Title VI


Title VI of the Civil Rights Act of 1964 was adopted as part of the landmark civil rights law designed to outlaw racial discrimination in schools, public places, and employment. The legislation was extremely controversial at the time and survived a 54-day filibuster in the U.S. Senate before its passage. According to Title VI, “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 in any program receiving Federal financial assistance” (42 U.S.C. § 2000d).
Eight years later, Congress enacted Title IX of the Educational Amendments of 1972, which prohibits discrimination on the basis of sex using the exact same wording as Title VI. Insofar as the two statutes contain virtually identical language, the U.S. Supreme Court has held that cases interpreting one of the laws can generally be applied to the other. This entry first reviews the scope of the statute, the mechanisms by which it is enforced, and the criteria for establishing a case under Title VI. It then considers several issues that have been litigated under Title VI, including affirmative action, race-exclusive scholarships, and academic standards for athletic eligibility.

Scope


The scope of Title VI is coextensive with judicial interpretation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (Guardians Association v. Civil Service Commission of the City of New York, 1983). Because the Fourteenth Amendment is triggered by state action, Title VI has no practical effect on private institutions of higher education that do not receive federal financial assistance. Even so, Title VI plays an important role in extending the protections of the Equal Protection Clause to private institutions of higher education.
In a key case involving a private institution, Grove City College v. Bell (1984), the Supreme Court ruled that Title VI and Title IX applied only to discrimination in a particular program receiving federal funds. Under this precedent, colleges and universities could, in theory, have engaged in widespread racial discrimination, as long as there was no discrimination in their programs receiving federal funds. In response to the Court’s decision, Congress amended Title VI with the Civil Rights Restoration Act of 1987 and changed the definition of “program” to include “all of the operations” of an institution. As a result, institutions of higher education that receive as little as one dollar in federal funds are prohibited from racially discriminating anywhere on their campuses.

Enforcement


Title VI employs two enforcement mechanisms. The first is for the federal government to threaten withdrawal of federal funds if it finds that unlawful discrimination is occurring. Title VI derives its power from the Spending Clause of the U.S. Constitution, which is located in Article I, Section 8, Clause 1. Insofar as Title VI conditions receipt of federal funds on compliance with federal requirements, and courts view it as a contract, it is interpreted using regular contract principles. Consequently, institutional officials must know that actions are unlawful at the time that they agree to take the federal funds (Gebser v. Lago Vista Independent School District, 1998).
The second enforcement mechanism under Title VI is through suits by private individuals. While the language of Title VI contains no provision for awarding monetary damages, the Supreme Court has interpreted it as allowing an implied right of private action for damages. Accordingly, Title VI plaintiffs can recover compensatory but not punitive damages (Barnes v. Gorman, 2002). The prohibition on punitive damages has resulted in Title VI being primarily used in suits brought by or on behalf of college students. For employees, the preferred statutes are Title VII of the Civil Rights Act of 1964 or 42 U.S.C. § 1981, which both allow punitive damages. Some employees prefer to file under state nondiscrimination laws, which can be more favorable to employees than federal statutes.
An additional limitation on Title VI is that it does not allow disparate impact claims. As a general rule, courts recognize two types of discrimination. Disparate treatment involves the unequal treatment of individuals because of a discriminatory motive. For example, colleges that prohibit immigrant students from playing intercollegiate sports would be engaging in disparate treatment. Disparate impact, often called “adverse impact,” involves seemingly neutral standards that have disproportionately negative impacts on particular groups of individuals. For instance, colleges that require minimum scores on a test of English proficiency before students may play intercollegiate sports might be engaged in disparate impact discrimination. In Alexander v. Sandoval (2001), the Supreme Court was of the opinion that the implied private right of action under Title VI does not extend to disparate impact claims. Still, the Court reaffirmed that Title VI continues to apply to disparate treatment claims.

Student Harassment and Discrimination Suits


A number of students have filed suits against colleges and universities under Title VI alleging racial discrimination or harassment. In discrimination cases, the legal analysis is adapted from case law interpreting Title VII of the Civil Rights Act of 1964 (McDonnell Douglas Corp. v. Green, 1973). This means that plaintiffs must first establish prima facie cases of discrimination. If plaintiffs can do so, the burden shifts to defendants to show legitimate, nondiscriminatory reasons for their conduct. Plaintiffs then have the opportunity to show that the reasons offered by the defendants were not true and were actually pretexts for discrimination.
Plaintiffs may establish prima facie cases through direct evidence of discrimination, but those cases are rare. More frequently, plaintiffs offer indirect evidence to show that they were members of a protected class, that they suffered adverse actions at the hands of the defendants in pursuit of their education, that they were qualified to continue in the pursuit of their education, and that they were treated differently from similarly situated students who were not members of the protected class.
In Title VI and Title IX harassment cases, the Supreme Court has set a high bar for plaintiffs, who must show that the harassment was “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit” (Davis v. Monroe County Board of Education, 1999, p. 650). In addition, plaintiffs must show that officials acting on behalf of institutional recipients of federal funds acted with deliberate indifference to known acts of harassment in programs or activities. Ironically, this standard provides less protection to student victims of harassment than it does to employees, who must only show that the employers knew or should have known of the harassment and failed to take prompt remedial action.

