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Withdrawal/Redaction Sheet···
Clinton Library
. DOCUMENT NO.
.AND TYPE
001. memo
·002. memo
SUBJECTffiTLE
DATE
RESTRICTION
To Lynn Hogan from Joan Silverstein re: Wellstone/Murray
Amendment (3 pages)
. 09/12/96
P5
·To Betsy Myers, Dennis Burke and Bonnie Campbell from Debbie
. Fine re: Meeting on Domestic Violence and Custody Issues (partial)
(1 page)
06/05/96
P6/b(6)
CLINTON LIBRARY PHOTOCOPY
COLLECTION:
Clinton Presidential Records.
Domestic Policy Council
Cynthia Rice (Subject Files)
OA/Box Number:
15445
· FOLDER TITLE:
Welfare-Domestic ViolenceDirective Part I [3)
Rhonda Young
2009-1414-S
1169
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
· P3 Release would viohite a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA]
PS Rei ease would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
·of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act -[5 U.S.C. 552(b))
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial'
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement ·
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
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U.S. Department of Justice
(_p S Li
I
· Office of the Associate Anomcy General
; lla.shingiOn, D.C. 20530
September l2, 1996
: '.!·
MEMORANDUM
CLINTON LIBRARY PHOTOCOPY; ·.·
TO:
Lynn Hogan:
Domestic Policy
FROM:
Joan Silverstein ( /
Assistant Associ~e
··SUBJECT:
·Well stone/Murray .
Responsib.:l.lity an
of 1996
ttorney General
endment to the Personal
.
Work Op~ortunity Recon~iliacion.Act
DISCUSSION:
·In last week·' s meeting on the Wellstone/Murray Amendment to
the welfare legislation, two possib:i!lities were discussed
concerning the implementation of th$ amendment.
The first option J.nvolved a statement by the President to
the stat~s ehcouraging them to impl~metit the amendment and to
establish adequate programs to assist the victims of domestic
violence. ·There was some concern that this option would riot
satisfy the advocacy groups. Howev~r,. it would permit the .
President to speak out immediately in support of implementation
of the amendment.
Should this first approach be taken, we should consider
following. the President Is message, wfth a letter to all governors
reiterating the message and informing them that the federal
government stands ready to assist .;.1ith implementation if needed.
This approach has .the benefit of giving states wi~_e __ _la_!:_i_t:J:lde_ in
the implementation of the amendment. -- ·
~
. Under the second option, the President would issue a
directive to the Att6rney General and Secretary of Health and
Human Services concerning the amendment. Four possible
components to th~ dir~ctive have been identified.
The three
components involving HHS were crafted by HHS.
Both theGerieral
Counsels' Office at HHS and .the Jusb,ics Department welfare
~orking group agree on. the remainin~ provision on guidance to ~he
states involving the tvJO departments.
(Further sign of£ wi'chin
both departments may be necessary ~i the project progresses) .
j\
I~
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The possible components to the directive are as follows:
1.
Proposed HHS Regulation on Participation Rates
The President would direct th~ Secretary of HHS L>:
( l)
propos·e regulations providing that: states that· fall bela·. .; the
required participation rate will b~ found to ha~e reasonable
Cause for failing to compl~ with t~e part~cip~tion rate
requirement and will not be penaliized if the reason for the low
rate is the number of domestic vio~ence victims exempted from the
work requirement and if the state has in place_adequate programs
.to assist victims of domestic viorence; and · (2 l to propose any.·
other regulations necessary to'ensi.ire, to the extent allowed by
law, that the penalty structure undersection 409 of the PRHORA
does not operate inadvertently to discourage states from
exercising their option under section 40'2 (a) (7) ·of the PR\·10?-..A
(the Wellstone/Murray .amendment) to screen,· identify and assist
victims of domestic violence.
2.
