has the statutory authority to bring an action against a recipient asserting disparate impact discrimination. Given that most forms of contemporary systemic discrimination involve elements of disparate impact, the ability to pursue such claims under Title VI rests solely within the discretion of federal agencies. And since the priorities of those agencies often change dramatically across administrations, it can be challenging to rely solely on executive agency enforcement to address these concerns.
Additionally, disparate impact provisions in federal civil rights laws, including Title VI, have faced increased scrutiny in recent year from litigants who assert that disparate impact liability is not authorized by statute and is inconsistent with the Constitution’s Equal Protection Clause. Those arguments have found increased receptivity from conservative judges who are skeptical of expansive readings of federal civil rights protections. Most notably, in 2023, the Louisiana Attorney General filed suit against the Environmental Protection Agency (EPA), after EPA opened a disparate impact investigation into state agencies to determine whether those agencies had used federal funds to discriminate by failing to adequately protect communities of color adjacent to pollutant-emitting facilities. In January 2024, the federal district court judge accepted Louisiana’s arguments and enjoined both the EPA and DOJ from imposing “any disparate-impact-based requirements against the State or any State agency” in civil rights cases under Title VI of the Civil Rights Act. In April 2024, 23 Republican Attorneys General sent a letter to the EPA asking the agency to start a rulemaking process to amend its Title VI regulations to remove the disparate impact provisions. The letter mirrors that arguments adopted by the district court in the Louisiana v. EPA litigation.
This all begs the question: is it simply too late to try to revive Title VI? Given the headwinds blocking meaningful use of the statute, it might be tempting to abandon efforts. However, notwithstanding these challenges, there is a way to continue to robustly and effectively use Title VI to ensure recipients do not engage in unlawful discrimination. As set forth in greater detail below, by switching from a back-end enforcement model to a front-end compliance model, Title VI can still be used to ensure that federal financial assistance is not used to propagate unlawful discrimination.
Historically, federal agencies have relied on an administrative enforcement model to enforce Title VI. Under this approach, agencies open investigations after they receive a discrimination complaint or obtain other evidence that suggests a recipient may have engaged in unlawful conduct. If the agency establishes that discrimination has occurred (or if, more likely, the recipient decides to engage in voluntary compliance discussions), the agency and recipient work together to remedy any alleged discrimination and hopefully take steps to ensure it does not happen again. In this framework, the agency is only mobilized to act after the alleged bad actions have occurred. On the other hand, under a compliance model, agencies would start working recipients before any allegations of discrimination have been made (and possibly even before the recipient has received the federal funding). Rather than waiting for bad actions to occur, agencies would proactively engage with recipients to “issue spot” places of potential concern and develop effective solutions. Hopefully, there would never need to be an investigation, because the discrimination never takes place.
A front-end compliance model has a number of advantages of relying solely on back-end enforcement. First, a front-end approach provides federal funding recipients (and applicants seeking those funds) with the opportunity to take proactive steps to prevent discrimination from occurring in the first place. If federal agencies provided information and guidance about compliance, and also closely monitored their recipients, they could create an “early warning system.” Such a system would allow recipients to promptly take corrective action if there are indications of discrimination; federal agencies could also adjust their funding patterns accordingly. An “early warning system” is also likely to be more productively received by recipients than a back-end “gotcha” investigation notice.
Second, a front-end approach is much more likely than a back-end approach to lead to quicker reforms and changes by recipients. Administration enforcement and litigation are time-intensive processes. Most of the federal agencies’ Title VI regulations do not have time restrictions, and it is not uncommon for agencies to take years to investigate a complaint. Even if an agency makes a finding of discrimination, a recipient can litigate that determination in federal court, which can also take years. And as noted above, an investigation notice or finding of discrimination is not likely to be well received by recipients, increasing their resistance and the overall timeline. Front-end compliance, on the other hand, allows the agency to work collaboratively with the recipient from the beginning.
