Civil Rights at School: Agency Enforcement of Title VI of the Civil Rights Act of 1964

Summary: Title VI of the Civil Rights Act of 1964 prohibits federally funded programs, activities, and institutions from discriminating based on race, color, or national origin. In its current form, largely unchanged since its adoption, Title VI incorporates a number of unique features. Besides barring federally funded programs from discriminating based on race, Title VI also authorizes and directs all federal funding agencies to promulgate rules effectuating that nondiscrimination mandate. Those rules were also made subject to presidential approval, an authority since delegated to the Attorney General by executive order. To enforce Title VI, agencies also have at their disposal a uniquely powerful tool: the termination or refusal to provide federal financial support to an institution or program seeking it. Although this power to withdraw federal funds was envisioned as the primary mechanism for enforcing Title VI, that authority was also hedged with a range of procedural requirements designed to spur agencies to resolve complaints against recipients through voluntary agreements.

Summary: In the 50 years since Title VI became law much of the debate over the statute has centered on how the courts have read its two central provisions—Sections 601 and 602—and how federal agencies have gone about enforcing them. In the courts those debates have especially focused on what counts as unlawful "discrimination" under Section 601. The courts have long agreed that Title VI bars federally funded programs from intentionally singling out individuals by race for adverse treatment. In its first case involving Title VI the Supreme Court suggested that Section 601 might also reach beyond intentional discrimination to bar the use of policies with a disparate impact—policies that, irrespective of the intent, impose a discriminatory effect on different racial groups. With its 2001 ruling in Alexander v Sandoval, the Court appeared to put that interpretive question to rest: Title VI directly prohibits only intentional discrimination.

Summary: For the agencies charged with enforcing Title VI, the primary concerns have tended to be more operational and programmatic—how to go about the business of reviewing and assessing particular practices under Section 602 of the statute. Section 602 authorizes and directs agencies to issue regulations "effectuat[ing]" Section 601. The breadth of that authority has produced a further point of uncertainty about the statute: what limits are there to funding agencies' rulemaking authority under Title VI? So far, two divergent views have emerged from the Court's decisions: (1) a largely deferential view that would give agencies leeway to issue prophylactic rules reaching conduct beyond intentional discrimination, and (2) a more exacting view under which agencies may redress only provable cases of intentional discrimination.

Summary: Although Title VI's nondiscrimination prohibition accompanies nearly all awards of federal financial support, much of the statute's doctrine has been shaped by its use in the public schools. That doctrinal history has centered on one agency in particular: the Office for Civil Rights (OCR) in the U.S. Department of Education (ED). Title VI continues to play a central part in OCR's mission of protecting civil rights on campuses at all educational levels, and in institutions both public and private. OCR handles a large volume and variety of claims alleging race and national origin discrimination, which it administratively resolves through a series of investigative procedures laid out in its Case Processing Manual. Although the types of allegations OCR investigates vary, three major categories of complaint occupy much of its docket: disparate treatment, retaliation, and racial harassment.

Summary: Congress has the ultimate say over how Title VI works—rooted not only in its legislative power but in its authority to oversee the statute's enforcement. In recent years two questions surrounding Title VI have drawn particular congressional interest: the viability of disparate impact regulations under Section 602 and the possible inclusion of new protected classes in Section 601. No matter how Congress may choose to address those subjects, however, they are likely only to raise further questions about the future of this landmark civil rights law.

With its adoption as part of the Civil Rights Act of 1964, Title VI invested the federal government with a uniquely powerful role in addressing race and national origin discrimination. Like other statutory provisions in the Civil Rights Act, Title VI seeks to end race discrimination among institutions and programs whose doors were otherwise open to the public—especially public schools. But unlike the Civil Rights Act's better known and more heavily litigated provisions, Title VI is concerned specifically with the use of "public funds," designed to ensure that federal dollars not be "spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination." And to fulfill that broad mandate, Title VI takes a distinctive approach to policing discrimination by making the promise of nondiscrimination a condition of the federal government's financial support.

Title VI consequently prohibits all federally funded programs, activities, and institutions from discriminating based on race, color, or national origin. Although that prohibition accompanies nearly all grants and contracts awarded by the federal government, much of Title VI's doctrine has been shaped by its use in the public schools. That doctrinal story has accordingly centered on one agency in particular: the Office for Civil Rights (OCR) in the U.S. Department of Education (ED). As this report explains, Title VI continues to play a central part in OCR's mission of protecting civil rights on campuses at all educational levels, and in institutions both public and private.

This report begins by briefly tracing Title VI to its historical and conceptual roots in the federal spending power, and explains how the early understanding of that power shaped the various legislative proposals that ultimately became Title VI. The report then examines the central doctrinal question behind the statute: what exactly Title VI outlawed by prohibiting "discrimination" among federally funded programs, and what agencies are therefore allowed to do in order to enforce that prohibition. The report then turns to ED's OCR, briefly reviewing how that agency goes about the day-to-day work of enforcing Title VI in schools, and concludes by surveying two recent developments related to Title VI, along with some considerations should Congress wish to revisit this landmark civil rights law. Because this report focuses specifically on how OCR has come to understand and enforce Title VI, it does not directly discuss litigation under the statute, whether filed by a private party or by the U.S. Department of Justice following a referral from OCR, though many of the substantive legal standards overlap.

