Chapter 1

Ten-Year Check-Up: Have Federal Agencies Responded to Civil Rights Recommendations?

During the 1990s, the U.S. Commission on Civil Rights issued numerous reports evaluating the operations of most major federal civil rights enforcement agencies. Those reports examined agencies efforts to address a wide range of civil rights issues, including nondiscrimination and equality of opportunity in employment, education, housing, health care, and transportation in federally assisted programs; among state and local government agencies; and in the private sector. All of these reports contained careful analysis, thoughtful observations, and advice to federal civil rights enforcement agencies on developing more effective enforcement operations.

The Commission's reports focused on the enforcement process how federal agencies promote a national understanding of discrimination, how they ensure that recipients of federal funds do not discriminate, and how they handle complaints and initiate litigation or other enforcement activities when discrimination occurs. The Commission recommended ways for agencies to provide more effective civil rights enforcement.

The Commission's Office for Civil Rights Evaluation (OCRE) is responsible for evaluating federal efforts to combat discrimination through enforcement activities. In the past, the Commission has had sufficient staff and resources to continuously evaluate each of the federal agencies with civil rights responsibilities and ensure that recommendations were implemented. However, because of resource reductions beginning in the 1980s, the Commission's monitoring program has been reduced to periodic reviews of agencies with major civil rights responsibilities. Follow-up on whether the agencies have responded to the Commission's recommendations has not been possible because of resource constraints. Thus, with this report, the Commission monitors whether and how the evaluated agencies have addressed the recommendations issued over the past 10 years.

This study began with a review of the more than 1,100 recommendations contained in 16 volumes of Commission enforcement reports issued between 1992 and 2000. The recommendations were summarized and sorted by topic. This first volume only catalogs those earlier recommendations and gives an overview of the themes that emerged from the earlier reports. No new interviews were conducted or documents obtained from agencies to produce this initial report, volume I. To the extent that findings and recommendations are offered in this volume, they are based on information contained in the earlier studies. This initial report is a reminder to the agencies studied of what the Commission found needed improvement and a blueprint for effective enforcement for others.

Between 1992 and 2000, the Commission evaluated the enforcement programs of 11 federal agencies. The first volume is a preface to a series that cumulatively will reexamine the recommendations made during those years. The Commission will do so by conducting interviews and evaluating responses to written interrogatories to the agencies, and reviewing documents (regulations, budgets, annual reports, strategic plans, civil rights implementation plans, training manuals, technical assistance guides, etc.). These activities will help to measure the agencies progress in implementing the Commission's previous recommendations and in planning civil rights programs relevant to present-day needs. This first volume provides a general overview of all recommendations made in the earlier enforcement reports. Later volumes will concentrate on individual agencies and their civil rights enforcement efforts since that time.

In total, 16 volumes, published between 1992 and 2000, were reviewed.[2] (See table 1, page 7. Appendix A contains brief descriptions of the reports.) The reports directed their recommendations to Congress, the President, federal, state, and local agencies, and other entities such as advocacy groups and professional and community organizations. However, the scope of this project covers only recommendations directed to the federal agencies and, when funding and resources are involved, to Congress.

The 11 federal agencies that were the subject of the reports are the Equal Employment Opportunity Commission (EEOC); the Departments of Justice (DOJ), Education (DOEd), Health and Human Services (HHS), Housing and Urban Development (HUD), Labor (DOL), Transportation (DOT), Agriculture (USDA), and the Interior (DOI); the Environmental Protection Agency (EPA), and the Small Business Administration (SBA). Table 2 (page 8) shows the agencies reviewed in each of the reports and the number of recommendations that were directed to them.

