The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
The Departments of Justice and Health and Human Services issued the following joint guidance letter on October 19, 2016 to state and local child welfare systems and courts on meeting their responsibilities to promote the safety, permanency, and well-being of America’s children and their families while ensuring compliance with federal civil rights laws.
Title VI of the Civil Rights Act of 1964 and its implementing regulations1 prohibit discrimination based on race, color, or national origin in programs and activities receiving federal financial assistance. In a recent letter, reprinted below, the U.S. Department of Health and Human Services and the U.S. Department of Justice provide guidance to child welfare agencies and courts on how the act and regulations apply to child welfare policy and practice.2
Role of DOJ and DHHS
The U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS), Administration for Children and Families (ACF) and Office for Civil Rights (OCR), are committed to working with states and other stakeholders to ensure that all children and families receive equal access to the programs and services of the child welfare system. The Children’s Bureau, an office of ACF, administers funding for child welfare agencies and state court systems and provides guidance and technical assistance to child welfare agencies regarding child welfare law and policy; in addition, both HHS and DOJ provide federal funds to state court systems.
HHS promulgates federal regulations and policy that govern Title IV-B and IV-E agencies3 and provides guidance and technical assistance to HHS-funded state court systems and child welfare agencies regarding how federal laws, regulations and policies affect a state’s implementation of its child welfare laws. HHS and DOJ ensure that their respectively-funded state court systems and child welfare agencies comply with Title VI and its implementing regulations. DOJ is also responsible for ensuring consistent and effective enforcement of Title VI across federal funding agencies.
DOJ and HHS will work together to engage the field and offer technical assistance to help child welfare agencies and state court systems better understand, assess, and enhance efforts to protect the civil rights of children and families.
Need for Continuing Our National Conversation
DOJ and HHS have investigated a number of complaints alleging race, color, and national origin discrimination in the child welfare system. These complaints include allegations that such discrimination has resulted in: children being needlessly removed from their biological families; biological parents being denied equal access to culturally competent reunification services; denial of relative or kinship placements; unnecessarily long stays in foster care; and family members being denied full and informed participation in family courts and social services simply because they have limited proficiency in speaking, reading, writing, or understanding the English language.
There is a clear need for frank and productive discussion about how child welfare laws, policies, practices, and unconscious bias4 affect communities of color, both directly and indirectly. Data shows that particular racial and ethnic groups are overrepresented in the child welfare system compared to their numbers in the general population. Nationally, African American and Native American children are involved in the child welfare system at a rate that is almost twice their representation in the general population.5 Evidence of disproportionality can be a red flag signaling that additional attention is necessary to see if and how system structures, access to services, and delivery methods may contribute to racial and ethnic disparities.
Overview of Title VI of the Civil Rights Act of 1964
All recipients of federal financial assistance, including child welfare agencies and state court systems, must comply with Title VI and its implementing regulations. Title VI 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 [f]ederal financial assistance.”6 Discrimination under Title VI includes both intentional discrimination and disparate impact discrimination.
Intentional discrimination occurs when the recipient acts, at least in part, because of the actual or perceived race, color, or national origin of the alleged victims of discriminatory treatment. To prove intentional discrimination, one must show that the challenged action was “motivated by an intent to discriminate.”7 Evidence of discriminatory intent can be direct or circumstantial, and ill-will is not required.8 Such evidence can be found in, among other things: statements by decision-makers; the sequence of events leading to the decision at issue; legislative or administrative history; a departure from normal policy and procedure; a past history of discrimination or segregation; statistics demonstrating a “clear pattern unexplainable on grounds other than” discriminatory ones;9 or comparative evidence of more favorable treatment toward similarly situated individuals not sharing the protected characteristic.10
Under Title VI, a recipient of federal financial assistance may not take action that is motivated by race, color or national origin discrimination, including selecting a program site or location that excludes individuals or denies them benefits, or subjecting individuals to segregation or separate treatment.11 For example, one case resolved by OCR involved allegations that a county child welfare agency served each Caucasian child in the neighborhood office located closest to the child’s home, but departed from its normal “neighborhood office” policy and required each African American child to be served in a separate county-wide office, thereby subjecting African American children and their parents to separate and unequal treatment, impermissible under Title VI.12
