Title VI Compliance for Indiana Communities Presented by: Erin L. Hall, Attorney &Title VI & ADA Program Manager INDOT Legal Division (317)

This presentation is to provide technical assistance for informational purposes only. It is not intended to constitute legal advice. Compliance with the civil rights laws is an ongoing responsibility. The laws and regulations may change. INDOT makes no warranties regarding the accuracy, completeness or adequacy of the information.

Objectives To provide technical assistance to INDOT subrecipients, primarily LPAs, MPOs, Counties & other communities regarding specific responsibilities stemming from Title VI requirements. If you are not familiar with the regulations, you should first attend or review the “Overview of Nondiscrimination & Accessibility Requirements” module. If you are a Contractor or Consultant you should attend “Nondiscrimination & Accessibility Requirements for Contractor’s & Consultants” in place of this module. Toolkits Resources Training & Assessments Evaluations & Reviews Compliance!

Title VI Responsibilities: Designate a Title VI Manager Ensure Programmatic Implementation throughout your agency Develop, Post & Implement a Title VI policy Implement a Complaint Policy  Maintain a Complaint Log Evaluate the following for discrimination:  Programs / facilities  Activities

Title VI Responsibilities: Adhere to the signed Assurances of Nondiscrimination & include the appropriate appendices where applicable Disseminate Title VI information to beneficiaries & stakeholders: Include Title VI in your Public Involvement Plan Monitor Subrecipients for Compliance Develop, Post & Implement your annual program documents:  Title VI Implementation Plan, and  Annual Goals & Accomplishments Report

Designate a Title VI Manager: Requirements: Designate a Title VI Coordinator who: has a responsible position in the organization (Policy Implementation) and has easy access to the head of the agency. The Title VI Coordinator will also be responsible for ongoing monitoring of Title VI activities. Identify the Title VI Coordinator by name and: include his or her contact information in the Title VI Plan, on your website and with your grievance procedure.

Designate a Title VI Manager: Recommendations: ID on Organizational Chart The Title VI Coordinator's responsibilities should include: Self ‐ monitoring and review activities: Consider a liaison approach Ensuring that Title VI requirements are included in policy directives and that the procedures used have built in safeguards to prevent discrimination. Prompt processing of Title VI external discrimination complaints. Attending, developing & presenting nondiscrimination training. Public dissemination of Title VI information, where appropriate, in languages other than English. Maintain meeting agendas/minutes demonstrating that civil rights requirements are being addressed by the Title VI Coordinator. Drafting annual documents (Implementation Plan, Goals & Accomplishments Report) Coordination of subrecipient monitoring

Programmatic Implementation: Requirements: Build a communication network of trained agency representatives in different divisions, program areas, agencies, etc. such that adequate awareness & data collection & analysis can occur. Recommendations: Identify areas with potential for discrimination Determine what data collection and analysis is necessary to look for discriminatory practices & impacts Select subject matter experts who can obtain, gather & assist in analyzing this data Train these individuals and any other program area representatives who will interact with the data / information being analyzed in Title VI requirements Work as a team to set goals and develop a plan for Title VI analysis in that program area

Develop a Nondiscrimination Policy Requirements: Develop a Title VI Nondiscrimination Policy Statement assuring nondiscrimination in the agency’s programs and activities. Post This policy Implement this policy

Develop a Nondiscrimination Policy Recommendations: Policy Statement: Signed by executive “No person shall on the grounds or race, color, national origin, sex, sexual orientation, gender identity, age, disability, religion, income status, or Limited English Proficiency be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity conducted by the recipient regardless of whether those programs and activities are federally ‐ funded or not.” Circulate the policy statement internally and to the general public In languages other than English where appropriate! Publish the statement on your website Include it in your implementation plan. Place in your Employee Handbook & retain signature pages from employees that they have read and agree INDOT’s Policy:

Develop a Complaint Policy Requirements: Develop a grievance procedure. Develop a complaint form that clearly identifies the Title VI Coordinator by name & provides contact information. Notify INDOT of any complaints received within ten (10) days. Maintain a log of all complaints received that identifies: 1. Each complainant by race, color, sex, national origin or other pertinent basis 2. The recipient 3. The nature of the complaint 4. The dates the complaint was filed and the investigation completed 5. The disposition 6. The date of the disposition 7. Other pertinent information 8. The status of the complaint investigation or lawsuit 9. Corrective actions taken, if any

