[House Report 116-495]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-495
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
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EQUITY AND INCLUSION ENFORCEMENT ACT OF 2019
_______
September 8, 2020.--Ordered to be printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2574]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 2574) to amend title VI of the Civil Rights Act
of 1964 to restore the right to individual civil actions in
cases involving disparate impact, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Committee Action................................................. 3
Committee Views.................................................. 4
Section-by-Section Analysis...................................... 16
Explanation of Amendments........................................ 17
Application of Law to the Legislative Branch..................... 17
Unfunded Mandate Statement....................................... 17
Earmark Statement................................................ 17
Roll Call Votes.................................................. 17
Statement of Performance Goals and Objectives.................... 19
Duplication of Federal Programs.................................. 19
Hearings......................................................... 19
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 19
Committee Correspondence......................................... 19
New Budget Authority and CBO Cost Estimate....................... 23
Committee Cost Estimate.......................................... 24
Changes in Existing Law Made by the Bill, as Reported............ 24
Minority Views................................................... 29
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Equity and Inclusion Enforcement Act
of 2019''.
SEC. 2. RESTORATION OF RIGHT TO CIVIL ACTION IN DISPARATE IMPACT CASES
UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964.
Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) is
amended by adding at the end the following:
``Sec. 607. The violation of any regulation relating to disparate
impact issued under section 602 shall give rise to a private civil
cause of action for its enforcement to the same extent as does an
intentional violation of the prohibition of section 601.''.
SEC. 3. DESIGNATION OF MONITORS UNDER TITLE VI OF THE CIVIL RIGHTS ACT
OF 1964.
Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) is
further amended by adding at the end the following:
``Sec. 608. (a) Each recipient shall--
``(1) designate at least one employee to coordinate its
efforts to comply with requirements adopted pursuant to section
602 and carry out the responsibilities of the recipient under
this title, including any investigation of any complaint
alleging the noncompliance of the recipient with such
requirements or alleging any actions prohibited under this
title; and
``(2) notify its students and employees of the name, office
address, and telephone number of each employee designated under
paragraph (1).
``(b) In this section, the term `recipient' means a recipient
referred to in section 602 that operates an education program or
activity receiving Federal financial assistance authorized or extended
by the Secretary of Education.''.
SEC. 4. SPECIAL ASSISTANT FOR EQUITY AND INCLUSION.
Section 202(b) of the Department of Education Organization Act (20
U.S.C. 3412(b)) is amended--
(1) by redesignating paragraph (4) as paragraph (5); and
(2) by inserting after paragraph (3), the following:
``(4) There shall be in the Department, a Special Assistant for
Equity and Inclusion who shall be appointed by the Secretary. The
Special Assistant shall promote, coordinate, and evaluate equity and
inclusion programs, including the dissemination of information,
technical assistance, and coordination of research activities. The
Special Assistant shall advise both the Secretary and Deputy Secretary
on all matters relating to equity and inclusion in a manner consistent
with title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.).''.
Purpose and Summary
H.R. 2574, the Equity Inclusion and Enforcement Act,
introduced by Committee Chairman Robert C. ``Bobby'' Scott (D-
VA), and House Judiciary Committee Chairman Jerrold Nadler (D-
NY), amends title VI of the Civil Rights Act of 1964 (Title VI)
to strengthen federal civil rights laws in educational
settings. By restoring essential civil rights protections for
private citizens, ensuring that all education settings that
receive federal dollars have staff to deal with specific civil
rights violations, and coordinating their work at the
Department of Education, the Committee hopes H.R. 2574 will
result in a decrease in policies or practices that discriminate
or have the effect of discriminating on the basis of race,
color, or national origin.\1\
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\1\42 U.S.C. Sec. 2000d et seq. (2018).
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In 2001, the Supreme Court's 5-4 decision in Alexander v.
Sandoval struck down the right of individuals to challenge
certain discriminatory policies or practices under Title VI, a
mechanism to address discrimination that had been legal for
decades.\2\ The decision barred a victim of a civil rights
violation from bringing a private right of action against a
federally-funded entity if that violation was based on the
theory of disparate impact. As a result, this decision has
limited individuals from pursuing legal action to remedy many
civil rights violations, including those in our nation's
education system.
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\2\532 U.S. 275, 293 (2001).
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In addition to providing a private right of action to cure
discriminatory practices and policies that deny equal
educational opportunity in education,\3\ H.R. 2574 also
requires all local educational agencies and institutions of
higher education to have Title VI monitors to ensure school
policies and practices are in compliance with Title VI, and to
investigate discrimination complaints arising under Title VI.
The bill also creates an Assistant Secretary position at the
U.S. Department of Education (Department) to proactively
monitor and enforce institutional compliance with Title VI.
Taken together, the provisions in H.R. 2574 give power to
individuals to pursue remedies for civil rights violations and
create safeguards that will hopefully result in fewer
unreported civil rights violations in our nation's schools and
universities.
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\3\See generally Jessica Cardichon & Linda Darling-Hammond,
Protecting Students Civil Rights: The Federal Role in School Discipline
4-7 (Learning Policy Institute, May 2019) (describing efforts of the
Obama administration to issue guidance to support state and local
efforts to end exclusionary discipline and other practices researchers
have found deny equal access to educational opportunity) available at
https://learningpolicyinstitute.org/sites/default/files/product-files/
Federal_Role_School_Discipline_REPORT.pdf.
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Committee Action
114TH CONGRESS
On May 17, 2016, Ranking Member Scott and House Judiciary
Committee Ranking Member John Conyers (D-MI) introduced H.R.
5260, the Equity and Inclusion Enforcement Act. The bill was
referred to the House Committee on Education and the Workforce
and the House Committee on the Judiciary. No further action was
taken on the bill.
115TH CONGRESS
On May 17, 2017, Ranking Member Scott and Ranking Member
Conyers introduced H.R. 2486, the Equity and Inclusion
Enforcement Act. The bill was referred to the House Committee
on Education and the Workforce and the House Committee on the
Judiciary. No further action was taken on the bill.
On May 17, 2018, the Committee held a legislative hearing
titled ``Protecting Privacy, Promoting Data Security: Exploring
How Schools and States Keep Data Safe.'' The Committee heard
testimony on privacy concerns related to data sharing and how
schools can comply with privacy requirements. The Committee
heard testimony from: David Couch, K-12 CIO and Associate
Commissioner, Frankfort, Kentucky; Gary Lilly, Superintendent
and Director of Schools, Bristol, Tennessee; and Amelia Vance,
Director of Education Privacy and Policy Counsel, Washington,
DC. Committee Democrats, recognizing the hearing was held on
the 64th anniversary of the landmark Supreme Court decision
Brown v. Board of Education, invited Catherine Lhamon, Former
Assistant Secretary for Civil Rights at the Department of
Education and Chair of the U.S. Commission on Civil Rights,
Washington, DC to provide testimony. Ms. Lhamon provided
testimony on both issues of data privacy and the larger issue
of protection of the civil rights of students generally,
specifically in the context of a retreat in civil rights
enforcement at the Department under the current administration.
116TH CONGRESS
On April 30, 2019, the Committee held a legislative hearing
titled ``Brown v. Board of Education at 65: A Promise
Unfulfilled,'' which was used to inform the development of H.R.
2574. The Committee heard testimony on the importance of robust
enforcement of Title VI among entities receiving federal
funding through the Department, along with discussion on racial
segregation in public schools, the prevalence of racial
disparities in school discipline and the allocation of public
resources. The Committee heard testimony from: Mr. John C.
Brittain, Professor of Law, University of the District of
Columbia Law School, Washington, DC; Ms. Linda Darling-Hammond,
Ed.D., President and CEO of the Learning Policy Institute, Palo
Alto, CA; Ms. Maritza White, Parent Advocate, Washington DC;
Mr. Daniel J. Losen, M.ED, J.D., Director of the Center for
Civil Rights Remedies at the Civil Rights Project at UCLA,
Lexington, MA; Mr. Dion J. Pierre, Research Associate, National
Association of Scholars, Ridgewood, NY; and Mr. Richard A.
Carranza, Chancellor, New York City Schools, New York, NY.