Title VI of the 1964 Civil Rights Act: Origins and Overview

Leveraging the Spending Power: The Origins of Title VI

By the time Title VI was being seriously debated in 1964, its basic premise—that federal dollars should not go to support programs or institutions that discriminate based on race—was already familiar. In 1947, nearly a decade before the Supreme Court declared an end to the de jure segregation of the public schools in Brown v. Board of Education , President Truman's Committee on Civil Rights had already sketched out the basic pattern for Title VI, calling for "establishment by act of Congress or executive order" of a federal office to review "the expenditures of all government funds," so that none would go to subsidize discrimination based on race, color, creed, or national origin. Several years later, in 1953, President Eisenhower was also expressing dismay at the "discrimination in expenditure of [federal] funds as among our citizens." And Brown , decided the next year, put even more pressure on the federal government to begin leveraging its funds to combat discrimination —first in the public schools, but possibly also on a wider scale.

The early years of the Kennedy Administration saw some of the first steps in that direction. Early on in his tenure, for example, Abraham Ribicoff, then the Secretary of Health, Education, and Welfare (HEW), refused to locate the department's summer teacher-training institutes at "any college or university that declined to operate such institutes without discrimination." In a related decision, HEW later moved to withdraw support from segregated schooling on military bases as well. Those steps led others in the Administration, like then-Attorney General Robert Kennedy, to publicly suggest that the federal funds might be used on a wider scale, "to persuade southern states to alter their racial practices" more generally.

These early uses of the federal spending power to redress race discrimination had their limits, however. After leaving HEW for the U.S. Senate, Ribicoff explained during the floor debate over Title VI that, while at HEW, he had frequently "found [his] authority to act was questionable, and in some instances ... limited by the explicit wording of congressional enactments." A number of Kennedy Administration officials evidently shared that view, with some publicly questioning whether the executive branch had authority to withhold money appropriated by Congress or condition disbursement on terms not found in underlying funding authorities. This view "did not go unchallenged," as civil rights leaders made clear during the House hearings on the bill; nor has it received a definitive judicial ruling since. But with the risk of a bruising, possibly fatal, legal challenge looming over unilateral executive action, it "became clear" to Administration officials "that administrative action alone could not solve the entire problem."

Congressional action, by contrast, seemed to face far fewer legal constraints. In several earlier decisions the Supreme Court had established that Congress unambiguously had the right under the Spending Clause to condition the receipt of appropriated funds on the terms of its choosing, even in areas traditionally left to the regulation of the states. Congress was therefore free to do by legislation what the executive branch could only questionably have done on its own: make nondiscrimination a condition for receiving federal financial support.

The final legislative resolution, reached after a period of protracted debate, was Title VI. The legislation went through a number of significant alterations from the measure originally proposed by the Kennedy Administration, many of which sought to address fears of potential administrative abuse by layering agencies' enforcement power with procedural protections for funding recipients. But the basic pattern suggested by the Committee on Civil Rights some 20 years earlier—making nondiscrimination a condition for federal financial support—remained the same. In its final form, largely unchanged since its adoption, Title VI incorporates five basic features relevant to this report:

1. Nondiscrimination Mandate . Title VI bars any federally funded "program or activity" from discriminating against a "person in the United States" based on his or her "race, color, or national origin." 2. Imp lementing Rules , Regulations , and Orders . All federal funding agencies are "authorized and directed" to promulgate rules, regulations, or orders of general applicability "effectuat[ing]" that nondiscrimination mandate. 3. Approval of Implementing Rules, Regulations, and Orders . Any rule, regulation, or order issued under Title VI was made subject to presidential approval, an authority since delegated to the Attorney General by executive order. 4. Agency Enforcement . To enforce Title VI an agency could resort to either of two measures: (1) the termination or refusal to provide federal financial assistance to an institution or program seeking it; or (2) "any other means authorized by law," now understood to be a lawsuit brought by the Attorney General seeking a recipient's compliance with Title VI. 5. Procedural Requirements Related to Agency Enforcement . Though an agency's withdrawal of federal funds was envisioned as the primary mechanism for enforcing Title VI, that authority was hedged with a range of procedural requirements designed to spur agencies into seeking consensual resolutions with recipients.

Each of these statutory features is explained below, including how they have come to be understood since Title VI's passage and the role they play in addressing racial discrimination at school.

Defining "Discrimination" Under Title VI

Title VI revolves around a single sentence-long prohibition, found in Section 601 of the law, providing that "[n]o person in the United States" may be "subjected to discrimination" by a "program or activity" that receives federal financial assistance based on his or her "race, color, or national origin." Plainly that prohibition outlaws racial "discrimination" in all federally funded programs. It does not define, however, the sorts of practices Title VI thereby excludes. And with the legislative history on this point inconclusive at best , the task of providing a workable definition has been left to the agencies charged with enforcing Title VI and, ultimately, to the courts. As explained below, however, with its 2001 decision in Alexander v. Sandoval , the Supreme Court appears to have put the basic interpretive question to rest: Section 601 directly prohibits only intentional discrimination .

