Untitled Texas Attorney General Opinion ( 1995 )

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DAN MORALES
Al-rORNEY
GENERAL March 30,1995
Honorable Rodney Ellis Qpiion No. DM-341
Chair
Committee on IntergovernmentalRelations Re: Whether title VI of the federal Civil
Texas State Senate Rights Act of 1964 was enacted to prohibit
P.O. Box 12068 racial discrimmation in federally fimded
Austin, Texas 78711 programs and related questions (RQ-778)
Dear Senator Ellis:
You ask a series of questions about title,Vl of the federal Civil Rights Act of 1964
(the “act”), 42 USC. $5 2000d - 2OOOd-7(“title VI”).* We note that title VI was
amended in 1988 by the Civil Rights Restoration Act of 1987. Except where noted
otherwise, all references are to title VI as amended.
Fii, you ask whether title VI of the act was enacted to prohibit racial
discrimmationin federally funded programs. Section 601 of the act, 42 U.S.C. 5 2OOOd,
provides as follows:
No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discriminationunder any program
or activity receiving Federal financialassistance.
42 U.S.C. 5 2000d. Title VI was enacted by Congress as part of the Civil Rights Act of
1964, the purpose of which was to eliite various forms of discrimination against
minority groups, particularly African Americans. See H.R Rep. 914, 88th Cong., 2d
Sea., reprinfedin 1964 U.S.C.C.A.N. 2391,2393. The House Committee Report states
thattitleVl
declares it to be the policy of the United States that discriminationon
the ground of race, color, or national origin shall not occur in
connection with programs and activities receiving Federal financial
assistance and authorizes and directs the appropriate Federal depart-
ments and agencies to take action to carry out this policy. .
1964 U.S.C.C.AN. at 2400.
HonorableRodney Ellis - Page 2 (DM-34Y)
Next you ask whether “state agencies, local government entities, educational
institutions, private for profit and non-profit corporations [are] recipients”under the act,
The act does not define the term “recipients.” In 1988, however, Congress amended the
act to clarity the meaning of the terms “program or activity” and “program” as they are
used in title VI. See, e.g.. 42 U.S.C. $5 2OOOd, 2OOOd-1.Newly-added section 606 of the
act, 42 U.S.C 5 2OOOd-4a, provides as follows:
For purposes of this subchapter, the term “program or activity’
and the term “program”mean all of the operations of-
(l)(A) a department, agency, special purpose district, or
other in.stnunentalityof a State or of a local government; or
(B) the entity of such State or local govemment that
distributes such assistance and each such department or agency (and
each other State or local government entity) to which the assistance
is extended, in the case of assistanceto a State or local government;
(2)(A) a college, university, or other postsecondary
institution, or a public system of higher education; or
(B) a local educational agency (as defined in section
198(a)(lO) of the Elementary and Secondary Education Act of
1965), system of vocational education, or other school system;
(3)(A) an entire corporation, partnership, or other private
organization, or an entire sole proprietorship-
(i) if assistance is extended to such corporation,
partnership, private organization, or sole proprietorship as a whole;
or
(ii) which is principally engaged in the business of
providing education, health care, housing, social services, or parks
and recreation; or
(33) the entire plant or other comparable, geographically
separate facility to which Federal financial assistance is extended, in
the case of any other corporation, partnership, private organization,
or sole proprietorship, or
(4) any other entity which is establishedby two or more of
the entities described in paragraph (1), (2) or (3);
any part of which is extended Federal financialassistance.
42 U.S.C 8 2OOOd-4a.The purpose of this amendmentto title VI was to overturn United
States Supreme Court cases that had interpreted the terms “program or activiw or
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HonorableRodney Ellis - Page 3 (DM-341)
“program”narrowly. See S. Rep. No., 64, 100th Gong., reprinted in 1988 U.S.C.C.A.N.
3, S-18; see also Grove CQ College v. Bell, 465 U.S. 555 (1984); Comoliidoted Rail
Corp. v. Durrone, 465 U.S. 624 (1984). As a result ofthe amendment,it is now clear that
title VI applies to all entities, including state agencies, local government entities,
educational institutions, and private for-profit and nonprofit corporations, that receive
federal financialassistance..2
YOU also ask whether “federal limding [can] be terminated or withheld for
noncompliance”with title VI of the act and the Civil Rights Restoration Act of 1987.
Section 602 ofthe act, 42 U.S.C. 8 2OOOd-1,
provides in pertinent part:
Each federal department and agency which is empowered to
extend Federal financialassistanceto any program or activity, by way
of grant, loan, or contract other than a contract of insurance or
gumnty, is authorized and diiected to &ecmate the provisions of
section 2000d of this title with respect to such program or activity by
issuing rules, regulations, or orders of general applicability which
shall be consistent with achievement of the objectives of the statute
authorizing the financial assistance in connection with which the
action is taken. . . Compliance with any requirement adopted
pursuant to this section may be effected (1) by the termination of or
refusal to grant or to continue assistance under such program or
activity to any recipient as to whom there has been an express finding
on the record, a&r opportunity for hearing, of a failure to comply
with such requirement, but such termination or refbsal shall be
limitedto the particular political entity, or part thereof, in which such
noncompliance has been so found, or (2) by any other means
authorized by law: Provideci, however, That no such action shall be
taken until the department or agency concerned has advised the
appropriate person or persons of the failure to comply with the
requirement and has determined that compliance cannot be secured
by voluntary means. . .