Develop a Complaint Policy Recommendations: Train ALL staff on the complaint procedure Clearly define what constitutes a “complete complaint” Clearly define when a complaint is considered “received” Be prepared to take a complaint in any format:  Accommodate disabilities!  Always make sure there is a written outcome.  Complainant may sign your written version if needed. Know that Title VI complainants have legal rights and are able to file their complaints in other venues, including taking legal action. Follow your complaint procedures & adhere to your policy! INDOT’s Complaint Policy:

Program Evaluation: Requirements: Develop and implement procedures for the collection of statistical data (race, color, national origin, sex, disability, and age) of participants in and beneficiaries of your agency’s programs. Work with your liaisons, Program Area Representatives, or other Title VI team members to analyze data and information collected and Make adjustments to programs as necessary to reduce discriminatory impacts, Document your efforts.

Program Evaluation: Recommendations: Conduct a disparate impact analysis whenever data collected reveals the potential for discrimination. The following chart indicates how a disparate impact analysis may be conducted. This is a legal analysis and should be done with the participation of counsel.

Program Evaluation: Discussion: Snow Removal in Neat Town: Ned plows snow for Neat Town. Neat town is small & Ned fills up with salt on the East side of town and plows the streets working from East to West, ending at the Neat Town Café, where he can finish with an nice hot cup of coffee. Sid lives in last neighborhood Ned plows and complains of discrimination, arguing Neat Town always plows his neighborhood last.

Program Evaluation: Neat Town: Disparate Impact?  What are the demographics of Neat Town?  How would you determine this? Reasonable / Substantial Justification?  Can (& Should) Ned’s “route” be justified?  Is it arbitrary? Other Non-discriminatory & Reasonable Alternatives?

Program Evaluation: Discussion: Resurfacing Realville: The City of Realville recently completes some asphalt resurfacing. First, it was able to resurface Main Street, the major artery through the City. With remaining funds, it also resurfaced First Street where the City’s schools were located and part of Second Street where a high density of businesses exists including a retirement center and post office. Ed, a resident of Realville who lives on Third Street files a complaint of discrimination with the City, arguing that First and Second Street is where all the wealthy citizens live and Third Street is lower income and a neighborhood with more minority residents. He believes the resurfacing projects were inequitably distributed.

Program Evaluation: Realville: Disparate Impact?  What are the demographics of Realville?  Is there a disparate impact? Reasonable / Substantial Justification?  Were the Resurfacing Projects equitably distributed?  Is there reasonable justification? Were there other Non-discriminatory & Reasonable Alternatives?

Program Evaluation: Discussion: Doing Buisness with Belltown: Belltown is ready to design a new Town Hall. It plans to contract with an architect to design the project. All the architects interested in the project happen to be the same race, gender and about the same age. You are Belltown’s Title VI Coordinator and the Town Council wants to know if this raises a Title VI concern.

Program Evaluation: Belltown: Disparate Impact?  What are the overall demographics of qualified licensed architects? Reasonable / Substantial Justification?  Was there adequate notice of the opportunity?  Was there anything else about the application process that may have limited the applicant pool?  Is there reasonable justification? Are there other Non-discriminatory & Reasonable Alternatives available?  Can you contact professional associations / organization to attract a more diverse applicant pool?  Can you re-advertise or advertise more broadly?  If not, can you mitigate the impact by increasing participation from other demographics (women, minorities, ages) elsewhere in the project

Program Evaluation: DOCUMENT YOUR ANALYSIS Disparate Impact? Reasonable / Substantial Justification? Were there other Non-discriminatory & Reasonable Alternatives? What were the outcomes?

Title VI programming in a Nutshell: Before we move on, let’s reflect on what we’ve covered: Identify People who will work with you Programs that have implications Data that needs collected & analyzed Develop Policies, procedures & plans Inform & Involve Public awareness Training staff, subrecipients Document EVERYTHING

Assurances of Nondiscrimination: Requirements: You sign the Assurances of Nondiscrimination when you receive federal funds either directly or as a subrecipient They create a contractual obligation for Title VI Compliance They contain Appendices that must be included in certain documents (bid solicitations, deeds, leases, etc.) They create Do & Don’t obligations: Don’t discriminate Do monitor subrecipients Do have a complaint policy Do have a nondiscrimination policy Do data analysis INDOT’s Assurances:

Assurances of Nondiscrimination: Requirements: Each program & facility will be operated in compliance with Title VI. Bid Solicitation Notice: “[Subrecipient] in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office the Secretary, Part 21, Nondiscrimination in Federally­ assisted programs of the Department of Transportation and Title 23 Code of Federal Regulations, Part 200, Title VI Program and Related Statutes, issued pursuant to such Acts, hereby notifies all bidders that it will affirmatively insure that in any contact entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of religion, race, color, national origin, sex, sexual orientation, gender identity, age, disability/handicap and low income in consideration for an award.” That the Recipient shall insert the clauses of Appendix A of this assurance in every contract subject to the Acts and the Regulations. That the Recipient shall insert the clauses of Appendix B of this assurance, 'as a covenant running with the land, in any deed from the United States effecting a transfer of real property, structures, or improvements thereon, or interest therein. INDOT’s Assurances:

Assurances of Nondiscrimination: Requirements: Constructing facilities with federal funds = the assurance shall extend to the entire facility and facilities operated in connection therewith. Federal funds to buy property or property interests = the assurance shall extend to rights to space on, over or under such property. That the Recipient shall include the appropriate clauses set forth in Appendix C of this assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the Recipient with other parties. That this assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property or interest therein or structures or improvements thereon: Then, the assurance extends for the greater of the following: as long as the property is used for the purpose funded OR as long as the recipient owns the property. INDOT’s Assurances:

Assurances of Nondiscrimination: Requirements: Subrecipient monitoring:  recipients must give reasonable guarantee that they, other recipients, subgrantees, contractors, subcontractors, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Act, the Regulations and this assurance.  FHWA program contemplates subrecipient monitoring as part of that “reasonable guarantee” Enforcement: The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Act, the Regulations, and this assurance. INDOT’s Assurances:

Assurances of Nondiscrimination: Enforcement: DOJ: been directed to ensure the consistent and effective implementation of Title VI and other Nondiscrimination requirements including Environmental Justice and Limited English Proficiency FHWA: FHWA Division Offices are responsible for ensuring that all Recipients (State Transportation Agencies) have an approved Title VI/Nondiscrimination Plan and submit Annual Update Reports. Ensuring that the State Transportation Agencies are implementing an effective Monitoring Program of their Subrecipients’ efforts to effectively implement Title VI INDOT’s Assurances:

Assurances of Nondiscrimination: Enforcement: Recipients: Each recipient shall keep such records and submit timely, complete, and accurate compliance reports to determine compliance. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient. In general recipients should have available racial and ethnic data showing the extent to which members of minority groups are beneficiaries of programs receiving Federal financial assistance. Access to facilities & records should be made available A Subrecipient’s noncompliance should be reported in the recipients report with a description of efforts made by the recipient to obtain compliance. Recipients should educate their subrecipients in Title VI requirements. See 49 CFR 21.9 (b) (c) INDOT’s Assurances:

Disseminate Title VI Information: Requirements: Provide an opportunity for public involvement and access to the transportation decision making process in every stage of the planning and development of transportation projects to everyone: Including minority or low ‐ income communities and Populations who are not proficient in English. Consider disabilities! Develop an agency Public Participation Plan with maps of the identified EJ and LEP populations (based upon the most recent Census data) that details how public participation is solicited, captured, and utilized.

Disseminate Title VI Information: Recommendations: Engage the public at the earliest stages of any project maintain participation throughout the process. Document your solicitation efforts, Keep good records. Demonstrate how you utilized the comments received and what actions you are taking to broaden public participation where your data reveals participation is lacking If you are in a Metropolitan Planning Organization’s (MPO’s) area, much of this data may be available from the MPO for your use.

Disseminate Title VI Information: Recommendations: Post your information on your website if you have one and don’t bury it! Information at the forefront communicates that this is a priority! (The opposite is also true.) Think outside the box:  Minority shopping stores  Places of worship  Community centers

Monitor Subrecipients for Compliance: Requirements: Develop and implement pre and post-award subrecipient monitoring policies to ensure those further subrecipients who receive federal funds from you are compliant and remain compliant with Title VI. Ensure post-award compliance reviews are risk- based Ensure pre-award compliance monitoring strategies exist as this is the best opportunity to ensure discrimination does not occur.