Banning Intentional Discrimination (Disparate Treatment)

Despite Title VI's basic ambiguity, the courts have long agreed that, at a minimum, Section 601 bars federally funded programs from intentionally singling out individuals for adverse treatment because of their race. This sort of intentional discrimination is commonly known as disparate or different treatment . And it can be proved in either of two ways: (1) directly, by pointing to a policy or decision that expressly singles out individuals by race, or (2) indirectly, by providing circumstantial evidence that a discriminatory motive was likelier than not responsible for the alleged mistreatment.

Perhaps the clearest way a program may discriminate along racial lines is by expressly singling out individuals by race for adverse treatment. Thus, for example, a school that explicitly excludes students from an assembly by race will clearly have discriminated in this intentional sense. And because the "discrimination" involved appears on the face of the policy or decision itself, proving a violation of Title VI becomes that much more straightforward: to prevail, the aggrieved party generally need only establish that the discriminatory policy existed and was used against him.

Disparate Treatment: Circumstantial Evidence

Although still litigated, over the years such facially discriminatory policies and decisions have grown less common—a shift widely attributed to laws like the 1964 Civil Rights Act. As a result, the more usual case today instead involves allegations of racially motivated mistreatment under a policy or decision that, at least on its face, is race-neutral.

Thus, for example, an African American student might still plausibly allege that a school official discriminated against him based on his race by disciplining him more severely than his white classmates for substantially the same misconduct, even though neither the discipline policy nor the disciplining official made any mention of his race. In such cases, the " form of the governmental action"—the literal wording of the policy used or the decisionmaker's explanation—is not at issue. What matters is why the individuals alleging mistreatment received the treatment they did; whether, that is, a discriminatory intent shaped the allegedly discriminatory decision. Where the surrounding circumstances suggest that some such racial animus was likelier than not what motivated the adverse treatment, that treatment will amount to intentional discrimination, presumptively violating Title VI.

Banning Discriminatory Effects (Disparate Impact)

Title VI has long been understood to bar federally funded programs from intentionally discriminating based on race. At least for the first few decades following its adoption, however, there was considerably more debate about whether Section 601 might also forbid policies that, while not purposefully discriminatory, nonetheless had a disparate effect on persons of different races. And in its first case involving Title VI— Lau v. Nichols —the Supreme Court seemed to say exactly that. In its most recent encounter with disparate impact under Title VI, however, in Alexander v Sandoval , the Court squarely rejected Lau 's ruling on that point. Today, as a result, the only discrimination Title VI directly prohibits is intentional .

The Origin of Disparate Impact Under Title VI: Lau v. Nichols

Lau was the Court's first encounter with Title VI, and it set the stage for much of the uncertainty about the statute that has followed. In Lau, non-English-speaking Chinese students had sued San Francisco's school system alleging that its policy of refusing bilingual or remedial English instruction effectively denied them the educational opportunities provided non-Chinese students, in violation of Title VI as well as the Equal Protection Clause of the Fourteenth Amendment. And in an unexpectedly unanimous ruling, the Court agreed—albeit along two different lines of reasoning.

Relying "solely" on Section 601, five of the Justices, led by Justice Douglas, concluded that Section 601 barred discrimination "which has [a discriminatory] effect even though no purposeful design is present." In that case the effect was clear: "the Chinese-speaking minority receive[d] fewer benefits than the English-speaking majority" from the city's schools. As recipients of federal educational dollars subject to Title VI, the school system had "contractually" obligated itself to reform its instructional policies to ensure the Chinese-speaking minority the same educational benefits as the English-speaking majority.

Lau therefore seemed to imply that Section 601 directly outlawed policies with discriminatory effects , irrespective of their motivating intent—a form of discrimination now commonly known as disparate impact . But the Court also mixed some uncertainty into that message. Immediately after saying that they were "rely[ing] solely on [Section] 601" in siding with the student plaintiffs, the majority in Lau turned to recite a regulation issued by HEW, specifically addressing what recipient school districts had to do under Title VI to ensure students with "linguistic deficiencies" had the same "opportunity to obtain the education generally obtained by other students in the system." That discussion drew a contrasting concurrence from three other Justices, all of whom agreed that the student should prevail under a disparate impact theory, but believed that the proper basis for that theory—and the result in favor of the students—was HEW's regulation implementing Title VI, not Section 601 itself. In all, though, eight Justices in Lau put down a marker in favor of disparate impact under Title VI, five seemingly under Section 601. And so, whatever the vagaries in its rationale, Lau 's basic message seemed clear: Title VI barred not just intentional discrimination, but policies with a disparate impact as well.

