Department of Education. The U. Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.
Title IX states:. No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Title IX applies to schools, local and state educational agencies, and other institutions that receive federal financial assistance from the Department.
These recipients include approximately 17, local school districts, over 5, postsecondary institutions, and charter schools, for-profit schools, libraries, and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories of the United States.
A recipient institution that receives Department funds must operate its education program or activity in a nondiscriminatory manner free of discrimination based on sex, including sexual orientation and gender identity. Also, no recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in a proceeding under Title IX.
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
Essentially, Title IX prohibits sex discrimination in educational institutions that receive federal funding the vast majority of schools. Department of Education have given it a broad scope covering sexual harassment and sexual violence. Under Title IX, schools are legally required to respond and remedy hostile educational environments and failure to do so is a violation that means a school could risk losing its federal funding.
Make no mistake: the Rule drastically rolls back protections for student survivors and makes it easier for schools to sweep sexual harassment under the rug. Visit our Hands off IX resources and toolkit to learn more about your rights in light of the rule and how you hold school administrations accountable.
The below resources are intended to help you determine if your school is in compliance with Title IX. Although these resources have been written with the guidance of legal experts, we are not lawyers, and the information on this website does not constitute legal advice. We encourage you to contact a lawyer to discuss your complaint or suit. Under Title IX, schools must disseminate a notice of nondiscrimination. This notice does not have to specify that sexual harassment and violence are likewise prohibited, but the U.
Department of Education ED recommends that schools do, since a notice that makes it unclear may qualify as a violation of Title IX. This notice is likely available in a student handbook or code of conduct in elementary and secondary schools and in an Annual Security Report ASR in higher education institutions. This notice prohibiting sex discrimination must be widely distributed, available, and easily accessible to the school community each year. ED recommends schools:.
Both victims and third parties should contact the Coordinator to report incidents of sex discrimination, sexual harassment, or sexual violence. Title IX prohibits sexual harassment by teachers or other employees of the federally funded entity administering an education program or activity. Gebser v. Lago Vista Indep. Gwinnett County Pub. Program participants. Title IX also prohibits sexual harassment of one participant by another participant in a program.
Same-sex harassment. The Supreme Court has ruled that same-sex sexual harassment can constitute discrimination on the basis of sex under Title VII.
See Oncale v. Sundowner Offshore Servs. Similarly, lower courts have held that Title IX applies even if the participant and harasser are of the same sex. Kinman v. Omaha Pub. Petaluma County Sch. Gender Harassment. While it is clear that discrimination in violation of Title IX must be "on the basis of sex," courts have held that subjecting an individual to sex stereotyping may constitute sex discrimination in appropriate circumstances.
In Price Waterhouse v. Hopkins, U. The Supreme Court explained:. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the spectrum of disparate treatment of men and women result from sex stereotypes.
Several circuit courts have also addressed gender-based harassment on the basis of stereotyping. Higgins v. New Balance Athletic Shoe, Inc.
Air France, F. Purolator, Inc. Kearse, J. The fact that the harassment was based on the perception that the individual was not properly "manly" or "feminine" may, in appropriate circumstances, be the basis for a sex stereotyping claim filed under Title IX.
Off-premises misconduct. Crandell, D. New York College of Osteopathic Med. Thus, harassment that occurred off the premises of an education program operated by a recipient of federal assistance would be covered. For example, if a federally assisted museum conducted a lecture series which included field trips away from the museum, harassment that occurred on the field trips would be covered. Appropriate Remedial Measures.
If an educational provider determines that sexual harassment has occurred, it should take reasonable, timely, appropriate corrective action, including steps tailored to the specific situation. Sexual Harassment Guidance at - For example, the provider may need to counsel, warn, or take more serious disciplinary action against the harasser, based on the severity of the harassment or any record of prior incidents.
Sexual Harassment Guidance at In some instances, it may be appropriate to further separate the harassed participant and the harasser, or direct the harasser to have no further contact with the participant. These corrective measures should be designed to minimize, as much as possible, the burden on the participant who was harassed. In some situations, a provider may be required to provide other services to the participant who was harassed, if necessary to address the effects of the harassment.
In addition, the provider will also need to take steps to prevent the recurrence of harassment such as requiring the harasser to attend counseling, or even training the entire staff to ensure that they understand what types of conduct can cause sexual harassment and that they know how to respond. Furthermore, a policy specifically prohibiting sexual harassment and separate grievance procedures for violations of that policy can help ensure that all participants, instructors, employees, third parties, etc.
