COMPLIANCE & ENFORCEMENT OF TITLE VI PROGRAM 2015 HDOT Civil Rights Symposium Thursday January 29, 2015 Honolulu International Airport Interisland Conference.

COMPLIANCE & ENFORCEMENT OF TITLE VI PROGRAM

2015 HDOT Civil Rights SymposiumThursday January 29, 2015

Honolulu International Airport Interisland Conference Center

Mohamed Sulaiman Dumbuya

FHWA Resource Center Title VI Specialist

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LEARNING OUTCOMES

Review What Constitute Compliance and Enforcement of FHWA’s Title VI Program

Discuss An Effective Approach to Implementing the Title VI Program

Identify Procedures to Effect Compliance Recognize Efforts to Strengthen and Sustain

Sound Implementation

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TITLE VI COMPLIANCE

COMPLIANCE

Compliance with Title VI is a satisfactory condition when a recipient [or subrecipient] has effectively implemented all of the Title VI requirements or can demonstrate that every good faith effort toward achieving this end has been made (23 CFR 200.5(d)).

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TITLE VI ENFORCEMENT

ENFORCEMENT

Actions that are undertaken to effect compliance with the Title VI Program requirements

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METHODS OF ADMINISTRATION

Federal-aid recipients and subrecipients are required to develop procedures and mechanisms (Methods of Administration) to ensure nondiscrimination in all their programs, activities and services (49 CFR 21.7(b)(2); DOT 1050.2A #9)

Efforts to assure nondiscrimination must address, but not be limited to: program's impact upon access, benefits, participation, treatment, services, contracting opportunities, training opportunities, investigation of complaints, allocation of funds, prioritization of projects and the functions of planning, project development, design, right-of-

way acquisition, construction, research etc.

RECIPIENT REQUIREMENTS

KEY REQUIREMENTS

Signed Assurance Adequately Staffed Civil Rights Unit Title VI Program Coordinator & Title VI

Specialist/Manager

Implementation Plan Training Program Develop Procedures

Complaint investigations, reviews, monitoring, compliance & enforcement

Deficiency resolution; data collection and analysis; Outreach/Public Involvement

Conduct Reviews Programs & special emphasis areas Subrecipients & State program directives Pre-award & post-award/grant applications

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THE MULTIDISCIPLINARY APPROACH

• Traditional v. Multidisciplinary • Multidisciplinary Process

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MEMO

Strategies to implement Title VI Program have traditionally focused on achieving compliance through compliance reviews;

Compliance approach is less effective in most cases Limits compliance to areas in noncompliance Noncompliance discovered too late for remedy May lead to adversarial situations

Multidisciplinary (TEAM) approach goes beyond compliance to include intent of the laws.

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TRADITIONAL v. MULTIDSISCIPLINARY APPROACH

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Traditional Approach Multidisciplinary Approach

Comments

(After the Fact) Reviews Preventive and proactive A variety of disciplines working together to develop a strategic approach to prevent Title VI issues

Compliance-laden & RigidReview > Deficiencies > Recommendations > Response > Follow up

Beyond compliance Multidisciplinary Approach lends itself to flexibility and opportunity to make adjustments as necessary

Reactive – To Regulations, etc. Proactive and holistic Looks at the program as a whole – strengths, areas to improve; ongoing assessments and adjustments in a team context

Intra-disciplinary – Single Disciple or Office

[Inter]Multidisciplinary involving diverse disciplines

Diverse perspective results in sound program better serves the transportation needs of the public

May not reduce recipient’s vulnerability

Reduces vulnerability by stressing inclusion of all affected by program to greatest extent

If correctly implemented, will demonstrate recipient’s proactive attempt at meeting spirit of the law

Contributes little of nothing to preventing project delays/disruptions

If properly implemented, may reduce/eliminate delays, disruption or cancellations

MDA most likely to anticipate and address issues before they rise to level of formal action

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MULTIDISCIPLINARY PROCESS

Secure Chief Administrative Officer’s (CAO) support and that of discipline lead;

Create a Team involving every program office including CAO or representative; Team meets and establish objective(s); Identify issue/area of vulnerability or need; Analyze issue; Prepare plan of action;

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MULTIDISCIPLINARY PROCESS CONTINUED

Formulate strategies & implement the plan; Establish roles and responsibilities; Assess plan from time to time and make adjustments; Meet periodically; Maintain awareness; Evaluate progress/course of action/results.