Monitor Subrecipients for Compliance: Recommendations: Develop subrecipient policies that fit the size and function of your community but that meet the requirements for monitoring. Consider FHWA and INDOT policies when designing your own. Clearly communicate your expectations Train your staff of the importance of compliance monitoring as well as the procedures Maintain records of all compliance reviews for at least three (3) years from the date the project is complete, NOT the date of the review.

Monitor Subrecipients for Compliance: Recommendations: Let INDOT know if you are having trouble obtaining compliance from a subrecipient. We can help! Do NOT withhold funding from a noncompliant subrecipient without following the appropriate administrative procedures. Work with counsel to ensure compliance with 49 CFR 21 and other regulations.

Title VI Implementation Plan: Requirements: Communicates how the agency implements the Title VI/Nondiscrimination requirements (including EJ & LEP) Contains procedures, strategies, and activities to facilitate and assure nondiscrimination in federally assisted programs and activities of the agency. Identifies the Title VI Coordinator, the Complaint Procedure, and includes all policies and nondiscrimination statements.

Title VI Implementation Plan: Requirements: Includes mechanisms to guarantee effective and efficient implementation, compliance, and enforcement of Title VI. Includes maps of Environmental Justice (EJ) and Limited English Proficient (LEP) populations (based upon the most recent Census data). Includes organizational charts including any Title VI liaisons and program area representatives. Discusses training programs, audiences and frequency. Includes subrecipient monitoring practices.

Goals & Accomplishments Report: Requirements: Identifies specific goals for the upcoming year including:  What program areas will be evaluated?  How? What data will be collected? How will it be analyzed? What will the analysis show?  Think “Who, What, When, Where, How & Why?” Discusses accomplishments from the prior year including:  What programs were evaluated? Include the data or a summary thereof, what it revealed and what action will result.  Subrecipient monitoring  Trainings & attendance  Complaints  Public comments

Plans vs. Reports: Title VI Implementation Plans: Policy Documents Organizational Handbook Title VI Goals & Accomplishments Reports: Specific goals with action steps Who, what, when, where, how & why identified with specificity (names, dates, etc.). Data-driven analysis with the DATA (or summary) Discussions Reports Recommendations Reflections Revisions

Where to begin?

Title VI planning in a Nutshell: Let’s reflect on what we’ve covered: Identify People who will work with you Programs that have implications Data that needs collected & analyzed Accomplishments Develop Policies, procedures & plans Objectives for your Title VI plan Specific Annual Goals Inform & Involve Public awareness Training staff, subrecipients Document EVERYTHING

Where to Begin? Start at the very beginning… 1 st Title VI Implementation Plan can be a “plan for the plan”. Who? Title VI Coordinator Others? What? Programs? Policies? Data? Public Involvement? When? In one year, what can you REASONABLY do? Define goals & action steps – put these in your Initial Goals & Accomplishments Report

Considerations: Start at the very beginning… 1 st Title VI Implementation Plan can be a “plan for the plan”… BUT … 1. Call it your “Title VI Implementation Plan” 2. Include all elements, using placeholders as necessary 3. Where “placeholders” are used, cross reference your goals where you have a specific plan & timeframe established.

Considerations: Start at the very beginning… 1 st Title VI Implementation Plan can be a “plan for the plan”… BUT … THIS YEAR 1. Designate your Title VI Coordinator BY NAME, even if it is just on an interim or initial basis 2. Develop & implement your nondiscrimination policy. 3. Attend training 4. Develop and implement your complaint policy & procedures

Considerations: Start at the very beginning… 1 st Title VI Implementation Plan can be a “plan for the plan”… BUT … You must demonstrate REASONABLE GOOD FAITH EFFORTS This requires reasonable progress over time Title VI = CIVIL RIGHTS The work you do will mitigate risks It is up to you to provide groundwork & records… “A recipe for success” that your successors can run with.

Considerations: Start at the very beginning… 1 st Title VI Implementation Plan can be a “plan for the plan”… BUT … If deficiencies remain, you must prepare an ACTION PLAN addressing each deficiency: 1. Acknowledge the deficiency exists 2. Agree to address the deficiency 3. Establish a plan (when, how, who, what) 4. Define the annual goal for the deficency: What will you do this year to address that deficiency?

Resources: INDOT’s Subrecipient Toolkit: Overview of rules & regulations Description of our subrecipient monitoring procedures Program Requirements & recommendations Checklists Links Templates Samples Examples echnicalAssistanceTool.pdf

“With Liberty & Justice For ALL” As President John F. Kennedy said in 1963: “Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.”