On May 8, 2019, Chairman Scott and Chairman Nadler
introduced H.R. 2574, the Equity and Inclusion Enforcement Act,
with Rep. Gregorio Sablan (D-MP), Chair of the Subcommittee on
Early Childhood, Elementary, and Secondary Education, and Rep.
Alma Adams (D-NC), Chair of the Subcommittee on Workforce
Protections as original co-sponsors. On May 16, 2019, the
Committee considered H.R. 2574 in a legislative session and
reported it favorably, as amended, to the House of
Representative by a vote of 26-20. The Committee considered and
adopted the following amendment to H.R. 2574:
Rep. Scott offered an Amendment in the Nature of a
Substitute (ANS) that made technical improvements to H.R. 2574.
The ANS amended the Short Title of the bill, and made clear
that under section 4, the newly created Special Assistant
position shall advise both the Secretary and Deputy Secretary
on all matters relating to equity and inclusion in a manner
consistent with Title VI.
During the legislative session the Committee considered one
amendment to the ANS:
Rep. James Comer (R-KY) offered an amendment to the ANS
that would strike language from the bill restoring the private
right of action under Title VI and would modify the new Special
Assistant for Equity and Inclusion at the Department,
consolidating its duties with an existing Special Assistant for
Gender Equity. Because the amendment proposed to amend a
portion of the bill outside of the jurisdiction of the
Committee (as defined in rule X of the Rules of the House of
Representatives), the amendment was ruled out of order.
Committee Views
The Committee is concerned with our nation's continued
struggle to provide a public education ``to all on equal
terms,'' as mandated by the Supreme Court in Brown v. Board of
Education.\4\ Particularly, students of color continue to face
persistent systemic barriers to full participation, equal
opportunity, and achievement in K-12 and higher education.
Title VI should ensure that all students have equal access to
educational opportunities. The law plainly states, ``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''.\5\
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\4\347 U.S. 483 (1954).
\5\42 U.S.C. Sec. 2000d (2018).
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Title VI is firmly grounded in the world of public
education. The concept that became Title VI was first
introduced by the former Chairman of the Committee, Rep. Adam
Clayton Powell, Jr. (D-NY). In 1946, when ``separate but
equal'' was still the law, Rep. Powell successfully attached an
anti-discrimination provision to a school lunch program bill,
stating ``No funds made available pursuant to this title shall
be paid or disbursed to any state or school if, in carrying out
its functions under this title, it makes any discrimination
because of race, creed, color or national origins of children
or between types of schools, or with respect to a state that
maintains separate schools for minority and majority races, it
discriminates between such schools on this account.''\6\ After
Brown, Powell modified his amendment--it subsequently
prohibited funds from going to any school district that
continued to segregate schools.\7\ The Powell amendment sank
efforts to authorize federal education spending in both the
Eisenhower and Kennedy administrations.\8\
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\6\Jeffrey Jenkins, Building Toward Major Policy Change:
Congressional Action on Civil Rights, 1941-1950, 31 L. & Hist. Rev.
139, 191 (2013).
\7\See Joy Milligan, Subsidizing Segregation, 104 Va. L. Rev 847,
869-70, 891-94 (2018); Jeffrey Jenkins, Building Toward Major Policy
Change: Congressional Action on Civil Rights, 1941-1950, 31 L. & Hist.
Rev. 139, 191 (2013).
\8\Id.
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Congress eventually did pass a federal education spending
law, the Elementary and Secondary Education Act of 1965 (ESEA),
after passage of the Civil Rights Act. Congress appropriated to
Southern and border states almost $590 million in 1966 under
the new ESEA law.\9\ Pursuant to Title VI, these states risked
losing out on receiving this federal funding if they continued
to drag their feet on integration, which many historians
suggest accelerated States' efforts to implement desegregation
plans.\10\ This history gives context as to how enmeshed Title
VI is in the pursuit of equity in education.
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\9\Erica Frankenberg & Kendra Taylor, ESEA and the Civil Rights
Act: An Interbranch Approach to Furthering Desegregation, 1 Russell
Sage Found. J. of the Sci. 3, 37 (2015).
\10\Id.
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Aside from incentivizing school integration, Title VI
protects students' civil rights in schools and on college
campuses. The law and it's implementing regulations do so by
prohibiting both intentional discrimination, and policies and
practices that have a discriminatory effect or impact.\11\ Data
show that robust enforcement of compliance with Title VI's
protections by programs receiving federal funds from the
Department is necessary to achieve equity of educational
opportunity.\12\
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\11\Id.; 28 C.F.R.Sec. 42.104 (b)(2)(2019).
\12\U.S. Comm'n on Civil Rights, Are Rights a Reality? Evaluating
Federal Civil Rights Enforcement 511, Nov. 2019, available at https://
www.usccr.gov/pubs/2019/11-21-Are-Rights-a-Reality.pdf.
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Remedies achieved through individual challenges under Title
VI to discriminatory policies and practices were once an
essential tool to bring about this robust enforcement,
especially during periods of demonstrated hostility to
proactive federal enforcement.\13\ Because discrimination is
rarely explicit, identifying potential cases of discrimination
by analyzing their impact--rather than just their motive--was
critical to the enforcement of civil rights protections.
Disparate impact theory was used for decades by private
individuals in education settings, challenging practices that
while facially race neutral, had an obvious disparate effect on
Americans of different races or national origins.\14\ President
Kennedy most eloquently explained the need for civil rights law
to find violations linked to effect and not just to intent:
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\13\See Alexander v. Sandoval, 532 U.S. 275, 301-303 (2001)
(Stevens, J., dissenting).
\14\E.g. Lau v. Nichols, 414 U.S. 563 (1974).
``Simple justice requires that public funds, to which
all taxpayers of all races contribute, not be spent in
any fashion which encourages, entrenches, subsidizes,
or results in racial discrimination. Direct
discrimination by Federal, State, or local governments
is prohibited by the Constitution. But indirect
discrimination, through the use of Federal funds, is
just as invidious; and it should not be necessary to
resort to the courts to prevent each individual
violation.''\15\
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\15\See H.R. Misc. Doc. No. 124, 88th Cong., 1st Sess. 3, 12
(1963).
In Alexander v. Sandoval,\16\ the Court overturned four
decades of statutory protection against discrimination by
removing the private right of action of individuals to bring
cases based upon disparate impact, leaving federal agencies as
the only entities that can enforce disparate impact
regulations. Ms. Sandoval was denied a drivers' license because
she could not pass the state's written exam. The voters of
Alabama had passed an English-Only law, and the state
interpreted that law to require that drivers' license exams be
offered only in English. Ms. Sandoval's working knowledge of
English was sufficient to read road signs, but not to take the
exam.
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\16\532 U.S. 275 (2001).
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The Supreme Court did not decide the case on whether the
``English-Only'' law violated Title VI. While the case did not
reach this question, prior Supreme Court cases had held that
different English-only situations did constitute discrimination
on the basis of race, color or national origin.\17\ Instead the
Court held that the language of Title VI did not give Ms.
Sandoval the right to bring a disparate impact cause of action,
holding that cases based in that theory could only be invoked
by the federal government in administrative actions. If Ms.
Sandoval wanted to go to court and prove her rights under Title
VI had been violated, she would have to show that officials
interpreting the English-Only law intended to discriminate
against her on the basis of race, ethnicity or national origin;
the discriminatory effect of the law was not proof enough.
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\17\Lau, 414 U.S. at 567-68 (``Discrimination is barred which has
that effect even though no purposeful design is present: a recipient
``may not . . . utilize criteria or methods of administration which
have the effect of subjecting individuals to discrimination'' or have
``the effect of defeating or substantially impairing accomplishment of
the objectives of the program as respect individuals of a particular
race, color, or national origin.'').
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Since 2001, private citizens challenging state action in
court under Title VI must prove intentional discrimination,
making enforcement of anti-discrimination laws under Title VI
extremely difficult. It is the view of the Committee that both
administrative enforcement and enforcement via private claims
are necessary to ensure full compliance with Title VI and to
protect the civil rights of individuals participating in
programs receiving federal education funds.
