Sub-Recipient Title VI and
Nondiscrimination Programming
Presenters:
Charlotte Thomas, FDOT and Carey Shepherd, FHWA
Objectives
 Provide an overview of nondiscrimination
programs and their requirements,
including Title VI, EJ, LEP and DBE.
 Help identify strong nondiscrimination
initiatives.
 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
- Denied benefits
- Subjected to
discrimination
In any Federally-funded
program, service, or activity
On the basis of:
RACE
COLOR
NATIONAL ORIGIN
The Title VI Program Umbrella
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SEX – Highway Act of 1973 (23
USC 324)
AGE – Age Discrimination Act of
1975
DISABILITY – Section 504 of
the Rehab Act of 1973;
Americans with Disabilities Act
of 1990 (ADA)
RELIGION & FAMILY STATUS –
State Civil Rights laws.
Does your community have
ordinances that extend
protected classifications
(sexual orientation, identity,
appearance, etc.)?
Food for Thought
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Are you familiar with the
ordinances of agencies
within your boundaries?
Do any of them assure
protection from
discrimination based on
other protected class
membership?
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
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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
Recipients
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Develop a policy and complaint processing procedure
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Broadly post/disseminate policy and procedures
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Name a Title VI Coordinator who has ‘easy access to the head of the agency’
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Collect and analyze data about beneficiaries affected by agency decisions
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Minimize, mitigate or avoid disparate impacts on low income and minority
populations
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Execute a nondiscrimination agreement (assurance) and provide it to FDOT
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Eliminate discrimination when it is found
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Take affirmative measures to ensure nondiscrimination
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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
unavailable.
 Failure to act would have other more severe
adverse impacts or extraordinary magnitude of
costs.
 This must be well documented.
Common Administrative EJ Complaints Challenging
Transportation Decisions as Disparate Impacts
 Minority community divided by the construction of a
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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
o
o
o
o
Currently on appeal in the 9th
Cr.
Discrimination lawsuit alleging
channeling public funds to
benefit affluent nonminority
riders (rail) to the detriment of
minority riders (bus).
District Court found disparate
impact, though possible
justification.
MTC has lost public trust and
caused ill will among its
customers; BART has lost
Federal funds.
No end in sight.
Take a minute to discuss. Can you
think of ways to avoid; minimize;
mitigate?
Lessons Learned
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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
opponents.”
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!
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How should the money be
apportioned?
What questions need
answering?
Civil Rights Programs Promote EJ
through:
 Early, extensive and sustained public
involvement.
 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.
OOPS!
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Your LRTP meeting for a
rural county is poorly
attended.
In fact, you are the only
attendee.
A kind librarian informs
you that the address of
the building published in
the paper burned down
three years ago.
What do you do?
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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
Proficiency
• Executive Order 13166 (President George Bush on
August 11, 2000)
• Embodiment of 14th Amendment
• Title VI (National Origin)
Who is your service
population?
 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
activities.
 The nature or importance of the program.
 The resources available to the recipient and
costs.
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
OUTREACH
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Faith based and community organizations
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Newspaper, radio, internet and other media
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Civic, homeowners, tenants’ groups and associations
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Grassroots, civil rights, and senior citizens organizations
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Hospitals; clinics and other health care providers
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Shopping malls; stores; restaurants
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Fairs, festivals and flea markets
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Government, especially service providers (police, fire rescue, social
services)
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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?
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What are some important questions:
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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
information?
How is the census data balanced with the reality?
What are some other questions?
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Is this even realistic?
How would you handle it?
Disadvantaged Business Enterprise
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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
program
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
Diversity
 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
American).
 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
 District 2
 District 3
 District 4
 District 5
 District 6
 District 7
 Out of State
 Total
80
92
85
158
218
150
132
164
1090
 Black
266
 Hispanic
265
 Native American 15
 Asian
45
 Hawaiian/PI
50
 Women
449
 Total
1090
Important Program
Responsibilities
 You may not disparately use DBEs on the basis
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of protected class membership
You should use certified DBEs whenever possible
You must check to ensure DBE is actually
certified
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
consultants
Get in the habit of documenting all of these
efforts
FDOT’s DBE Program Needs Your
Help
 Race Neutrality means the program is
voluntary.
 No goals are placed on projects.
 FDOT failed to make its 8.1% goal for FY
2008.
 Neither FDOT nor the industry wants to
return to race conscious goals, a real
possibility.
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
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The regs allow for suspension
and removal of funding.
The regs allow for referral to
US DOJ for litigation
consideration.
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