Equity and Inclusion Enforcement Act of 2021
Summary
This is House Report 117-177, Part 1, of the 117th Congress, 1st Session, titled Equity and Inclusion Enforcement Act of 2021, from the Committee on Education and Labor, together with minority views, ordered to be printed November 23, 2021. Mr. Scott of Virginia reports on H.R. 730, to amend title VI of the Civil Rights Act of 1964 to restore the right to individual civil actions in cases involving disparate impact, which the Committee reports favorably with an amendment and recommends that the bill as amended do pass. The report includes a cost estimate of the Congressional Budget Office. The amendment text provides for a private civil cause of action, designation of monitors, and a Special Assistant for Equity and Inclusion in the Department of Education.
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“Equity and Inclusion Enforcement Act of 2021.”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crpt-crpt-117hrpt177-crpt-117hrpt177-pt1/
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117TH CONGRESS REPT. 117–177
" HOUSE OF REPRESENTATIVES !
1st Session Part 1
EQUITY AND INCLUSION ENFORCEMENT ACT OF 2021
NOVEMBER 23, 2021.—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. 730]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 730) to amend title VI of the Civil Rights Act of 1964
to restore the right to individual civil actions in cases involving dis-
parate 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 ..................................................................................................... 6
Section-by-Section Analysis .................................................................................... 17
Explanation of Amendments ................................................................................... 18
Application of Law to the Legislative Branch ....................................................... 18
Unfunded Mandate Statement ............................................................................... 18
Earmark Statement ................................................................................................. 18
Roll Call Votes ......................................................................................................... 18
Statement of Performance Goals and Objectives .................................................. 21
Duplication of Federal Programs ............................................................................ 21
Hearings ................................................................................................................... 21
Statement of Oversight Findings and Recommendations of the Committee ...... 21
New Budget Authority and CBO Cost Estimate ................................................... 21
Committee Cost Estimate ....................................................................................... 23
Changes in Existing Law Made by the Bill, as Reported ..................................... 23
Minority Views ......................................................................................................... 28
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The amendment is as follows:
29-006
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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 2021’’.
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 amend-
ed by adding at the end the following:
‘‘SEC. 608. (a) Each recipient shall—
‘‘(1) designate at least one employee to—
‘‘(A) 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 noncompli-
ance of the recipient with such requirements or alleging any actions in vio-
lation of this title; and
‘‘(B) provide guidance, education, and other assistance as necessary to en-
sure students and employees are aware of rights and responsibilities under
this title; and
‘‘(2) notify all its students and employees of the name, office address, email
address, and telephone number of each employee designated under paragraph
(1) by such recipient.
‘‘(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 as-
sistance authorized or extended by the Secretary of Education.’’.
SEC. 4. SPECIAL ASSISTANT FOR EQUITY AND INCLUSION; CIVIL RIGHTS DATA COLLECTION.
(a) SPECIAL ASSISTANT FOR EQUITY AND INCLUSION.—Section 202(b) of the Depart-
ment 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 Inclu-
sion who shall be appointed by the Secretary. The Special Assistant shall study, pro-
mote, coordinate, and evaluate efforts to engender program compliance with title VI
of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) and inform individuals of
their rights under such Act, including the dissemination of information, technical
assistance, and coordination of research activities, in a manner consistent with such
Act. The Special Assistant shall advise both the Secretary and Deputy Secretary on
matters relating to compliance with title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d et seq.).’’.
(b) CIVIL RIGHTS DATA COLLECTION.—Section 203(c)(1) of the Department of Edu-
cation Organization Act (20 U.S.C. 3413(c)(1)) is amended by inserting before the
semicolon the following: ‘‘, including data with respect to complaints alleging any
actions in violation of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.) by a recipient (as defined in section 608(b) of title VI of the Civil Rights Act
of 1964)’’.
PURPOSE AND SUMMARY
H.R. 730, the Equity Inclusion and Enforcement Act of 2021, in-
troduced 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 re-
storing essential civil rights protections for private citizens, ensur-
ing that all education settings that receive federal dollars have
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staff to deal with specific civil rights violations, and coordinating
their work at the Department of Education, the Committee hopes
H.R. 730 will result in a decrease in policies or practices that dis-
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criminate or have the effect of discriminating on the basis of race,
color, or national origin.1
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 deci-
sion barred a victim of a civil rights violation from bringing a pri-
vate right of action against a federally-funded entity if that viola-
tion was based on the theory of disparate impact. As a result, this
decision has limited individuals from pursuing legal action to rem-
edy many civil rights violations, including those in our nation’s
education system.
In addition to providing a private right of action to cure discrimi-
natory practices and policies that deny equal educational oppor-
tunity in education,3 H.R. 730 also requires all local educational
agencies and institutions of higher education to have Title VI mon-
itors 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. 730 give power to individuals to pursue rem-
edies for civil rights violations and create safeguards that will
hopefully result in fewer unreported civil rights violations in our
nation’s schools and universities.
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 re-
ferred 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 Enforce-
ment Act. The bill was referred to the House Committee on Edu-
cation and the Workforce and the House Committee on the Judici-
ary. 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 testi-
mony on privacy concerns related to data sharing and how schools
can comply with privacy requirements. The Committee heard testi-
mony from: David Couch, K–12 CIO and Associate Commissioner,
1 42 U.S.C. § 2000d et seq. (2018).
2 532 U.S. 275, 293 (2001).
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)
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(describing efforts of the Obama administration to issue guidance to support state and local ef-
forts to end exclusionary discipline and other practices researchers have found deny equal access
to educational opportunity) available at https://learningpolicyinstitute.org/sites/default/files/prod-
uct-files/Federal_Role_School_Discipline_REPORT.pdf.
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Frankfort, Kentucky; Gary Lilly, Superintendent and Director of
Schools, Bristol, Tennessee; and Amelia Vance, Director of Edu-
cation Privacy and Policy Counsel, Washington, DC. Committee
Democrats, recognizing the hearing was held on the 64th anniver-
sary 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 testi-
mony. Ms. Lhamon provided testimony on both issues of data pri-
vacy and the larger issue of protection of the civil rights of students
generally, specifically in the context of a retreat in civil rights en-
forcement at the Department under the current administration.
116TH CONGRESS
On April 30, 2019, the Committee held a legislative hearing ti-
tled ‘‘Brown v. Board of Education at 65: A Promise Unfulfilled,’’
which was used to inform the development of H.R. 2574. The Com-
mittee heard testimony on the importance of robust enforcement of
Title VI among entities receiving federal funding through the De-
partment, 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 Dis-
trict of Columbia Law School, Washington, DC; Ms. Linda Darling-
Hammond, Ed.D., President and CEO of the Learning Policy Insti-
tute, Palo Alto, CA; Ms. Maritza White, Parent Advocate, Wash-
ington DC; Mr. Daniel J. Losen, M.ED, J.D., Director of the Center
for Civil Rights Remedies at the Civil Rights Project at UCLA, Lex-
ington, MA; Mr. Dion J. Pierre, Research Associate, National Asso-
ciation 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 intro-
duced 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 Protec-
tions as original co-sponsors. On May 16, 2019, the Committee con-
sidered 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 sec-
tion 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 Assist-
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ant for Equity and Inclusion at the Department, consolidating its
duties with an existing Special Assistant for Gender Equity. Be-
cause the amendment proposed to amend a portion of the bill out-
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side 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.
