Title VI Issues by QoA2W6h7


									  Sub-Recipient Title VI and
Nondiscrimination Programming
Charlotte Thomas, FDOT and Carey Shepherd, FHWA

 Provide an overview of nondiscrimination
  programs and their requirements,
  including Title VI, EJ, LEP and DBE.
 Help identify strong nondiscrimination
 Discuss questions and concerns with a
  focus on strategizing solutions.
Major Titles of the Civil Rights Act
              of 1964
                    Title I-Voting Rights

              Title II-Public Accommodations
              (hotels, restaurants, gas stations)

                  Title III-Public Facilities

          Title IV-Public Schools (Desegregation)

         Title V-Created Commission on Civil Rights

       Title VI- Federal-aid Recipient
            Programs & Activities
                 Title VII-Fair Employment

             Title VIII-Registration and Voting
           Civil Rights Act of 1964
                    Title VI
No person in the United States
  shall be:

  - Excluded from
   participation                   In any Federally-funded
                                 program, service, or activity
  - Denied benefits
                                        On the basis of:
  - Subjected to                              RACE
    discrimination                           COLOR
                                       NATIONAL ORIGIN
The Title VI Program Umbrella
    SEX – Highway Act of 1973 (23
     USC 324)
    AGE – Age Discrimination Act of
    DISABILITY – Section 504 of
     the Rehab Act of 1973;
     Americans with Disabilities Act
     of 1990 (ADA)
     State Civil Rights laws.
    Does your community have
     ordinances that extend
     protected classifications
     (sexual orientation, identity,
     appearance, etc.)?
             Food for Thought
•   Are you familiar with the
    ordinances of agencies
    within your boundaries?
•   Do any of them assure
    protection from
    discrimination based on
    other protected class
•   Does this mean your Title
    VI umbrella must expand
    to cover those classes?
FHWA Title VI Regulations
                 {23 CFR 200}
                 Issued December 10, 1976:
Guidelines for implementing Title VI Programs and
             conducting Title VI reviews

   Correct deficiencies discovered by FHWA within
    90 days.
   Recipients must conduct annual reviews of
    their various programs.
   Recipients must monitor their sub-recipients
    (ie, MPOs and local agencies).
              More Obligations of ALL
   Develop a policy and complaint processing procedure
   Broadly post/disseminate policy and procedures
   Name a Title VI Coordinator who has ‘easy access to the head of the agency’
   Collect and analyze data about beneficiaries affected by agency decisions
   Minimize, mitigate or avoid disparate impacts on low income and minority
   Execute a nondiscrimination agreement (assurance) and provide it to FDOT
   Eliminate discrimination when it is found
   Take affirmative measures to ensure nondiscrimination
   Develop a plan for providing meaningful access to programs, services in
    languages other than English
             Civil Rights
       Restoration Act Of 1987
 Applies to Title IX Education Amendments of 1972,
  Title VI, and Section 504 of the Rehabilitation Act
 Enacted to specifically reject Supreme Court’s
  decision in Bell v. Grove City College
 Restored broad scope of coverage
 All programs and activities means all the
  operations of a department, state or local
  government agency, corporation, private entity
 ADA enacted covering all public entities, so CRRA
  coverage is extraneous
        Environmental Justice
 NEPA (National Environmental Policy Act – 1970), agencies must
  consider environmental impacts of significant or major decisions. NEPA
  placed a strong emphasis not just on environment, but on achieving “a
  balance between population and resource use which will permit high
  standards of living and a wide sharing of life’s amenities . . .”
 US Highway Act of 1973 (23 USC 109(h)), recipients must consider
  social, economic and environmental effects of FHWA-aid projects.
 Warren County, North Carolina decided to build a toxic waste landfill in
  a low income, largely black community. Public outcry gave rise to the
  modern EJ movement.
 Executive Order 12898 (signed by President Clinton on February 11,
  1994) – Federal Actions to Address Environmental Justice in Minority
  (protected class) and Low-Income ($22,050 as of 06/09) Populations.
    Order 5680.1, Released April 15, 1997, incorporated EJ into all DOT
     programs (Applies to ALL 12 agencies)
    FHWA Order 6640.23, December 2, 1998, policy and procedures (Refines
     definitions to fit FHWA programs)
  DOT EJ ORDER Establishes
   Standard for Addressing
 “Disproportionately High and Adverse Effects”
Carry Out Activities Only If:

 A substantial need exists based on the overall
  public interest.
 Alternatives that have fewer adverse effects
  and satisfy the purpose and need are
 Failure to act would have other more severe
  adverse impacts or extraordinary magnitude of
 This must be well documented.
Common Administrative EJ Complaints Challenging
  Transportation Decisions as Disparate Impacts

 Minority community divided by the construction of a
    highway or rail line.
   Resources used to build and operate light rail servicing
    suburbs at expense of bus service for low income inner
    city communities.
   “Tunneling” to mitigate effects of transportation
    facilities in affluent neighborhood but not low income
    minority neighborhood.
   Bus schedules and routes fail to provide adequate
    service or are designed to segregate minority residents.
   Sound Walls/Noise Barriers/Calming Devices, etc.

Has your organization experienced any others?
     Across the Tracks
Wow! The recent
focus on HSR means
more transit
funding, including
the possibility of a
regional light rail
system. Finally,
universal popularity!
            Darensburg v. Metropolitan
            Transportation Commission
o   Currently on appeal in the 9th
o   Discrimination lawsuit alleging
    channeling public funds to
    benefit affluent nonminority
    riders (rail) to the detriment of
    minority riders (bus).
o   District Court found disparate
    impact, though possible
o   MTC has lost public trust and
    caused ill will among its
    customers; BART has lost
    Federal funds.
o   No end in sight.
Take a minute to discuss. Can you
 think of ways to avoid; minimize;
                Lessons Learned
   Early, extensive Public Involvement. MTC was accused of ‘hiding
    from its public.’ Could a marketing campaign have helped?
   Better data collection and analysis. MTC allegedly refused to
    conduct comparatives studies of funds subsidizing rail versus bus
    users by race and income.
   Better examination of the history of area bus transit. Is it better or
    worse than in years past? Why?
   Partnership with grassroots organizations; “Partners instead of
   Evaluation of Alternative Dispute Resolution (ADR) to work through
    conflict rather than the courts, the media.
   Broader view of the system as a whole . . Not adding rail but
    enhancing the entire structure for everyone (seamless
    interconnectivity; unified fares, etc.)
             Another Scenario
Funding is available to
refurbish/replace all
18 bus shelters in
your county!
   How should the money be
   What questions need
  Civil Rights Programs Promote EJ
 Early, extensive and sustained public
 Bringing activities to the public rather than
  vice versa.
 Active solicitation of opposition opinions turning
  potential litigants into partners.
 Strong policies of equal opportunity, inclusion
  and nondiscrimination.
 Broadly distributed procedures for accepting and
  resolving complaints.
     Your LRTP meeting for a
      rural county is poorly
     In fact, you are the only
     A kind librarian informs
      you that the address of
      the building published in
      the paper burned down
      three years ago.
            What do you do?

   Does your answer change if you learn the
    county is 60% black and 80% below the
    poverty line? Should that matter?
   What are some possible consequences?
   What steps can be taken to avoid this in
    the future?
   Any possible positive consequences?
   Limited English Proficiency
  Providing meaningful access to programs, services
       and activities to those with Limited English

• Executive Order 13166 (President George Bush on
  August 11, 2000)
• Embodiment of 14th Amendment
• Title VI (National Origin)
        Who is your service

 It does NOT require that the US become a
  bilingual country

 It DOES require recipients to take reasonable
  steps for providing meaningful access

 It DOES require a written plan for providing
  this access.
                 Four Factors
           to consider for LEP Plans

 The number or proportion of LEP persons
  eligible to be served or likely to be encountered
  by programs, services or activities.
 The frequency with which LEP individuals come
  in contact with these programs, services or
 The nature or importance of the program.
 The resources available to the recipient and
          The Basics of an LEP Plan

 Sufficient data collection (is census data enough?)

