DAN MORALES

Al-rORNEY GENERAL 

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March 30,1995

HonorableRodney Ellis Chair Qpiion No. DM-341

Committeeon Intergovernmental Relations 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 SenatorEllis:

You ask a series of questions about title,Vl of the federal CivilRights 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, allreferences 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 excludedfrom participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receivingFederal 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 CommitteeReport 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 departments and agenciesto take action to carry out this policy.

. 1964U.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 definethe term “recipients.” In 1988, however, Congress amendedthe 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 operationsof- (l)(A) a department, agency, special purpose district, or other in.stnunentality

of 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 highereducation; or (B) a local educational agency (as defined in section 198(a)(lO) of the Elementary and Secondary Education Act of 1965), system of vocationaleducation,or other school system; (3)(A) an entire corporation, partnership, or other private organization,or an entire soleproprietorship-

(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 financialassistance 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 describedin paragraph (1), (2) or (3);
any part of whichis extendedFederalfinancialassistance.
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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“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 federalfinancialassistance..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, providesin pertinentpart: Each federal department and agency which is empowered to extend Federalfinancialassistanceto 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 suchprogram or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievementof 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 recipientas to whomthere 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 particularpoliticalentity, 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 determinedthat compliancecannot 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 implementing

title VI. Fundingmay not be terminatedor withheld,however, unless “‘ there has been an express finding on the record, after opportunity for hearing, of a failure to comply with” the applicablefederal regulations. Id. Furthermore, a federal agency may

%tle VI dccsnot applyto Vtimatc bcnuicisries” of fakral financial

assistance, suchas fanners andaocial swority recipients, who donot administer federally assisted pregnuns. See pub. L. No. 100-259, $7, 102 Sm. 31 (1988). Title Vl does not authorize qulation with rcspecl to empleymmt praetiees “except where a primary chjcetivc of theFederalfinancial assistance is to provide cmpleymmt.” 42 U.S.C g 2OOOd-3;

sea o/so id. g 2000d-4 (application of title VI to conlract ofitkwance or guaranty).

p. 1817HonorableRodney 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 requirementand has determinedthat 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 implementingtitle VI. Thus, such a federal agency is generallyrequiredto monitorthe 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 subrecipients 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. Q 42.106(b) (Departmentof Justice ); 29 C.F.R !j 3IS(b) (Departmentof 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 dependupon the applicablefederalregulations.

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 concerningthe expenditureof federal funds.” Finally, in a related question, you ask whether “the minority community and/or its representatives [can] be deniedthe right to participate in the planningand developmentof publicpolicy 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 federallyfunded program from denyinga person the opportunity to participate as a member of a planningor 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)(Departmentof 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 publicpolicy relatingto federallyfundedprogramsfor discriminatoryreasons.

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SUMMARY

Title VJ of the federal Civil Rights Act of 1964, 42 U.S.C.. $8 2000d - 20OOd-7,

wss enacted to prohibit racial discriminationin 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 agencyrules implementing title 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 impermissible for a “programor activity” to exclude anyone from participating in the planningand developmentof public policy relating to federally funded programs or activities for discriminatoryreasons.

DAN MORALES Attorney Generalof Texas

JORGE VEGA Fii Assistant Attorney General

SARAHJ. SHIRLEY Chair, Opinion Committee Prepared by Mary R Crouter AssistantAttorney General

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