On September 16, 2020, pursuant to the provisions of H. Res.
1107, the House debated H.R. 2574, and on the question of passage
it passed by a recorded vote of 232–188. The Senate did not take
further action on H.R. 2574 in the 116th Congress.
117TH CONGRESS
On February 2, 2021, Chairman Robert C. ‘‘Bobby’’ Scott (D–VA)
introduced H.R. 730, the Equity and Inclusion Enforcement Act.
On March 25, 2021, the Subcommittee on Early Childhood, Ele-
mentary, and Secondary Education held a hearing entitled ‘‘Lessons
Learned: Charting the Path to Educational Equity Post-COVID–19.’’
The hearing examined the impact of the COVID–19 pandemic on
public schools and aided in the development of H.R. 730. Witnesses
discussed strategies for safely reopening classrooms and addressing
educational disparities present in our public education system. The
Committee heard testimony from Mr. Marc H. Morial, President
and CEO of the National Urban League; Mrs. Jennifer Dale, a par-
ent from Lake Oswego, OR; Ms. Selene A. Almazan, Legal Director
for the Council of Parent Attorneys and Advocates, Inc.; and Mr.
Alberto M. Carvalho, Superintendent of Schools for Miami-Dade
County Public Schools.
On Thursday, June 24, 2021, the Committee held the Hearing
entitled: Examining the Policies and Priorities of the U.S. Depart-
ment of Education. During the hearing, Secretary of Education Dr.
Miguel Cardona testified on the U.S. Department of Education
(ED) Budget Request for Fiscal Year 2022 and discussed support
for equity grant programs.
On July 16, 2021, the Committee considered H.R. 730 in a legis-
lative 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 amendments to H.R. 730:
During the legislative session the Committee considered one
amendment to H.R. 730:
Rep. Scott offered an Amendment in the Nature of a Substitute
(ANS) that made technical improvements to H.R. 730. The ANS
made clear thar under section 3, the Title VI monitors should en-
sure all students are aware of their relevant rights and responsibil-
ities and are provided with contact information of Title VI Monitors
at their school. Under section 4, the ANS expands the duties of the
newly created Special Assistant position to include studying efforts
to engender program compliance with Title VI of the Civil Rights
Act and authorizes the Department of Education to report include
data in the Civil Rights Data Collection (CDRC) relating to com-
plaints of Title VI violations filed against schools. The ANS was
adopted by voice vote.
During the legislative session the Committee considered one
amendment to the ANS:
Rep. Burgess Owens (R–OH) offered an amendment to the ANS
that would ensure that no funds authorized or extended by the De-
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partment of Education condition or incentivize the use of content
or pedagogy that violates Title VI, including by separating students
or teachers based on race, color, or national origin, or assigning
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characteristics or assumptions to individuals based on race, color,
or national origin. The amendment to the ANS was defeated on a
recorded vote of 19–27.
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 Particu-
larly, 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 H.R 730, the
Equity and Inclusion Enforcement Act, builds upon Title VI and if
passed, will aid in breaking down remaining systemic barriers
within our public school system.
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 pursu-
ant 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 dis-
crimination because of race, creed, color or national origins of chil-
dren or between types of schools, or with respect to a state that
maintains separate schools for minority and majority races, it dis-
criminates 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 adminis-
trations.8
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 con-
4 347 U.S. 483 (1954).
5 42 U.S.C. § 2000d (2018).
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); Jef-
frey Jenkins, Building Toward Major Policy Change: Congressional Action on Civil Rights,
1941–1950, 31 L. & HIST. REV. 139, 191 (2013).
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8 Id.
9 Erica Frankenberg & Kendra Taylor, ESEA and the Civil Rights Act: An Interbranch Ap-
proach to Furthering Desegregation, 1 RUSSELL SAGE FOUND. J. OF THE SCI. 3, 37 (2015).
10 Id.
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text as to how enmeshed Title VI is in the pursuit of equity in edu-
cation.
Aside from incentivizing school integration, Title VI protects stu-
dents’ 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 discrimina-
tory effect or impact.11 Data show that robust enforcement of com-
pliance with Title VI’s protections by programs receiving federal
funds from the Department is necessary to achieve equity of edu-
cational opportunity.12
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 dis-
crimination by analyzing their impact—rather than just their mo-
tive—was critical to the enforcement of civil rights protections. Dis-
parate 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 ex-
plained the need for civil rights law to find violations linked to ef-
fect and not just to intent:
‘‘Simple justice requires that public funds, to which all
taxpayers of all races contribute, not be spent in any fash-
ion which encourages, entrenches, subsidizes, or results in
racial discrimination. Direct discrimination by Federal,
State, or local governments is prohibited by the Constitu-
tion. But indirect discrimination, through the use of Fed-
eral funds, is just as invidious; and it should not be nec-
essary to resort to the courts to prevent each individual
violation.’’ 15
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 en-
force 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.
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
11 Id.; 28 C.F.R. § 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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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).
15 See H.R. Misc. Doc. No. 124, 88th Cong., 1st Sess. 3, 12 (1963).
16 532 U.S. 275 (2001).
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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 adminis-
trative 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.
Since 2001, private citizens challenging state action in court
under Title VI must prove intentional discrimination, making en-
forcement of anti-discrimination laws under Title VI extremely dif-
ficult. It is the view of the Committee that both administrative en-
forcement and enforcement via private claims are necessary to en-
sure 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 ac-
tion to enforce anti-discrimination provisions including all viola-
tions 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. 730 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.
Although H.R. 730 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. Be-
cause of the high bars to proving a case under disparate impact
theory, such cases are generally quite resource intensive for plain-
tiffs; as most attorneys bringing these claims do so on a contin-
gency 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
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 administra-
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tion which have the effect of subjecting individuals to discrimination’’ or have ‘‘the effect of de-
feating or substantially impairing accomplishment of the objectives of the program as respect
individuals of a particular race, color, or national origin.’’).
18 Id. at 297–99 (2001) (Stevens, J., dissenting).
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9
cases that document civil rights violations can be brought. For ex-
ample, a private right of action allowed six Black elementary
schoolchildren in the San Francisco Unified School District to suc-
cessfully challenge the use of standardized I.Q. tests to place chil-
dren in classes for the ‘‘mentally retarded’’, a practice that dis-
proportionately 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, espe-
cially when federal entities, the only ones that can currently bring
disparate impact cases, fail to do so.