Only a few years after handing down Lau , in its landmark ruling in Regents of the University of California v. Bakke , the Court appeared to reverse course. Bakke involved a white applicant's challenge to the affirmative action admissions policy then in use at the University of California at Davis's medical school. And like the Chinese students in Lau , Bakke objected to that policy on both constitutional and statutory grounds. To dispose of his challenge the Justices therefore had to confront the question they effectively avoided in Lau : how does Section 601's nondiscrimination mandate relate to the Fourteenth Amendment's Equal Protection Clause? None of the opinions in Bakke commanded a clear majority, but in separate opinions, five of the Justices, separately sifting through the legislative record, arrived at the same answer: Title VI's drafters intended Section 601 to "enact[] constitutional principles," and nothing more. Title VI, in their view, therefore "proscribe[d] only those racial classifications that would violate the Equal Protection Clause" —policies that the Court had already said must involve more than just a racially disparate impact, but a provable discriminatory intent as well.

In the decades since Bakke , the Court continued to divide over the basic ambiguity in Title VI—over exactly what sort of "discrimination" Section 601 outlawed. By the time Title VI returned to the Court in 2001, however, with Alexander v. Sandoval , a unified five-Justice majority appeared to settle on a more definite view.

As Justice Scalia explained for the Sandoval majority, despite the lingering "uncertainty regarding [Title VI's] commands," it seemed "beyond dispute" at that point that a policy with only a disparate impact did not violate Section 601. Tallying the votes in Bakke seemed to make that clear enough: on that statutory point, five Justices in Bakke explicitly agreed that Title VI should be read coextensively with the Equal Protection Clause. And as claims under that constitutional provision had already been limited to cases of provable discriminatory intent, the Sandoval majority thought it stood to reason that claims under Title VI had to be so limited as well.

The difficulty, however, was Lau . There, after all, the Court seemed to say that Section 601 did prohibit policies with a racially disparate impact, irrespective of whether those effects were intentional. But as the Sandoval majority saw it, Bakke had effectively resolved that difficulty as well: to the extent Lau rested on Section 601 directly—rather than HEW's regulations —the majority in Lau had simply misread Title VI. The only discrimination Title VI directly outlawed, according to the votes in Bakke , was intentional. As far as the Sandoval Court was concerned, to the extent Lau disagreed with Bakke , Lau had already been "rejected."

Regulating "Discrimination" Under Title VI

In Sandoval the Court appeared to resolve the basic ambiguity in Title VI: the statute's central nondiscrimination mandate—Section 601—outlaws only intentional discrimination. But saying that much, the Sandoval majority also acknowledged, did not speak to whether policies with a disparate impact might still be barred by regulations issued under the rulemaking grant found in Section 602 of Title VI . Section 602, as noted, directs agencies to promulgate regulations "to effectuate" the antidiscrimination prohibition of Section 601 "consistent with achievement of the objectives of the statute." And pursuant to that directive, all Cabinet-level federal funding agencies, along with many smaller agencies, have since issued rules and guidance under Title VI outlawing disparate impact discrimination. As this section explains, however, Sandoval seems to have placed narrower limits on what funding agencies may redress through regulations under Section 602, arguably constraining them to redress in their rulemakings the same forms of intentional discrimination outlawed by Section 601.

In the courts, and especially the Supreme Court, much of the fight over Title VI has focused on definitions—what in general terms will count as unlawful "discrimination" under Section 601. But for the agencies charged with actually enforcing that mandate the primary concerns have tended to be more operational and programmatic: how to go about the business of reviewing and assessing particular practices under Title VI. To address those concerns, funding agencies have therefore had to look beyond the bare substantive standard in Section 601 to their rulemaking authority under Section 602.

Section 602 is at once a source of authority and a command, "authoriz[ing] and direct[ing]" every federal funding agency to "effectuate" Section 601's nondiscrimination mandate "by issuing rules, regulations, or orders of general applicability consistent with" the "objectives" of its underlying funding authority. Every Cabinet-level department, among many other smaller agencies, has since done so. And given DOJ's unique coordinating authority over Title VI, those funding agencies have generally followed the rules DOJ developed for HEW in 1964, including its regulation outlawing disparate impact discrimination .

Like the nondiscrimination provision in Section 601, the rulemaking authority provided by Section 602 was made deliberately broad. That breadth has produced a further point of uncertainty about the statute: what limits are there to agencies' rulemaking authority under Section 602? The Supreme Court, for its part, has never squarely addressed that question, nor the validity of the disparate-impact regulations in particular. And as explained below, the resulting ambiguity has yielded two contrasting views of what Section 602 will allow an agency to outlaw as unlawful "discrimination" under Title VI: (1) a largely deferential view that would give agencies broad leeway to issue "broad prophylactic rules" reaching conduct beyond intentional discrimination; and (2) a more exacting view under which agencies would be limited to redressing provable cases of intentional discrimination.

The earliest view of Title VI's rulemaking authority was also the most expansive. In his concurring opinion in Lau , Justice Stewart set out the basic theory: because Section 602 allows agencies to promulgate rules "effectuat[ing]" Section 601, HEW had the authority to enact any rule that broadly furthered the purpose of deterring "discrimination" in federally funded programs. All the courts would require, as a formal matter, is that any rules issued under Section 602 be "reasonably related" to the antidiscriminatory ambitions of the statute. Only two other Justices signed on to Justice Stewart's view in Lau , and it has never been adopted by a majority of the Court. But it also has never been squarely rejected by the Court either.

