PUBLIC FUNDS FOR PUBLIC BENEFIT:
SUBRECIPIENT'S GUIDE TO
IMPLEMENT TITLE VI
National Title VI/Nondiscrimination Forum
for Local Public Agencies
Birmingham, Alabama
August 19, 2009
Mohamed Sulaiman Dumbuya
National Title VI Coordinator
Federal Highway Administration, Virginia Division
mohamed.dumbuya@fhwa.dot.gov
Slide - 2
This Module will...
•
Provide a concise overview of Title VI;
•
Discuss Subrecipents guide to assure effective
Title VI implementation and enforcement;
•
Examine data collection procedures;
•
Outline Title VI Complaint process;
•
Identify public involvement tools.
Slide - 3
What is Title VI?
•
Federal law
•
The essence of the law:
"No person in the United States shall on the
ground of race, color, or national origin be
excluded from participation in, denied the
benefits of, or subjected to discrimination
under any program or activity receiving
Federal financial assistance" (42 USC 2000d)
Slide - 4
What is the Civil Rights
Restoration Act of 1987?
•
Direct response to, rejection of, 1984
Supreme Court decision in Grove City
College vs. Bell case (465 U.S. 555)
•
Restored original intent & scope of Title VI
to include all programs & activities of
Federal-aid recipients and contractors
whether federally funded or not
Slide - 5
What is FHWA's Title VI Program?
•
Not limited to prohibitions of Title VI of the Civil Rights Act of
1964;
•
Includes other civil rights provisions of Federal statutes and related
authorities that prohibit discrimination in programs and activities
receiving Federal financial assistance (23 CFR 200.5(p));
•
Other Nondiscrimination & Cross Cutting authorities include:
•
The 1970 Uniform Act (42 USC 4601) Persons displaced/Property acquired
•
Section 504 of the 1973 Rehabilitation Act (29 USC 790) Handicap/Disability
•
The 1973 Federal-aid Highway Act (23 USC 324) Sex
•
The 1975 Age Discrimination Act (42 USC 6101) Age
•
Implementing Regulations (49 CFR 21 & 23 CFR 200)
•
Executive Order 12898 on Environmental Justice (EJ) Low Income & Minorities
•
Executive Order 13166 on Limited English Proficiency (LEP) Linguistic Minorities
Slide - 6
Why Cross-Cutting?
•
Section 504 of the 1973 Rehabilitation Act (29 U.S.C. 790)
•
"No QUALIFIED HANDICAPPED PERSON shall, solely by reason of his handicap, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity that receives or benefits from Federal financial assistance."
•
The 1973 Federal Aid Highway Act (23 U.S.C. 324)
•
"No person shall on the grounds of SEX be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving Federal assistance
under this title or carried on under this title."
•
The 1975 Age Discrimination Act (42 U.S.C. 6101)
•
"No person shall on the basis of AGE, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving Federal financial
assistance."
•
Executive Order 12898 on EJ
•
Each Federal agency shall conduct its programs, policies, and activities [including those of recipients
(see FHWA Order 6640.23(2)(h))] that substantially affect human health or the environment, in a
manner that ensures that such programs, policies, and activities do not have the effect of excluding
persons (including populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including populations) to discrimination
under, such, programs, policies, and activities, because of their race, color, or national origin.
Slide - 7
Implementing Regulations
•
USDOT Title VI Regulations (49 CFR 21)
•
Prohibited discriminatory actions (21.5)
•
Required assurance (21.7)
•
Compliance information (21.9)
•
Procedure for effecting compliance (21.13)
•
FHWA Title VI Regulations (23 CFR 200)
•
State Transportation Agency responsibilities (200.9)
Slide - 8
Executive Order (EO) 12898
•
Presidential mandate to address equity and fairness
toward low income and minority persons or
population;
•
Signed by President Clinton on February 11, 1994
•
Directs Federal agencies [including recipients
(FHWA Order 6640.23(2)(h))] to "make achieving
EJ part of its mission by identifying, and
addressing, as appropriate, disproportionately
high and adverse human health and
environmental effects of its programs, policies, and
activities on minority populations and low
income populations..."
Slide - 9
EO 12898...