K–12 Education
Racial inequality has been at the foundation of our nation’s pub-
lic 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 Edu-
cational 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 con-
tinue to lag in high school graduation attainment.23 In the 2016–
2017 school year, the graduation rate for public high school stu-
dents was 87 percent.24 For Black students, the graduation rate
was 78 percent.25 Initial test scores have confirmed what experts
expected, that the learning loss experienced by students as a result
of the novel coronavirus (COVID–19) pandemic response dispropor-
tionately affected Black and Latino students.26 This was no sur-
19 3See 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 ade-
quate justification and violated Title VI).
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-dar-
ling-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.
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25 Id.
26 E.g., Matt Barnum, The pandemic’s toll: National test scores show progress slowed, gaps
widened, CHALKBEAT (Jul. 28, 2021) https://www.chalkbeat.org/2021/7/28/22596904/pandemic-
covid-school-learning-loss-nwea-mckinsey;
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10
prise as we know that the pandemic itself has had a dispropor-
tionate effect on Black and Latino workers and families.27
Research shows that these achievement gaps are linked to racial
segregation in schools.28 Recent reports suggest that public schools
are now more segregated by race and class than any time since the
1960s.29 In fact, research shows that 40 percent of Black students
and 41 percent of Latino students nationwide attend intensely seg-
regated, high-poverty schools where students of color makeup 90–
100 percent of the student population.30 Many of these schools
have fewer resources, less access to math, science, and college pre-
paratory courses.31 Furthermore, they disproportionately sus-
pended, expelled, or held back students of color.32 Faced with a sys-
tem 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 predomi-
nantly white students.33 Accordingly, researchers at Stanford Uni-
versity found that racial segregation in schools leads to larger
achievement gaps, exacerbating unequal educational opportunity.34
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 stu-
dents.
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 in-
fractions when compared to their predominantly white peers. Ac-
cording to a 2018 GAO report on bias in school discipline, Black
students, boys, and students with disabilities are disciplined at dis-
proportionately high rates and Black students are subject to harsh-
er discipline than their white counterparts regardless of income.35
Specifically, the report indicates that while 15.5 percent of all pub-
lic school students are Black, 39 percent of students suspended
from school are Black.36
27 See infra notes 42- and accompanying text; but see Michael J. Petrilli, Declining NAEP
Scores Are Flashing Red Lights for the Covid Generation, EDUCATION NEXT, (Oct. 21, 2021)
https://www.educationnext.org/declining-naep-scores-are-flashing-red-lights-for-the-covid-
generation/ (suggesting that recent declines in NAEP scores and widening achievement gaps are
not directly attributable to pandemic school closures, but suggest that subsequent declines at-
tributable to COVID will be even greater).
28 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., Work-
ing paper No. 19–106, 2019) available at https://cepa.stanford.edu/content/separate-still-unequal-
new-evidence-school-segregation-and-racial-academic-achievement-gaps.
29 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/inte-
gration-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).
30 Frankenberg, supra note 27, at 25, 28.
31 GAO–16–345 supra note 27, at 16–22.
32 Id.
33 EDBUILD, $23 Billion, (last visited Dec. 6, 2019), https://edbuild.org/content/23-billion.
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34 Reardon, supra note 26, at 29–20.
35 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO–18–258, K–12 EDUCATION: DISCIPLINE DISPARI-
TIES FOR BLACK STUDENTS, BOYS, AND STUDENTS WITH DISABILITIES, 12–21 (2018).
36 Id. at 12.
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According to a report on racial inequity in school discipline prac-
tices across the Richmond, Virginia area by the Metropolitan Edu-
cational Research Consortium, a partnership between the Virginia
Commonwealth University School of Education and seven school di-
visions 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 loi-
tering.37 The researchers found that Black students were sus-
pended at about four times the rate of white students in 2016.38
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 2016.39 In ad-
dition, the report indicates that racial disproportionality in school
discipline was the most severe in racially segregated schools and in
schools with concentrated poverty.40
This discipline gap has the perverse side effect of reinforcing the
existing achievement gap. In the 116th Congress, during the Com-
mittee’s April 30, 2019 hearing, Dan Losen, Director of the Center
for Civil Rights Remedies at the Civil Rights Project at UCLA, tes-
tified 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 im-
pact on students.41 According to Director Losen, Black students in
Richmond City, Virginia lost 500 days of instruction per 100 Black
students enrolled due to school suspensions.42 Director Losen found
that the Black-white suspension gap of 446 days in Richmond, Vir-
ginia was 12 times larger than the Black-white suspension gap in
Virginia Beach, Virginia.43 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.44 Mr.
Losen concluded his oral remarks stating:
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 dis-
parate harm that is caused by unjustified policies. There-
fore, 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.45
37 GENEVIEVE SIEGEL-HAWLEY ET AL., UNDERSTANDING RACIAL INEQUITIES IN SCHOOL DIS-
CIPLINE ACROSS THE RICHMOND REGION 7 (VCU MERC Publications 2019).
38 Id. at 64.
39 Id. at 13.
40 Id. at 9.
41 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.
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42 Id.
43 Id.
44 Id.
45 Id.
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Equity in K–12 in the time of COVID–19
The need to ensure equity in K–12 education has become overly
apparent in the national response to the 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 depend-
ent on student access to broadband internet connectivity and de-
vices 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.46 Nationally, 27 percent of
American Indian / Alaskan Native students, 19 percent of Black
students and 17 percent of Hispanic students have either no inter-
net access or only dial-up access at home, compared to only 7 per-
cent of White students.47 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 com-
pared to 13 percent of White rural remote area students.48 Further,
early reports suggest that students who had an adult capable of
monitoring students from home were more engaged in virtual in-
struction than parents who had to still work outside the home dur-
ing the pandemic; these same reports suggest essential workers un-
able to work from home are predominantly Black and brown.49
The Committee understands the need schools faced to act expedi-
tiously to ensure the continuation of educational instruction. And
thanks to passage of the American Rescue Plan (ARP), they have
also had more resources to address equity.50 The Committee, in its
portion of the ARP, provided more than $120 billion to K–12
schools via the Elementary and Secondary School Emergency Relief
Fund, and required that at least 20% of all dollars received by
states from the fund be targeted to addressing learning loss and
the disproportionate impact of the COVID–19 pandemic on under-
served student groups.51
Congressional action has also been met by an Administration
that recognizes its duty to educational equity. In his first day in
office, President Biden issued an Executive Order that proclaimed,
‘‘Entrenched disparities in our laws and public policies,
and in our public and private institutions, have often de-
nied that equal opportunity to individuals and commu-
nities. . . . It is therefore the policy of my Administration
that the Federal Government should pursue a comprehen-
sive approach to advancing equity for all, including people
of color and others who have been historically under-
served, marginalized, and adversely affected by persistent
46 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.
47 Id. at 75.
48 Id. at 76–79.
49 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://
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www.latimes.com/california/story/2020-07-16/latino-and-black-students-hard-hit-with-disparities-
in-their-struggle-with-online-learning.