The Committee notes that section 2 of the bill, that
restores the private right of action under Title VI, is not in
the jurisdiction of the Committee. As such, the legal theories
of disparate impact and the jurisprudence around its use in
both educational and other civil rights contexts, will not be
discussed in any depth in this report. Simply put, in the post-
Sandoval world, private citizens may have their civil rights
violated under Title VI in a way that can only be proven via a
disparate impact test, but if the government is not willing to
take administrative action on their behalf, they have no
remedy. The Committee strongly believes, however that disparate
impact theory is a tool necessary to ensure full compliance
with Title VI, and that Congress intended to create a private
right of action to enforce anti-discrimination provisions
including all violations based in disparate impact theory.\18\
As the Sandoval decision stripped a vital tool from private
individuals seeking to prove the government was violating their
civil rights, H.R. 2574 restores that tool. Specifically the
bill states that a violation of any regulation relating to
disparate impact issued under section 602 of the Civil Rights
Act shall give rise to a private civil cause of action for its
enforcement to the same extent as does an intentional violation
of the prohibition of Civil Rights Act section 601.
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\18\Id. at 297-99 (2001) (Stevens, J., dissenting).
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Although H.R. 2574 would allow private citizens to bring
lawsuits challenging government action due to disparate racial
impact under Title VI, the Committee does not expect to see a
substantial increase in civil rights lawsuits upon its
enactment into law. Because of the high bars to proving a case
under disparate impact theory, such cases are generally quite
resource intensive for plaintiffs; as most attorneys bringing
these claims do so on a contingency fee basis, there is little
incentive to file frivolous claims. Even before Sandoval, there
were very few disparate impact cases brought under Title VI
because of the difficulty in mounting such challenges. Despite
these facts, restoring a private right of action for disparate
impact cases is necessary to ensure that meritorious cases that
document civil rights violations can be brought. For example, a
private right of action allowed six black elementary
schoolchildren in the San Francisco Unified School District to
successfully challenge the use of standardized I.Q. tests to
place children in classes for the ``mentally retarded'', a
practice that disproportionately placed black children in these
classes.\19\ Without a private right of enforcement of
disparate impact regulations, that case would not have likely
been able to proceed and such practices might have continued
unchallenged until they were effecting a large enough number of
students to attract administrative review. And administrative
review at that point is not a given--it assumes the
hypothetical administration believes that such practice not
only violates Title VI but is also willing to bring a lawsuit.
As we have seen in recent years, that assumption is not always
well-founded. In discussion of different educational civil
rights issues, especially those involving racial disparities,
the Committee believes private citizens should have the ability
to challenge facially race-neutral policies that have obvious
and disastrous disparate effects, especially when federal
entities, the only ones that can currently bring disparate
impact cases, fail to do so.
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\19\See Larry P. v. Riles, 793 F.2d 969, 981-83 (9th Cir. 1984)
(holding that the educational practices that disproportionately placed
black students in special education classes lacked adequate
justification and violated Title VI).
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K-12 Education
Racial inequality has been at the foundation of our
nation's public education system.\20\ Despite some progress in
narrowing racial achievement gaps thanks to federal civil
rights enforcement in the period following the Brown decision
and passage of ESEA and the Civil Rights Act,\21\ decades of
retreat in civil rights enforcement have coincided with a re-
widening of the achievement gap. Recent reading and math scores
on the 2019 National Assessment of Educational Progress reveal
the achievement gap is widening for Black and Latino students
compared to their White peers.\22\ The National Center on
Education Statistics data indicate Black students continue to
lag in high school graduation attainment.\23\ In the 2016-2017
school year, the graduation rate for public high school
students was 87 percent.\24\ For Black students, the graduation
rate was 78 percent.\25\ Research shows that these achievement
gaps are linked to racial segregation in schools.\26\ Recent
reports suggest that public schools are now more segregated by
race and class than any time since the 1960s.\27\ In fact,
research shows that 40 percent of Black students and 41 percent
of Latino students nationwide attend intensely segregated,
high-poverty schools where students of color makeup 90-100
percent of the student population.\28\ Many of these schools
have fewer resources, less access to math, science, and college
preparatory courses.\29\ Furthermore, they disproportionately
suspended, expelled, or held back students of color.\30\ Faced
with a system that perpetuates gaps in educational achievement,
children of color do not receive adequate resources to learn
and reach their full potential. According to research from
EdBuild, school districts that serve students of color receive
$23 billion less in funding than school districts that serve
the same or similar number of predominantly white students.\31\
Accordingly, researchers at Stanford University found that
racial segregation in schools leads to larger achievement gaps,
exacerbating unequal educational opportunity.\32\ Under current
law, students and their families cannot challenge policies
that, while racially neutral on their face, may perpetuate the
achievement gap due to their disparate impact on black
students.
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\20\Brown v. Board of Education at 65: A Promise Unfulfilled,
Hearing Before the H. Comm. on Educ. & Lab., 116th Cong. (2019)
(statement of Linda Darling-Hammond, President and CEO of the Learning
Policy Institute) available at https://edlabor.house.gov/download/
linda-darling-hammond-testimony.
\21\Id.
\22\Nat'l Ctr. for Educ. Stats., NAEP Dashboards: Achievement Gaps
Dashboard, Oct. 2019, available at https://www.nationsreportcard.gov/
dashboards/achievement_gaps.aspx.
\23\Nat'l Ctr. for Educ. Stats., The NCES Fast Facts Tool, U.S.
Department of Education, https://nces.ed.gov/fastfacts/
display.asp?id=805.
\24\Id.
\25\Id.
\26\Sean Reardon, et al., Is Separate Still Unequal? New Evidence
on School Segregation and Racial Academic Achievement Gaps 29-30
(Stanford University Ctr. for Educ. Pol'y Anal., Working paper No. 19-
106, 2019) available at https://cepa.stanford.edu/content/separate-
still-unequal-new-evidence-school-segregation-and-racial-academic-
achievement-gaps.
\27\Erica Frankenberg, et al. Harming Our Common Future: America's
Segregated Schools 65 Years after Brown, 10 May 2019,
www.civilrightsproject.ucla.edu/research/k-12-education/integration-
and-diversity/harming-our-common-future-americas-segregated-schools-65-
years-after-brown/Brown-65-050919v4-final.pdf.; see also U.S. Gov't
Accountability Office, GAO-16-345, K-12 Education: Better Use of
Information Could Help Agencies Identify Disparities and Address Racial
Discrimination (2016) (documenting the growth in school districts with
high concentrations of low-income Black and Hispanic students, and
recognizing the inequitable conditions many of them share).
\28\Frankenberg, supra note 27, at 25, 28.
\29\GAO-16-345 supra note 27, at 16-22.
\30\Id.
\31\EdBuild, $23 Billion, (last visited Dec. 6, 2019), https://
edbuild.org/content/23-billion.
\32\Reardon, supra note 26, at 29-20.
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Along with the achievement gap, researchers have identified
a school discipline gap--that is, a severe disparity in how
students of color are disciplined for the same or similar
school discipline infractions when compared to their
predominantly white peers. According to a 2018 GAO report on
bias in school discipline, Black students, boys, and students
with disabilities are disciplined at disproportionately high
rates and Black students are subject to harsher discipline than
their white counterparts regardless of income.\33\
Specifically, the report indicates that while 15.5 percent of
all public school students are Black, 39 percent of students
suspended from school are Black.\34\
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\33\U.S. Gov't Accountability Office, GAO-18-258, K-12 Education:
Discipline Disparities for Black Students, Boys, and Students with
Disabilities, 12-21 (2018).
\34\Id.at 12.
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According to a report on racial inequity in school
discipline practices across the Richmond, Virginia area by the
Metropolitan Educational Research Consortium, a partnership
between the Virginia Commonwealth University School of
Education and seven school divisions in the Richmond region,
disproportionate school discipline in the Richmond area exceeds
the national average and is driven by subjective forms of
behavior like being disrespectful or loitering.\35\ The
researchers found that Black students were suspended at about
four times the rate of white students in 2016.\36\ The report
shows that Black students made up 23 percent of total student
enrollment, but accounted for between 50 and 58 percent of
short and long-term suspensions and expulsions in 2016.\37\ In
addition, the report indicates that racial disproportionality
in school discipline was the most severe in racially segregated
schools and in schools with concentrated poverty.\38\
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\35\Genevieve Siegel-Hawley et al., Understanding racial inequities
in school discipline across the Richmond region 7 (VCU MERC
Publications 2019).