•
Reinforces and reinvigorates Title VI (Section 2-2);
•
Calls for improved methods in research, data
collection, and analysis (Section 3-3(301));
•
Triggers a new look at NEPA (Section 3-3(302);
•
Encourages participation of impacted citizens in
all phases of decision-making (Section 5-5);
•
Appeals for absence of denial, delay and
reduction in benefits to Low Income and Minority
persons (#3 of FHWA's Fundamental EJ Concepts).
Slide - 10
Executive Order (EO) 13166
•
Presidential directive to federal agencies to
ensure meaningful access to services for
LEP people;
•
Nondiscrimination authority grounded on Title VI;
•
Signed by President Clinton on August 11, 2000
•
USDOJ's LEP Guidance pursuant to EO 12250
•
The four factors paradigm
Slide - 11
EO 13166 Directs
•
Federal agencies to examine their services,
develop and implement processes by which LEP
persons can meaningfully access those services;
•
Establish guidance on how recipients can provide
meaningful access to LEPs;
•
Prepare a plan with consistent standards and
steps to overcome language barriers on programs
and activities;
•
Ensure stakeholders have "adequate opportunity
to provide input."
Slide - 12
Who is a LEP Person?
•
Person who does not speak English as primary
language and has limited ability to read,
speak, write or understand English;
•
Failure to provide LEP person services or
meaningful access to services [may] constitute
national origin discrimination (Lau v. Nichols, 1974)
Slide - 13
USDOT Response to EO 13166
•
USDOT Guidance in Federal Register
•
Vol. 66, No. 14, Jan. 22, 2001 &
•
Vol. 70, No. 239, Dec. 14, 2005.
•
Purpose
•
Clarify LEP responsibilities of USDOT recipients
•
Assist recipients in fulfilling their LEP responsibilities
•
Bottom line: Assist recipients in complying with
their Title VI responsibilities to ensure programs &
activities normally provided in English, are
accessible to LEP persons
Slide - 14
What Is Required Of Recipients?
•
Sound measures/reasonable steps for
meaningful access to programs and
activities by LEPs
•
Assessment - Four Factors Analysis/Paradigm
•
Plan of action
Slide - 15
Assessment:
Four Factors
•
Demography - Number and/or proportion of LEPs
served and languages spoken in service area
•
Frequency - Rate of contact with service or
program
•
Importance - Nature and importance of
program/service to peoples lives (transportation)
•
Resources - Available resources, including
Language assistance services (limited or wide-ranging) and cost
Slide - 16
LEP Plan of Action:
Five Elements
•
Identification of volume and location of LEPs and LEP
Communities
•
Language assistance measures - Types of languages
services available; how to respond to LEP callers; how to
respond to LEPs in person; how to respond to written
communication; types of documents/info to translate
•
Staff - Knowledge of policy and procedures, linguistic
diversity and sophistication, cultural sensitivity and
communication skills, training and experience
•
Outreach measures - Notification methods on special
language assistance
•
Monitoring and Evaluation of Efforts
Slide - 17
FHWA's Title VI Program...
•
Assures nondiscrimination on the ground of
race, color, national origin,
disability/handicap, sex, age or low
income status in programs or activities
receiving financial assistance, whether
those programs or activities are FHWA
funded or not.
Slide - 18
What is the Purpose of Title VI?
•
To ensure that public funds are not
spent in a way that encourages,
subsidizes, or results in discrimination
Or
•
Eliminate discrimination in Federally
financed programs and activities
Slide - 19
What is the Intent of Title VI?
•
To remove barriers and conditions that
prevent minority, low income, LEP, and
other disadvantaged groups and
persons from receiving access,
participation and benefits from Federally-
assisted programs, services and activities.
Slide - 20
In effect, Title VI Authorities...
•
Promote fairness and equity in Federally
assisted programs and activities;
•
Based on the fundamental principle that all
human beings are created equal;
•
Rooted in the constitutional guarantee that all
human beings are entitled to equal protection
of the laws;
•
Address involvement of impacted persons in
the decision-making process.
Slide - 21
Who is a Subrecipient?
•
A Recipient (Standard, Primary or Conduit)
•
Administrative entity or person to whom Federal assistance is directly
extended and whose conduct is subject to Title VI/nondiscrimination
requirement and compliance obligations (23 CFR 200.5(n))
•
Example: State Departments of Transportation (SDOTs)
•
A Subrecipient (Secondary)
•
Administrative entity or person to whom Federal assistance is indirectly
extended either through a recipient or another subrecipient and whose
conduct is subject to Title VI/nondiscrimination requirement and
compliance obligations (23 CFR 200.5(n))
•
Examples: Metropolitan Planning Organizations (MPOs), Local Public
Agencies/Authorities (LPAs) - Cities, Counties, Villages, Townships,
Institutions of Education
Slide - 22
Who is a Contractor?