Disparate impact discrimination focuses on the consequences of a recipient’s practices rather than the motivation, and occurs when a recipient has an otherwise neutral policy or practice that has a disproportionate and adverse effect on individuals of a certain race, color, or national origin, as compared to individuals of a different race, color or national origin. A recipient of federal financial assistance is prohibited from utilizing criteria or methods of administration that have the effect, even if unintentional, of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the program’s objectives.13 To prove a disparate impact claim under Title VI, a complainant must initially show that a facially neutral practice has a racially disproportionate effect. The burden then shifts to the recipient to prove a substantial legitimate justification for the practice. The complainant may prevail by proffering an equally effective alternative practice that results in a lesser racially disproportionate effect, or evidence that the purportedly legitimate practice is a pretext for discrimination.14
Courts have found Title VI disparate impact violations in cases where recipients have policies or practices that result in the provision of fewer services or benefits, or inferior services or benefits, to members of a protected group. Examples of this include utilization of a funding formula for distributing federal aid that resulted in a substantially adverse disparate impact on minorities and the elderly,15 or the use of a nonvalidated IQ test that resulted in a disproportionate number of African-American school children being placed in special education classes as a result of the test.16
Title VI’s prohibition against national origin discrimination includes discrimination based on a person’s birthplace, ethnicity, ancestry, culture related to national origin, or ability to speak English. This means that people cannot be subjected to discrimination because English is not their primary language; or because they have a name, accent, or participate in customs associated with a national origin group; or because they are married to or associate with people of a national origin group. Prohibited treatment under Title VI, for example, could include the removal of a newborn from a limited English proficient (LEP) mother and placement of the newborn in agency custody, based on stereotypical beliefs about the mother’s national origin group and that group’s ability to parent, or by neglecting to conduct an individualized assessment of the mother’s ability to parent.
To comply with Title VI, federally funded child welfare agencies are also required to take reasonable steps to provide meaningful access to each LEP individual eligible to be served or likely to be encountered in their programs or activities. DOJ and HHS have provided general guidance for how federally funded programs should evaluate and implement their obligations to provide services to LEP individuals, and factors that may be considered in a wide variety of contexts.17 DOJ and HHS recognize the crucial interests at stake in child welfare activities, which highlight the need to communicate meaningfully with LEP individuals. Agencies might violate this standard, for example, if they fail to conduct a child placement interview with an LEP mother using a qualified interpreter competent in the mother’s primary language.18
Child welfare agencies and state court systems have important responsibilities to protect the best interests of children and to provide appropriate, nondiscriminatory services to the children and families that they serve. Under Title VI, the duty to avoid discrimination on the basis of race, color, or national origin serves these child-protective responsibilities.
What types of child welfare programs and activities are covered by Title VI?
Unlike program-specific statutes, such as Title IV-E of the Social Security Act, Title VI applies to all recipients of federal financial assistance, and covers all of the programs, services, and activities they provide. Therefore, all programs and activities of federally funded child welfare agencies and state court systems are covered. These include, but are not limited to, investigations, witness interviews, assessments, removal of children from their homes, placement of children outside of their homes, case planning and service planning, visitation, guardianship, foster care, adoption, family reunification services, and family court proceedings.
Title VI also makes recipients responsible for the actions of private and nonprofit agencies with which federally funded child welfare agencies and state court systems contract to provide services to children and families on their behalf. In such circumstances, recipients must ensure that the contractors comply with the Title VI prohibition against discrimination.
It is important to note that Title VI is an overarching antidiscrimination statue that applies to the programs and activities of all entities receiving federal financial assistance. As such Title VI’s nondiscrimination mandate applies to other agencies that may impact child welfare outcomes and receive federal dollars, such as those administering housing, education, transportation, and public safety programs. Additionally, if a recipient of federal funds makes sub-awards to other agencies, the recipient is responsible for assuring that sub-recipients also comply with Title VI.
Whom does Title VI protect in child welfare programs and activities?
Title VI protects all children, parents, grandparents, caregivers, foster and adoptive parents, kinship guardians, and individuals seeking to become foster or adoptive parents who interact with federally funded recipients. This protection is provided regardless of whether an individual is a U.S. citizen, as long as citizenship is not an eligibility requirement of the program.
Title VI also protects individuals from retaliation, intimidation, and coercion they may suffer for asserting their Title VI rights or participating in a Title VI complaint, investigation, or other proceeding. Individuals are protected against retaliation whether or not they are the targets of the underlying discrimination. For example, if a Caucasian caseworker complains to HHS that African-American families are not receiving equal treatment at his workplace and he is later demoted because he filed a complaint, the caseworker is protected under Title VI against such retaliatory action.