Third, a front-end compliance model is consistent with the purpose and intention of the statutory text. Unlike other provisions of the Civil Rights Act of 1964, Title VI places a premium on voluntary compliance. Congress clearly wanted federal agencies to work closely with recipients to ensure that the statute’s antidiscrimination mandate is satisfied. This makes sense. Federal funding goes to critical aspects of our society: health care, public safety, education, and more; Congress would want to make sure that any discrimination that occurs is cured quickly. Moreover, Congress likely appreciated that one of the remedies of a Title VI violation—suspension or termination of federal funding—is difficult to implement given the critical and often necessary services provided by recipients of federal funding.
Fourth, a front-end model sidesteps any litigation exposure. In working proactively and collaboratively with recipients, federal agencies do not need to rely on legal liability constructs like disparate treatment or disparate impact to address concerns about potential discrimination. Rather, agencies are simply working to ensure that their recipients are complying with the terms and conditions of their grants and contracts.
Some federal agencies have already begun to experiment with a front-end, compliance-based approach to Title VI. In 2007, the U.S. Department of Transportation’s (DOT) Federal Transit Administration (FTA) issued a “Title VI Circular,” a document providing guidance to its funding recipients about how to ensure they comply with their nondiscrimination obligations under Title VI. By affirmatively laying out the steps that recipients can take to avoid developing practices and policies that may result in discrimination, the Circular sets forth a roadmap for Title VI compliance. Moreover, the Circular does not only address intentional discrimination; it also directs recipients to evaluate whether any actions (e.g., changes to a transit route or a station location) would have a disproportional and adverse impact on individuals of color (or other protected classes). To the extent those actions would have that impact, recipients are asked to consider alternative options as well as if there are ways to mitigate the adverse effect.
In 2021, DOT built upon this effort when it issued a Department-wide “Title VI Order.” Unlike the Circular, which is limited to the FTA, the Order applies to all of DOT. As noted in the introduction, “[t]his Order’s overriding objective is to ensure all DOT assisted programs are implemented in compliance with Title VI so that all members of the public enjoy equality of opportunity, regardless of race, color, or national origin (including limited English proficiency).” To that end, it provides a framework for making sure that all DOT components establish and maintain programs and policies to ensure Title VI compliance. For example, the order requires that DOT components conduct a Title VI assessment of each applicant seeking federal funds, to help guarantee, before any grant is made, that the applicant is not planning to use the funding in a way to furthers discrimination. The Order also requires recipients of DOT funding to create community participation plans, to ensure that all relevant stakeholders—including communities of color and people with limited English proficiency—have a meaningful opportunity to engage with the recipient and ensure that there are not Title VI violations.
The steps taken by DOT are illustrative of ways that federal agencies can move away from an enforcement-only approach to Title VI and think creatively how to ensure maximum compliance with Title VI. But they only represent the beginning phases of a process under which federal agencies can reimagine how they use Title VI proactively and innovatively to work with their recipients and work to prevent discrimination. After sixty years, it is past time to wake up the sleeping giant.
Johnathan J. Smith (johnjsmith@post.harvard.edu) served as Deputy Assistant Attorney General in the Civil Rights Division at the U.S. Department of Justice until April 2024.
Resources
Alexander V. Sandoval, 532 US 275 – Supreme Court 2001 – Google Scholar.
Associate Attorney General Vanita Gupta Releases Memo on Implementation and Administrative Enforcement of Title VI and Safe Streets Act. 23 June 2022.
Attorney General Moody Leads Multistate Legal Action Demanding the EPA Rescind “Environmental Justice” Initiatives Harming States | My Florida Legal.
Louisiana V. US Environmental Protection Agency, Dist. Court, WD Louisiana 2024 – Google Scholar.
“The U.S. Department of Transportation Title VI Program.” US Department of Transportation.
The White House. “Advancing Equity and Racial Justice Through the Federal Government | the White House.” The White House, 14 Feb. 2024.
Title VI Legal Manual (Updated). 22 Apr. 2021.
“Title VI Requirements and Guidelines for Federal Transit Administration Recipients.” FTA.