42 U.S.C. 4 2OOOd-1.This provision clearly permits the termination or withholding of
federal tImding of a “program or activity” for failure to comply with agency rules
implementingtitle VI. Funding may not be terminated or withheld, however, unless “‘there
has been an express finding on the record, after opportunity for hearing, of a failure to
comply with” the applicable federal regulations. Id. Furthermore, a federal agency may
%tle VI dccs not applyto Vtimatc bcnuicisries”of fakral financialassistance,such as
fannersandaocialsworityrecipients,
whodo notadminister federallyassistedpregnuns.Seepub.L. No.
100-259, $7, 102 Sm. 31 (1988). Title Vl does not authorize qulation with rcspecl to empleymmt
praetiees“exceptwherea primarychjcetivcof the Federal financial assistance is to providecmpleymmt.”
42 U.S.C g 2OOOd-3;sea o/so id. g 2000d-4 (application of title VI to conlract ofitkwance or guaranty).
p. 1817
HonorableRodney Ellis - Page 4 (DM-341)
not terminate or withhold tImding unless it has first “advised the appropriate person or
persons of the failure to comply with the requirement and has determined that compliance
cannot be secured by voluntary means.” Id.
Jn a related question, you ask whether “federally fbnded recipients [am] required
to monitor the programs and activities of their sub-recipients.” Section 602, 42 U.S.C.
8 2OOOd-1,quoted above, requires federal agencies which provide federal thtancial
assistance to any program or activity to promulgate regulations implementing title VI.
Thus, such a federal agency is generally required to monitor the programs and activities of
the recipients of agency fimding to assure that they comply with title VI. Agency
regulations may in turn require federally funded recipients to monitor the programs and
activities of their sub-recipients. Certain agency regulations, for example, require sub-
recipients to submit compliance reports to the primary recipient. See, e.g., 24 C.F.R.
8 l&b) (Department of Housing and Urban Development); 28 C.F.R. Q42.106(b)
(Department of Justice ); 29 C.F.R !j 3 IS(b) (Department of Labor); 43 C.F.R. 4 17.5(b)
(Department of Interior); 45 C.F.R. $80.6(b) (Department of Health and Human
Services); 49 C.F.R. $21.9(b) (Department of Transportation). Thus, whether a
particular recipient is required to monitor the programs and activities of its sub-recipients
will depend upon the applicablefederal regulations.
You also ask whether title VJ of the act and the Civil Rights Restoration Act of
1987 “affect state and local government boards, commissions, and authorities that
formulate public policy concerning the expenditure of federal funds.” Finally, in a related
question, you ask whether “the minority community and/or its representatives [can] be
denied the right to participate in the planning and development of public policy relating to
federally funded programs.” Various agencies which administer federal tImding have
promulgated regulations pursuant to section 602 of the act which prohibit a recipient
under a federally funded program from denying a person the opportunity to participate as
a member of a planning or advisory body which is an integral part of the program on the
ground of race, color or national origin. See, e.g., 24 C.F.R. § 1.4(b)@) (Department of
Housing and Urban Development); 28 C.F.R. 5 42.104(b)(vii) (Department of Justice); 29
C.F.R. 5 31.3(b)($) (Department of Labor); 43 C.F.R. 8 17.3@)(vii) (Department of
Interior); 45 C.F.R. 8 80.3@)(l)(vii) (Department of Health and Human Services); 49
C.F.R § Zl.f+)(l)(vii) (Department of Transportation). Under these regulations,.it is
impermissibleto exclude anyone from participating in the planning and development of
public policy relating to federally funded programs for discriminatoryreasons.
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Honorable Rodney Ellis - Page 5 (DM-341)
SUMMARY
Title VJ of the federal Civil Rights Act of 1964, 42 U.S.C..
$8 2000d - 20OOd-7,wss enacted to prohibit racial discrimination in
federally funded programs. Title YJ applies to any “program or
activity,” as defined by 42 U.S.C. $2OOOd-4a,that receives federal
fkncial assistance. Title VTpermits the termination or withholding
of federal funding of a “program or activity” for failure to comply
with agency rules implementingtitle VI under certain conditions. See
42 U.S.C. 4 2OOOd-1.
Whether a particular recipient of federal timding is required to
monitor the programs and activities of its sub-recipientswill depend
upon the applicable, federal regulations. Under various federal
regulations, it is impermissiblefor a “program or activity” to exclude
anyone from participating in the planning and development of public
policy relating to federally funded programs or activities for
discriminatory reasons.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R Crouter
Assistant Attorney General
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