The present study is comprehensive in its coverage with respect to civil rights statutes. Except for EEOC, each of the agencies reviewed has responsibilities to ensure nondiscrimination in federally assisted programs, as required under Title VI of the Civil Rights Act of 1964[3] and Executive Order 12,250. However, several agencies have key civil rights responsibilities related to enforcement under other statutes: (1) HUD must ensure equal housing opportunity through enforcement of the Federal Fair Housing Act of 1968 (also called Title VIII of the Civil Rights Act of 1968) and the Fair Housing Amendments Act of 1988;[4] (2) DOEd must ensure equal educational opportunity through Section 504 of the Rehabilitation Act of 1973,[5] Title IX of the Education Amendments Act of 1972,[6] and other statutes; (3) EEOC must ensure nondiscrimination and equal employment opportunity on the bases of race, color, national origin, sex, and religion as required under Title VII of the Civil Rights Act of 1964,[7] and on the basis of disability under Title I of the Americans with Disabilities Act (ADA);[8] (4) DOJ must ensure that state and local government agencies practice nondiscrimination and equal opportunity in their programs for people with disabilities, as required under Title II of the ADA;[9] and (5) HHS must enforce civil rights under Titles VI and XVI of the Public Health Service Act, known as the Hill-Burton Act,[10] and the Omnibus Reconciliation Act of 1981,[11] among other statutes where the agency does not have sole responsibility for enforcement. (See appendix B for brief descriptions of the key civil rights statutes.) Table 3 (page 9) shows the civil rights statutes enforced by the agencies the Commission has examined in the past decade.

Many of the agencies are subject to the same civil rights statutes and, although some statutes impose different enforcement responsibilities on some agencies, broadly applicable themes become evident in the Commission's recommendations for improved enforcement. Chapter 2 presents the themes of the Commission's recommendations regarding federal agencies civil rights enforcement activities and sets the stage for later reviews of each agency's implementation of the recommendations and the issuance of further recommendations where necessary. The Commission s recommendations are organized around several elements that are necessary for effective civil rights enforcement. These elements are given in the next section along with approaches that the Commission has repeatedly recommended for maximizing the efficiency of civil rights enforcement programs. This chapter ends with a brief overview of which agencies were doing well or poorly when the Commission last reviewed them, in most cases in 1996.

To be successful, the civil rights enforcement programs of agencies must incorporate all of the elements the Commission identified. These elements are:

Of these elements, the first two having a high priority for, and an organizational structure to support, civil rights are key and determine whether the resources can be allocated to institute an enforcement program with the remaining elements. Most, if not all, of the federal agencies the Commission reviewed were faced with inadequate civil rights budgets due to the limited funds Congress and the federal agencies directed to civil rights enforcement.

Limited monetary and staff resources may lead an agency to assess which elements of its civil rights enforcement program are the most critical, and perhaps discard or reduce those considered less important. The Commission does not view any part of an enforcement program as more critical than another, but it does believe that limited budgets and staff can be combated by:

Federal agencies could enhance civil rights enforcement by integrating such efforts agencywide, thus distributing the workload of what are typically vastly understaffed and overworked civil rights offices. Civil rights enforcement can also be improved by delegating civil rights responsibilities. For example, regional offices and state recipients can be assigned the task of conducting compliance reviews of their respective recipients. Overseeing data-reporting requirements can stretch limited civil rights enforcement budgets by ensuring that all necessary data for conducting post-award desk audits, for example, are provided by all parties when first requested. Simultaneously, quality assurance is provided through oversight of the work performed by these parties and prevents wasted human and monetary resources by ensuring that all requirements are met each and every time. Coordination between federal agencies will permit agencies funding the same recipient to designate which agency will conduct pre-award reviews, for example, thus eliminating duplicative efforts. Alternating between desk audits and on-site reviews for recipients, thus not conducting both in the same review cycle, allows federal agencies to streamline their enforcement efforts and stretch limited monetary and human resources. Involving the target community in developing an education and outreach program, for example, increases the likelihood the program will be effective in that community. Comprehensively incorporating these six features into a civil rights enforcement program will help an agency meet its civil rights obligations.

The civil rights enforcement performance of the agencies reviewed in this report varied substantially. Two agencies DOEd and EEOC were found to be performing at high levels with many of the essential elements for civil rights enforcement in place. DOEd was the only agency having an organizational structure with all the necessary criteria for an effective Title VI enforcement program.[12] It also had an excellent information management system to track resources and expenditures by enforcement activity; good planning, policy development and dissemination, outreach, education, and technical assistance; an effective compliance review system supported by data collection and analysis and resulting in on-site reviews targeted to priority issues; and good coordination with professional organizations, including state and local education agencies.[13] EEOC, for its part, was praised by the Commission for establishing policies and procedures that allowed it to improve civil rights enforcement despite limited resources.[14] Still, both agencies did have areas that could be improved. EEOC, for example, needed to expand and strengthen its coordination with federal, state, and local agencies and organizations concerning such crucial factors as education and outreach.[15]