50 Pub. L. No. 117–2, 135 Stat. 4 (2021).
51 Id. at § 2001(a), (e)(1).
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13
poverty and inequality. Affirmatively advancing equity,
civil rights, racial justice, and equal opportunity is the re-
sponsibility of the whole of our Government. Because ad-
vancing equity requires a systematic approach to embed-
ding fairness in decision-making processes, executive de-
partments and agencies (agencies) must recognize and
work to redress inequities in their policies and programs
that serve as barriers to equal opportunity.’’ 52
The following day, President Biden issued another executive
order specifically regarding federal efforts to support the reopening
of public schools.53 In its initial statement of policy, the Executive
Order declared that the twin pillars of a successful school reopen-
ing are the health and safety of students, teachers, and their fami-
lies and communities, and the opportunity for every student to re-
ceive a high-quality education.54 Based on those two principles, the
Executive Order states that it is the policy of the Biden Adminis-
tration to ‘‘. . . mitigate learning loss caused by the pandemic; and
address educational disparities and inequities that the pandemic
has created and exacerbated.’’ 55
In June 2021, based on a directive from the Executive Order on
reopening schools and its duties under various civil rights laws (in-
cluding Title VI), the Department’s Office for Civil Rights (OCR)
released a report, Education in a Pandemic: The Disparate Impacts
of COVID–19 on America’s Students. In her introductory letter, Act-
ing Assistant Secretary for Civil Rights, Suzanne Goldberg outlined
the nexus between the hard data accumulated in the report, and
the rights of students:
Although the pandemic’s effects will be studied for many
years to come, we know from early studies that for many
students, the educational gaps that existed before the pan-
demic—in access, opportunities, achievement, and out-
comes—are widening. And we can see already that many
of these impacts are falling disproportionately on students
who went into the pandemic with the greatest educational
needs and fewest opportunities—many of them from his-
torically marginalized and underserved groups. These dis-
parities can be a cause for great concern, especially when
they interfere with a student’s opportunity to learn, grow,
and contribute to our nation’s future. Although this Report
provides a data-driven account of COVID–19’s disparate
impacts on students, rather than a legal analysis, it is im-
portant to recognize that disparities can sometimes be evi-
dence of legal injuries under Federal civil rights laws, even
when policies and practices do not directly single out a
group of people for harm. These laws include Title VI of
the Civil Rights Act of 1964, which prohibits discrimina-
tion based on race, color, and national origin, including in
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52 Exec. Order No. 13985, 86 Fed. Reg. 7009 (Jan. 25, 2021).
53 Exec. Order No. 14000, 86 Fed. Reg. 7215 (Jan. 25, 2021).
54 Id.
55 Id.
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14
educational programs and activities that receive Federal fi-
nancial assistance.56
Recognizing the expanse of possible disparities brought on by the
pandemic, even an active OCR may not be able to fully investigate
every claim of disparate impact. Lifting the bar on disparate im-
pact claims brough under a private right of action will provide an-
other source of possible relief to our nation’s students and their
families.
Based on this renewed focus on equity at the federal level, H.R.
730’s requirement of Title VI monitors in recipients of federal as-
sistance will complement this federal priority. Having at least one
employee tasked with looking at schools’ decisions through the lens
of equity will ensure that policies like those enacted in response to
COVID–19 promote and sustain equity in learning for all children
regardless of their race. The concept of Title VI monitors in H.R.
730 mirrors the Department’s regulatory requirement that every
educational institution have a Title IX coordinator.57 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. 730 attempts to require the same proactive compliance with
Title VI as is required under Title IX.
Title IX coordinators have been and continue to be instrumental
in addressing gender-based education and resource gaps, and sys-
temic biases in education settings.58 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. 730, Title VI mon-
itors would work to ensure that schools are free from discrimina-
tion by monitoring compliance with Title VI and investigating dis-
crimination complaints. By being proactive and educating students,
faculty, and staff on Title VI, monitors would work to stem dis-
crimination 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 com-
plaint based on a facially race-neutral policy with a disparate im-
pact on one race, students and parents could still pursue the claim
themselves thanks to H.R. 730. The Committee expects Title VI
monitors would effectively educate, provide guidance on, and help
to enforce the rights of students and personnel at educational insti-
tutions by confronting policies and practices that discriminate on
the basis of race, color, and nationality.
56 U.S. Dept. of Educ., Education in a Pandemic: The Disparate Impacts of COVID–19 on
America’s Students, ii (2021) https://www2.ed.gov/about/offices/list/ocr/docs/20210608-impacts-of-
covid19.pdf.
57 34 C.F.R. § 106.8 (2019).
58 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
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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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15
Higher Education
H.R. 730 also addresses civil rights violations on the basis of
race, color, and nationality that persists at postsecondary edu-
cational institutions. The number of hate crimes, or ‘‘criminal of-
fenses motivated, in whole or in part, by an offender’s bias(es)
against a race, religion, disability, sexual orientation, ethnicity,
gender or gender identity,’’ 59 reached a 16-year high in 2018,60 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.61 On campuses,
more than half (57 percent) of the reported hate crimes by campus
police were race-related.62
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 2018.63
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 minori-
ties.64
To make matters worse, most experts agree that hate crimes re-
main woefully underreported—with the Department of Justice esti-
mating that only 2 percent of hate crimes are actually reported to
the FBI.65 The Center for American Progress believes under-
reporting may be even more prevalent on college campuses due to
limited reporting options and the overreliance on online reporting
systems.66 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
59 FEDERAL BUREAU OF INVESTIGATION, HATE CRIMES, (2019) https://www.fbi.gov/investigate/
civil-rights/hate-crimes.
60 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/eeeeeeeeeeeeeate-crimes-fbi-report.html.
61 NAT’L CTR. FOR EDUC. STATS., ON-CAMPUS HATE CRIMES AT DEGREE-GRANTING POSTSEC-
ONDARY 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.
62 Natalie Schwartz, Campus Police Departments Report Uptick In Hate Crimes To FBI,
EDUCATIONLIVE (Nov. 16, 2018) https://www.educationdive.com/news/campus-police-depart-
ments-report-uptick-in-hate-crimes-to-fbi/542383/ (last accessed Nov. 22, 2019).While note ex-
pressly 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 in-
volved religion and nearly 16 percent involved sexual orientation. Id.
63 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-suprema-
cists-increase-college-campus-recruiting-efforts-for-third (last accessed Nov. 22, 2019).
64 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-rac-
ist-incidents/index.html (last accessed Nov. 22, 2019).
65 DEP’T OF JUSTICE, BUR. OF J. STATS., HATE CRIME VICTIMIZATION, 2004–2015 (June 29,
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2017). https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5967 (last accessed Nov. 22, 2019).
66 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).