\36\Id. at 64.
\37\Id. at 13.
\38\Id. at 9.
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This discipline gap has the perverse side effect of
reinforcing the existing achievement gap. During the
Committee's April 30, 2019 hearing, Dan Losen, Director of the
Center for Civil Rights Remedies at the Civil Rights Project at
UCLA, testified about the importance of Title VI enforcement as
it pertains to racial disparities in school discipline through
discussion of race neutral discipline policies that have a
racially discriminatory impact on students.\39\ According to
Director Losen, Black students in Richmond City, Virginia lost
500 days of instruction per 100 Black students enrolled due to
school suspensions.\40\ Director Losen found that the Black-
white suspension gap of 446 days in Richmond City, Virginia was
12 times larger than the Black-white suspension gap in Virginia
Beach, Virginia.\41\ In addition, Director Losen referenced
research that indicates school suspensions led to a decrease in
the national graduation rate by 15 percent percentage points
and a $35 billion dollar economic loss to our nation for one-
year cohort.\42\ Mr. Losen concluded his oral remarks stating:
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\39\Brown v. Board of Education at 65: A Promise Unfulfilled,
Hearing Before the H. Comm. on Educ. & Lab., 116th Cong. (2019)
(statement of Dan Losen, Director for the Center for Civil Rights
Remedies, UCLA Civil Rights Project) available at https://
edlabor.house.gov/imo/media/doc/LosenTestimony043019.pdf.
\40\Id.
\41\Id.
\42\Id.
Keeping kids safe is of course of paramount
importance, but safety includes protecting our children
from injustice. Unfortunately, the Trump Administration
has signaled that it will no longer protect children of
color from the disparate harm that is caused by
unjustified policies. Therefore, I encourage Congress
to act by passing Chairman Scott's Equity and Inclusion
Enforcement Act, which would restore a private right of
action so parents and civil rights advocates could
bring disparate impact claims to court.\43\
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\43\Id.
The need to ensure equity in K-12 education has become
apparent in the wake of the national response to the novel
coronavirus (COVID-19) pandemic. COVID-19 has exposed existing
racial inequities in all facets of American life, including
public education. State and local education agencies
implemented remote learning programs to close out the 2019-20
school year. Many of these programs were heavily dependent on
student access to broadband internet connectivity and devices
for participation, even though there is an established
``digital divide'' showing drastic disparities in broadband
internet access among 5-17-year-old children by race.\44\
Nationally, 27 percent of American Indian/Alaskan Native
students, 19 percent of Black students and 17 percent of
Hispanic students have either no internet access or only dial-
up access at home, compared to only 7 percent of White
students.\45\ Even though some aspects of the digital divide
are geographic, with urban and suburban households more likely
to have access than rural households, access in rural areas is
still heavily disparate by race: 41 percent of Black remote
rural area students had either no internet access or dial-up at
home compared to 13 percent of White rural remote area
students.\46\ Further, early reports suggest that students who
had an adult capable of monitoring students from home were more
engaged in virtual instruction than parents who had to still
work outside the home during the pandemic; these same reports
suggest essential workers unable to work from home are
predominantly Black and brown.\47\
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\44\Nat'l Ctr. for Educ. Stats., Student Access to Digital Learning
Resources Outside the Classroom, April 2018, available at https://
nces.ed.gov/pubs2017/2017098.pdf.
\45\Id. at 75.
\46\Id. at 76-79.
\47\Paloma Esquivel & Howard Blume, L.A. Latino, Black students
suffered deep disparities in online learning, records show, L.A. Times,
July 16, 2020, available at https://www.latimes.com/california/story/
2020-07-16/latino-and-black-students-hard-hit-with-disparities-in-
their-struggle-with-online-learning.
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The Committee understands the need schools faced to act
expeditiously to ensure the continuation of educational
instruction. As state and local education agencies have had
more time to plan for the 2020-21 school year, many are adding
components to their instruction plans to address equity
concerns.\48\ Regardless, having at least one employee tasked
with looking at decisions like this through the lens of equity
would help ensure that policies like those enacted during the
COVID-19 pandemic had structures in place from the start to
promote and sustain equity in learning for all children
regardless of their race.
---------------------------------------------------------------------------
\48\See Perry Stein, D.C. Schools Prepare for Virtual Learning and
Work to Close Digital Divide, Wash. Post Aug. 26, 2020 (``The
chancellor has committed to providing a device and Internet access to
every student in need.); but see Aliyya Swaby, As the School Year
Begins Online, Thousands of Texas Students Are Being Left out of
Virtual Learning, Tex. Trib., Sept. 1, 2020, (Texas did make
improvements throughout the pandemic . . . offering districts free
access to a virtual learning system and contributing hundreds of
millions through federal stimulus money to subsidize bulk orders of
computers, hotspots and iPads for school districts . . . But with
supplier backlogs across the country, some may take as many as 14 more
weeks to arrive . . .'').
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The Federal government can more meaningfully address the
inequities in K-12 education and ensure more effective
enforcement of Title VI by requiring and supporting the
presence of Title VI monitors in local educational agencies.
The concept of Title VI monitors in H.R. 2574 mirrors the
Department's regulatory requirement that every educational
institution have a Title IX coordinator.\49\ Title IX was
modeled after Title VI, but in the education sphere, Title IX
has had the benefit of more proactive implementation and
compliance. H.R. 2574 attempts to require the same proactive
compliance with Title VI as is required under Title IX.
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\49\34 C.F.R. Sec. 106.8 (2019).
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Title IX coordinators have been and continue to be
instrumental in addressing gender-based education and resource
gaps, and systemic biases in education settings.\50\ However,
Title IX coordinators are not present in educational setting
merely to respond to cases of sex discrimination. They also
coordinate education and training efforts on the law, ensure
continual compliance with the law by the institution, and
examine policies and practices the institution may have in
place that frustrate the law. Under H.R. 2574, Title VI
monitors would work to ensure that schools are free from
discrimination by monitoring compliance with Title VI and
investigating discrimination complaints. By being proactive and
educating students, faculty, and staff on Title VI, monitors
would work to stem discrimination in schools before it occurs.
In the real-world example of the COVID-19 pandemic, a Title VI
monitor would be the official charged with ensuring that newly
implemented virtual learning programs took Title VI into
account before they went into effect. And if these monitors
were not aware or did not investigate a complaint based on a
facially race-neutral policy with a disparate impact on one
race, students and parents could still pursue the claim
themselves thanks to H.R. 2574. The Committee expects Title VI
monitors would effectively educate, provide guidance on, and
help to enforce the rights of students and personnel at
educational institutions by confronting policies and practices
that discriminate on the basis of race, color, and nationality.
---------------------------------------------------------------------------
\50\U.S. Dept. of Educ. Guidance Letter, Off. for C.R., Guidance
Letter on Title IX Coordinators (Apr. 24, 2015) (``Your Title IX
coordinator plays an essential role in helping you ensure that every
person affected by the operations of your educational institution--
including students, their parents or guardians, employees, and
applicants for admission and employment--is aware of the legal rights
Title IX affords and that your institution and its officials comply
with their legal obligations under Title IX.'') (rescinded).
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Higher Education
H.R. 2574 also addresses civil rights violations on the
basis of race, color, and nationality that persists at
postsecondary educational institutions. The number of hate
crimes, or ``criminal offenses motivated, in whole or in part,
by an offender's bias(es) against a race, religion, disability,
sexual orientation, ethnicity, gender or gender identity,''\51\
reached a 16-year high in 2018,\52\ and college campuses were
not immune. On college campuses alone, the number of on-campus
hate crimes rose from 864 in 2015 to 1,070 in 2016, an increase
of 24 percent in a single year.\53\ On campuses, more than half
(57 percent) of the reported hate crimes by campus police were
race-related.\54\
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\51\Federal Bureau of Investigation, Hate Crimes, (2019) https://
www.fbi.gov/investigate/civil-rights/hate-crimes.
\52\Adeel Hassan, Hate-Crime Violence Hits 16-Year High, F.B.I.
