Expressing the sense of the House of Representatives regarding the obligation of the Office for Civil Rights of the Department of Education and the Civil Rights Division of the Department of Justice to enforce title VI of the Civil Rights Act of 1964 and its implementing regulations, and expressing the sense of the House of Representatives regarding the obligation of the Department of Housing and Urban Development to "build inclusive and sustainable communities free from discrimination", and for other purposes.

IV 116TH CONGRESS 1ST SESSION H. RES. 66 Expressing the sense of the House of Representatives regarding the obligation of the Office for Civil Rights of the Department of Education and the Civil Rights Division of the Department of Justice to enforce title VI of the Civil Rights Act of 1964 and its implementing regulations, and expressing the sense of the House of Representatives regarding the obligation of the Department of Housing and Urban Development to ‘‘build inclusive and sustainable communities free from discrimina- tion’’, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 22, 2019 Mr. SCOTT of Virginia (for himself and Mr. NADLER) submitted the following resolution; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consider- ation of such provisions as fall within the jurisdiction of the committee concerned RESOLUTION Expressing the sense of the House of Representatives regard- ing the obligation of the Office for Civil Rights of the Department of Education and the Civil Rights Division of the Department of Justice to enforce title VI of the Civil Rights Act of 1964 and its implementing regula- tions, and expressing the sense of the House of Rep- resentatives regarding the obligation of the Department of Housing and Urban Development to ‘‘build inclusive VerDate Sep 11 2014 01:24 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\HR66.IH HR66 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HRES 66 IH and sustainable communities free from discrimination’’, and for other purposes. Whereas, 64 years ago, in the case of Brown v. Board of Education of Topeka, Kansas, a unanimous Supreme Court held that segregated school systems based on race are inherently unequal and violate the 14th Amendment to the Constitution; Whereas Congress passed the Civil Rights Act of 1964, in part, to address ‘‘Massive Resistance’’, a collection of State laws passed in response to the Brown decision that aggressively tried to forestall and prevent school integra- tion, and the ‘‘Declaration of Constitutional Principles’’ (known colloquially as the ‘‘Southern Manifesto’’) signed on March 12, 1956, by Members of the House of Rep- resentatives and the Senate, that attacked the decision and opposed integrated schools; Whereas title VI of that law prohibits programs and activities that receive Federal funds from discriminating based on race, color, or national origin; Whereas former President John F. Kennedy eloquently ex- plained the need for title VI by stating that ‘‘[s]imple 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 viola- tion.’’; VerDate Sep 11 2014 01:24 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6300 E:\BILLS\HR66.IH HR66 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HRES 66 IH Whereas title VI requires policies and practices to be devel- oped and administered in a manner that does not inten- tionally discriminate against students on the basis of race, color, or national origin, and that does not ‘‘have the effect of subjecting individuals to discrimination be- cause of their race, color, or national origin, or . . . of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.’’; Whereas racial discrimination in the public school systems nationwide continues to persist, as exemplified by— (1) a recent appellate court decision holding that a White community’s attempt to secede from a majority Black Alabama school district was racially discriminatory in violation of the Constitution; and (2) a recent Department of Education Office for Civil Rights resolution of a complaint filed against Dur- ham Public Schools in North Carolina regarding discrimi- nation against Black students and students with disabil- ities in the application of school discipline requiring Dur- ham Public Schools to take actions to end discriminatory discipline practices; Whereas recent reports by the Government Accountability Of- fice and other national education advocacy organizations detail racial disparities in the Nation’s education systems, including that— (1) the percentage of schools that are isolated by poverty and race increased from 9 percent during the 2000–2001 school year to 16 percent during the 2013– 2014 school year; (2) high-poverty schools that are majority Black and Latino are less likely to offer a range of math courses, VerDate Sep 11 2014 01:24 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6300 E:\BILLS\HR66.IH HR66 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HRES 66 IH and such lack of access is linked to lower completion rates for higher level math and science courses in high school, which are critical components of preparing stu- dents for college and careers; (3) only 12 percent of students took Advanced Placement courses at high-poverty schools that are ma- jority Black and Latino and offer such courses, compared to 24 percent of all students in low-poverty schools with lower Black and Latino enrollment; (4) students of color on average have lower enroll- ment in prekindergarten programs, and attend lower quality prekindergarten programs, than their White peers; (5) Black students are disproportionately excluded from school, beginning as early as preschool, and stu- dents who are suspended are more likely to fail a grade, drop out of school, and become involved in the juvenile justice system; (6) with few exceptions, Black students, boys, and students with disabilities experience disparities in the ad- ministration of school discipline, regardless of the type of disciplinary action, poverty level of the school, or type of public school attended; and (7) research suggests that implicit biases—stereo- types or unconscious associations that people, including teachers and other school staff, hold about other people— are a contributing factor to these discipline disparities be- cause they cause school staff to judge students differently based on their race; Whereas disparate impact analysis is an essential tool to com- bat discrimination across other areas of the Civil Rights Act of 1964; VerDate Sep 11 2014 01:24 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6300 E:\BILLS\HR66.IH HR66 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HRES 66 IH Whereas the Environmental Protection Agency (EPA) has ac- knowledged that the disproportionate placement of indus- trial polluters in low-income and minority neighborhoods in Flint, Michigan, is discriminatory, and whereas the en- tirety of the environmental justice movement is premised on a disparate impact analysis; Whereas Federal appellate courts have determined that viola- tions of title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act (FHA), may be estab- lished through the disparate impact theory of liability; Whereas, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the