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16
students who do not receive a fair chance of competing in the labor
market.67
Title VI monitors established under H.R. 730 would address
these issues and ensure implementation and enforcement of civil
rights laws, notably Title VI, across all institutions of higher edu-
cation. 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
While the Biden Administration has shown they are invested in
the work of ensuring educational equity, H.R. 730 is still 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. For example, dur-
ing her tenure, Education Secretary Betsy DeVos 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.68 The Commission’s report indicated that OCR
issued 38 guidance documents to improve program understanding
of and compliance with federal civil rights statute under the
Obama Administration.69 By comparison, OCR under the Trump
Administration issued few guidance documents and instead re-
scinded critical guidance documents.70 Specifically, in 2018, Sec-
retary DeVos rescinded guidance documents to support the con-
stitutionally-protected 71 use of race in admissions or assignment to
improve diversity in higher education and K–12.72 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 vio-
lation of Title VI.73 In addition to the actions of OCR, Secretary
DeVos unlawfully delayed the implementation of the Equity in In-
dividuals with Disabilities Education Act (IDEA) rule, which re-
quires states to identify school districts with rates of significant
disproportionality in the identification, placement, and discipline of
students of color with disabilities.74 It is also worth noting that the
67 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).
68 See ARE RIGHTS A REALITY?, supra note 12, at 159–92.
69 Id. at 188.
70 Id.
71 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 eco-
nomic backgrounds.’’) (Kennedy, J., concurring).
72 ARE RIGHTS A REALITY?, supra note 12, at.188–89.
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73 Id.
74 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.
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Commission’s report also found that OCR’s reduction in full-time
staff and changes to its case processing manual dramatically re-
duced the agency’s enforcement and investigation efforts.75
The previous administration illustrates why H.R. 730 is so nec-
essary. In an administration where the Department intentionally
shrank its footprint in civil rights enforcement, it stands to reason
it should not be the only entity able to bring a disparate impact
civil rights case to court. H.R. 730 is needed so that regardless of
who holds the White House we have meaningful avenues for civil
rights enforcement to dissuade educational policies or practices
that disparately impact students and others in educational institu-
tions on the basis of race, color, or national origin.
Under the bill, the Department would be required to have a Spe-
cial Assistant for Equity and Inclusion advising the Secretary and
Deputy Secretary on all matters related to equity and inclusion
under Title VI. The Special Assistant would also disseminate infor-
mation, provide technical assistance and coordinate research on re-
lated activities. The Committee would fully expect that such an As-
sistant 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 inves-
tigate 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 previous Admin-
istration largely abdicated its responsibility to enforce civil rights
laws, leaving many students in our educational institutions vulner-
able to the negative impacts of discrimination.
Even with a new Administration in place, Congress must use its
powers to fulfill our nation’s promise of equal opportunity in edu-
cation. 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 edu-
cational opportunity in K–12 and higher education. And by passing
the Equity Inclusion and Enforcement Act, Congress will restore to
the American public the right to pursue judicial remedy when fed-
eral dollars are misapplied to promote policies and practices that
disparately impact groups on the basis of race, color, or national or-
igin.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This Act is called the ‘‘Equity and Inclusion Enforcement Act of
2021.’’
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 to
SSpencer on DSK126QN23PROD with REPORTS
restore a private right of action to file disparate impact claims.
75 See ARE RIGHTS A REALITY?, supra note 12, at 163–67.
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18
Section 3. Designation of monitors under Title VI of the Civil Rights
Act of 1964
This section requires schools as recipients of federal financial as-
sistance under Title VI of the Civil Rights Act of 1964 to designate
at least one employee to serve as the Title VI monitor to carry out
the responsibilities of the law and to notify all students and em-
ployees of the name, office address, email 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. The Title VI monitor will also educate and
provide other assistance, as necessary, to ensure that students and
personnel are aware of their relevant rights and responsibilities.
Section 4. Special Assistant for equity and inclusion
This section requires the Secretary of Education to appoint a
Special Assistant at the Department of Education to coordinate,
promote, study, and evaluate Title VI enforcement of equity and in-
clusion in education. The Special Assistant is responsible for advis-
ing the Secretary of Education and the Deputy Secretary of Edu-
cation on all matters relating to equity and inclusion consistent
with Title VI of the Civil Rights Act of 1964. This section also au-
thorizes the Department of Education to report data in the Civil
Rights Data Collection (CRDC) relating to complaints of Title VI
violations filed against schools.
EXPLANATION OF AMENDMENTS
The amendments offered during markup of H.R. 730 are ex-
plained in other descriptive portions of this report.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
H.R. 730 does not apply to terms and conditions of employment
or to access to public services or accommodations within the legisla-
tive branch.
UNFUNDED MANDATE STATEMENT
Pursuant to Section 423 of the Congressional Budget and Im-
poundment Control Act (as amended by Section 101(a)(2) of the Un-
funded 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 de-
scribed 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
SSpencer on DSK126QN23PROD with REPORTS
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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19
COMMITTEE ON EDUCATION AND LABOR RECORD OF COMMITTEE VOTE
Roll Call:1 Bill:H.R 730 Am~ndment Number:2
Disposition: Defeated by a 19-27 vote
Sponsor/Amendment: Owens/OWE NUT_012.XML
~()
,~:.;g I '"""'
Mr. SCOTT (VA) (Chairman) X IMrs. FOXX (NC) (Ranking) X
Mr. GRIJALVA (AZ) X ! Mr. WILSON (SC) X
Mr. COURNTEY (CT) X IMr. n1m,1PSON (PA) X
Mr. SABLAN (MP) X I Mr. wALBERG (Ml) X
Ms. WILSON (FL) X I Mr. GROTHMAN (WI) X
Ms. BONAMICI (OR) X I Ms. STEFA:S:!K (NY) X
Mr. TAKANO (CA) X I Mr. ALLEN (GA) X
Ms. ADAMS (NC) X Mr. BANKS (IN) X
Mr. DESAULNIER (CA) X Mr. COMER (KY) X
Mr. NORCROSS (NJ) X Mr. FULCHER (lD) X
Ms. JAYAPAL (WA) X Mr. KELLER(PA) X
Mr. MORELLE (NY) X Mr. MURPHY (NC) X
Ms. WILD (PA) X Ms. MILLER-MEEKS (IA) X
Mrs. MCBATH (GA) X Mr. OWENS (UT) X
Mrs. HA YES (CT) X Mr.GOOD(VA) X
Mr.LEVIN(Ml) X I1v1rs. MCCLAIN (Ml) X
Ms. O'v!AR (MN) X I Mrs. HARSHBARGER (TN) X
Ms. STEVENS (Ml) X I Mrs. MILLER (IL) X
Ms. LEGER FERNANDEZ (NM) X Mrs. SPARTZ (IN) X
Mr. JONES (NY) X i Mr. FITZGERALD (WI) X
Ms. MANNING (NC) X I Mr. CAWTHORN (NC) X
Mr.MRVAN(N) X I Mrs. STEEL (CA) X
Mr. BOWMAN (NY) X I Ms. LETLOW (LA) X
Mr. POCAN (WI) X l"acanc:v
Mr. CASTRO (TX) X
Ms. SHERRILL (NJ) X
Mr. YARMUTH(KY) X
Mr. ESPAILLAT(NY) X
Mr. KWE!Sl MFUME (MD) X
TOTAi.~: !\yes: 19 N,,s:27 Not Voting:6
Total: Quorum: ! Report:
(29 D-24 R)
/\Although not present for the recorded vote, Member expressed he/she would have voted AYE if present at time of vote
*Although not present for the recorded vote, Member expressed he/she would have voted NO if present at time of vote.