DOL and DOT had civil rights enforcement that was exemplary in certain programs, but needed to be spread throughout the agency. Although DOL had Title VI guidelines, policies, and procedures superior to those of many other agencies and laid a solid foundation for a Title VI enforcement program,[16] the enforcement effort was limited to its main training program, the Job Training Partnership Act,[17] which has since been replaced. Similarly, DOT had good staff training provided by the Office of the Secretary, fine state monitoring and technical assistance programs in one operating administration, and a good data collection and analysis program in another operating administration, but civil rights enforcement was not well implemented in any one program or across the agency.[18]

A third group of agencies includes those that had established civil rights enforcement programs but were still striving for effectiveness. Among those agencies performing unsatisfactory civil rights enforcement were USDA, HHS, HUD, and DOJ. For example, despite having Title VI regulations meeting all the necessary requirements,[19] USDA did not ensure that its agencies adhered to them. Consequently, its Food and Nutrition Service was not conducting pre-award reviews of all applicants nor was it providing formal Title VI training to its civil rights staff, relying instead on on-the-job training.[20] HHS, for its part, had a direct line of authority between its Office for Civil Rights (OCR) director and the Secretary.[21] Although this clearly shows the prioritization of civil rights, the Commission found its efforts to develop policy and conduct civil rights enforcement activities to be halfhearted.[22] HUD was struggling to overcome a huge backlog in complaints and reconfigure its system of using state and local agencies to investigate complaints to align with expanded fair housing jurisdiction.[23] The external civil rights unit had reorganized in 1994 and was revising policy and procedural guidance but had far to go to accomplish this and rebuild an effective compliance review system.[24] Finally, although DOJ issued guidelines for agency civil rights implementation plans, the Coordination and Review Section did not ensure that agencies plans conformed to them. Few, if any, agencies actually complied with the guidelines.[25] In the light of DOJ's civil rights oversight and coordination responsibilities, this was a grave failure.

The final group of agencies had not yet established a solid basis for an effective civil rights enforcement program. Among this group were DOI, EPA, and SBA. EPA ensured its OCR of conducting inadequate civil rights enforcement by assigning it both external and internal civil rights duties.[26] Also hindering the effectiveness of the civil rights enforcement program was EPA's limited pre-award review system and virtually nonexistent post-award review system.[27] Similarly, when reviewed by the Commission, SBA was not conducting pre-award reviews and doing only limited post-award reviews of recipients with 15 or more employees.[28] Of the agencies reviewed, DOI had by far the weakest Title VI civil rights enforcement program. It lacked adequate leadership, coordination, oversight, and direction. Moreover, Title VI enforcement was absent from DOI's stated mission, goals, and objectives.[29]

TABLE 1 List of Enforcement Reports, 1992 2000

No.	Short Name	Report Title	Published
1	Asian Report	Civil Rights Issues Facing Asian Americans in the 1990s	Feb-92
2	Fair Housing I	Prospects and Impact of Losing State and Local Agencies from the Federal Fair Housing System	Sept-92
3	Fair Housing II	The Fair Housing Amendments Act of 1988: The Enforcement Report	Sept-94
4	Federal Employee Report	Equal Employment Rights for Federal Employees	Aug-93
5	Transportation Report	Enforcement of Equal Employment and Economic Opportunity Laws and Programs Relating to Federally Assisted Transportation Projects	Jan-93
6	Title VI Report	Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs	June-96
7	Education I	Equal Educational Opportunity Project Series, Vol. I	Dec-96
8	Students with Disabilities Report	Equal Educational Opportunity and Nondiscrimination for Students with Disabilities: Federal Enforcement of Section 504, Equal Educational Opportunity Project Series, Vol. II	Sept-97
9	LEP Report	Equal Educational Opportunity and Nondiscrimination for Students with Limited English Proficiency: Federal Enforcement of Title VI and Lau v. Nichols, Equal Educational Opportunity Project Series, Vol. III	Nov-97
10	Ability Grouping Report	Equal Educational Opportunity and Nondiscrimination for Minority Students: Federal Enforcement of Title VI in Ability Grouping Practices, Equal Educational Opportunity Project Series, Vol. IV	Sept-99
11	Title IX Education Report	Equal Educational Opportunity and Nondiscrimination for Girls in Advanced Mathematics, Science, and Technology Education: Federal Enforcement of Title IX, Equal Educational Opportunity Project Series, Vol. V	July-00
12	ADA I	Helping Employers Comply with the ADA: An Assessment of How the U.S. Equal Employment Opportunity Commission Is Enforcing Title I of the Americans with Disabilities Act	Sept-98
13	ADA II	Helping State and Local Governments Comply with the ADA: An Assessment of How the U.S. Department of Justice Is Enforcing Title II, Subpart A, of the Americans with Disabilities Act	Sept-98
14	Health Care I	The Health Care Challenge; Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Vol. I: The Role of Governmental and Private Health Care Programs and Initiatives	Sept-99
15	Health Care II	The Health Care Challenge; Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Vol. II: The Role of Federal Civil Rights Enforcement Efforts	Sept-99
16	EEOC Report	Overcoming the Past, Focusing on the Future: An Assessment of the U.S. Equal Employment Opportunity Commission's Enforcement Efforts	Sept-00