Reports, N.Y. Times, Nov. 13, 2019, at A14. https://www.nytimes.com/
2019/11/12/us/hate-crimes-fbi-report.html.
\53\Nat'l Ctr. for Educ. Stats., On-campus hate crimes at degree-
granting postsecondary institutions, by level and control of
institution, type of crime, and category of bias motivating the crime:
2010 through 2016, Sept. 2018, available at https://
www.nationsreportcard.gov/dashboards/achievement_gaps.aspx.
\54\Natalie Schwartz, Campus Police Departments Report Uptick In
Hate Crimes To FBI, EducationLive (Nov. 16, 2018) https://
www.educationdive.com/news/campus-police-departments-report-uptick-in-
hate-crimes-to-fbi/542383/ (last accessed Nov. 22, 2019). While note
expressly relevant to H.R. 2574 it is important to note that race alone
is not the sole motivator of hate crimes on college campuses. The same
study found that 26 percent of the incidents involved religion and
nearly 16 percent involved sexual orientation. Id.
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According to the Anti-Defamation League, in the spring of
2019, there were more white-supremacist fliers, stickers, and
posters on college campuses than at any other time in the
recent past--this is already after a 77 percent from September
2017 to May 2018.\55\ Just from November 17, 2019 to November
22, 2019, there were four incidents of hate crimes reported on
college campuses which received national attention--including
swastika and racist stickers in dorm rooms, racist graffiti and
verbal assaults towards minorities.\56\
---------------------------------------------------------------------------
\55\Anti-Defamation League, White Supremacists Increase College
Campus Recruiting Efforts For Third Straight Year, June 27, 2019,
https://www.adl.org/news/press-releases/white-supremacists-increase-
college-campus-recruiting-efforts-for-third (last accessed Nov. 22,
2019).
\56\Faith Karimi, There Have Been At Least 4 Hate Incidents
Reported On College Campuses This Week, CNN, (November 22, 2019)
https://www.cnn.com/2019/11/22/us/college-campuses-racist-incidents/
index.html (last accessed Nov. 22, 2019).
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To make matters worse, most experts agree that hate crimes
remain woefully underreported--with the Department of Justice
estimating that only 2 percent of hate crimes are actually
reported to the FBI.\57\ The Center for American Progress
believes underreporting may be even more prevalent on college
campuses due to limited reporting options and the overreliance
on online reporting systems.\58\ This underreporting stymies
efforts to address and eliminate threats on campuses. Hate
crimes on college campuses and universities deny marginalized
students' educational benefits and the opportunity for social
and economic mobility. Hate crimes on college campuses also
deny our nation the talents and skills of students who do not
receive a fair chance of competing in the labor market.\59\
---------------------------------------------------------------------------
\57\Dep't of Justice, Bur. of J. Stats., Hate Crime Victimization,
2004-2015 (June 29, 2017). https://www.bjs.gov/
index.cfm?ty=pbdetail&iid=5967 (last accessed Nov. 22, 2019).
\58\Victoria Nelson, Addressing Racial Trauma and Hate Crimes on
College Campuses, Ctr. for Am. Prog, (August 9, 2019), https://
www.americanprogress.org/issues/race/news/2019/08/09/473299/addressing-
racial-trauma-hate-crimes-college-campuses/ (last accessed Nov. 22,
2019).
\59\Conference Education Fund, Civil Rights Principles for Higher
Education, (July 2019), http://civilrightsdocs.info/pdf/reports/Higher-
Ed-Civil-Rights-Principles.pdf (last accessed Nov. 22, 2019).
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Title VI monitors established under H.R. 2574 would address
these issues and ensure implementation and enforcement of civil
rights laws, notably Title VI, across all institutions of
higher education. Proper enforcement of civil rights
protections, investigations into hate crimes on campuses, and
efforts to ensure that students are protected will greatly
improve campus safety and ensure that students are given the
full opportunity to succeed in college, career, and life.
Civil Rights Under President Trump
H.R. 2574 is necessary in the wake of the Trump
Administration's lack of protection of civil rights in
education. In a comprehensive analysis of federal civil rights
enforcement, the U.S. Commission on Civil Rights (the
Commission) found numerous disturbing trends. Education
Secretary Betsy DeVos has rescinded critical guidance to
protect students' civil rights, narrowed the scope and reduced
the number of investigations conducted, and decreased the
budget and staffing capacity of the Office for Civil Rights
(OCR) at the Department.\60\ The Commission's report indicates
that OCR issued 38 guidance documents to improve program
understanding of and compliance with federal civil rights
statute under the Obama Administration.\61\ By comparison, OCR
under the Trump Administration has issued few guidance
documents and has instead rescinded critical guidance
documents.\62\ Specifically, in 2018, Secretary DeVos rescinded
guidance documents to support the constitutionally-
protected\63\ use of race in admissions or assignment to
improve diversity in higher education and K-12.\64\ Also, in
2018, Secretary DeVos rescinded the 2014 School Discipline
Guidance package, which provided local educational agencies
with technical assistance to reform discipline policies and
practices that, though racially neutral, disproportionately
impact students of color, in violation of Title VI.\65\ In
addition to the actions of OCR, Secretary DeVos unlawfully
delayed the implementation of the Equity in Individuals with
Disabilities Education Act (IDEA) rule, which requires states
to identify school districts with rates of significant
disproportionality in the identification, placement, and
discipline of students of color with disabilities.\66\
---------------------------------------------------------------------------
\60\See Are Rights a Reality?, supra note 12, at 159-92.
\61\Id. at 188.
\62\Id.
\63\Parents Involved in Community Schools v. Seattle School
District No. 1, 551 U.S. 701, 797-98 (2007) (``This Nation has a moral
and ethical obligation to fulfill its historic commitment to creating
an integrated society that ensures equal opportunity for all of its
children. A compelling interest exists in avoiding racial isolation, an
interest that a school district, in its discretion and expertise, may
choose to pursue . . . The decision today should not prevent school
districts from continuing the important work of bringing together
students of different racial, ethnic, and economic backgrounds.'')
(Kennedy, J., concurring).
\64\Are Rights a Reality?, supra note 12, at 188-89.
\65\Id.
\66\Tal Axelrod, Federal Judge Rules DeVos Illegally Delayed Obama-
Era Special Education Rule. The Hill, Mar. 8, 2019, available at
https://thehill.com/homenews/administration/433312-federal-judge-rules-
devos-illegally-delayed-obama-era-special.
---------------------------------------------------------------------------
The Commission's report also found that OCR's reduction in
full-time staff and changes to its case processing manual
dramatically reduced the agency's enforcement and investigation
efforts.\67\ In 2018, President Trump requested $106.7 million
for OCR, compared to OCR's request of $137.7 million in fiscal
year (FY) 2017, representing a $31 million reduction from the
FY2017 request.\68\ According to the Commission, OCR
experienced an increase in complaints by 188 percent from 2006
to 2016.\69\ In response, the Obama Administration requested a
$30 million dollar increase in funding in FY2016, which
included a separate request to hire additional OCR staff to
ensure effective civil rights enforcement.\70\\71\ President
Trump's FY2018 budget request did not request additional
funding or include a separate request to designate funding to
cover the increase in civil rights complaints. In fact,
President Trump's FY2018 budget request stated that ``OCR staff
must handle its increased complaint workload while maintaining
existing operations,''\72\ but acknowledged that it would be
difficult for OCR to meet its performance goals of resolving
complaints in 180 days.\73\ In addition, President Trump's
FY2018 budget request also stated that ``OCR must make
difficult choices, including cutting back on initiating
proactive investigations.''\74\ Further, the Commission found
that President Trump's FY2019 budget request indicated that OCR
experienced a reduction in staff in FY2018 from 569 full-time
employees to 529 full-time employees and highlighted changes to
the case processing manual to account for the decrease in staff
and increase in civil rights complaints.\75\
---------------------------------------------------------------------------
\67\See Are Rights a Reality?, supra note 12, at 163-67.
\68\Id.
\69\Id.
\70\Id.
\71\Id.
\72\Id.
\73\Id.
\74\Id.
\75\Id.