The procedures outlined in this chapter are based on those provided in the Title IX common rule 65 F. The procedural requirements discussed in this chapter are also codified in the Department of Education Title IX implementing regulations, 34 C. Where the Title IX common rule differs from the Department of Education regulation, we have so noted. An applicant for or recipient of federal financial assistance must submit a written assurance to the funding agency that it will operate all of its education programs or activities in compliance with Title IX and the Title IX implementing regulations.
The assurance must be provided either at the application stage or the award stage. Generally, the assurance obligates the applicant or recipient to comply with Title IX for the period during which the federal funding is extended.
However, with respect to real property provided to operate an education program or activity, the assurance obligates the recipient or a subsequent transferee for the period during which the real property is used to provide an education program or activity. Likewise, if the federal funding consists of personal property such as computers, copiers, etc.
However, the assurance must include language that obligates the applicant or recipient to "comply with all federal statutes relating to nondiscrimination. It is important to note that the self-evaluation requirement in the Title IX common rule applies only to recipients that are educational institutions i. It does not apply to other educational programs and activities.
For example, a prison that receives federal funds from the Department of Justice to administer a vocational training program is not subject to this regulatory requirement. To the extent these policies and procedures do not comply with the requirements of Title IX, the provider must: 1 modify the policies and procedures to bring them into compliance, and 2 take appropriate steps to remedy any discrimination that resulted from these practices.
Further, an educational institution must keep records documenting the evaluation and any required modifications for at least three years and must be able to provide these documents to the funding agency upon request.
After the initial publication, all memoranda, bulletins, catalogs, and applications must contain a similar notice. A recipient should make sure that this policy is widely distributed and easily understood.
Recipients must designate at least one employee to serve as a Title IX coordinator. One of the important aspects of Title IX and its implementing regulations is their requirement that recipients adopt and publish internal grievance procedures to promptly and equitably resolve complaints alleging discrimination on the basis of sex. The responsibility lies with the recipient to establish and maintain a mechanism whereby program participants and employees may seek to redress illegal sex discrimination and whereby the recipient may continually be apprized of and evaluate possible discriminatory policies and procedures and develop strategies to correct discrimination.
Although Title IX does not specify a structure for the implementation of a grievance procedure, the U. Department of Education has suggested some of the basic components of an effective Title IX grievance procedure in a manual that it has issued on this topic. Department of Education, Office for Civil Rights Courts have held that failure to meet this requirement, by itself, does not amount to discrimination on the basis of sex. Lago Vista Sch. Snow, 84 F. Despite the lack of a private right of action in the courts concerning the lack of a grievance procedure, the requirement to establish a prompt and equitable grievance procedure can be enforced administratively by the funding agency.
Gebser, U. The federal agency providing the financial assistance is primarily responsible for enforcing Title IX as it applies to its recipients. Agencies have several mechanisms available to evaluate whether recipients are in compliance with Title IX, and additional means to enforce or obtain compliance should a recipient's practices be found lacking. Evaluation mechanisms, discussed below, include pre-award reviews, post-award compliance reviews, and investigations of complaints.
See 28 C. This document was drafted specifically with reference to enforcement of Title VI, 42 U. It is important to remember that the standard for an agency to determine whether a recipient has violated Title IX differs from the higher liability standard of proof that must be met in a court action before monetary damages are awarded. Moreover, it is the position of the Department of Justice that the standards an agency follows in finding a violation and seeking voluntary corrective action also would apply to private actions for injunctive and other equitable as opposed to monetary relief.
Monroe County. Pre-Award Procedures. Agencies should endeavor to ensure that awards of federal financial assistance are only granted to entities that adhere to the substantive nondiscrimination mandates of Title IX and other nondiscrimination laws.
Assurances of Compliance. Either at the application stage or the award stage, Federal agencies must ensure that applications for Federal financial assistance contain, be accompanied by, or be covered by a specifically identified assurance from the applicant or recipient, satisfactory to the designated agency official, that each education program or activity operated by the applicant or recipient and to which these Title IX regulations apply will be operated in compliance with these Title IX regulations.
Regulations requiring applicants to execute an assurance of compliance as a condition for receiving assistance are valid. If an applicant refuses to sign a required assurance, the agency may deny assistance only after providing notice of the noncompliance, an opportunity for a hearing, and other statutory procedures. However, the agency need not prove actual discrimination at the administrative hearing, but only that the applicant refused to sign an assurance of compliance with Title IX or similar nondiscrimination laws.