TABLE 2 A Decade of Reports: What Agencies Were the Recommendations Directed Toward?

	Number of Recommendations by Accountable Agency or Organization
Report	Total	EEOC	DOJ	DOEd	DOL	HUD	HHS	DOT	SBA	DOI	USDA	EPA	General	Other
Title VI Report	406		60	18	26	22	24	88	17	24	55	29	43
Asian Report	44	11	12	8			5						5	3
Fair Housing I	11					11
Fair Housing II	33					33
Federal Employee Report	8	8
Transportation Report	13				8			8
Education I	23			23
Students with Disabilities Report	56			56
LEP Report	40			40
Ability Grouping Report	33			33
Title IX Education Report	46			46
ADA I	68	68
ADA II	30		30
Health Care I	52						52
Health Care II	155						153
EEOC Report	112	112
TOTAL	1,130	199	102	224	34	66	234	96	17	24	55	29	48	4

TABLE 3 Federal Agencies and the Major Civil Rights Statutes They Enforce

Statutes¹
Agencies	Civil Rights Acts of 1964 and 1991	Education Statutes²	Disability Statutes³	Housing Statutes⁴	Other
USDA	Title VI (1964)		Title II of the ADA; Section 504	Title VIII of 1968
DOEd	Title VI (1964)	Title IX of 1972; IDEA of 1975	Title II of the ADA; Section 504		Age Discrimination Act of 1975
DOI	Title VI (1964)	Title IX of 1972	Title II of the ADA
DOJ	Title VI (1964); Title VII (1964); Civil Rights Act of 1991	Title IX of 1972	ADA (Title II)	Title VIII of 1968	Hate Crimes Statistics Act of 1990; Voting Rights Act of 1965
DOL	Title VI (1964); Title VII (1964)	Title IX of 1972	ADA; Sections 504 and 508		Equal Pay Act of 1963; Age Discrimination Act of 1975
DOT	Title VI (1964)		ADA; Sections 504 and 508		Equal Pay Act of 1963; ADEA of 1967; Age Discrimination Act of 1975
EEOC	Title VII (1964); Civil Rights Act of 1991		Titles I and V of the ADA; Sections 501 and 505		Equal Pay Act of 1963; ADEA of 1967
E PA	Title VI (1964)	Title IX of 1972	Section 504	Title VIII of 1968	Age Discrimination Act of 1975
HHS	Title VI (1964)	Title IX of 1972	Title II of the ADA; Section 504		Hill-Burton Act of 1946; Age Discrimination Act of 1975
HUD	Title VI (1964)		Section 504; Title II of the ADA	Title VIII of 1968; Fair Housing Act of 1988; Section 109 of 1974⁵	Age Discrimination Act of 1975; Section 3 of 1968⁶
SBA	Title VI (1964)	Title IX of 1972			Age Discrimination Act of 1975

¹ The enforcement of statutes presented in bold face has been reviewed by the Commission for that agency while enforcement of those presented in italics has not been reviewed. ² Education acts include Title IX of the Education Amendments of 1972, the Women's Educational Equity Act (WEEA) of 1965, and the Individuals with Disabilities Education Act (IDEA) of 1975. This last act also addresses the issue of disability. ³ Disability acts include Sections 501, 504, 505, and 508 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990. ⁴ Housing acts include Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act, and the Fair Housing Amendments Act of 1988. ⁵ Section 109 of the Housing and Community Development Act (HCD) of 1974. ⁶Section 3 of the HUD Act of 1968.