---------------------------------------------------------------------------
The Commission's report references an investigation by
ProPublica of case closures at OCR that found that, ``[u]nder
Obama, 51 percent of cases that took more than 180 days
culminated in findings of civil rights violations, or
corrective changes. Under the Trump administration, that rate
has dropped to 35 percent.''\76\ In addition, the investigation
found that the Trump Administration only upheld 52 percent of
complaints discrimination against English learners, compared to
70 percent by the Obama Administration.\77\ Further,
investigations also plummeted for students with disabilities
from 45 percent to 34 percent; and racial harassment from 31
percent to 21 percent.\78\ When faced with an increasing number
of civil rights complaints, the Obama Administration requested
more resources to work the cases and determine if a violation
occurred; the Trump Administration changed how complaints were
processed to speed up their resolution. The Committee fears
that in some of these cases justice expedited will translate
into justice denied.
---------------------------------------------------------------------------
\76\Id at 185-86.
\77\Id at 186.
\78\Id.
---------------------------------------------------------------------------
Moreover, the Commission found that the Obama
Administration expanded racial and ethnic data to investigate
complaints of discrimination.\79\ In contrast, Secretary DeVos
recently proposed eliminating critical data in the Civil Rights
Data Collection that would undermine the ability of OCR to
administer and enforce federal civil rights laws and leave
children of color and children with disabilities more
vulnerable to discrimination.\80\ Furthermore, the Commission's
report cited a Washington Post report that the Trump
Administration, in contravention of the law's intent,\81\ is
seeking to remove the use of disparate impact analysis from
administrative enforcement of the Civil Rights Act. This plan
would bar the federal government from investigating and
prompting changes in system behaviors that, while racially
neutral, continue to deny children of color access to equity of
educational resources.\82\ And without H.R. 2574, if the
Administration does not bring the case based on disparate
impact, the case cannot be brought. Taken together, these
changes further illustrate the Trump Administration's efforts
to undermine enforcement of civil rights protections, notably
students facing discrimination at school.
---------------------------------------------------------------------------
\79\Id. at 193.
\80\Agency Information Collection Activities; Comment Request;
Mandatory Civil Rights Data Collection, 84 Fed. Reg. 49277 (Sept. 19,
2019).
\81\Parents Involved in Community Schools v. Seattle School
District No. 1, 551 U.S. 701 (2007) ``Our Nation from the inception has
sought to preserve and expand the promise of liberty and equality on
which it was founded. Today we enjoy a society that is remarkable in
its openness and opportunity. Yet our tradition is to go beyond present
achievements, however significant, and to recognize and confront the
flaws and injustices that remain. This is especially true when we seek
assurance that opportunity is not denied on account of race. The
enduring hope is that race should not matter; the reality is that too
often it does.'' (Kennedy, J. concurring,)
\82\ARE RIGHTS A REALITY?, supra note 12, at 141.
---------------------------------------------------------------------------
In an administration where the Department is intentionally
shrinking its footprint in civil rights enforcement, it should
not be the only entity able to bring a disparate impact civil
rights case to court. H.R. 2574 is needed now more than ever to
provide for civil rights enforcement to dissuade educational
policies or practices that disparately impact students and
others in educational institutions on the basis of race, color,
or national origin. Under the bill, the Department would be
required to have a Special Assistant for Equity and Inclusion
advising the Secretary and Deputy Secretary on all matters
related to equity and inclusion under Title VI. The Assistant
Secretary would also disseminate information on Title VI to
elementary and secondary schools and institutions of higher
education, supporting the Title VI monitors required under H.R.
2574. The Committee would fully expect that such an Assistant
would have a wealth of research to suggest that the most
effective way to ensure the just resolution of civil rights
complaints would be to provide the staff and resources
necessary to fully investigate such charges.
Conclusion
The nation's public education system has a long way to go
to overcome systemic racism and to deliver on the promise of
quality education ``to all on equal terms.'' Regrettably, the
Trump Administration has largely abdicated its responsibility
to enforce civil rights laws, leaving many students in our
educational institutions vulnerable to the negative impacts of
discrimination. As Catherine E. Lhamon, Chair of the U.S.
Commission on Civil Rights stated, ``this nation continues to
fail to live up to its equity promise, leaving distressing
civil rights harm as the painful result.''\83\
---------------------------------------------------------------------------
\83\Press Release, U.S. Comm'n on Civil Rights, U.S. Commission on
Civil Rights Releases Report: Are Rights a Reality? Evaluating Federal
Civil Rights Enforcement (November 21, 2019) available at https://
www.usccr.gov/press/2019/20191121PR.pdf.
---------------------------------------------------------------------------
Congress must use its powers to fulfill our nation's
promise of equal opportunity in education. As such, Congress
must act to pass the Equity Inclusion and Enforcement Act to
ensure that the tools are in place to rid our schools of
discrimination. By establishing Title VI monitors the bill will
protect students' civil rights and safeguard equal access to
educational opportunity in K-12 and higher education. By
supporting strong Title VI enforcement at the federal level,
the bill will aid through investigation of individual claims of
discrimination and staffing in education programs to engender
compliance. And by passing the Equity Inclusion and Enforcement
Act, Congress will restore to the American public the right to
pursue judicial remedy when federal dollars are misapplied to
promote policies and practices that disparately impact groups
on the basis of race, color, or national origin.
Section-by-Section Analysis
Section 1. Short title
This Act is called the ``Equity and Inclusion Enforcement
Act of 2019.''
Section 2. Restoration of right to civil action in disparate impact
cases under Title VI of the Civil Rights Act of 1964
This section amends title VI of the Civil Rights Act of
1964 (Title VI) to restore a private right of action to file
disparate impact claims.
Section 3. Designation of monitors under Title VI of the Civil Rights
Act of 1964
This section requires schools as recipients of federal
financial assistance under Title VI to designate at least one
employee to serve as the Title VI monitor to carry out the
responsibilities of the law and to notify students and
employees of the name, office address, and telephone number of
the Title VI monitor. The Title VI monitor is responsible for
investigating any complaints of discrimination based on race,
color, or national origin.
Section 4. Special assistant for equity and inclusion
This section requires the Secretary of Education to appoint
an Assistant Secretary in the Department of Education to
coordinate, promote, and evaluate Title VI enforcement of
equity and inclusion in education. The Assistant Secretary is
responsible for advising the Secretary of Education and the
Deputy Secretary of Education on all matters relating to equity
and inclusion consistent with Title VI.
Explanation of Amendments
The amendments offered during markup of H.R. 2574 are
explained in other descriptive portions of this report.
Application of Law to the Legislative Branch
H.R. 2574 does not apply to terms and conditions of
employment or to access to public services or accommodations
within the legislative branch.
Unfunded Mandate Statement
Pursuant to Section 423 of the Congressional Budget and
Impoundment Control Act (as amended by Section 101(a)(2) of the
Unfunded Mandates Reform Act, Pub. L. 104-4), the Committee
adopts as its own the estimate of federal mandates regarding
H.R. 2574, as amended, prepared by the Director of the
Congressional Budget Office.
Earmark Statement
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2574 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call vote occurred during the Committee's
consideration of H.R. 2574.
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Statement of Performance Goals and Objectives
Pursuant to clause (3)(c) of rule XIII of the Rules of the
House of Representatives, the goals of H.R. 2574 are to
reauthorize and strengthen federal programs to prevent and
treat child abuse and neglect.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H.R. 2574 establishes or reauthorizes a program of
the Federal Government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Hearings
For the purposes of Section 103(i) of H. Res. 6 for the
116th Congress--
On April 30, 2019, the Committee held a legislative hearing
titled ``Brown v. Board of Education at 65: A Promise
Unfulfilled,'' which was used to inform the development of H.R.
2574. The Committee heard testimony on the importance of robust
enforcement of Title VI among entities receiving federal
funding through the Department, along with discussion on racial
segregation in public schools and the prevalence of racial
disparities in school discipline and allocation of public
resource. The Committee heard testimony from: Mr. John C.