•
A Contractor/Subcontractor
•
"..any person, corporation, partnership, or
unincorporated association that holds a FHWA
direct or federally assisted construction
contract or subcontract regardless of tier"
(23 CFR 230.407 (i))
•
"One who participates, through a contract or
subcontract (at any tier), in a DOT-assisted
highway, transit, or airport" (49 CFR 26.5)
Slide - 23
This slide depicts a chart with two columns:
The left columns represents Recipients/Subrecipients•
The right column represents Contractor/Subcontractor,
Consultant, Vendor characteristics.
Relationship between a Recipient &
Contractor
Recipient/Subrecipient
Contractor/Subcontractor,
Consultant, Vendor
•
Provides services
•
Sells deliverables (goods & services)
•
Signs an Assurance
•
Not necessarily in business to make
profit (Usually, public entity)
•
Signs a Contract with contract provisions
•
In business (buy & sell) to make profit
(Operates in a competitive environment)
•
Receives FFA (or paid) whether service
is expensed as a deliverable or not
•
Is paid for a specific deliverable
*Receipt of payment with FFA does not establish
a recipient/subrecipient relationship
•
Designs a program to meet a broader
goal
•
Provides specific product or service
ancillary to a Federal program
•
Is receiving Federal financial assistance
•
Could become a recipient with provision
of [Federal financial] assistance.
Slide - 24
Subrecipients Guide To Assure
Effective Title VI Implementation
•
1) Signed Assurance
•
"every [award of, or] application for Federal financial assistance shall, as a
condition to its approval and the extension of any Federal financial assistance
pursuant to the [award or] application, contain or be accompanied by an
assurance that the program will be conducted or the facility operated in
compliance with all requirements imposed..." (49 CFR 21.7)
•
2) Method of Administration
•
(a) All Federal-aid [sub]recipients are required to develop a system of procedures
and mechanisms to assure nondiscrimination in all its programs, activities and
services, whether Federally-funded or not
"The Recipientshall provide for such methods of administration...to give
reasonable guaranteethat it, other recipients, sub-grantees, contractors,
subcontractors, transferees, successors in interest, and other participants of
Federal financial assistance under such program will comply with all requirements
imposed or pursuant to the Act, the Regulations and this assurance"(USDOT
Assurance #9); see also 49 CFR 21.7(b) and 23 CFR 200.5(p)
Slide - 25
Guide Continued
Method of Administration
•
2(b) Minimum Requirements for Methods of Administration
•
Public outreach and education plan (49 CFR 21.9(d))
•
Training program for State and subrecipients' staff (23 CFR
200.9(b)(9))
•
Procedures for processing complaints (23 CFR 200.9(b)(3))
•
Procedures for identifying and addressing Title VI issues (23
CFR 200.9(b)(11))
•
Program to assess (review) and periodically report on status
of Title VI compliance (23 CFR 200.9(b)(5)(6) & (7))
•
Detailed plans for bringing discriminatory programs into
compliance (49 CFR 21.13 & 23 CFR 200.11)
•
Data collection procedures and methods (49 CFR 21.9(b) &
23 CFR 200.9(b)(4)).
Slide - 26
3) Title VI Implementation Plan/Program
•
a) Nondiscrimination Statement of Policy
•
Express commitment to nondiscrimination obligation
•
Policy signed by Chief Administrative Officer
•
Define Federal financial assistance and recipients
•
Delineate specific forms of discrimination prohibited
•
Specify programs and activities covered by Title VI
•
Policy statement circulated throughout organization and
general public
•
b) Designate Title VI Coordinator or Specialist
•
Outline role(s), responsibilities and authority
•
Manage the day-to-day administration of program
•
Knowledge of Title VI authorities, implementation and application
Slide - 27
Implementation Program
•
c) Procedures for Assuring Compliance & Enforcement
•
Community outreach and public education plan
•
Opportunity for public input;
•
Efforts to ensure participation by traditionally underserved
•
Public education of rights and obligations
•
Training program for staff and subrecipients
•
Procedures for processing complaints
•
Procedures for identifying and addressing Title VI issues
•
Procedures to assess program
•
Review of major program areas
•
Review of other subrecipients
•
Review of program directives
•
Detailed plan for bringing discriminatory programs into compliance
•
Procedures and methods for data collection and analysis
Slide - 28
Implementation Plan
•
d) Accomplishment Report
•
List major accomplishments made regarding Title VI since
the last plan update, and goals for the next year
•
Include instances where Title VI issues were identified and
discrimination prevented
•
Indicate activities and efforts the Title VI Specialist and
program area personnel have undertaken in monitoring Title
VI
•
Include a description of the scope and conclusions of any
special reviews conducted by the Title VI Specialist
•
List any major problems identified and corrective actions
taken
•
Include a summary and status report on any Title VI
complaints filed with the State/FHWA/USDOT/USDOJ.