[1] Civilrights.org, Civil Rights Enforcement: Overview, n.d., <http://www.civilrights.org/issues/enforcement/overview>.

[2] A 17th enforcement volume, published in 2001, was not included in this study. It was still in the progress when this study was undertaken, making a judgment of the agency's implementation of the recommendations of that report premature. This particular report examined the enforcement activities of the Employment Litigation Section, a section within the Department of Justice's Civil Rights Division that has responsibility to ensure that public workers have a workplace free from harassment and discrimination. Its findings and recommendations contain many of the same themes laid out in the study herein. (See U.S. Commission on Civil Rights, Federal Efforts to Eradicate Employment Discrimination in State and Local Governments: An Assessment of the U.S. Department of Justice's Employment Litigation Section, September 2001.) The review of the Commission s reports herein does cover the Department of Justice and its Civil Rights Division, within which the Employment Litigation Section is housed.

[3] 42 U.S.C. 2000d et seq. (2002).

[4] Id. 3601 3619, 3631.

[5] 29 U.S.C. 794 (2002).

[6] 20 U.S.C. 1681 1688 (2002).

[7] 42 U.S.C. 2000e 2000e-17 (2002).

[8] Id. 12111 et seq.

[9] Id. 12141 et seq.

[10] Title VI of the Public Service Act of 1964, Pub. L. No. 88-443, 3(a), 78 Stat. 447 (codified as amended at 42 U.S.C. 291 et seq. (2002)). Title XVI of the Pubic Service Act of 1979, Pub. L. No. 96-79, Title II, 202(b), 93 Stat. 632 (codified as amended at 42 U.S.C. 300q et seq. (2002)).

[11] Omnibus Reconciliation Act of 1986, Pub. L. No. 97-35, 95 Stat. 357 933 (codified as amended in scattered sections of various titles of the United States Code).

[12] U.S. Commission on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs, June 1996, pp. 6, 187, 209 10 (hereafter cited as USCCR, Federal Title VI Enforcement).

[13] USCCR, Federal Title VI Enforcement, pp. 187 88, 198, 201, 204, 207 08, 210, 212 14, 216 17; U.S. Commission on Civil Rights, Equal Educational Opportunity and Nondiscrimination for Students with Limited English Proficiency: Federal Enforcement of Title VI and Lau v. Nichols, Equal Educational Opportunity Project Series, Vol. III, November 1997, pp. 83 84, 92, 105 07, 213, 215 16; U.S. Commission on Civil Rights, Equal Educational Opportunity and Nondiscrimination for Girls in Advanced Mathematics, Science, and Technology Education: Federal Enforcement of Title IX, Equal Educational Opportunity Project Series, Vol. V, July 2000, pp. 75 76, 94, 138, 143; U.S. Commission on Civil Rights, Equal Educational Opportunity and Nondiscrimination for Students with Disabilities: Federal Enforcement of Section 504, Equal Educational Opportunity Project Series, Vol. II, pp. 157, 263 66, 371, 380, 382.

[14] U.S. Commission on Civil Rights, Overcoming the Past, Focusing on the Future: An Assessment of the U.S. Equal Employment Opportunity Commission's Enforcement Efforts, September 2000, p. 263 (hereafter cited as USCCR, EEOC Report).

[15] USCCR, EEOC Report, p. 264.

[16] USCCR, Federal Title VI Enforcement, p. 359.

[17] Ibid.

[18] Ibid., pp. 518 19.

[19] Ibid., p. 251.

[20] Ibid., pp. 280 85.

[21] U.S. Commission on Civil Rights, The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Vol. II, The Role of Federal Civil Rights Enforcement Efforts, September 1999, pp. 19 20 (hereafter cited as USCCR, Health Care Report, Vol. II).

[22] USCCR, Health Care Report, Vol. II, pp. 274 75, 296, 321.

[23] U.S. Commission on Civil Rights, Prospects and Impact of Losing State and Local Agencies from the Federal Fair Housing System, September 1992; U.S. Commission on Civil Rights, The Fair Housing Amendments Act of 1988: The Enforcement Report, September 1994, pp. 221, 225 26.

[24] USCCR, Federal Title VI Enforcement, pp. 327 28, 331, 343, 347 52.

[25] Ibid., p. 151.

[26] Ibid., p. 419.

[27] Ibid., pp. 429 30.

[28] Ibid., pp. 473 74.

[29] Ibid., p. 405.