DAN MORALES 

Al-rORNEY GENERAL 

QBffice of tfp !&tornep &xeral 

$Mate of Eexas 

March 30,1995 

Honorable Rodney Ellis 

Chair 

Qpiion No. DM-341 

Committee on 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 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 

discrimmation in 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 discrimination under any program 

or activity receiving Federal financial assistance. 

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 discrimination on 

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 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.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 assistance to 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 established by two or more of 

the entities described in paragraph (1), (2) or (3); 

any part of which is extended Federal financial assistance. 

42 U.S.C 8 2OOOd-4a. The purpose of this amendment to title VI was to overturn United 

States Supreme Court cases that had interpreted the terms “program or activiw or 

p. 1816 
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 financial assistance..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 financial assistance to 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 

limited to 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 

implementing title 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 apply to Vtimatc bcnuicisries” of fakral financial assistance, such as 

fanners and aocial swority recipients, who do not 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 the Federal financial 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. 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 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) 

(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 applicable federal 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 

impermissible to exclude anyone from participating in the planning and development of 

public policy relating to federally funded programs for discriminatory reasons. 

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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 VT permits the termination or withholding 

of federal funding of a “program or activity” for failure to comply 

with agency rules 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-recipients will depend 

upon the applicable, federal regulations. Under various federal 

regulations, it is impermissible for 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 

p. 1819