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

Volume I: A Blueprint for Civil Rights Enforcement

Executive Summary

During the 1990s, the U.S. Commission on Civil Rights issued numerous statutorily required reports evaluating the operations of major federal civil rights enforcement agencies. The reports are represented in 16 volumes, which have examined federal agenciesí 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.

The Commissionís reports focused on the enforcement processóhow 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 mediate when discrimination occurs. They fulfill their mandate through policy dissemination, education and outreach, compliance reviews of federal funding recipients, technical assistance to entities that may not be complying with civil rights laws, complaint processing and litigation, and holding accountable other entities responsible for enforcing civil rights laws.

As the nationís consciousness on civil rights, the Commission must issue annual reports evaluating the effectiveness of civil rights enforcement agencies. Over the past decade, the Commission has examined 11 such agencies in reports that yielded more than 1,100 recommendations. Have agencies implemented those recommendations? If not, why not? If so, what has been the result? These are questions to which this report addresses itself.

A series of reports will grow out of these questions. This, the first report, catalogs and summarizes recommendations made between 1992 and 2000 to the 11 federal agencies that were subjects of the original examinations (the Equal Employment Opportunity Commission, the Departments of Justice, Education, Health and Human Services, Housing and Urban Development, Labor, Transportation, Agriculture, and the Interior, the Environmental Protection Agency, and the Small Business Administration). No new information was obtained from agencies in the completion of this first report, volume I. To the extent that findings and recommendations are offered here, they are based on information contained in the earlier reports.

Subsequent volumes will probe further, attempting to determine whether or not specific agencies have implemented recommendations, and with what results. New information will be obtained from agencies in order to make those determinations. Findings and recommendations will further direct the agencies in the effective enforcement of civil rights laws.

In preparing this study, the Commission reviewed relevant policy, procedures, planning and budget documents; prepared interrogatories to solicit current information on civil rights initiatives within the agencies; interviewed civil rights staff; and reviewed other relevant reports and sources. This effort is reflected in later volumes that show where specific federal agencies are strong or weak in civil rights enforcement, how the Commissionís recommendations were addressed, and where civil rights programs have been strengthened or changed since the Commissionís earlier assessment.

In addition to federal agencies, the Commissionís recommendations over the past decade were directed to Congress, the President, state and local agencies, and other entities such as advocacy groups and professional and community organizations. This report, however, focuses on recommendations directed to the federal agencies and, when funding and resources are involved, to Congress.

Most agencies the Commission reviewed have responsibilities to ensure nondiscrimination in federally assisted programs as required under Title VI of the Civil Rights Act of 1964.[1] Some agencies have key civil rights responsibilities related to enforcement under other statutes, for example, the Americans with Disabilities Act (ADA).[2] But despite the different enforcement responsibilities the various statutes impose on federal agencies, broadly applicable themes are evident in the Commissionís recommendations for improved enforcement throughout the decade.

What the Commission Found in Past Reports

Some agencies had more effective civil rights enforcement systems than others. For example, the Equal Employment Opportunity Commission and the Department of Education had laudable implementation programs. In two instances, agencies had implemented good civil rights enforcement systems in some areas but not throughout the agency. Among these were the Department of Labor, which was excellent when considering regulations and reporting requirements for recipients, and its job training program of that era; and the Department of Transportation, which had several good elements, including staff training, a state monitoring program, a technical assistance program, and a data collection and analysis system. Other agencies had, at best, minor meritorious elements or lacked consistency. Those with rudimentary systems still struggling to create effective enforcement programs were the Departments of Agriculture, Justice, Health and Human Services, and Housing and Urban Development. Finally, agencies that had yet to establish a solid basis for effective civil rights enforcement were the Environmental Protection Agency, the Department of the Interior, and the Small Business Administration.

Key Elements for Civil Rights Enforcement

In evaluating federal agenciesí civil rights enforcement programs in the 1990s, the Commission identified required elements for effective civil rights enforcement. A program must have established authority and resources for carrying out civil rights enforcement. Without these, other necessary elements are difficult to establish. Secondary elements are planning, policy guidance, technical assistance, education and outreach, complaint processing, a compliance review system, oversight and quality assurance procedures, and staff training. Effective civil rights enforcement must have:

1. A high priority for civil rights enforcement. Twenty to 25 percent of the Commissionís recommendations over the study period concerned the priority an agency gave to civil rights enforcement. At the heart of placing high priority on civil rights enforcement is providing adequate staff and funding for meeting civil rights obligations. Over the decade, the Commission asked Congress to provide more funds to federal agencies for civil rights enforcement. Agency officials were asked to request more funds from Congress and to allocate more of the agencyís resources to civil rights enforcement.