Affirmative Action in Admissions


Affirmative action in student admissions involves the most controversial and high-profile Title VI litigation. Federal regulations interpreting Title VI require affirmative action to overcome the effects of past discrimination and permit it to overcome the effects of conditions that limit participation in a program by individuals of a particular race, color, or national origin. Those regulations state that
(i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin. (34 C.F.R. §100.3(b)(6))
Affirmative action efforts to remedy past discrimination have not fared well in the courts in recent years. Courts have required specific evidence of past discrimination and a direct nexus to present-day effects before granting relief. Further, affirmative action in higher education cannot be used to remedy the effects of societal discrimination and must be narrowly tailored to accomplish a compelling governmental interest. In contrast, the Supreme Court embraced affirmative action to promote student diversity in Grutter v. Bollinger (2003); the Court reached the opposite result in the companion case of Gratz v. Bollinger (2003) involving undergraduate admissions at the University of Michigan.
In Grutter, the Supreme Court upheld an affirmative action program at the University of Michigan Law School, stating that student diversity is a compelling state interest that satisfies the strict scrutiny faced by racial classifications under the Fourteenth Amendment. Since Grutter was decided under both the Equal Protection Clause and Title VI, it applies to both public and private colleges and universities.
Grutter explicitly permits the use of affirmative action in admissions but imposes restrictions on institutions that seek to adopt policies in this regard. First, colleges or university policies may not use quotas in the admissions process or set aside particular slots for students from a specific racial group. Second, educators may not operate separate tracks in their admissions process that evaluate minority applicants differently from other applicants. Third, officials must perform an individualized review of every student’s application that considers how that individual could contribute to campus diversity. Fourth, educators must take a broad view of diversity and look at race as one of many factors that could further their diversity goals. Fifth, admissions officers may not automatically award a certain number of points to students of a particular race as a bonus in the admissions process. Sixth, policies must consider race-neutral alternatives to achieve campus diversity. Seventh, officials must periodically evaluate whether it is necessary to continue considering race in the admissions process to achieve institutional diversity goals.

Race-Exclusive Scholarships and Programs


In the wake of Grutter, the legality of scholarships and programs targeted toward a particular racial group is questionable. Proponents argue that they are essential to achieving student diversity, which Grutter held is a compelling state interest. Opponents argue that such policies violate Grutter, because they prevent students from specific racial groups from competing for specific benefits, use race mechanically, and effectively function as unlawful set-asides. Prior to Grutter, a scholarship program for African Americans at the University of Maryland that was designed to remedy past discrimination was found to violate Title VI (Podboresky v. Kirwan, 1994).
In 2004, opponents of affirmative action sent letters to more than 100 universities with raceexclusive scholarships or programs, threatening legal action. In response, many institutions, including Harvard, Yale, Cal Tech, and Carnegie Mellon, broadened the eligibility criteria for those programs so that they are no longer race-exclusive.
One option for officials at institutions that wish to continue race-exclusive scholarships is to fund and administer them through private foundations such as alumni associations. As long as foundations are not a branch of government and do not accept federal funds, they are unlikely to be subject to the Fourteenth Amendment and Title VI, because they will not be perceived as state actors.

Past and Future Directions


In the late 1980s and early 1990s, Title VI suits challenged the freshman academic eligibility standards adopted by the National Collegiate Athletic Association, typically based on claims that the standards had a disparate impact on African American students. All of those suits lost, and most commentators agree that they are unlikely to succeed now that disparate impact is no longer a viable legal theory under Title VI.
In contrast, in Jackson v. Birmingham Board of Education (2005), the Supreme Court held that the coach of a high school girls’ basketball team could collect money damages under Title IX for retaliation he faced after complaining that girls’ teams did not receive the same opportunities and funding as boys’ teams. To the extent that Title IX and Title VI are worded almost identically, Jackson may open the possibility of private retaliation suits by individuals charging that they were subjected to retaliation by supervisors for complaining about general violations of Title VI, rather than violations of an individual’s Title VI rights.
D. Frank Vinik

See also equal protection analysis; Title IX and Athletics; Title IX and Retaliation; Title IX and Sexual Harassment
Further Readings
Bruton, D. (2002). At the busy intersection: Title VI and NCAA standards. Journal of College and University Law, 28, 569–603.
Coleman, A., & Palmer, S. (2006). Admissions and diversity after Michigan: The next generation of legal and policy issues. Washington, DC: College Board. Retrieved April 30, 2009, from http://www.collegeboard.com/prod_downloads/diversity collaborative/acc-div_next-generation.pdf
Coleman, A., Palmer, S., & Richards, F. (2005). Federal law and financial aid: A framework for evaluating diversity-related programs. Washington, DC: College Board. Retrieved April 30, 2009, from http://www.collegeboard.com/prod_downloads/ diversitycollaborative/diversity_manual.pdf
Habenicht, A. (2003). Has the shot clock expired? Pryor v. NCAA and the premature disposal of a “deliberate indifference” discrimination claim under Title VI of the Civil Rights Act of 1964. George Mason Law Review, 11, 551–608.
Legal Citations
Alexander v. Sandoval, 532 U.S. 275 (2001).
Barnes v. Gorman, 536 U.S. 181, 189 (2002).
Civil Rights Restoration Act of 1987, Pub. L. No. 100-259.
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
Gebser v. Lago Vista Independent School District, 524 U.S. 276, 288 (1998).
Gratz v. Bollinger, 465 U.S. 244 (2003).
Grove City College v. Bell, 465 U.S. 555 (1984).
Grutter v. Bollinger, 539 U.S. 306 (2003).
Guardians Association v. Civil Service Commission of the City of New York, 463 U.S. 582 (1983).
Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005).
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
Podboresky v. Kirwan, 38 F.3d 147 (4th Cir. 1994).
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.