Does Title VI of the Civil Rights Act ban discrimination in federally funded programs, and who counts as a recipient?

Plain-English summary

A state senator asked the Attorney General a series of questions about Title VI of the federal Civil Rights Act of 1964, the part of the law that conditions federal money on nondiscrimination. The opinion is mostly an explanation of how Title VI works, drawn from the federal statute itself.

The office laid out the core points. Section 601 (42 U.S.C. section 2000d) says no person may, on the ground of race, color, or national origin, be excluded from, denied the benefits of, or subjected to discrimination under any program or activity that receives federal financial assistance. Congress enacted Title VI as part of the 1964 Civil Rights Act to eliminate discrimination against minority groups.

On who counts as a "recipient," the office explained that the act does not define that term, but a 1988 amendment (the Civil Rights Restoration Act of 1987) added section 606 (42 U.S.C. section 2000d-4a) to define "program or activity" broadly, covering all the operations of state and local government departments and agencies, colleges and school systems, and entire private corporations, partnerships, and sole proprietorships that receive federal assistance. That amendment was meant to overturn two United States Supreme Court decisions, Grove City College v. Bell and Consolidated Rail Corp. v. Darrone, that had read those terms narrowly. So Title VI reached state agencies, local governments, educational institutions, and private for-profit and nonprofit corporations alike.

On enforcement, the office read section 602 (42 U.S.C. section 2000d-1) to let a federal agency terminate or withhold funding for failure to comply with the agency's Title VI rules, but only after an express finding on the record following a hearing, and only after the agency has notified the recipient and determined that voluntary compliance cannot be achieved; any cutoff is limited to the noncomplying entity or part. Whether a recipient must monitor its sub-recipients depends on the funding agency's own regulations, some of which require sub-recipients to file compliance reports. And under various agency regulations, a federally funded program cannot exclude anyone from a planning or advisory body that is an integral part of the program on the basis of race, color, or national origin.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Title VI and its implementing regulations have continued to develop since 1995 through later statutes, court decisions, and agency rulemaking, and individual agency regulations (and their section numbers) are periodically renumbered. Read this page for how the office summarized the federal framework as it stood in 1995, and check the current United States Code and the applicable Code of Federal Regulations before relying on any specific section mentioned here.

What the opinion meant for those who asked

For Senator Ellis (the requestor): The office answered each question in turn. Title VI was enacted to prohibit race, color, and national-origin discrimination in federally funded programs; recipients include state agencies, local governments, schools, and private corporations; funding can be terminated or withheld for noncompliance under specific procedural conditions; whether a recipient must monitor its sub-recipients depends on the applicable agency regulations; and the minority community and its representatives cannot be denied participation in planning federally funded programs for discriminatory reasons.

For state agencies, local governments, schools, and private corporations receiving federal funds: Under the opinion and the 1988 amendment, these entities are "recipients" or fall within a "program or activity" subject to Title VI when they receive federal financial assistance.

For minority communities and their representatives: The opinion read the agencies' Title VI regulations to forbid excluding anyone from participating, as a member of a planning or advisory body that is an integral part of a federally funded program, on the basis of race, color, or national origin.

Common questions

What does Title VI of the Civil Rights Act prohibit?
It prohibits discrimination on the ground of race, color, or national origin in any program or activity that receives federal financial assistance (42 U.S.C. section 2000d).

Who counts as a "recipient" under Title VI?
After the Civil Rights Restoration Act of 1987 (effective 1988), the definition of "program or activity" in 42 U.S.C. section 2000d-4a covers all the operations of state and local government departments and agencies, colleges and school systems, and entire private corporations and similar entities that receive federal assistance.

Can the federal government cut off funding for a Title VI violation?
Yes, but only under conditions. The opinion read section 2000d-1 to allow termination or withholding only after an express finding on the record following a hearing, and only after the agency has advised the recipient and determined that voluntary compliance cannot be secured; the cutoff is limited to the particular entity or part where noncompliance was found.

Do recipients have to monitor their sub-recipients?
It depends on the funding agency's regulations. The opinion noted that some agency regulations require sub-recipients to submit compliance reports to the primary recipient, so whether monitoring is required turns on the applicable federal regulations.

Can minority community members be shut out of planning a federally funded program?
No. The opinion read various agencies' regulations to make it impermissible to exclude anyone from a planning or advisory body that is an integral part of a federally funded program for discriminatory reasons.