Brittain, Professor of Law, University of the District of
Columbia Law School, Washington, DC; Ms. Linda Darling-Hammond,
Ed.D., President and CEO of the Learning Policy Institute, Palo
Alto, CA; Ms. Maritza White, Parent Advocate, Washington DC;
Mr. Daniel J. Losen, M.ED, J.D., Director of the Center for
Civil Rights Remedies at the Civil Rights Project at UCLA,
Lexington, MA; Mr. Dion J. Pierre, Research Associate, National
Association of Scholars, Ridgewood, NY; and Mr. Richard A.
Carranza, Chancellor, New York City Schools, New York, NY.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with Clause 3(c)(1) of rule XIII and Clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
Committee Correspondence
The Committee sent and received the following
correspondence in relation to H.R. 2574:
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New Budget Authority and CBO Cost Estimate
Pursuant to Clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and Section 308(a) of the
Congressional Budget Act of 1974, and pursuant to clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and Section 402 of the Congressional Budget Act
of 1974, the Committee has received the following estimate for
H.R. 2574 from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 5, 2020.
Hon. Bobby Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2574, the Equity
and Inclusion Enforcement Act of 2019.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sofia Guo.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
{GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT}
H.R. 2574 would amend title VI of the Civil Rights Act of
1964 to create a private right of action to file disparate
impact claims.\1\ Disparate impact refers to the discriminatory
effects caused by policies that, on their face, appear neutral
as instituted by an organization or employer. According to
legal experts and an analysis of court filing data from the
federal judiciary over the past 30 years, disparate impact
claims brought under title VI are most often related to
education (although they are applicable to housing and public
transportation, among other settings) and have historically
constituted a small portion of civil rights litigation--most
such claims are filed under other titles of the act regarding
employment issues.
---------------------------------------------------------------------------
\1\Until the Supreme Court's decision in Alexander v. Sandoval
(532, U.S. 275, 2001), private lawsuits bringing disparate impact cases
under title VI were permissible. That decision prevents private
plaintiffs from bringing such suits against recipients of federal aid
as defined in the statute (42 U.S.C. 2000d-1). For more information,
see Jared P. Cole, Civil Rights at School: Agency Enforcement of Title
VI of the Civil Rights Act of 1964, CRS Report R45665, version 5
(Congressional Research Service, April 4, 2019), https://go.usa.gov/
xvNh4.
---------------------------------------------------------------------------
Using information from experts in civil rights law, CBO
expects that enactment of H.R. 2574 could result in a small
increase in the number of suits filed in federal courts related
to disparate impact cases under title VI. The federal judiciary
charges fees to file suit in district court. Those fees are
recorded as revenues and can be spent by the judiciary without
further appropriation action. Because the expected increase in
the number of lawsuits is small, CBO estimates that enacting
H.R. 2574 would increase both direct spending and revenues by
an insignificant amount over the 2020-2030 period.
In addition, H.R. 2574 would require recipients of federal
aid from the Department of Education that operate educational
programs or activities to establish at least one employee
coordinator to carry out those recipients' responsibilities
under title VI, which include investigating complaints of
discrimination based on race, color, or national origin.
The bill also would require the Department of Education to
appoint a special assistant for equity and inclusion to
promote, coordinate, and evaluate equity and inclusion programs
in education. CBO estimates that implementing that requirement
would cost $1 million over the 2020-2025 period.
CBO has not reviewed H.R. 2574 for intergovernmental or
private-sector mandates. Section 4 of the Unfunded Mandates
Reform Act excludes from the application of that act any
legislative provisions that would establish or enforce
statutory rights prohibiting discrimination. CBO has determined
that this legislation falls within that exclusion because it
would extend protections against discrimination in education on
the basis of race, color, or national origin.
The CBO staff contacts for this estimate are Justin
Humphrey and Leah Koestner (for education), Sofia Guo and Jon
Sperl (for the judiciary), and Andrew Laughlin (for mandates).
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Director of Budget Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 2574.
However, Clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with Clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 2574, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
CIVIL RIGHTS ACT OF 1964
* * * * * * *
TITLE VI--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
* * * * * * *
Sec. 607. The violation of any regulation relating to
disparate impact issued under section 602 shall give rise to a
private civil cause of action for its enforcement to the same
extent as does an intentional violation of the prohibition of
section 601.
Sec. 608. (a) Each recipient shall--
(1) designate at least one employee to coordinate its
efforts to comply with requirements adopted pursuant to
section 602 and carry out the responsibilities of the
recipient under this title, including any investigation
of any complaint alleging the noncompliance of the
recipient with such requirements or alleging any
actions prohibited under this title; and
(2) notify its students and employees of the name,
office address, and telephone number of each employee
designated under paragraph (1).
(b) In this section, the term ``recipient'' means a recipient
referred to in section 602 that operates an education program
or activity receiving Federal financial assistance authorized
or extended by the Secretary of Education.
* * * * * * *
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DEPARTMENT OF EDUCATION ORGANIZATION ACT
* * * * * * *
TITLE II--ESTABLISHMENT OF THE DEPARTMENT
* * * * * * *
principal officers
Sec. 202. (a)(1) There shall be in the Department a Deputy
Secretary of Education who shall be appointed by the President,
by and with the advice and consent of the Senate. During the
absence or disability of the Secretary, or in the event of a
vacancy in the office of the Secretary, the Deputy Secretary
shall act as Secretary. The Secretary shall designate the order
in which other officials of the Department shall act for and
perform the functions of the Secretary during the absence or
disability of both the Secretary and Deputy Secretary or in the
event of vacancies in both of those offices.
(2)(A) The Deputy Secretary shall have responsibility for the
conduct of intergovernmental relations of the Department,
including assuring (i) that the Department carries out its
functions in a manner which supplements and complements the
education policies, programs, and procedures of the States and
the local school systems and other instrumentalities of the
States, and (ii) that appropriate officials of the Department
consult with individuals responsible for making policy relating
to education in the States and the local school systems and
other instrumentalities of the States concerning differences
over education policies, programs, and procedures and
concerning the impact of the rules and regulations of the
Department on the States and the local school systems and other
instrumentalities of the States.
(B) Local education authorities may inform the Deputy
Secretary of any rules or regulations of the Department which
are in conflict with another rule or regulation issued by any
other Federal department or agency or with any other office of
the Department. If the Deputy Secretary determines, after
consultation with the appropriate Federal department or agency,
that such a conflict does exist, the Deputy Secretary shall
report such conflict or conflicts to the appropriate Federal
department or agency together with recommendations for the
correction of the conflict.
(b)(1) There shall be in the Department--
(A) an Assistant Secretary for Elementary and
Secondary Education;
(B) an Assistant Secretary for Postsecondary
Education;
(C) an Assistant Secretary for Career, Technical, and
Adult Education;
(D) an Assistant Secretary for Special Education and
Rehabilitative Services;
(E) an Assistant Secretary for Civil Rights; and
(F) a General Counsel.
(2) Each of the Assistant Secretaries and the General Counsel
shall be appointed by the President, by and with the advice and
consent of the Senate.
(3) There shall be in the Department, a Special Assistant for
Gender Equity who shall be appointed by the Secretary. The
Special Assistant shall promote, coordinate, and evaluate
gender equity programs, including the dissemination of
information, technical assistance, and coordination of research
activities. The Special Assistant shall advise the Secretary
and Deputy Secretary on all matters relating to gender equity.
(4) There shall be in the Department, a Special Assistant for
Equity and Inclusion who shall be appointed by the Secretary.
The Special Assistant shall promote, coordinate, and evaluate
equity and inclusion programs, including the dissemination of
information, technical assistance, and coordination of research
activities. The Special Assistant shall advise both the
Secretary and Deputy Secretary on all matters relating to
equity and inclusion in a manner consistent with title VI of
the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
[(4)] (5) There shall be in the Department a Director of the
Institute of Education Sciences who shall be appointed in
accordance with section 114(a) of the Education Sciences Reform
Act of 2002 and perform the duties described in that Act.
(c) There shall be in the Department an Inspector General
appointed in accordance with the Inspector General Act of 1978
(as amended by section 508(n) of this Act).
(d) There may be in the Department an Under Secretary of
Education who shall perform such functions as the Secretary may
prescribe. The Under Secretary shall be appointed by the
President, by and with the advice and consent of the Senate.