Supreme Court held that disparate impact claims are cognizable under the FHA, with Justice Kennedy writing, ‘‘Recogni- tion of disparate-impact claims is also consistent with the central purpose of the FHA, which, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of the Nation’s economy. Suits targeting unlawful zoning laws and other housing restrictions that unfairly exclude minorities from certain neighborhoods without sufficient justification are at the heartland of dis- parate-impact liability. . . . Recognition of disparate-im- pact liability under the FHA plays an important role in uncovering discriminatory intent: it permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.’’; Whereas the Office for Civil Rights of the Department of Education and the Civil Rights Division of the Depart- ment of Justice are charged with enforcing title VI and its regulations, which prohibit both intentional discrimi- nation and unintentional discrimination resulting from policies and practices that have a discriminatory effect, VerDate Sep 11 2014 02:01 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6300 E:\BILLS\HR66.IH HR66 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HRES 66 IH or disparate impact, on students based on race, color, or national origin; Whereas racial discrimination cases decided under title VIII of the Civil Rights Act of 1968 and title VII of the Civil Rights Act of 1964 provide guidance on how to analyze intentional discrimination and unintentional discrimina- tion based upon disparate impact claims brought under title VI; Whereas the Department of Housing and Urban Develop- ment’s Office of Fair Housing and Equal Opportunity is charged with administration of the FHA, and has pro- mulgated rules to clarify the application of disparate im- pact to FHA cases; Whereas the EPA’s External Civil Rights Compliance Office (ECRCO) (formerly Office of Civil Rights (OCR)), within the Office of General Counsel, is charged with enforcing civil rights under title VI and since 1973 has prohibited recipients of EPA financial assistance from taking ac- tions in their programs or activities that are intentionally discriminatory and/or have a discriminatory effect; Whereas the Department of Transportation’s Office of Civil Rights is responsible for ensuring that recipients of Fed- eral funds from that agency conduct their federally as- sisted programs and activities in a nondiscriminatory manner in compliance with title VI; Whereas the Office for Civil Rights for the Office of Justice Programs (OJP) of the Department of Justice (DOJ) en- sures that recipients of financial assistance from OJP comply with Federal antidiscrimination laws, including title VI; VerDate Sep 11 2014 01:24 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6300 E:\BILLS\HR66.IH HR66 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HRES 66 IH Whereas a DOJ memo was recently leaked to the Washington Post in which senior Civil Rights Division officials were directed ‘‘to examine how decades-old ‘disparate impact’ regulations might be changed or removed . . . and what the impact might be’’; Whereas the Washington Post reports that similar directives to eliminate regulations using disparate impact analysis are being considered at the Department of Education and are already underway at the Department of Housing and Urban Development; Whereas Federal agencies under both Democratic and Repub- lican administrations have a history of bringing title VI disparate impact claims; and Whereas the Supreme Court’s decision in Alexander v. Sandoval overturned four decades of statutory protections against discrimination by eliminating an implied private right of action under title VI to challenge disparate im- pact, leaving Federal agencies as the only entities that can bring disparate impact claims: Now, therefore, be it Resolved, That the House of Representatives— 1 (1) reaffirms that the original intent of the 2 Civil Rights Act of 1964 was to broadly prohibit all 3 forms of discrimination by providing for both the 4 Federal Government and private attorneys general 5 to bring cases under causes of action to enforce 6 against both disparate treatment and disparate im- 7 pact; 8 (2) reaffirms its commitment to ensuring that 9 the elementary, secondary, and college educational 10 VerDate Sep 11 2014 01:24 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\HR66.IH HR66 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HRES 66 IH systems of the United States prepare all students for 1 successful careers, regardless of their race, color, or 2 national origin; 3 (3) reaffirms its commitment to ensuring that 4 all communities are inclusive, sustainable, and free 5 from discrimination; 6 (4) recognizes that the Office for Civil Rights 7 of the Department of Education, the Civil Rights 8 Division and Office of Justice Programs of the De- 9 partment of Justice, the Department of Housing 10 and Urban Development, the Environmental Protec- 11 tion Agency, and other Federal agencies have an ob- 12 ligation to enforce title VI of the Civil Rights Act of 13 1964 and its implementing regulations; 14 (5) expects the Department of Education, the 15 Department of Justice, and other Federal agencies 16 to enforce title VI of the Civil Rights Act of 1964 17 and its implementing regulations, as they have done 18 in the past under Democratic and Republican ad- 19 ministrations, using all legal theories including dis- 20 parate treatment and disparate impact, given the 21 growing evidence that racial discrimination in edu- 22 cation, housing, and other aspects of public life con- 23 tinue to adversely impact individuals and commu- 24 nities; 25 VerDate Sep 11 2014 01:24 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\HR66.IH HR66 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HRES 66 IH (6) will hold oversight hearings to ensure that 1 the Department of Education, the Department of 2 Justice, the Department of Housing and Urban De- 3 velopment, the Environmental Protection Agency, 4 and other Federal agencies enforce title VI of the 5 Civil Rights Act of 1964 and its implementing regu- 6 lations, including enforcement with respect to unin- 7 tentional discrimination resulting from policies and 8 practices that have a discriminatory effect, or dis- 9 parate impact, on individuals and communities based 10 on race, color, or national origin; and 11 (7) will consider legislation that acknowledges 12 and reaffirms the original intent of the Civil Rights 13 Act of 1964 and the original intent to prohibit all 14 forms of discrimination and discriminatory effects, 15 including H.R. 2486 (115th Congress), the Equity 16 and Inclusion Enforcement Act, a bill that restores 17 the title VI private right of action in cases involving 18 disparate impact, creates title VI monitors to ensure 19 that every school has at least one employee respon- 20 sible for investigating any complaints of discrimina- 21 tion based on race, color, or national origin, and cre- 22 ates a position of Assistant Secretary in the Depart- 23 VerDate Sep 11 2014 01:24 Jan 23, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt [Text truncated for display. Full text available on Congress.gov.]