Slide - 29
Implementation Plan
•
e) Annual Work Plan
•
Outline Title VI monitoring and review activities planned for the
coming plan year
•
State by whom each activity will be accomplished and target date for
completion
•
f) Required Title VI Contract Provisions
•
Procedures to ensure Title VI provisions are included in all Federally-
funded contracts regardless of tier (Appendix A of USDOT Order 1050.2)
•
Nondiscrimination in selection and retention of subcontractors;
procurement of materials and leases of equipments
•
Nondiscrimination in notification of Title VI obligation to each potential
subcontractor or supplier
•
Nondiscrimination in employment practices
•
When employment is primary objective of Federal assistance
•
Discrimination in employment results in discrimination in service provided by
Federally-assisted programs
Slide - 30
Implementation Program
•
g) Disadvantaged Business Enterprises (DBE)
•
Procedures to ensure that DBEs are afforded opportunity
to participate in Federal-aid programs and activities
•
How DBEs will be selected
•
Methodology for setting DBE goals and achievement
•
Application for Federal financial assistance "to include an
affirmative action program for minority [DBE] contract
participation." (USDOT Order 1000.12 or Title VI Desk
Reference, Section 4-E-92-94)
Slide - 31
Enforcement Procedures
•
FHWA noncompliance procedures (49 CFR 21.13)
•
Recipient found in noncompliance;
•
Suspension or termination of Federal financial
assistance;
•
Refusal to grant or continue federal financial assistance;
•
Any other means authorized by law
•
Refer to DOJ to enforce Federal law, assurance or contractual
obligation
•
Utilize applicable proceedings under state or local law
•
Sanctions to be applied by State DOT to
subrecipients and contractors
•
Appendix A of Standard USDOT Assurance
Slide - 32
Data Collection
•
Term used to describe the process of
preparing and collecting data
•
Data includes
•
Information
•
Statistics
•
Facts
•
Figures
•
Numbers
•
Records
Slide - 33
Why Collect Data?
•
REGULATORY REQUIREMENT
23 CFR 200.9(b)(4))
Develop Procedures For Data Collection
•
Develop procedures for the collection of statistical
data (race, color, sex, age, disability, and national
origin) of participants in, and beneficiaries of State
highway programs, i.e., relocatees, impacted citizens
and affected communities.
Slide - 34
Regulatory Requirement Contd.
•
49 CFR 21.9(b)
Assure Compliance
•
"Each recipient shall keep such records and submit to the Secretary
timely, complete, and accurate compliance reports at such times, and in
such form and containing such information, as the Secretary may
determine to be necessary to enable him to ascertain whether the
recipient has complied or is compying .... In the case of any
program under which a primary recipient extends Federal financial
assistance to any other recipient, such other recipient shall also submit
such compliance reports to the primary recipient as may be necessary
to enable the primary recipient to carry out its obligations ...."
Determine if FHWA Financial Assistance is Reaching Communities
and Populations
•
"In general recipients should have available for the Secretary racial and
ethnic data showing the extent to which members of minority groups
are beneficiaries of programs receiving Federal financial assistance."
Slide - 35
Regulatory Requirement Contd.
•
49 CFR 21.9(d)
Information to Beneficiaries and Participants
•
"Each recipient shall make available to participants, beneficiaries,
and other interested persons such information regarding the
provisions of this part and its applicability to the program
under which the recipient receives Federal financial assistance,
and make such information available to them in such manner, as
the Secretary finds necessary to apprise such persons of the
protections against discrimination assured them by the Act
and this part."
Slide - 36
Why Collect Data Continued?
•
In the event of litigation or complaint....