2. An organizational structure that expresses the priority of civil rights. The effectiveness of civil rights enforcement, indeed the ability to obtain sufficient civil rights funding and staffing, is impaired when an agency does not have a civil rights enforcement unit with a direct line of authority to the agency head. Furthermore, if the civil rights unit is not devoted solely to external civil rights enforcement, resources may be drawn off for internal civil rights, or non-civil rights functions, causing some civil rights obligations to go unmet.

3. Planned civil rights goals and activities. The failure of agencies to include civil rights goals and objectives in their strategic planning shows a low priority for civil rights. In addition, many federal agencies are required to submit a civil rights implementation plan to the Department of Justice describing enforcement activities to ensure federal funding recipientsí compliance with Title VI. The Commission urged that these plans conform to the Department of Justiceís guidelines for enforcement, describe civil rights implementation and enforcement fully, and specify short-term civil rights goals and long-term objectives and timeframes for achieving them, specify priority civil rights issues, and realistically assess the available staff and resources to accomplish the goals and objectives. Agencies should implement management information systems that track expenditures and workload for different civil rights statutes and enforcement activities and use this information to support the planning and budgeting processes.

4. Clear and pertinent policy guidance, current regulations, technical assistance, education, and outreach. A third of the Commissionís recommendations over the past decade emphasized the need for attention to this aspect of civil rights enforcement. First, federal agencies must regularly develop and disseminate internal procedures and external policies for civil rights enforcement. The Commission further called for federal agencies to establish policy units so that some staff and resources were committed to develop and disseminate civil rights policy and guidance, and not encumbered with enforcement responsibilities. Agencies must involve community organizations and advocacy groups when developing policy.

The Commission found that federal agenciesí regulations for civil rights enforcement were out of date. They needed to be regularly updated in the light of recent legislation. Notably in 1996, many agencies had yet to revise regulations to reflect the Civil Rights Restoration Act of 1987, which extended Title VI coverage to prohibit discrimination in an entire institution even if only part of the institution receives federal assistance.

The Commission asked many agencies to provide or improve technical assistance to funding recipients. Many such entities are employers and service providers who need assistance in meeting their civil rights obligations. Agencies were asked to provide or improve technical assistance to their own civil rights enforcement components, including field offices and contracting agencies.

To ensure that perpetrators and victims of civil rights violations and the public are informed about civil rights, federal agencies must provide adequate education and outreach programs. Education and outreach materials must reach all populations and be disseminated in non-English languages in addition to English. The Commission asked that agencies be creative in targeting education and outreach to special audiences such as attorneys or small businesses; in using innovative venues, including the Internet; and in coordinating intra-agency education and outreach.

5. Effective complaint processing systems. The Commission urged that agencies improve customer service for handling complaints by creating systems that are easy to navigate for potential charging parties and adequately publicizing policies and procedures. Complaint processing systems must resolve complaints efficiently and expeditiously to achieve maximum results. They must be based upon complaint processing and investigation procedures that ensure consistency of handling nationwide. When charges are resolved with settlement agreements and court rulings, agencies must systematically monitor compliance.

6. Systems to ensure review of all funding recipientsí compliance before and after the awards are made and to correct deficiencies. Agencies must conduct thorough and in-depth compliance reviews of all funding recipients; impose reporting requirements on recipients and analyze recipientsí reported information for possible discrimination; identify recipients to receive on-site reviews; and monitor the quality of enforcement efforts. In particular, agencies should conduct desk audits to identify potential noncompliance and select recipients to receive on-site compliance reviews. The quality of pre- and post-award reviews, whether conducted by field office staff, contractual organizations, or state recipients, should be monitored.

Many federal agencies provide funding to state recipients. State recipients must be required to describe the methods used to ensure civil rights compliance among their subrecipients and to report data on the race, ethnicity, and gender of program participants and beneficiaries. States, in turn, must subject their funding recipients to reporting requirements and compliance reviews.

When reviews reveal noncompliance, agencies must provide technical assistance to assist funding recipients in voluntarily complying or apply sanctions if a voluntary agreement is not forthcoming. The agency should continue to monitor such recipients for compliance and seek fund termination or temporary suspension for noncomplying recipients. The Department of Justice should consider whether sanctions for noncompliance should be strengthened.