Background and statutory framework

Title VI of the Civil Rights Act of 1964 is codified at 42 U.S.C. sections 2000d through 2000d-7. Section 601 (42 U.S.C. section 2000d) states the substantive prohibition. Section 602 (42 U.S.C. section 2000d-1) directs federal agencies that extend financial assistance to issue Title VI rules and sets the procedure for terminating or withholding funds for noncompliance. Section 606 (42 U.S.C. section 2000d-4a), added by the Civil Rights Restoration Act of 1987 and effective in 1988, defines "program or activity" and "program" broadly to cover all the operations of the listed governmental, educational, and private entities; Congress added that definition to overturn the narrow reading the Supreme Court had given those terms in Grove City College v. Bell, 465 U.S. 555 (1984), and Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984).

The opinion also noted limits. Title VI does not apply to "ultimate beneficiaries" of federal assistance, such as farmers and social-security recipients, who do not administer federally assisted programs (see Pub. L. No. 100-259, section 7, 102 Stat. 31 (1988)). It does not authorize regulation of employment practices except where a primary objective of the federal assistance is to provide employment (42 U.S.C. section 2000d-3), and section 2000d-4 addresses application of Title VI to a contract of insurance or guaranty. The enforcement details and the participation, monitoring, and compliance-report requirements come from the implementing regulations of the various funding agencies (including the Departments of Housing and Urban Development, Justice, Labor, Interior, Health and Human Services, and Transportation), each issued under section 602.

Citations

Statutory provisions discussed:

• 42 U.S.C. §§ 2000d - 2000d-7 (Title VI of the Civil Rights Act of 1964)
• 42 U.S.C. § 2000d (Section 601, substantive prohibition)
• 42 U.S.C. § 2000d-1 (Section 602, agency rules and funding termination)
• 42 U.S.C. § 2000d-4a (Section 606, definition of "program or activity," added by the Civil Rights Restoration Act of 1987)
• 42 U.S.C. § 2000d-3 (employment practices) and § 2000d-4 (contract of insurance or guaranty)
• Pub. L. No. 100-259, § 7, 102 Stat. 31 (1988)

Cases discussed:

• Grove City College v. Bell, 465 U.S. 555 (1984)
• Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984)

Other authority:

• H.R. Rep. No. 914, 88th Cong., 2d Sess., reprinted in 1964 U.S.C.C.A.N. 2391; S. Rep. No. 64, 100th Cong., reprinted in 1988 U.S.C.C.A.N. 3; implementing regulations of various federal agencies issued under section 602

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0341
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0341.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering and the section numbers of the cited agency regulations) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 30, 1995

Honorable Rodney Ellis
Chair
Committee on Intergovernmental Relations
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-341

Re: Whether title VI of the federal Civil Rights Act of 1964 was enacted to prohibit racial discrimination in federally funded programs and related questions (RQ-778)

Dear Senator Ellis:

You ask a series of questions about title VI of the federal Civil Rights Act of 1964 (the "act"), 42 U.S.C. §§ 2000d - 2000d-7 ("title VI"). We note that title VI was amended in 1988 by the Civil Rights Restoration Act of 1987. Except where noted otherwise, all references are to title VI as amended.

First, you ask whether title VI of the act was enacted to prohibit racial discrimination in federally funded programs. Section 601 of the act, 42 U.S.C. § 2000d, provides as follows:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

42 U.S.C. § 2000d. Title VI was enacted by Congress as part of the Civil Rights Act of 1964, the purpose of which was to eliminate various forms of discrimination against minority groups, particularly African Americans. See H.R. Rep. 914, 88th Cong., 2d Sess., reprinted in 1964 U.S.C.C.A.N. 2391, 2393. The House Committee Report states that title VI

declares it to be the policy of the United States that discrimination on the ground of race, color, or national origin shall not occur in connection with programs and activities receiving Federal financial assistance and authorizes and directs the appropriate Federal departments and agencies to take action to carry out this policy.

1964 U.S.C.C.A.N. at 2400.

Next you ask whether "state agencies, local government entities, educational institutions, private for profit and non-profit corporations [are] recipients" under the act. The act does not define the term "recipients." In 1988, however, Congress amended the act to clarify the meaning of the terms "program or activity" and "program" as they are used in title VI. See, e.g., 42 U.S.C. §§ 2000d, 2000d-1. Newly-added section 606 of the act, 42 U.S.C. § 2000d-4a, provides as follows:

For purposes of this subchapter, the term "program or activity" and the term "program" mean all of the operations of-
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or
(B) a local educational agency (as defined in section 198(a)(10) of the Elementary and Secondary Education Act of 1965), system of vocational education, or other school system;
(3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship-
    (i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
    (ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more of the entities described in paragraph (1), (2) or (3);
any part of which is extended Federal financial assistance.