 Sound analysis to identify populations and impacts

 Active Involvement and Representation of low
  income and minorities throughout the entire
  transportation process, especially in planning

 Adequately DOCUMENT that involvement
   Faith based and community organizations

   Newspaper, radio, internet and other media

   Civic, homeowners, tenants’ groups and associations

   Grassroots, civil rights, and senior citizens organizations

   Hospitals; clinics and other health care providers

   Shopping malls; stores; restaurants

   Fairs, festivals and flea markets

   Government, especially service providers (police, fire rescue, social

   Universities, colleges, vocational and Local schools and libraries
      Statistics Never Lie?
The Charlie Crist Golden Age
Parkway (called by some cynics,
‘the devil’s highway’) is planned
through a rural area and should
make reaching the coast a snap!
Data layers show little population;
mostly large farms, now for sale
and huge empty tracts of forest.
No anticipation of problems with
the environmental analyses. Early
LRTP meetings garnered positive
feedback, especially from farm
owners. BUT . . .
Your Public Involvement
Coordinator has noticed
an increasing population
of Mexicans . . flags of
Mexico abound as do
mobile taco vendors and
stores with Hispanic
names. She remembers
seeing more Hispanics in
the wake of some large
hurricanes two years
before. Migrant workers
came for clean up work,
but apparently many
never left.
                  How to Proceed?
   What are some important questions:
       Does Title VI cover these populations? They aren’t even legal!
       Does the project have to be scrapped?
       What are some ways of reaching out to these communities?
       Why don’t these communities attend transportation meetings or
        serve on committees?
       Is an LEP plan needed to address their need for critical
       How is the census data balanced with the reality?
       What are some other questions?
            Is this even realistic?
            How would you handle it?
Disadvantaged Business Enterprise

             All State DOTs; cities; counties; MPOs
              that receive Federal financial
              assistance must have DBE programs
             FHWA-assisted agencies must adopt
              the FDOT’s DBE program
             49 CFR Part 26 regulates the
             The DBE program and MBE program
              are not the same
Confused? The DBE Program:

            Federal (& State) Regs
            USDOT/FHWA
            Nationwide
            SBA Size Standards based
             upon gross receipts & PNW
            Remedy past discrimination,
             level playing field & provide
             for equal opportunity
          The MBE Program:

 State Statute
 DMS & Office of Supplier
 Florida only
 200 or fewer employees
 5 million net worth cap
            To be a DBE . . .
 Member of a presumed disadvantaged
  group (women, Black, Hispanic, Asian, Native
 If not presumed, can document disadvantage.
 Must show 51% ‘real and substantial’
  ownership (not just paper) through capital
  contribution or expertise.
 Must control business, making daily and long
  term decisions; not relying on others to do so.
  Recent Statistics (as of 06/2010)

 District 1     80      Black           266
 District 2     92      Hispanic        265
 District 3     85      Native American 15
 District 4     158     Asian           45
 District 5     218     Hawaiian/PI     50
 District 6     150     Women           449
 District 7     132
 Out of State   164
 Total          1090    Total          1090
           Important Program
 You may not disparately use DBEs on the basis
    of protected class membership
   You should use certified DBEs whenever possible
   You must check to ensure DBE is actually
   You should check the availability of new DBEs
   You must must must verify that the DBE is
    performing a commercially useful function (CUF)
   You must report actual payments, minority
    status and type of work for all DBEs, prime or
    sub, construction or professional services
   Get in the habit of documenting all of these
 FDOT’s DBE Program Needs Your
 Race Neutrality means the program is
 No goals are placed on projects.
 FDOT failed to make its 8.1% goal for FY
 Neither FDOT nor the industry wants to
  return to race conscious goals, a real
        Why is Nondiscrimination
         Programming a Must?
 It’s the law (and a whole bunch of them).
 It’s the American way. Equal Opportunity is
  closely aligned with equality before the law, a
  constitutional guarantee.
 It’s profitable. A 2007 University of Chicago
  study of 250 businesses of all sizes found that
  diversity was directly related to profitability. . .
  More diversity equals more customers.
 It’s useful. Inclusion invites different
  perspectives and ideas, increasing problem
  solving potential.
    Plus, Failure Can be Devastating
   The regs allow for suspension
    and removal of funding.
   The regs allow for referral to
    US DOJ for litigation
   Allegations of discrimination
    damage organizations’
    credibility and reputation, and
    create ill will in the community.
   Defending discrimination
    complaints or lawsuits can be
    COSTLY, even if unfounded.
                  Good News!
 Compliance is simple.
 You are probably already practicing the basics.
 Write it down! Have written policies/plans/procedures
  and document activities.
 Actually follow your policies/plans/procedures and
  regularly police them. Don’t promise what you cannot or
  will not deliver.
 Help is always available. See your Resource Sheet. We
  love your questions, comments, input, suggestions,
  problems, scenarios . . call us!
Thank you, Charlotte & Carey

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