•
Monitor performance of nondiscrimination
program
•
Provide basis for decision or decisionmaking
•
Maintain adequate documentation...
•
Data must be accurate, timely, current,
sufficient and complete to be useful
Slide - 37
What Data Sources Should be
Utilized?
•
Census data
•
Good starting point
•
Susceptible to change
•
Should not be the only source
•
State Education Departments
•
School districts
•
Community-based Organizations
•
Community Leaders
•
Geographic Information Systems (GIS)
•
Local [data collecting] Agencies
•
Planning Organizations
Slide - 38
What Data Should Be Collected?
USDOJ Directive (28 CFR 42.406(b)
•
Manner in which services are provided by program;
•
Population eligible to be served based on race, color, national origin...
•
Data regarding covered employment, including use or planned use of
bilingual employees to work with beneficiaries unable to speak or
understand English;
•
Location of existing or proposed facilities and information regarding
whether the location will have the effect of denying access because of...
•
Present or proposed membership, by race color, national origin..., in any
planning or advisory body that is an integral part of the program;
•
Where relocation is involved, the requirements and steps used or proposed
to guard against unnecessary impact on persons on the basis of race, color
or national origin...
Slide - 39
Additional Data To Be Collected
FHWA
•
Allocated funds or other financial assistance, when and to whom;
•
Demographic profile of communities;
•
Owners of property to be taken, and persons or businesses to be
relocated or adversely affected by race, color, national origin...;
•
Lawsuits filed (including status) against applicant or recipient alleging
discrimination based on protected categories;
•
Brief description (including status) of applications to other federal
agencies for assistance, and other federal assistance provided;
•
Statements on compliance reviews
•
Complaints - How processed and or determined
•
Training and technical assistance provided & attendance records
Slide - 40
What Are Some Uses of Data?
•
To identify:
•
Impacts and persons/businesses impacted
•
Transportation needs of all persons/groups within
plans or project area
•
People to include in the decision making process
•
Leaders/"Champion(s)" for various modes and
transportation options
Slide - 41
Uses of Data Contd.
•
Identify:
•
Strategies and options to address impacts
•
Strategies to disseminate information
•
Ways of avoiding disparate treatment and impact
•
Alternatives to modes and locations and types of
facilities (transit, light rail, van and carpooling, HOV
lanes, etc.)
•
Priorities for investments
•
Sources for financing investments
Slide - 42
Processing Title VI Complaints
•
1) Receive and review complaint (Recipient)
•
2) Forward to FHWA HCR
•
3) HCR Review for Prima Facie Case (HQ)
•
Complainant is member of a protected group/class
•
Complainant harmed by some decision
•
Similarly situated persons of a different group were not
or would not be harmed under similar circumstances
•
4) HCR determine jurisdiction and issue(s)
•
5) Approaches to resolve complaint
•
6) Complaint investigation
Slide - 43
Processing Title VI Complaints
•
7) Investigative report with findings and
recommendations forwarded to HCR for FAD
•
8) HCR reviews investigative report
•
9) HCR prepares FAD
•
10) Letter of FAD forwarded to complainant
Slide - 44
Public Involvement
•
Process by which interested and affected
individuals or entities are consulted and
included in decision making process
•
Public Involvement process
•
Information dissemination (timely and relevant)
•
Consultation (Honest and open exchange)
•
"Stakeholder" participation (collaborative
engagement)
Slide - 45
Public Involvement Values
•
Mutual Trust and Respect
•
Honesty and Integrity
•
Effective Communication
•
Transparency - Visibility and Openness
•
Inclusion
•
LOVE
Slide - 46
Public Involvement Tools
•
Surveys; Community task forces
•
Neighborhood and community advisory
groups
•
Publications; meetings, information notices
•
Flyers; comments and responses on plans
•
Meeting sign-in sheets; Internet; tweeter
•
Telephone contacts; press releases & notices
•
Neighborhood gazettes and bulletins
Slide - 47
Summary
•
Provide a concise overview of Title VI;
•
Discuss Subrecipents guide to assure effective
Title VI implementation and enforcement;
•
Examine data collection procedures;
•
Outline Title VI Complaint process;
•
Identify public involvement tools.
Slide - 48
This slide has a large question mark to the right of the labels: Questions, comments, suggestions.
Open Floor
Questions?
Comments?
Suggestions?
Slide - 49
This slide has a graphic of the comdey/tragedy twins depicted.
THE END
THANK YOU!!
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