Assurances serve two important purposes: they remind prospective recipients of their nondiscrimination obligations, and they provide a basis for the federal government to sue to enforce compliance with these assurances. See United States v.
Marion County Sch. Deferral of the Decision Whether to Grant Assistance. The Title VI Guidelines specifically state that agencies may defer assistance decisions: "In some instances Thus, deferral may occur while negotiations are ongoing to special condition the award, during the pendency of a lawsuit to obtain relief, or during proceedings aimed at refusing to grant the requested assistance.
This interpretation is a reasonable, and even necessary, application of the statutory remedial scheme. The congressional authorization to obtain relief pre-award would be sharply reduced, if not rendered a near nullity, if agencies could not postpone the assistance decision while spending the time needed to conduct a full and fair investigation and while seeking appropriate relief. Furthermore, the Attorney General's administrative interpretation is entitled to deference.
Natural Resources Defense Council, Inc. The Title VI Guidelines recommend that agencies adopt a flexible, case-by-case approach in assessing when deferral is appropriate, and consider the nature of the potential noncompliance problem. Where an assistance application is inadequate on its face, such as when the applicant has failed to provide an assurance or other material required by the agency, "the agency head should defer action on the application pending prompt initiation and completion of [statutory remedial] procedures.
Where the application is adequate on its face but there are "reasonable grounds" for believing that the applicant is not complying with [Title IX], "the agency head may defer action on the application pending prompt initiation and completion of [statutory remedial] procedures. When action on an assistance application is deferred, remedial efforts "should be conducted without delay and completed as soon as possible.
Agencies should also be cognizant of the time involved in a deferral to ensure that a deferral does not become "tantamount to a final refusal to grant assistance. The agency should not completely rule out deferrals where time is of the essence in granting the assistance, but should consider special measures that may be taken to seek expedited relief e. The Title VI Guidelines provide that the "same [pre-award] rules and procedures would apply" where a federal assistance recipient is granted discretionary authority to dispense the assistance to subrecipients.
Provision should be made for appropriate notice of such action to the Federal agency which retains responsibility for compliance with [Title IX compliance] procedures. Data Collection. Section In addition to submitting an assurance that it will compile and maintain records as required, an applicant should provide: 1 notice of all lawsuits and, for recipients, complaints filed against it; 2 a description of assistance applications that it has pending in other agencies and of other federal assistance being provided; 3 a description of any civil rights compliance reviews of the applicant during the preceding two years; and 4 a statement as to whether the applicant has been found in noncompliance with any relevant civil rights requirements.
Recommendations Concerning Pre-award Reviews. It is recommended that agencies implement an internal screening process whereby agency officials are notified of potential assistance grants and are provided the opportunity to raise a "red flag" or concern about the potential grant recipient. As part of the Department of Justice's oversight and coordinating function, each agency should submit to the Department, as part of its annual implementation plan, any targeting procedures that are adopted.
Post-Award Compliance Reviews Federal agencies are required to maintain an effective program of post-award compliance reviews. Federal agencies have broad discretion in determining which recipients and subrecipients to target for compliance reviews.
However, this discretion is not unfettered. In United States v. Harris Methodist Fort Worth, F. The Court considered three factors: 1 whether the proposed search is authorized by statute; 2 whether the proposed search is properly limited in scope; and 3 how the administrative agency designated the target of the search.
New Orleans Pub. Donovan, F. Order No. Barlow's Inc. The Harris Court suggested that selection of a target for a compliance review will be reasonable if it is based either on 1 specific evidence of an existing violation, 2 a showing that "reasonable legislative or administrative standards for conducting an.
The court held that signing an assurance gives consent "only to searches that comport with constitutional standards of reasonableness. Where the proposed compliance review was not subjected to management review and not based upon consideration of a management plan or objective criteria, the court of appeals agreed that the HHS official acted "arbitrarily and without an administrative plan containing neutral criteria.
Thus, agencies are cautioned that they should not select targets randomly for compliance reviews but, rather, they should base their decisions on neutral criteria or evidence of a violation. A credible complaint can serve as specific evidence suggesting a violation that could trigger a compliance review.
In developing targets for compliance reviews, agencies may wish to take into consideration the following:. Apart from complying with the standards outlined above, it is recommended that a decision to conduct a compliance review be set forth in writing and approved by senior civil rights management. An agency may be required to show that it has selected its targets for compliance reviews in an objective, reasonable manner. A contemporaneous, written record that reflects the factors considered will aid in refuting allegations of bias or improper targeting of a recipient.