7. Regular staff training on civil rights statutes and emerging issues.

Strategies for Effective Civil Rights Enforcement

Although the Commission recognized that many agencies had limited resources for performing civil rights enforcement activities, it continually recognized the importance of all the above elements. Yet, exemplary civil rights enforcement systems were found in agencies that had taken further actions to meld these elements together into an effective, efficient whole. The strategies that produce exemplary enforcement are:

1. Integrating civil rights enforcement throughout the agency, including in every program that receives federal funding.

2. Delegating enforcement activities. Whenever possible, agencies should delegate compliance reviews from their headquarters offices to agency divisions and to regional or district offices, and to state recipients to perform on subrecipients. Funding recipients should be required to report data and other information and perform self-analyses that federal staff can use to determine compliance. Similarly, federal agencies may refer complainants to private attorneys, reserving cases with the largest impact for the federal agency to pursue.

3. Implementing oversight mechanisms. Commission recommendations named four levels where oversight for civil rights enforcement was essential. These are (1) the Department of Justiceís (DOJ) oversight responsibilities for the Title VI enforcement of all other federal agencies; (2) intradepartmental delegation of civil rights responsibilities from headquarters to operating divisions or administrations and to field offices; (3) agency or departmental responsibilities with respect to contracting organizations; and (4) agenciesí promulgation of Title VI enforcement among federal funding recipients with subrecipients, particularly states.

DOJís Coordination and Review Section (CORS) of the Civil Rights Division needs to strengthen its oversight process and enforce its regulations requiring federal agencies to submit annual Title VI enforcement plans conforming to DOJís guidelines. CORS should conduct on-site reviews of agenciesí enforcement programs to identify deficiencies and provide training or technical assistance to correct any deficiencies, as well as monitor all federal agenciesí delegation agreements.

Headquarters units with oversight responsibilities for civil rights enforcement should develop comprehensive procedures to delegate enforcement authority to the agenciesí subdivisions. They should establish an oversight and monitoring system to review, evaluate, and direct these unitsí civil rights activities and conduct regular reviews and evaluations of the subdivisionsí enforcement efforts. They should require the units with delegated authority to regularly report information that can be reviewed, including their enforcement activities and an annual self-assessment of their enforcement. Similarly, agencies or their operating divisions must charge their state recipients with the responsibility for overseeing the civil rights compliance of their subrecipients and must develop similar oversight systems for monitoring the state recipients. Agencies that use contracting organizations to carry out civil rights enforcement activities should monitor the contractors, conduct on-site visits, and ensure consistency of enforcement activities across contractors.

4. Coordinating civil rights enforcement efforts. Coordination is particularly important because recipients may be funded by more than one agency. For example, both the Departments of Education and Health and Human Services fund teaching hospitals. Thus, agencies sharing jurisdiction could share responsibilities for conducting compliance reviews, technical assistance, and education and outreach. The Department of Justice should study the extent to which agencies would benefit from such coordination and request funds from Congress to develop a database of federal funding recipients that would enable agencies to determine when multiple agencies are funding the same recipient.

5. Streamlining civil rights enforcement procedures. The agencies should review complaint processing and compliance review systems for efficiency and effectiveness. They should, for example, ensure that charge intake staff collects appropriate information from complainants and that this task does not fall to investigators. Charges of discrimination should be prioritized and, if not meritorious for handling in the federal system, resolved quickly through dismissal, referral to private attorneys, mediation, or conciliation. Compliance reviews should be balanced between desk audits and on-site reviews, and funding recipients should be required to provide information for desk audits.

6. Involving advocacy groups and community organizations in civil rights enforcement activities. The affected communities must participate in policy development to ensure that policy addresses their concerns. They must also assist in designing education and outreach to appeal to the affected communities; and in developing litigation strategies that address the issues that concern these communities and provide the remedies they desire.

In short, the Commission asked that agencies integrate civil rights enforcement throughout their offices and programs, delegate responsibility for conducting enforcement activities, implement oversight and quality assurance procedures to ensure that the delegated activities are carried out properly, coordinate with other federal agencies to ensure that civil rights enforcement efforts are not duplicative, streamline procedures, and involve affected communities in designing enforcement.

Thus, this report evaluates federal activities based on the foregoing essential elements for an enforcement program. This report suggests ways to maximize the effectiveness of an enforcement system and assesses which federal agencies were, or are, doing well or poorly at enforcing civil rights. It documents the Commissionís recommendations to enforcement offices over the past decade. The recommendations provide an enforcement guide for federal agencies charged with promoting equality for all individuals and groups disenfranchised in the United States because of differences of skin color, national origin, gender, age, disability, or religion.

[1] 42 U.S.C. ßß 2000d et seq. (2002). Note that the Equal Employment Opportunity Commission does not have civil rights responsibilities under Title VI of the Civil Rights Act because it does not have funding recipients. Its enforcement efforts fall under Title VII of the Civil Rights Act.

[2] 42 U.S.C. ßß 12141 et seq. (2002).