(e) There shall be in the Department four additional officers
who shall be appointed by the President, by and with the advice
and consent of the Senate. Notwithstanding the previous
sentence, the appointments of individuals to serve as the
Assistant Secretary for Management shall not be subject to the
advice and consent of the Senate. The officers appointed under
this subsection shall perform such functions as the Secretary
shall prescribe, including--
(1) congressional relations functions;
(2) public information functions, including the
provision, through the use of the latest technologies,
of useful information about education and related
opportunities to students, parents, and communities;
(3) functions related to monitoring parental and
public participation in programs where such
participation is required by law, and encouraging the
involvement of parents, students, and the public in the
development and implementation of departmental
programs;
(4) management and budget functions;
(5) planning, evaluation, and policy development
functions, including development of policies to promote
the efficient and coordinated administration of the
Department and its programs and to encourage
improvements in education; and
(6) functions related to encouraging and promoting
the study of foreign languages and the study of
cultures of other countries at the elementary,
secondary, and postsecondary levels.
(f) Whenever the President submits the name of an individual
to the Senate for confirmation as an officer of the Department
under this section, the President shall state the particular
functions of the Department such individual will exercise upon
taking office.
(g) Each officer of the Department established under this
section shall report directly to the Secretary and shall, in
addition to any functions vested in or required to be delegated
to such officer, perform such additional functions as the
Secretary may prescribe.
(h) The Assistant Secretary for Career, Technical, and Adult
Education, in addition to performing such functions as the
Secretary may prescribe, shall have responsibility for
coordination of all literacy related programs and policy
initiatives in the Department. The Assistant Secretary for
Career, Technical, and Adult Education shall assist in
coordinating the related activities and programs of other
Federal departments and agencies.
(i)(1) There shall be in the Department a Liaison for
Community and Junior Colleges, who shall be an officer of the
Department appointed by the Secretary.
(2) The Secretary shall appoint, not later than 6 months
after the date of enactment of the Higher Education Amendments
of 1992, as the Liaison for Community and Junior Colleges a
person who--
(A) has attained an associate degree from a community
or junior college; or
(B) has been employed in a community or junior
college setting for not less than 5 years.
(3) The Liaison for Community and Junior Colleges shall--
(A) serve as principal advisor to the Secretary on
matters affecting community and junior colleges;
(B) provide guidance to programs within the
Department dealing with functions affecting community
and junior colleges; and
(C) work with the Federal Interagency Committee on
Education to improve coordination of--
(i) the outreach programs in the numerous
Federal departments and agencies that
administer education and job training programs;
(ii) collaborative business education
partnerships; and
(iii) education programs located in, and
regarding, rural areas.
* * * * * * *
MINORITY VIEWS
Introduction
In 1954, Chief Justice Earl Warren wrote for the unanimous
Supreme Court in Brown v. Board of Education (Brown) that,
``[Education], where the state has undertaken to provide it, is
a right which must be made available to all on equal
terms.''\1\ This was a long-overdue and welcomed acknowledgment
that separate is not, and can never be, equal. Discrimination
and segregation are repugnant, illegal, and blatantly immoral.
Unfortunately, while segregation is gone from our laws, its
lingering effects are not. We know that too many students
attend racially and economically isolated schools\2\ and that
better integrated schools have academic benefits for all
students.\3\
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\1\Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Page
493.
\2\``Better Use of Information Could Help Agencies Identify
Disparities and Address Racial Discrimination.'' U.S. Government
Accountability Office. May 17, 2016. https://www.gao.gov/products/GAO-
16-345.
\3\Ayscue, Jennifer, et. al. Research Brief: The Complementary
Benefits of Racial and Socioeconomic Diversity in Schools. The National
Coalition on School Diversity. March 2017. https://school-
diversity.org/pdf/DiversityResearchBriefNo10.pdf.
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Committee Consideration of H.R. 2574--Bipartisan Opportunity Lost
On May 16, 2019, the House Committee on Education and Labor
met to mark up H.R. 2574. Because Republicans and Democrats
largely agree on these challenges, this topic presented the
Committee an opportunity to work across the aisle to find
bipartisan compromise. Unfortunately, the majority took a
different approach. Comparing the provisions of H.R. 2574 with
the provisions of the substitute amendment offered by Rep.
James Comer (R-KY) illustrates the opportunity lost.
First, H.R. 2574 includes a provision that falls solely
within the Committee on Judiciary's jurisdiction. Committee
Republicans do not believe it was appropriate for our Committee
to vote on a provision we do not have the expertise to properly
consider. Second, H.R. 2574 requires any recipient of federal
funds to designate a monitor to coordinate compliance with
Title VI of the Civil Rights Act (Title VI). The Comer
substitute includes an identical provision. Third, H.R. 2574
creates a new Special Assistant for Equity and Inclusion at the
Department of Education (ED). The Comer substitute tweaks this
provision by combining the role envisioned in H.R. 2574 with an
existing role at ED currently focused on gender equity. The
Comer substitute expands the existing role to encompass Title
IX of the Education Amendments of 1972, Title VI, and all other
federal civil rights laws enforced by ED. Rather than creating
multiple, siloed positions competing for resources and
attention, Committee Republicans believe an integrated approach
to ED's equity and inclusion efforts would create better
results. Unfortunately, Rep. Comer's amendment was rejected by
the Democrats. Given the similarities of the provisions within
our Committee's jurisdiction offered in H.R. 2574 and Rep.
Comer's substitute amendment, a bipartisan compromise could
have been achieved had the majority been willing to fulfill its
promise to work across the aisle.
Fulfilling the Promise of Brown--Expanding Opportunity
While there is significant alignment between H.R. 2574 and
Rep. Comer's substitute, Committee Republicans also believe
expanding opportunities for students should be a priority.
School choice gives families the opportunity to break the cycle
of poverty and enroll their children in challenging
environments that better develop their skills and intellect,
encouraging them to reach higher. Studies show that when
students are given the freedom to attend school in a learning
environment best suited to their abilities, they pursue and
complete postsecondary opportunities at higher rates.\4\
---------------------------------------------------------------------------
\4\Chingos, Matthew, et. al. ``The Effects of the Florida Tax
Credit Scholarship Program on College Enrollment and Graduation.''
February 2019. https://www.urban.org/research/publication/
effects-florida-tax-credit-scholarship-program-college-enrollment-and-
graduation?utm_source=
urban_EA&utm_medium=email&utm_campaign=florida_school_choice&utm_term=ed
u&
utm_content=r.
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In April 2019, the Committee held a hearing examining the
legacy of Brown as its 65th anniversary approached. Virginia
Walden Ford, a parent who advocates for more educational
freedom for families wrote to the committee and said:
The same schools that we fought hard to get into in
the 1960's after the [Brown] decision have become the
schools we must diligently find a way to get minority
children out of. These schools and programs that our
children are now forced to attend are creating
environments where our kids cannot get the education
they deserve.\5\
---------------------------------------------------------------------------
\5\Ford, Virginia Walden. Letter to the Committee on Education and
Labor. April 27, 2019.
Loisa Maritza White, another parent advocate, testified to
the Committee about her family's use of the DC Opportunity
Scholarship Program and the importance of school choice. She
---------------------------------------------------------------------------
said:
Each family has the right to decide what education
works best for their individual child(ren) . . . No,
indeed, [the Brown] mandate has NOT been fulfilled in
the last 65 years. But school choice is a step in the
right direction in reaching the mandated outcome.
Committee Republicans stand ready to work with our
colleagues in the majority to expand educational opportunities
to families. Brown prohibited the state from assigning students
to schools based on race. We should take the next step and
eliminate the right of the state to trap children in low-
performing schools with no means of escape.
Conclusion
As outlined in these Minority Views, H.R. 2574 is a lost
opportunity. Bipartisan compromise was possible to advance the
shared goals of equity and inclusion in education.
Unfortunately, Committee Democrats chose a partisan path.
Additionally, Committee Republicans believe no effort to erase
the evil legacy of segregation and discrimination can be
complete without eliminating the state's ability to trap
students in low-performing schools. We invite Democrats to
listen to parents desperate for better educational options for
their children and work with Committee Republicans to help
provide those options.
Virginia Foxx, Ranking Member.
James Comer.
Ben Cline.
Dusty Johnson.
[all]