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Insert offset folio 21 here HR177.001
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20
COMMITTEE ON EDLCATION AND LABOR RECORD OF COMMITTEE VOTE
Roll Call:2 Bill: H.R 730 Amendment Motion
Disposition: Adopted by a Full Committee vote of 27 ayes; 19 noes
Sp,msor/Amendmcnt: Bowman/to report to the House with an amendment and with the recommendation that
the amendment be agreed to, and the bill as amended, do pass
-----~ ....
'\urne&Swc '.\t)( ,,.
:',io
Vcoln\1'
I \mmµ
Mr. SCOTT (VA) (Chairman) X IMrs. FOXX (NC) (Ranking) X
Mr. GRIJALVA (AZ) X i Mr. WILSON (SC) X
Mr. COCRNTEY (CT) X IMr. THOMPSON (PA) X
Mr. SABLAN (MP) X ; 1.-!r. WALBERG (Ml) X
Ms. WILSON (FL) X j Mr. GROT!lMAN (WI) X
Ms. BONAMlCl (OR) X I Ms. STEFANIK \l\Y) X
Mr. TAKAJ\O (CA) X I Mr. ALLEN (GA) X
Ms. ADAMS (NC) X ! Mr. BA:--:KS (lN) X
Mr. DESAULNIER (CA) X : Mr. COYIER (KYJ X
Mr. NORCROSS (NJ) X ': 1'lr. FULCHER (lDl X
Ms. JA YAPAL (WA) X i Mr. KELLER (PA) X
Mr. MORELLE (NY) X i Mr. MURPHY (NC) X
Ms. WILD (PA) X I Ms. MILLER-MEEKS (IA) X
Mrs. MCBATH (GA) X f Mr. OWENS (UT) X
Mrs. HA YES (CT) X I Mr.GOOD(VA) X
Mr. LEVIN (Ml) X I Mrs. MCCLAIN (Ml) X
Y!s. O'.\1AR {:Vl"i) X I Mrs. HARSHBARGER (TN) X
Ms. STEVEl\'S (MI) X i Mrs. MILLER (IL) X
Ms. LEGER FERl\'Al\'DEZ (NM) X i Mrs. SPARTZ (IN) X
Mr. JO:,,iES (NY) X ! Mr. FITZGERALD (\VJ) X
Ms. MANNING (NC) X i Mr. CAWTHORN (NC) X
Mr. MRVAN(!N) X i Mrs. STEEL (CA) I(
Mr. BOWMAl\' (l\'Y) X I Ms. LlcTLOW (LA) X
Mr. POCAN (Wl) X I f'acancy
Mr. CASTRO (TX) X
Ms. SHERRILL (NJ) X ;
Mr. YAR\H;TH (KY) X i
Ylr. ESPAILLAT (l\'Y) X :
Mr. K WEIS! MFUME (MD) X j
TOTALS: 27 1\os: 19 Not Voting: 6
Total: 53 .1 Quorurn: / Report:
129 fJ • R)
AA!though not present for the recorded vote, Member expressed he/she wou!d have voted AYE !f present at time of vote
*Although not present for the recorded vote_ Member expressed he/she would have voted NO if present at time of vote
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Insert offset folio 22 here HR177.002
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21
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. 730 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.
730 establishes or reauthorizes a program of the Federal Govern-
ment known to be duplicative of another federal program, a pro-
gram that was included in any report from the Government Ac-
countability 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 2(r) of H. Res. 8 for the 117th Con-
gress, the hearing entitled ‘‘Lessons Learned: Charting the Path to
Educational Equity Post-COVID–19’’ held on March 25, 2021 in-
formed the development of H.R. 730.
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 Commit-
tee’s oversight findings and recommendations are reflected in the
descriptive portions of this report.
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 Congres-
sional Budget Act of 1974, the Committee has received the fol-
lowing estimate for H.R. 730 from the Director of the Congressional
Budget Office:
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, October 1, 2021.
Hon. ROBERT C. (BOBBY) SCOTT,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-
pared the enclosed cost estimate for H.R. 730, the Equity and In-
clusion Enforcement Act of 2021.
If you wish further details on this estimate, we will be pleased
to provide them. The CBO staff contact is Lindsay Wylie.
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Sincerely,
PHILLIP L. SWAGEL,
Director.
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22
Enclosure.
l-l'.~!J30, .1::9~i,ty ~nd mc:.1~5,JC)n .E~!er~~m.ent,(;~1>,f 2021 g./
·As ordered repot:ted by. the Houiie
····.:..::::~\::,":·; .,
Cornmittllli:on
·. . ··--.. · . :- .. :.
Edlielltion
.......,, .... ·: .· '
and.-·-··:-..
.. ··.
'Labor ..
on. .JiilyJ5; 2021
······ ....... ..
• ,
By Fiscal Year, Millions of Dollars
Direct Spending (Outlays)
2022 2022-2026
* .
2022-2031
Revenues . . •
Increase or Decrease H
in the Deficit
. . .
.
H.R. 730 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 orga-
nization 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 re-
lated 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.
CBO expects that enacting H.R.730 could result in an 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 without further appropriation action and are thus
classified as direct spending. Because CBO expects that any addi-
tional fees charged by the judiciary would be spent, enacting H.R.
730 would have an insignificant effect on the deficit over the 2022
2031 period.
In addition, H.R. 730 would require recipients of federal funding
from the Department of Education that operate educational pro-
grams 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 ap-
point a special assistant for equity and inclusion to promote, coordi-
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
SSpencer on DSK126QN23PROD with REPORTS
private plaintiffs from bringing such suits against recipients of federal aid as defined in the stat-
ute (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 ASct of 1964, CRS Report R45665, version 5 (Con-
gressional Research Service, April 4, 2019), https://go.usa.gov/xvNh4.
Insert offset folio 26 here HR177.003
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23
nate, and evaluate equity and inclusion programs in education.
CBO estimates that implementing that requirement would cost $1
million over the 2022–2026 period.
CBO has not reviewed H.R. 730 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 dis-
crimination. CBO has determined that this legislation falls within
that exclusion because it would extend protections against discrimi-
nation in education on the basis of race, color, or national origin.
The CBO staff contacts for this estimate are Leah Koestner (for
education), Lindsey Wylie (for the judiciary), and Lilia Ledezma
(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 Rep-
resentatives requires an estimate and a comparison of the costs
that would be incurred in carrying out H.R. 730. 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 sub-
mitted cost estimate of the bill prepared by the Director of the Con-
gressional 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. 730, 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 omit-
ted 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 im-
pact issued under section 602 shall give rise to a private civil cause
of action for its enforcement to the same extent as does an inten-
tional violation of the prohibition of section 601.