The written record should identify any regulations or internal guidance that set forth criteria for selection of targets for compliance reviews, and explain how such criteria are met. Procedures for Compliance Reviews. Agency Title VI regulations incorporated into Title IX regulations are silent as to procedures for conducting compliance reviews, although, as discussed, the Title VI Coordination Regulations provide general guidance as to the types of information to solicit.
Federal agencies granting federal financial assistance are required to "establish and maintain an effective program of post-approval compliance reviews" of recipients to ensure that the recipients are complying with the requirements of Title VI. Related to the reviews themselves, recipients should be required to submit periodic compliance reports to the agencies and, where appropriate, conduct field reviews of a representative number of major recipients.
Finally, the Title VI Coordination Regulations recommend that agencies consider incorporating a Title VI component into general program reviews and audits. Results of post-approval reviews by the federal agencies should be in writing and include specific findings of fact and recommendations. The determination by the federal agency of the recipient's compliance status shall be made as promptly as possible. The Title VI Coordination Regulations require that federal agencies establish procedures for the "prompt processing and disposition" of complaints of discrimination in federally funded programs.
Agency regulations with respect to procedures for the investigation of complaints of discriminatory practices, however, are typically brief, and lack details as to the manner or time table for such inquiry. Generally, by regulation, an agency will allow complainants days to file a complaint, although the agency may exercise its discretion and accept a complaint filed later in time.
An agency is not obliged to investigate a complaint that is frivolous, has no apparent merit, or where other good cause is present, such as a pending law suit. An investigation customarily will include interviews of the complainant, the recipient's staff, and other witnesses; a review of the recipient's pertinent records, and consideration of the evidence gathered and defenses asserted.
If the agency finds no violation after an investigation, it must notify, in writing, the recipient and the complainant, of this decision. If the agency believes there is adequate evidence to support a finding of noncompliance, the first course of action for the agency is to seek voluntary compliance by the recipient.
If the agency concludes that the matter cannot be resolved through voluntary negotiations, the agency must make a formal finding of noncompliance and seek enforcement, either through judicial action or administrative fund suspension. If an agency receives a complaint that is not within its jurisdiction, the agency should consider whether the matter may be referred to another federal agency that has or may have jurisdiction, or to a State agency to address the matter.
In such instances, the Title VI Coordination Regulations, which agencies with Title IX responsibilities can look to for guidance, require that the federal agency obtain a written report of each complaint and investigation processed by the recipient, and retain oversight responsibility regarding the investigation and disposition of each complaint.
Where an agency receives a complaint about a recipient that is funded by more than one federal agency, the funding agency may avoid duplicative compliance and enforcement procedures by sharing or delegating compliance information and enforcement responsibilities. Section of Executive Order authorizes the Attorney General to initiate cooperative programs and agreements between federal agencies to promote the effective enforcement of, inter alia, Title VI and IX.
See also, 28 C. Many agencies that fund entities that operate educational programs or activities have Title VI delegation agreements with the Department of Education ED. Delegation Agreements help to avoid duplicative enforcement efforts since they give to lead agencies responsibilities for conducting investigations when more than one agency has jurisdiction over a case. Finally, the Title VI Coordination Regulations require that each federal agency, and recipients that process Title VI complaints , maintain a log of complaints received.
The log shall include the following: the sex of the complainant, the identity of the recipient, the nature of the complaint, the date the complaint was filed, the investigation completed, the date and nature of the disposition, and other pertinent information. Agency staff should remember that the primary means of enforcing compliance with Title IX is through voluntary agreements with the recipients, and that fund suspension or termination is a means of last resort.
See 42 U. Instruction of Taylor County, Fla. Finch, F. Accordingly, if an agency believes an applicant is violating Title IX, the agency has three potential remedies:. In addition, agencies may defer the decision whether to grant the assistance pending completion of a Title IX investigation, negotiations, or other action to obtain remedial relief.
Under Title IX, before an agency initiates administrative or judicial proceedings to compel compliance, it must attempt to obtain voluntary compliance from a recipient.
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. Wallace, F. Both the Title VI Coordination Regulations and the Title VI Guidelines urge agencies to seek voluntary compliance before, and throughout, the administrative or judicial process.
Title VI requires that a concerted effort be made to persuade any noncomplying applicant or recipient voluntarily to comply with Title VI. Efforts to secure voluntary compliance should be undertaken at the outset in every noncompliance situation and should be pursued through each stage of enforcement action.