This more expansive view of Section 602 appears nevertheless to rest on two arguable bases. The first comes down to basic principles of administrative law. As Justice Stewart noted in Lau , the Court has generally accorded considerable latitude to agencies authoring rules pursuant to generic rulemaking provisions, on the assumption that Congress intended to defer more particular legislative decisions to their expert judgment. And thus, when presented with such broad delegations—permitting an agency, for example, to make "such rules and regulations as may be necessary to carry out" another statutory mandate —the courts have traditionally been inclined to defer "to the informed experience and judgment of the agency to whom Congress delegated appropriate authority."

Given its similarly expansive wording, Section 602 could be seen to embody much the same sort of broad rulemaking authority. In such cases, as Justice Stewart argued, and as some Justices later agreed, the test should be correspondingly lenient, asking only whether the agency's rule bears some reasonable relationship "to the purposes of the enabling legislation." That leniency would arguably authorize an agency to issue "broad prophylactic rules" so long as they "realiz[e] the vision laid out in" Section 601—as arguably would a rule outlawing policies with racially disparate impacts.

Apart from principles of administrative law, this more expansive view of Section 602 might also find support in a constitutional analogy, based on two of the Reconstruction Amendments. As Justice Stevens pointed out in his dissent in Guardians Association v. Civil Service Commission , the Court had at one time indicated—in a decision dating to "the dawn of [the last] century"—that "an administrative regulation's conformity to statutory authority was to be measured by the same standard as a statute's conformity to constitutional authority." And as it happened, only a few years before Guardians , the Court had read the Fifteenth Amendment, despite "only prohibit[ing] purposeful racial discrimination in voting," to allow "Congress [to] implement that prohibition by banning voting practices that are discriminatory in effect." Congress could do that, according to Justice Stevens, because the Fifteenth Amendment—much like Title VI—supplements its prohibition against racially discriminatory voting policies with a provision empowering Congress "to enforce" that prohibition "by appropriate legislation." Given the structural similarity between the amendment and Title VI, Justice Stevens saw no reason why Section 602 should give federal agencies any less authority than the Fifteenth Amendment offers Congress—including authority to outlaw policies with discriminatory effects.

Justice Steven's view in Guardians , like Justice Stewart's in Lau , has never commanded a majority from the Court. That analogy may also have lost some force more recently, following the Court's arguably more restrictive decisions under the Fifteenth Amendment. But the Court has also never expressly ruled out the analogy, and it appears to be at least consistent with the way the federal courts have read another of the Reconstruction Amendments—the Thirteenth, outlawing slavery and involuntary servitude. Whether that analogy would find favor among the Justices today seems at best uncertain, however, partly for the reasons discussed below.

In opposition to the early expansive reading of Section 602, a number of other Justices—and arguably a majority in Sandoval —have suggested that regulations under Section 602 must instead fit more closely with the particular purpose of Section 601: ridding federally funded programs of intentional discrimination. Sandoval , given its posture, did not squarely address disparate impact rules under Title VI; that case concerned the right of private parties to sue under a Title VI disparate impact regulation, not the validity of the underlying regulation itself. But in a suggestive footnote in his opinion for the majority, Justice Scalia expressed some doubt that those regulations could be squared with the majority's view that Section 601 bars only intentional discrimination.

The majority's concern fastened less on the breadth of Section 602 than on the narrowness of Section 601. It seemed "strange," Justice Scalia explained, that a rule prohibiting disparate impact could "effectuate" the purpose of Section 601 when that provision "permits the very behavior that the regulations forbid." Or as Justice O'Connor had put the same point in her concurrence in Guardians , also involving a disparate impact claim under Title VI, it was "difficult to fathom how the Court could uphold" regulations outlawing discriminatory effects when, to do so, they would have to "go well beyond " Title VI's purpose of proscribing intentional discrimination.

The majority in Sandoval , like Justice O'Connor in Guardians , seemed to signal their dissatisfaction with the "reasonably related" test endorsed by Justice Stewart's concurrence in Lau . Neither, however, proposed a test to replace it. To do so, however, they may well have turned to a constitutional analogy of their own —based not on the Fifteenth Amendment but the Fourteenth.

Under the Fourteenth Amendment, the Court has held that Congress may legislatively enforce that amendment's guarantees of equal protection and due process of law but in doing so may not redefine what would count as violating either . By that analogy, an agency could then clearly seek to enforce Section 601's bar against intentional discrimination by enacting prophylactic regulation "congruent and proportional" to redressing instances of different treatment . But the agency could not substantively amplify that prohibition by adding to the types of discrimination outlawed by Section 601—as a disparate impact rule arguably would, given the Court's view in Sandoval that Section 601 does not bar a policy simply for having discriminatory effects.

Unresolved Questions About Disparate Impact Under Section 602

The Court has yet to squarely resolve which of these views of agencies' rulemaking authority under Section 602 is the right one. Regardless of which they choose, however, an agency arguably may still be able to defend its Title VI disparate impact regulations, depending on how it styles its enforcement under that regulation.