SEC. 608. (a) Each recipient shall—
(1) designate at least one employee to—
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(A) coordinate its efforts to comply with requirements
adopted pursuant to section 602 and carry out the respon-
sibilities of the recipient under this title, including any in-
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24
vestigation of any complaint alleging the noncompliance of
the recipient with such requirements or alleging any ac-
tions in violation of this title; and
(B) provide guidance, education, and other assistance as
necessary to ensure students and employees are aware of
rights and responsibilities under this title; and
(2) notify all its students and employees of the name, office
address, email address, and telephone number of each employee
designated under paragraph (1) by such recipient.
(b) In this section, the term ‘‘recipient’’ means a recipient referred
to in section 602 that operates an education program or activity re-
ceiving Federal financial assistance authorized or extended by the
Secretary of Education.
* * * * * * *
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 Sec-
retary 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 Sec-
retary during the absence or disability of both the Secretary and
Deputy Secretary or in the event of vacancies in both of those of-
fices.
(2)(A) The Deputy Secretary shall have responsibility for the con-
duct of intergovernmental relations of the Department, including
assuring (i) that the Department carries out its functions in a man-
ner which supplements and complements the education policies,
programs, and procedures of the States and the local school sys-
tems and other instrumentalities of the States, and (ii) that appro-
priate officials of the Department consult with individuals respon-
sible for making policy relating to education in the States and the
local school systems and other instrumentalities of the States con-
cerning differences over education policies, programs, and proce-
dures 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 depart-
ment or agency or with any other office of the Department. If the
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Deputy Secretary determines, after consultation with the appro-
priate Federal department or agency, that such a conflict does
exist, the Deputy Secretary shall report such conflict or conflicts to
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25
the appropriate Federal department or agency together with rec-
ommendations 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 Reha-
bilitative 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 Spe-
cial Assistant shall promote, coordinate, and evaluate gender eq-
uity programs, including the dissemination of information, tech-
nical assistance, and coordination of research activities. The Spe-
cial 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 Eq-
uity and Inclusion who shall be appointed by the Secretary. The
Special Assistant shall study, promote, coordinate, and evaluate ef-
forts to engender program compliance with title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d et seq.) and inform individuals
of their rights under such Act, including the dissemination of infor-
mation, technical assistance, and coordination of research activities,
in a manner consistent with such Act. The Special Assistant shall
advise both the Secretary and Deputy Secretary on matters relating
to compliance with title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d et seq.).
ø(4)¿ (5) There shall be in the Department a Director of the In-
stitute 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 ap-
pointed 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 Edu-
cation who shall perform such functions as the Secretary may pre-
scribe. 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—
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(1) congressional relations functions;
(2) public information functions, including the provision,
through the use of the latest technologies, of useful information
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26
about education and related opportunities to students, parents,
and communities;
(3) functions related to monitoring parental and public par-
ticipation 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 de-
partmental 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 pro-
grams 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 coun-
tries 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, per-
form 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 Sec-
retary may prescribe, shall have responsibility for coordination of
all literacy related programs and policy initiatives in the Depart-
ment. 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 ap-
pointed 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 set-
ting 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 af-
fecting 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 Edu-
cation to improve coordination of—
(i) the outreach programs in the numerous Federal de-
partments and agencies that administer education and job
training programs;
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(ii) collaborative business education partnerships; and
(iii) education programs located in, and regarding, rural
areas.
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27
OFFICE FOR CIVIL RIGHTS
SEC. 203. (a) There shall be in the Department an Office for Civil
Rights, to be administered by the Assistant Secretary for Civil
Rights appointed under section 202(b). Notwithstanding the provi-
sions of section 412 of this Act, the Secretary shall delegate to the
Assistant Secretary for Civil Rights all functions, other than ad-
ministrative and support functions, transferred to the Secretary
under section 301(a)(3).
(b)(1) The Assistant Secretary for Civil Rights shall make an an-
nual report to the Secretary, the President, and the Congress sum-
marizing the compliance and enforcement activities of the Office for
Civil Rights and identifying significant civil rights or compliance
problems as to which such Office has made a recommendation for
corrective action and as to which, in the judgment of the Assistant
Secretary, adequate progress is not being made.
(2) Notwithstanding any other provision of law, the report re-
quired by paragraph (1) shall be transmitted to the Secretary, the
President, and the Congress by the Assistant Secretary for Civil
Rights without further clearance or approval. The Assistant Sec-
retary shall provide copies of the report required by paragraph (1)
to the Secretary sufficiently in advance of its submission to the
President and the Congress to provide a reasonable opportunity for
comments of the Secretary to be appended to the report.
(c) In addition to the authority otherwise provided under this sec-
tion, the Assistant Secretary for Civil Rights, in carrying out the
provisions of this section, is authorized—
(1) to collect or coordinate the collection of data necessary to
ensure compliance with civil rights laws within the jurisdiction
of the Office for Civil Rights, including data with respect to
complaints alleging any actions in violation of title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) by a recipient
(as defined in section 608(b) of title VI of the Civil Rights Act
of 1964);
(2) to select, appoint, and employ such officers and employ-
ees, including staff attorneys, as may be necessary to carry out
the functions of such Office, subject to the provisions of title 5,
United States Code, governing appointments in the competitive
service and the provisions of chapter 51 and subchapter III of
chapter 53 of such title relating to classification and General
Schedule pay rates;
(3) to enter into contracts and other arrangements for audits,
studies, analyses, and other services with public agencies and
with private organizations and persons, and to make such pay-
ments as may be necessary to carry out the compliance and en-
forcement functions of such Office; and
(4) notwithstanding any other provision of this Act, to obtain
services as authorized by section 3109 of title 5, United States
Code, at a rate not to exceed the equivalent daily rate payable
for grade GS–18 of the General Schedule under section 5332
of such title.
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* * * * * * *
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MINORITY VIEWS
INTRODUCTION
In 1954, Chief Justice Earl Warren wrote for the unanimous Su-
preme Court in Brown v. Board of Education (Brown) that ‘‘[Edu-
cation], 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 inhu-
mane, illegal, and 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 Unfortunately, H.R. 730 has nothing to do with the chal-
lenges of ensuring that all students have equal access to a high-
quality education that prepares them for success; instead, this bill
advances a radical rewrite of civil rights law while doing nothing
to increase educational options for students desperate for them.
COMMITTEE CONSIDERATION OF H.R. 730—LIBERAL RADICALISM
DISGUISED AS AN EDUCATION BILL
On July 15, 2021, the House Committee on Education and Labor
met to mark up H.R. 730. Democrats argued this bill is necessary
to improve educational outcomes for students. In fact, this is not
an education bill; it is a radical change to civil rights law Demo-
crats are trying to pass without anyone noticing.