Similarly, when an applicant fails to file an adequate assurance or apparently breaches its terms, notice should be promptly given of the nature of the noncompliance problem and of the possible consequences thereof, and an immediate effort made to secure voluntary compliance.
An agency is not required to make formal findings of noncompliance with Title IX before undertaking negotiations or reaching a voluntary agreement to end alleged discriminatory practices.
However, there must be a basis for an agency and recipient to enter into such a voluntary agreement e. An agency must balance its duty to permit informal resolution of findings of noncompliance against its duty to effectuate, without undue delay, the national policy prohibiting continued assistance to programs or activities which discriminate.
Efforts to obtain voluntary compliance should continue throughout the process, but should not be allowed to become a device to avoid compliance. Special Conditions. The terms of the agreement become effective once the assistance is granted, and typically are attached as a special condition to the assistance agreement.
Three issues arise by exercise of the voluntary compliance authority at the pre-award stage: what is the appropriate scope of special remedial conditions; what is the remedy if an applicant refuses to agree to a special condition proposed by an agency; and what is the remedy if, post-award, the recipient fails to comply with a special remedial condition of the assistance agreement. When voluntary compliance is sought at the pre-award stage, agencies may exercise heightened flexibility in designing appropriate remedial conditions, for two reasons.
First, if the pre-award remedy does not fully resolve the discrimination concern, agencies may have the opportunity to rectify this matter during the life of the assistance grant. Second, since a pre-award investigation and remedial efforts likely would require a deferral of the assistance award, it may be in the interest of the applicant as well as potentially the agency that interim measures be agreed to that allow the award to go forward while also addressing the discrimination concern.
Of course, the mere fact that relief may be sought post-award does not necessarily mean that full relief, using voluntary means or otherwise, should not be sought pre-award. Thus, if an applicant refuses to agree to a proposed special remedial condition, the agency either would have to negotiate a different condition, award the assistance without the condition, seek to obtain compliance "by any other means authorized by law," or initiate administrative procedures to refuse to grant assistance.
This is because the applicant has a right to challenge, through an administrative hearing, a refusal to grant assistance. Whether an agency may immediately suspend payment based on noncompliance with a previously imposed special remedial condition depends on the terms of the condition.
As a general matter, if a recipient violates the terms of a special remedial condition, the noncompliance must be remedied in the same manner that any other post-award noncompliance is addressed -- through voluntary efforts, by the government filing suit, or by the agency suspending or terminating the assistance pursuant to the statutory procedure.
If, however, as part of the remedial condition the applicant agrees that the agency immediately may suspend payment if noncompliance occurs, then that contractual provision would likely supersede the statutory protection against instant fund suspension that the recipient otherwise enjoys. Use of Cautionary Language. If an agency has evidence at the time of the award which does not rise to the level of an actual violation by an applicant, and thus does not warrant refusal of a grant award, the agency may consider notifying the recipient in the grant award letter that the agency has a civil rights concern.
The statement could acknowledge, where appropriate, the applicant's cooperation with an ongoing civil rights investigation or its attempts to resolve the concern. It also warns that a failure to cooperate could lead to a denial of funds. The language also may encourage the applicant to enter into voluntary compliance negotiations and engage in alternative dispute resolution, in appropriate cases, to resolve the alleged discrimination at issue without a formal finding or the completion of an investigation.
A major advantage of this approach is that it avoids the due process concerns raised when deferral or special conditioning is utilized because, in this case, the funds are being awarded, i. Other Nonlitigation Alternatives. The Title VI Guidelines list four other approaches, short of litigation or fund termination, that may be available when civil rights concerns are discovered.
The possibilities listed include:. Agencies that enforce Title IX are urged to consider all of these options, as appropriate. The Department of Justice's statutory authority to sue in federal district court on behalf of an agency for violation of Title VI and, likewise, Title IX is contained in the phrase "by any other means authorized by law.
City and County of Denver, F. Allain, F. In addition, the Department of Justice may pursue judicial enforcement through specific enforcement of assurances, certifications of compliance, covenants attached to property, desegregation or other plans submitted to the agency as conditions of assistance, or violations of other provisions of the Civil Rights Act of , other statutes, or the Constitution.
See Marion County, F. Agency regulations interpreting this phrase provide for several options including: 1 referral to the Department of Justice for proceedings, 2 referrals to State agencies, and 3 referrals to local agencies.
Such other means may include, but are not limited to, 1 a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States including other titles of the Act , or any assurance or contractual undertaking and 2 any applicable proceedings under State or local law.