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ESSENCE OF MULTIDISCIPLINARY APPROACH

“Great achievements are not born from a single vision but a combination of many distinctive viewpoints. Diversity challenges assumptions, opens minds and unlocks our potential to solve effectively any problem we may face.” - Anonymous

STRENGTHENING ENFORCEMENT

• Renewed Interest• Procedures For Effectuating

Compliance

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RENEWED INTEREST

DOJ MEMOS

March 4, 2009 Memo to Agency Senior ARRA Officials and Civil Rights Directors for Federally Assisted programs

July 10, 2009 Memo to Federal Agency Directors & General Counsels

August 19, 2010 Memo to Federal Funding Agency Civil Rights Directors

September 8, 2010 Correspondence to DOE’s Assistant Secretary For Civil Rights

September 27, 2010 memo to Heads of Departments and Agencies Providing FFA

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MARCH 4, 2009 MEMO

Issued by Acting Assistant Attorney General, Loretta King to Agency Senior ARRA Officials and Civil Rights Directors for Federally Assisted programs;

Federal Agencies and recipients and subrecipients of FFA must distribute and use ARRA funds in accordance with all nondiscrimination mandates including Title VI;

A summary of civil rights obligations of Federal agencies providing assistance including recipients and subrecipients of that assistance;

Notice should be posted on Agency’s website and all relevant websites.

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JULY 10, 2009 MEMO

Issued by Acting Assistant Attorney General, Loretta King, to Federal Agency Civil Rights Directors and General Counsels;

Renewed commitment to strengthening enforcement of Title VI;

Reminder that certain federal agency documents related to civil rights, including Title VI, must be reviewed and cleared by DOJ;

Examine anew all aspects of its compliance program; Submit to the CRD for litigation Title VI cases.

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AUGUST 19, 2010 MEMO

Issued by Assistant Attorney General, Thomas Perez to Federal Agencies Civil Rights Directors;

Related to Title VI Coordination and Enforcement; Expressed commitment to work “to vigorously enforce

Title VI to prevent, root out, and address intentional and unintentional discrimination by recipients of taxpayer assistance.”

Restructuring of the former Coordination and Review Section (now Federal Compliance and Coordination Section (FCS)) to increase its capacity to assist federal agencies in Civil Rights enforcement work.

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SEPTEMBER 8, 2010 LETTER

Issued by Assistant Attorney General, Tom Perez to DOE Assistant Secretary for Civil Rights, Russlynn Ali;

About Title VI coverage of Religiously Identified Groups Title VI does not prohibit discrimination on the basis of

religion; however, discrimination of members of religious groups violates Title VI when discrimination is based on group’s actual or perceived shared ancestry or ethnic attributes rather than its members’ religious practice;

That Title VI also prohibits discrimination against an individual based on actual or perceived citizenship or residency in a country whose residents share a dominant religion or distinct religious identity.

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SEPTEMBER 27, 2010 MEMO

Issued by Attorney General, Eric Holder, to heads of Executive Departments and Agencies providing federal financial assistance;

Encouraging agencies to take all necessary steps to ensure that ARRA funds are spent in a manner that exclude or otherwise discriminate against any individual pursuant to Title VI and other nondiscrimination laws.

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FHWA ASSOCIATE ADMINISTRATOR FOR CIVIL RIGHTS MEMO

Emphasis on Title VI Program Oversight

Issued on May 27, 2010 Memo to DAs & DFSs

Emphasized the critical importance of STAs complying with all

nondiscrimination laws and regulations, and

[Division Offices] oversight and enforcement responsibilities

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PROCEDURES FOR EFFECTING COMPLIANCE

• Actions to Effect Compliance

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ACTIONS IN THE EVENT OF NONCOMPLIANCE

Actions

Found in noncompliance; Voluntary or Informal Compliance

Sought First Suspension or termination of

Federal financial assistance Refusal to grant or continue

federal financial assistance Any other means authorized by law

Refer to DOJ to enforce Federal law, assurance or contractual obligation

Utilize applicable proceedings under state or local law

(49 CFR 21.13)

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STRATEGIES TO ASSURE NONDISCRIMINATION

• Minimum Considerations• Strategies

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MINIMUM CONSIDERATIONS

Minimum Considerations

Be proactive!! At a minimum:

Provide training; Technical assistance; Public education; Community Outreach; Data collection &

analysis

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STRATEGIES

Full employment of systematic multidisciplinary approach;

Frequent Title VI/Nondiscrimination training; Regular/periodic TEAM meetings; Periodic reviews and evaluations; Develop public involvement strategies

according to situation at hand;

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STRATEGIES CONTD.

Create an atmosphere of trust and respect; Empower the Community by listening, and

providing prompt response to inquiries; Establish a two-way free and frank line of

communication with the public; Maintain proper statistical, income and

demographic data; Document, Document, Document.

OTHER EFFORTS TO STRENGTHEN TITLE VI IMPLEMENTATION

HCR-led Title VI Compliance Reviews The new USDOT Title VI Assurances & Nondiscrimination

Provisions (DOT 1050.2A) Updating Regulations and revising guidance documents The Multidisciplinary Approach To Title VI Program

Implementation Increase in training, technical assistance, webinars, and

the development of e-learning tools to facilitate understanding of requirements and effect effective implementation of Title VI Program

Focus on tangible results rather than mundane process

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REVIEW OF LEARNING OUTCOMES

What Constitute Compliance and Enforcement of FHWA’s Title VI Program

Discuss An Effective Approach to Implementing the Title VI Program

Identify Procedures to Effect Compliance Recognize Efforts to Strengthen and Sustain

Sound Implementation

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OPEN FLOOR

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QuestionsConcernsCommentsSuggestions

THE END

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