Even if Section 602 is construed narrowly to permit only regulations that address intentional discrimination, it might still be argued that Title VI allows agencies to promulgate regulations addressing disparate impact in at least some circumstances. As Justice Stevens pointed out dissenting in Sandoval , one way of looking at Title VI's disparate impact regulations is as an indirect rule against intentional discrimination—only intentional discrimination in a "more subtle form[]," masked by an "ostensibly race-neutral" policy but with "the predictable and perhaps intended consequence of materially benefitting some races at the expense of others." Styled that way, an agency might be able to defend its disparate impact rules as a means of "counteract[ing] unconscious prejudices and disguised animus that escape easy classification as disparate treatment." In that sense, those rules would still be directed at "uncovering discriminatory intent," even if only in subtler forms, such as "covert and illicit stereotyping." And, for that reason, those rules would arguably also comply with Sandoval 's more exacting standard for Section 602 regulations, despite their formal focus on racial disparities.

Even if styled in this way, however, a disparate impact rule under Title VI would likely face further constraints. As the Court recently explained in the context of the Fair Housing Act, an agency relying on a disparate impact theory will still need to "point to a defendant's policy or policies causing" the "statistical disparity" at issue—that the policy actually had racially discriminatory effects . And to make that showing, the agency may also need to satisfy a "robust causality requirement," to "ensure[] that [r]acial imbalance [] does not, without more, establish a prima facie case of disparate impact," protecting "defendants from being held liable for racial disparities they did not create." What such a causality requirement might entail as a practical matter seems unclear at this point. Nevertheless, recasting the argument over Section 602 in these terms might help sharpen some of the debate around Title VI, by redirecting the discussion away from the abstract concerns about rulemaking authority to the more basic and concrete issue of what disparate impact liability may—or may not—involve.

Enforcing Title VI at School: The U.S. Department of Education's Office for Civil Rights

Although Title VI applies to funds distributed by every federal agency, much of the doctrine under the statute has been shaped by its use in the public schools. That doctrinal story has accordingly centered on one agency in particular: the Office for Civil Rights (OCR), originally housed in HEW but today located in the U.S. Department of Education (ED). As the agency primarily responsible for enforcing Title VI in the public schools, as well as nearly all colleges and universities, OCR handles every year a large volume and variety of claims alleging race and national origin discrimination. Some of the most common types of those claims are discussed below, beginning first with a brief overview of how ED, as a matter of policy, processes the complaints it receives under Title VI.

OCR primarily enforces Title VI through its investigation and resolution of complaints. To guide its review of those complaints, OCR has published a detailed manual of procedures—known as the Case Processing Manual (CPM)—by which it receives, analyzes, and disposes of allegations under Title VI, among other statutes within its jurisdiction. That guidance document, described below, divides OCR's enforcement into five distinct phases:

Jurisdictional Evaluation. At the first phase of its review, OCR evaluates an allegation for its basic sufficiency—conducting an essentially jurisdictional analysis. As a part of that evaluation, OCR first examines whether an allegation has enough information in it, of the right kind. If so, OCR has to establish jurisdiction over both the subject matter of the complaint as well as the entity complained of. Thus, the allegation must state enough facts from which to infer race or national origin discrimination (subject matter jurisdiction), and the complainant must allege discrimination by a program or activity that receives ED's financial assistance (personal jurisdiction). And the allegation must also be timely: a complaint under Title VI generally must be filed with OCR within 180 calendar days of the date when the discrimination allegedly occurred. Insufficiency on any of these points may result in an allegation's dismissal without OCR's further investigation or review.

After determining that it has jurisdiction over an allegation and finds it otherwise suitable for review, OCR will formally open its investigation, beginning with the issuance of informational letters to both the complainant and recipient. Those letters primarily serve to notify the parties of the allegations OCR intends to investigate and the basis for its jurisdiction, including appropriate statutory and regulatory authority. The letters also apprise the parties of OCR's role in the investigation—as a "neutral fact-finder"—as well as the complainant's right to bring suit in federal court regardless of how OCR administratively resolves the complaint.

Facilitated Resolution. As a part of its opening letter, OCR will also inform the parties of its voluntary resolution process, called a "Facilitated Resolution Between the Parties." Under that process, OCR may offer to serve as "an impartial, confidential facilitator between the parties," to assist them in informally resolving the allegations before OCR formally makes any findings of its own. During those discussions OCR may accordingly suspend its investigation for up to 30 calendar days to allow negotiations to proceed in good faith; it will reinstate its investigation, however, should the parties fail to reach an agreement within that time. In no case, though, will OCR approve or otherwise endorse an agreement reached under this process, nor monitor a recipient's compliance with it.

Investigation. If the parties cannot voluntarily resolve the complaint through facilitated negotiation, OCR will proceed to investigate. At any time during that investigation—which may involve OCR's review of school data, interviews with students and staff, or other measures—the recipient may still choose to negotiate a voluntary resolution with OCR, and recent resolutions suggest that this is relatively common. In such cases, OCR will issue a resolution letter memorializing the allegations and its investigation, along with the agreement resolving them. In these cases, however, OCR will generally not make any findings on the underlying allegations.