1. 42 U.S.C. §§ 2000d – 2000d-7. The DOJ Title VI implementing regulation may be found at 28 C.F.R. pt. 42, Subpt. C; and the HHS.
2. We also answer Frequently Asked Questions at Appendix A; and provide Additional Resources at Appendix B.
3. See Title IV-B of the Social Security Act, 42 U.S.C. §§ 621 – 629m (Child and Family Services); Title IV-E of the Social Security Act, 42 U.S.C. §§ 670 – 679c (Federal Payments for Foster Care and Adoption Assistance).
4. Title VI disparate impact regulations provide a powerful enforcement tool when unconscious bias invades the decision-making processes within a federally funded program and facially neutral practices fall more harshly on one racial or national origin group. See infra pgs. 3-4 (discussion of disparate impact discrimination).
5. See U.S. Dep’t of Health and Human Servs., Office of the Admin. for Children and Families, Children’s Bureau, Addressing Racial Disproportionality in Child Welfare, Issue Brief (2011), go.usa.gov/czWYd; see also Nat’l Council of Juvenile and Family Court Judges, Tech. Assistance Bulletin: Disproportionality Rates for Children of Color in Foster Care (Fiscal Year 2013) (2015), perma.cc/4F4P-U8BP.
6. 42 U.S.C. § 2000d.
7. See Elston v. Talladega County Bd. of Educ., 97 F.2d 1394, 1406 (11th Cir.), reh’g denied, 7 F.3d 242 (11th Cir. 1993).
8. Even benign motivations for racial classifications are presumptively invalid and trigger strict scrutiny in Equal Protection Clause and Title VI cases. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 223-24 (1995); Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
9. See Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977) (discussion of intentional discrimination claim under the 14th Amendment).
10. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) (discussion of intentional discrimination claim under Title VII).
11. See 28 C.F.R. § 42.104(b) (DOJ), 45 C.F.R. § 80.3(b) (HHS).
12. See U.S. Dep’t of Health and Human Servs., Office for Civil Rights, Voluntary Resolution Agreement between HHS Office for Civil Rights, HHS Administration for Children and Families, and Washington State Department of Social and Health Services at § I (July 7, 2010), go.usa.gov/cuCy9.
13. See 28 C.F.R. § 42.104(b)(2) (DOJ); 45 C.F.R. § 80.3(b)(2) (HHS).
14. See Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); Meek v. Martinez, 724 F.Supp. 888, 906 (S.D. Fla. 1987).
15. See e.g., Meek v. Martinez, 724 F.Supp. at 906.
16. See Larry P. v. Riles, 793 F.2d 969, 982-83 (9th Cir. 1984).
17. See U.S. Dep’t of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition on National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41457, 41461 (Jun. 18, 2002) [hereinafter DOJ LEP Guidance], go.usa.gov/ctC8Q; see also, U.S. Dep’t of Health and Human Servs., Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed. Reg. 47311, 47316 (Aug. 8, 2003) [hereinafter HHS LEP Guidance], go.usa.gov/ctC95.
18. See Cruz v. Miss. Dep’t of Human Servs., 9 F. Supp. 3d 668 (S.D. Miss. 2014) (rejecting defendants’ motions to dismiss plaintiff’s Section 1983 action, where plaintiff, whose primary language is Chatino -- an indigenous Mexican language—presented a prima facie case that her rights were violated, in that hospital and child welfare agency staff made derogatory comments about her “illegal alien status;” made the stereotypical assumption that she had been trading sex for housing; failed to interview her using an interpreter competent to translate from Chatino to English; and then placed her newborn in the custody of the agency without proof of abuse or neglect). In addition to the cited private plaintiff’s litigation, this case has led to the issuance of a program violation letter by the HHS Administration for Children and Families and a resolution agreement between the HHS Office for Civil Rights and the Mississippi Department of Human Services. See U.S. Dep’t of Health & Human Servs., Office for Civil Rights, Resolution Agreement between HHS Office for Civil Rights and Miss. Dep’t of Human Servs. (Mar. 23, 2014), go.usa.gov/xWpY9. See also U.S. Dep’t of Health & Human Servs. v. Target Area Programs for Child Dev., Inc., No. 1615 (HHS Dep’t App. Bd.) (1997), go.usa.gov/xWpYA (where nonprofit failed to provide counseling and mental health services to Head Start children and parents who spoke Spanish and Mixteco, the HHS Departmental Appeals Board upheld the termination of the nonprofit’s Head Start grant).