The Democrats’ assertion that this bill restores a private right of
action to section 602 of Title VI of the Civil Rights Act (Title VI)
is false. The Supreme Court ruled in 2001 that section 602 does not
and has never authorized a private right of action.4 Instead, this
bill represents a dramatic rewrite of civil rights law with no input
from the appropriate committee. The Judiciary Committee, the
committee with jurisdiction over the Civil Rights Act, has primary
jurisdiction over this bill and should have considered the legislation
first. If the Democrats were serious about reforming the Civil
Rights Act, they would have marked it up in that committee.
While Title VI is most used in the context of education policy, the
law itself is not confined to that issue. Title VI applies to any pro-
gram or entity that receives federal funding, which would include
education, policing, housing, employment, healthcare, transpor-
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 Dis-
crimination.’’ U.S. Government Accountability Office. May 17, 2016. https://www.gao.gov/prod-
ucts/GAO-16-345.
3 Ayscue, Jennifer, et. al. Research Brief: The Complementary Benefits of Racial and Socio-
economic Diversity in Schools. The National Coalition on School Diversity. March 2017. https://
school-diversity.org/ pdf/Diversity Research BriefNo10.pdf.
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4 See Sandoval v Alexander, 532 U.S. 275 (2001).
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tation, agriculture, the environment, and other programs. The left-
ist Center for American Progress has called Title VI and section
602 disparate impact claims the ‘‘sleeping giant of civil rights laws’’
that is a ‘‘potentially powerful tool’’ to advance liberal goals
through activist litigation.5 This bill would force state and local
governments to defend themselves against tenuous claims in law-
suits that could require the adoption of myriad liberal policies that
neither Congress nor state and local lawmakers either authorized
or intended.
While it might be possible to come to a bipartisan agreement on
the provisions of this bill actually in the Committee’s jurisdiction,
the majority has held no hearings or made any attempt to nego-
tiate. Unfortunately, this bill is designed to score political points
rather than build on a history of bipartisan and bicameral solutions
to racial inequality and discrimination.
ADVANCING THE RACIST AGENDA OF THE LEFT
During consideration of H.R. 730, Democrats also ignored an op-
portunity to stand for students of color and against Critical Race
Theory (CRT) and CRT-inspired curriculum and pedagogy. Rep.
Burgess Owens (R–UT) offered an amendment that would have
added protections to the special assistant position created at the
Department of Education (Department) in the underlying bill to en-
sure that no funds authorized or extended by the Department con-
dition or incentivize the use of content or pedagogy that violates
Title VI, including by separating students or teachers based on
race, color, or national origin, or assigning characteristics or as-
sumptions to individuals based on race, color, or national origin.
While Republican support for the amendment was unanimous, the
amendment was defeated on a party line vote.
CRT has been defined in different ways, but at its essence it ar-
gues that American society is and always has been fundamentally
racist and that an individual’s race is determinative of his or her
life outcomes. In seeking to divide Americans on racial grounds,
CRT adherents share common cause with white supremacists in re-
ducing the content of peoples’ character to the color of their skin.
While debates about CRT can be abstract, a concrete example of
CRT in action occurred earlier this year in Oregon. The Democrat-
controlled legislature passed, and Democrat governor Kate Brown
signed into law, SB 744.6 The bill suspends high school Essential
Learning Skills assessments for graduation through the 2023–2024
school year and requires the Oregon Department of Education to
conduct a review of state high school graduation requirements. The
review must include recommendations for changes to the state’s
high school graduation requirements that will, among other things,
ensure ‘‘that the processes and outcomes related to the require-
ments for high school diplomas are equitable, accessible and inclu-
sive.’’
Oregon is rightfully concerned that students of color graduate
high school at lower rates than other students. However, rather
5 See The Civil Rights Act 40 Years Later, CTR. FOR AM. PROGRESS (Jul. 2, 2004), https://
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www.americanprogress.org/issues/women/news/2004/07/02/891/the-civil-rights-act-40-years-later/.
6 https://olis.oregonlegislature.gov/liz/2021R1/Downloads/MeasureDocument/SB744/Enrolled.
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than taking steps to improve its schools and expand educational
freedom for students of color, the state has set in motion a process
with clear intentions. The state plans to lower its high school grad-
uation requirements so that more students will meet them. Former
President George W. Bush famously referred to the sentiment
among the public education establishment that schools are power-
less to improve the educational outcomes of disadvantaged students
as the soft bigotry of low expectations. Sadly, that bigotry is now
Democrat Party orthodoxy.
FULFILLING THE PROMISE OF BROWN—EXPANDING OPPORTUNITY
While Democrats want to advance radical and partisan legisla-
tion like H.R. 730 and to lower academic standards to create more
‘‘equitable’’ outcomes, Committee Republicans 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.7
In April 2019, the Committee held a hearing examining the leg-
acy 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.8
Loisa Maritza White, another parent advocate, testified to the
Committee about her family’s use of the DC Opportunity Scholar-
ship 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.9
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.
7 Chingos, Matthew, et. al. ‘‘The Effects of the Florida Tax Credit Scholarship Program on Col-
lege Enrollment and Graduation.’’ February 2019. https://www.urban.org/research/publication/ef-
fects-florida-tax-credit-scholarship-program-college-enrollment-and-graduation?utm_source=
urban_EA&utm_medium=email&utm_campaign=florida_school_choice&utm_term=edu&utm
_content= r.
8 Ford, Virginia Walden. Letter to the Committee on Education and Labor. April 27, 2019.
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9 Testimony before the Committee on Education and Labor, ‘‘Brown v. Board of Education at
65: A Promise Unfulfilled.’’ April 30, 2019. https://republicans-edlabor.house.gov/uploadedfiles/
white_testimony.pdf.
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CONCLUSION
As outlined in these Minority Views, H.R. 730 advances a radical
rewrite of civil rights law without any debate from the committee
of jurisdiction while failing to expand educational opportunities for
families desperate for them. Bipartisan compromise was possible to
advance the shared goals of equity and inclusion in education. Un-
fortunately, Committee Democrats chose a partisan path. Addition-
ally, Democrats ignored the opportunity to stand up for students of
color by denouncing the racist CRT ideology. Finally, 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 Demo-
crats to listen to parents desperate for better educational options
for their children and to work with Committee Republicans to help
provide those options.
VIRGINIA FOXX,
Ranking Member.
JOE WILSON.
GLENN ‘‘GT’’ THOMPSON.
TIM WALBERG.
GLENN GROTHMAN.
ELISE M. STEFANIK.
RICK W. ALLEN.
JIM BANKS.
JAMES COMER.
RUSS FULCHER.
FRED KELLER.
GREGORY F. MURPHY, M.D.
MARIANNETTE MILLER-MEEKS,
M.D.
BURGESS OWENS.
BOB GOOD.
LISA C. MCCLAIN.
SCOTT FITZGERALD.
MADISON CAWTHORN.
JULIA LETLOW.
Æ
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