In the event the recipient declines to negotiate a voluntary resolution, at the completion of its investigation OCR will issue findings on each allegation, resolving them by a preponderance of the evidence. In each case OCR will therefore explain why the evidence likelier than not supports the finding of a violation ("non-compliance determination") or else explain why it does not ("insufficient evidence"). In cases of non-compliance OCR will also propose a resolution agreement, outlining the steps for the recipient to take to resolve the allegations in question and ensure its future compliance with Title VI. A recipient generally has 90 days in which to consider and negotiate the terms of a final agreement with OCR. If the recipient and OCR fail to reach an agreement within that period, OCR will advise the recipient, by "Letter of Impending Enforcement Action," that it intends to proceed to enforcement should the parties fail to reach an agreement in short order.

Monitoring. Once the sides have reached an acceptable resolution agreement, OCR will monitor, on an ongoing basis, the recipient's compliance with its terms. To do so, recipients generally must agree to certain reporting requirements, ensuring OCR access to "data and other information in a timely manner" by which it can assure the recipient's compliance. OCR also reserves the right to "visit the recipient, interview staff and students, and request such additional reports or data as are necessary for OCR to determine whether the recipient has fulfilled the terms and obligations of the resolution agreement." In some instances OCR may also choose to amend or altogether end a resolution agreement "when it learns that circumstances have arisen that substantially change, fully resolve, or render moot, some or all of the compliance concerns that were addressed by the resolution agreement."

Enforcement Action. Where OCR cannot negotiate or secure compliance with an acceptable resolution agreement, it may resort to either of the two enforcement mechanisms allowed by Title VI: (1) an administrative proceeding resulting in the termination or refusal of federal funds; or (2) the referral of a complaint to DOJ for litigation. Fund termination, as noted, was envisioned as the primary mechanism for enforcing Title VI, and was once aggressively used by OCR to enforce the desegregation of southern schools. Over the past several Administrations its use appears to have waned significantly, perhaps owing to an increased reliance on resolution agreements, voluntary or otherwise, to achieve compliance.

Major Areas of Administrative Enforcement

OCR's administrative docket for Title VI is considerable, covering a wide variety of allegations involving race and national origin discrimination. Among the issues raised in those complaints, three appear especially common: different treatment, retaliation, and racial harassment. In 2016, for instance, OCR reported receiving some 2,400 total complaints raising issues under 17 general categories of Title VI violations. Of those, 976 alleged some form of different treatment, while another 569 complaints alleged race-based retaliation and a further 548 made claims of racial harassment. In 2015, OCR reported largely similar figures as well. The next section examines two recent examples of how OCR reviews complaints under Title VI, one involving a more typical allegation of indirect "disparate treatment," and another posing a less typical allegation of direct discrimination.

The single largest category of complaints OCR receives involves allegations of "disparate treatment." That category covers a wide variety of conduct, covering any complaint that a recipient has singled out an individual or individuals by race for adverse treatment. Of those complaints two types are especially common: "intentionally disciplining students differently based on race" or else excluding them in some way. As noted, OCR will seek to confirm those allegations in either of two ways: either directly, by looking to evidence of overt discriminatory intent, or else indirectly, by establishing that any "apparent differences in the treatment of similarly-situated students of different races" have no legitimate, nondiscriminatory basis. And because Title VI has been read to overlap with the Equal Protection Clause, even where OCR believes a recipient has treated individuals differently by race, it still has to assess whether that treatment was a "narrowly tailored" means of "meet[ing] a compelling governmental interest."

In one recent example, OCR received a complaint from an African American student, identified only as "Student A," alleging that he had been disciplined more severely than his white classmates, in violation of Title VI. As in many disciplinary cases, the student did not produce direct evidence of discrimination. And so OCR instead looked to whether there were any "apparent differences" in the way the school treated Student A from the way it handled "similarly-situated students of different races," and if so, whether those differences had a legitimate, nondiscriminatory basis.

In the course of its investigation, OCR uncovered what it believed were four apparent differences in the way the school treated Student A. First, the school had repeatedly recorded disciplinary warnings it gave Student A, but "did not consistently record warnings given to similarly situated white students." Second, even though "the Principal employed an informal progressive discipline policy" that was applied to Student A, "increasing the severity of the disciplinary consequence after each incident," a "similarly situated white student who had a more extensive disciplinary history, did not face increasingly severe disciplinary consequences." Third, the evidence suggested that the school's principal "responded more favorably" to allegations made by a white student's mother than Student A's mother "that other students were teasing him to entice him to engage in misconduct." And, finally, Student A had pointed to a specific case where a white male student had been treated more leniently for assaulting another student.

The school, for its part, sought to defend some of those decisions by pointing to differences in the students' misconduct. OCR, however, disagreed: according to its investigators, the students' files bore out no meaningful differences besides the students' race. Nor did OCR accept the school's admission that in the other cases it had simply made a mistake: the quantity, frequency, and variety of those mistakes, OCR found, "established a pattern of unjustified, discriminatory treatment on the basis of race in the discipline administered to Student A." That was enough, OCR concluded, to violate Title VI and its implementing regulations.