42 U.S.C. § 2000d-4a. The purpose of this amendment to title VI was to overturn United States Supreme Court cases that had interpreted the terms "program or activity" or "program" narrowly. See S. Rep. No. 64, 100th Cong., reprinted in 1988 U.S.C.C.A.N. 3, 5-18; see also Grove City College v. Bell, 465 U.S. 555 (1984); Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984). As a result of the amendment, it is now clear that title VI applies to all entities, including state agencies, local government entities, educational institutions, and private for-profit and nonprofit corporations, that receive federal financial assistance.[2]

You also ask whether "federal funding [can] be terminated or withheld for noncompliance" with title VI of the act and the Civil Rights Restoration Act of 1987. Section 602 of the act, 42 U.S.C. § 2000d-1, provides in pertinent part:

Each federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. . . Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. . .

42 U.S.C. § 2000d-1. This provision clearly permits the termination or withholding of federal funding of a "program or activity" for failure to comply with agency rules implementing title VI. Funding may not be terminated or withheld, however, unless "there has been an express finding on the record, after opportunity for hearing, of a failure to comply with" the applicable federal regulations. Id. Furthermore, a federal agency may not terminate or withhold funding unless it has first "advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." Id.

In a related question, you ask whether "federally funded recipients [are] required to monitor the programs and activities of their sub-recipients." Section 602, 42 U.S.C. § 2000d-1, quoted above, requires federal agencies which provide federal financial assistance to any program or activity to promulgate regulations implementing title VI. Thus, such a federal agency is generally required to monitor the programs and activities of the recipients of agency funding to assure that they comply with title VI. Agency regulations may in turn require federally funded recipients to monitor the programs and activities of their sub-recipients. Certain agency regulations, for example, require sub-recipients to submit compliance reports to the primary recipient. See, e.g., 24 C.F.R. § 1.6(b) (Department of Housing and Urban Development); 28 C.F.R. § 42.106(b) (Department of Justice); 29 C.F.R. § 31.5(b) (Department of Labor); 43 C.F.R. § 17.5(b) (Department of Interior); 45 C.F.R. § 80.6(b) (Department of Health and Human Services); 49 C.F.R. § 21.9(b) (Department of Transportation). Thus, whether a particular recipient is required to monitor the programs and activities of its sub-recipients will depend upon the applicable federal regulations.

You also ask whether title VI of the act and the Civil Rights Restoration Act of 1987 "affect state and local government boards, commissions, and authorities that formulate public policy concerning the expenditure of federal funds." Finally, in a related question, you ask whether "the minority community and/or its representatives [can] be denied the right to participate in the planning and development of public policy relating to federally funded programs." Various agencies which administer federal funding have promulgated regulations pursuant to section 602 of the act which prohibit a recipient under a federally funded program from denying a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program on the ground of race, color or national origin. See, e.g., 24 C.F.R. § 1.4(b) (Department of Housing and Urban Development); 28 C.F.R. § 42.104(b)(vii) (Department of Justice); 29 C.F.R. § 31.3(b) (Department of Labor); 43 C.F.R. § 17.3(b)(vii) (Department of Interior); 45 C.F.R. § 80.3(b)(1)(vii) (Department of Health and Human Services); 49 C.F.R. § 21.5(b)(1)(vii) (Department of Transportation). Under these regulations, it is impermissible to exclude anyone from participating in the planning and development of public policy relating to federally funded programs for discriminatory reasons.

SUMMARY

Title VI of the federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000d - 2000d-7, was enacted to prohibit racial discrimination in federally funded programs. Title VI applies to any "program or activity," as defined by 42 U.S.C. § 2000d-4a, that receives federal financial assistance. Title VI permits the termination or withholding of federal funding of a "program or activity" for failure to comply with agency rules implementing title VI under certain conditions. See 42 U.S.C. § 2000d-1.

Whether a particular recipient of federal funding is required to monitor the programs and activities of its sub-recipients will depend upon the applicable federal regulations. Under various federal regulations, it is impermissible for a "program or activity" to exclude anyone from participating in the planning and development of public policy relating to federally funded programs or activities for discriminatory reasons.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[2] Title VI does not apply to "ultimate beneficiaries" of federal financial assistance, such as farmers and social security recipients, who do not administer federally assisted programs. See Pub. L. No. 100-259, § 7, 102 Stat. 31 (1988). Title VI does not authorize regulation with respect to employment practices "except where a primary objective of the Federal financial assistance is to provide employment." 42 U.S.C. § 2000d-3; see also id. § 2000d-4 (application of title VI to contract of insurance or guaranty).