In order to refer a matter to the Justice Department for litigation, agency regulations require that the funding agency make a finding that a violation exists and a determination that voluntary compliance cannot be achieved. The recipient must be notified of its failure to comply and must be notified of the intended agency action to effectuate compliance. Baylor Univ. However, the termination cannot become effective until 30 days have passed.
The court reasoned that the congressional intent to allow a day period when the administrative hearing route is followed see 42 U.
Fund Suspension and Termination. A four step process is involved:. Fund Termination Hearings. As noted above, funds may not be terminated without providing the recipient an opportunity for a formal hearing. If the recipient waives this right, a decision will be issued by the "responsible Department official" based on the record compiled by the investigative agency.
Hearings on terminations cannot be held less than 20 days after receipt of notice of the violation. Agencies have adopted the procedures of the Administrative Procedures Act for administrative hearings. Technical rules of evidence do not apply, although the hearing examiner may exclude evidence that is "irrelevant, immaterial, or unduly repetitious.
The hearing examiner may issue an initial decision or a recommendation to the "responsible agency official. The recipient may file exceptions to any initial decision. In the absence of exceptions or review initiated by the "responsible department official," the hearing examiner's decision will be the final decision. A final decision that suspends or terminates funds, or imposes other sanctions, is subject to review and approval by the agency head.
Upon approval, an order shall be issued that identifies the basis for noncompliance, and the action s that must be taken in order to come into compliance.
A recipient may request restoration of funds upon a showing of compliance with the terms of the order, or if the recipient is otherwise able to show compliance with Title VI or Title IX. The restoration of funds is subject to judicial review. Moreover, as noted above, no funds may be terminated until 30 days after the agency head files a written report on the matter with the House and Senate committees having legislative jurisdiction over the program or activity involved.
This is called the "pinpoint provision. See S. Congress' intent was to limit the adverse effects of fund termination on innocent beneficiaries and to insure against the vindictive or punitive use of the fund termination remedy. The seminal case on this issue is Finch, F. A Department of Health, Education, and Welfare HEW hearing officer had found that the school district had made inadequate progress toward student and teacher desegregation and that the district had sought to perpetuate the dual school system through its construction program.
Based on these findings, a final order was entered terminating "any class of Federal financial assistance" to the district "arising under any Act of Congress" administered by HEW, the National Science Foundation, and the Department of the Interior. On appeal, the Fifth Circuit vacated the termination order, holding that it was in violation of the purpose and statutory scope of the agency's power.
The court paid considerable attention to the congressional intent of the pinpoint provision: limiting the termination power to "activities which are actually discriminatory or segregated" was designed to protect the innocent beneficiaries of untainted programs.
The court further held that it was improper to construe Section as placing the burden on recipients to limit the effect of termination orders by proving that certain programs are untainted by discrimination, rather than on an agency to establish the basis for findings as to the scope of discrimination.
As to the meaning of the term "program" in the pinpoint proviso, the court concluded that the legislative history of Title VI evidenced a congressional intent that the term refer not to generic categories of programs by a recipient, but rather to specific programs of assistance, or specific statutes, administered by the federal government.
Thus, an agency's fund termination order must be based on program-specific i. The Court reasoned that:. If the funds provided by the grant are administered in a discriminatory manner, or if they support a program which is infected by a discriminatory environment, then termination of such funds is proper. But there will also be cases from time to time where a particular program, within a state, within a county, within a district, even within a school in short, within a "political entity or part thereof" , is effectively insulated from otherwise unlawful activities.
Congress did not intend that such a program suffer for the sins of others. HEW was denied the right to condemn programs by association. The statute prescribes a policy of disassociation of programs in the fact finding process. Each must be considered on its own merits to determine whether or not it is in compliance with the Act. In this way the Act is shielded from a vindictive application.
Schools and programs are not condemned enmasse or in gross, with the good and the bad condemned together, but the termination power reaches only those programs which would utilize federal money for unconstitutional ends. The specificity required for fund termination was also addressed by the Seventh Circuit in Gautreaux v.
Romney, F. In Gautreaux, the court reversed a district court's order approving federal fund termination for a Housing and Urban Development HUD program where there were no findings of discrimination in such program, and where such action was pursued in an effort to pressure action to remedy the defendant's discriminatory conduct in a wholly separate HUD program. The district court had previously found that defendants had violated fair housing laws yet intended to withhold Model Cities Program funds, which primarily support education, job training, and day care programs on behalf of low and moderate income families.
Although a small portion of Model Cities money also supported public housing, there was no allegation or finding that any Model Cities program was operated in a discriminatory fashion.
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