Another recent case, also involving an allegation of disparate treatment, illustrates how OCR reads Title VI against the backdrop of the Equal Protection Clause. That case arose in the wake of events in Ferguson, MO, in 2014, following the fatal police shooting of an 18-year-old African American that provoked widespread protests in Ferguson and elsewhere. In response to the events there, an Illinois public school had decided to convene a special "Black Lives Matter" assembly, so that "black students [could] express their frustrations" in "a comfortable forum." To do that, however, the school chose to "limit the assembly to participation by students who self-identified as black." That decision, as the school district later admitted, clearly amounted to different treatment—excluding some students while admitting others solely based on whether they identified as African American. That finding alone, though, did not decide the school's liability under Title VI. Instead, OCR had to go on to examine whether the school's decision would satisfy constitutional requirements—whether the school had an "interest in holding a racially exclusive assembly [that] was compelling and that the means [it] used [would] survive strict scrutiny." Looking to relevant constitutional precedent, OCR ultimately sided with the complainant: even though the school did have a compelling interest in holding a racially exclusive assembly, it had nevertheless failed "to assess fully whether there were workable race-neutral alternatives" or to "conduct a flexible and individualized review of potential participants." The school had therefore violated Title VI, according to OCR. And to resume compliance, the school district agreed not to allow similarly exclusive assemblies again.

Title VI has gone largely unchanged in the 50 years since it became law. As this report has explained, the debates over the statute have therefore centered on how the courts have read its two central provisions—Sections 601 and 602—and how federal agencies have gone about enforcing them. But Congress has the ultimate say over how Title VI works—rooted not only in its legislative power but in its authority to oversee the statute's use by federal agencies. As this section explains, recently two issues over the statute have drawn particular congressional interest: the viability of disparate impact regulations under Section 602, and the inclusion of new protected classes in Section 601.

As explained earlier, with its 2001 decision in Alexander v. Sandoval , the Court seemed to cast doubt on the future of all disparate impact liability under Title VI as currently written, even when liability was premised on regulations issued under Section 602. In the last several months, following the release of a widely remarked report on school safety, the Trump Administration signaled that it may be rethinking altogether Title VI regulations that reach beyond intentional discrimination to address policies with a racially disparate impact. Given the continuing debate about the relation of Title VI's central provisions, Congress could opt to put down its own marker, by definitively clarifying Title VI's scope in either of two ways. On the one hand, Congress could make clear that Section 601 indeed prohibits only intentional discrimination, and that any rules under Section 602 may not find a recipient liable for discrimination absent proof of discriminatory intent. Congress, on the other hand, could expressly endorse disparate impact under Title VI by, for example, grafting that standard onto Section 601, as it has done in Title VII of the 1964 Civil Rights Act. That addition would unambiguously allow funding agencies to investigate policies and practices under Title VI based on their discriminatory effects, regardless of the underlying intent.

In addition to clarifying the types of discrimination Title VI outlaws, Congress could also choose to revise the classes of individuals who come within its protection. One recent proposal, for example, would amend Section 601 to include "sex (including sexual orientation and gender identity)" along with race, color, and national origin among its protected classes. Although that or a similar amendment would clearly expand Title VI's coverage, its effects will likely hinge on how the courts choose to interpret Section 601 in light of such additions. Though a complete analysis lies beyond the scope of this report, at least two readings seem arguable.

On the one hand, the courts could continue to read Section 601 to "enact[] constitutional principles," in which case they would presumably review claims based on sex discrimination under a heightened standard of review, while in the case of gender identity, possibly only for basic rationality. On the other hand, to the extent that an amendment introduces a statutory protection for a class of individuals not currently recognized by the Court as a constitutionally "suspect classification," that addition, especially if buttressed by supporting legislative history, could suggest that Congress had decided to amend the reach of Title VI altogether, to "independently proscribe conduct that the Constitution does not."

In the 50 years since becoming law Title VI has played a central role in addressing racial discrimination in the nation's schools. Title VI provides that protection in a unique way: by making the promise of nondiscrimination a condition for any program or institution that receives federal financial support. For much of its history, the debates over Title VI have fastened on two basic ambiguities in the statute: the kind of "discrimination" Title VI was meant to outlaw and the types of rules a funding agency could issue to effectuate that prohibition. The Supreme Court appears to have definitively resolved the first of those ambiguities: because Title VI simply "enacts constitutional principles," as currently written, it prohibits only intentional discrimination. And on that basis the Court has suggested, but not definitively ruled on, how it might resolve the second ambiguity as well: to effectuate Title VI's purpose, an agency may outlaw only policies resulting from a provable discriminatory intent, not simply having a racially discriminatory effect.

Whether the Court will turn that suggestion into a holding remains to be seen. Until then, however, federal agencies like OCR will likely continue to enforce Title VI consistent with constitutional standards that the Court has since read into the statute. In OCR's case, that enforcement work is already considerable, involving thousands of complaints every year culminating in significant resolutions across a wide range of schools and institutions of higher education. And in the background remains ED's ultimate authority under Title VI—to withdraw its financial support from any program or institution that refuses to comply with the statute's command that all individuals be treated equally, regardless of their race.