HHS and DOJ Guidance tothe States
The ·president should direct the Attorney.General and _the
Secretary of HHS to develop guidance to assist the stat:es \·lith
the implementation of- the amendment. The guidance 1 which would
be non-binding, would address such issues as what.standards and
procedures sh6ul'd apply when screening for a history of domestic
11
violence, ·and for determining whad is _ good cause 11 to '.-.'aive the
requirements of the PRHORA.
In developing the guidance, the
Justice Departm~~t and Departmerit lof Health and Human Services
would consult with victims s~rvic~s, women's advocates, law
enforcement, medical pr6fessional~. and oth~is involved in
fighting domestic violence.
·
3.
.HHS Techni~al Assistance to the St~tes
The President should direct the Secretary of HHS to provide
states technic~l assis~ance in de~eloping, as part of their
Temporary Assistance for Needy Families programs, ·standards and
proceciures to screen, identify, and assist victims of do:ne s't ic
violence.
'
4.
HHS Studies on ~elfare and Domestic Vi6lence
The President should direct the Secretary of HHS to provide
funding to study the incidence of violence iri the
lives·of welfare recipients; the :i,.mpact of domestic violence on
welfare program rules and requir~ments, and the best a~sessm~nt,
referral and delivery models to improve safety and self- ·
su-fficiency for welfare recipients who are vicd:rns of domestic
violence.
disc~etionary
fl.ll four of the possible components need 'not be incl·,...:ded ·in
the ~irective. ·It is the Justice.Department view thac it: may be
imprudent at this time to include the first component in the
CLINTON LIBRARY PHOTOCOPY
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directive.
The directive would also restate the President's
commitment to welfare reform.
In ~ddition, the directive shbuld
not limit the agencies in any ~ay as they take 6ther seeps ln
implementing PRWOR.A.
.CLINTON LIBRARY PHOTOCOPY
i
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�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo·
SUBJECT!fiTLE
DATE
To Executive Agency Civil Rights Officers from Bill Lann Lee re:
Draft Policy Guidance (11 pages)
n.d.
. RESTRICTION
P5
(:OLLECTION:
Clinton Presidential Records
Domestic Policy Council
Cynthia Rice (Subject Files)
OA/Box Number: 15445
FOLDER TITLE:
Welfare-Civil Rights II
Rhonda Young
2009-1414-S
1168
RESTRICTION CODES
Freedom oflnformation Act- [5 U.S.C. 552(b)]
Presidential Records Act- [44 U.S;C. 2204(a)]
Pl-\'lational Security (::Jassificd Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 RCJease would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
.· .. financial information [(a)(4) Qf the PRA]
P5 Release would disclose· confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a ~I early unwarranted invasion of
personal privacy [(a)(6) of the PRA]
.
.
.
C. Closed in accordance with restrictions contained in donor's deed
of girt.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
. 2201(3).
. ..
RR. Document will be reviewed upon request.
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA[
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
. b(4) Release would disclose trade secrets or confidential or financial
· information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
.
b(9) Release·would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�·CLOSE-HOLD
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CLINTON LIBRARY PHOTOCOPY
TO:
Executive Agency Civil Rights Officers
FROM:
Bill Lann Lee
Acting Assistant Attorney General
Civil Rights Division
SUBJECT':.·
Policy Guidance Document: Enforcement of Title VI of
the Civil Rights Act of 1964 ~~ Discrimination Against
National Origin Minority Group Individuals Who Have
Limited English ·proficiency
This policy directive concerning the enforcement of Title VI
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d,. at. .s..eq., is
being issued pursuant to the authority granted by Executive Order
No. 12250 and Department of Justice regulations.
It addresses
the application to recipients of Federal financial assistance of
Title VI's prohibitibn on national origirt discrimination when
information is·provided only in English to limited-Englishproficient persons.
It is .~ell established that a Federal aid recipient's
failure to assure that people who do not ~peak English
nonetheless can effectively participate iri and benefit from
programs and activities constitutes discrim~nation prohibited by
Title-VI.
Iri order to assist Federal ftind-granting agencies to
ensure that their assistance recipients are complying with their
responsibilities in this important regard, this policy directive
addresses the appropriate standards by which to judge compliance.
·It is expected that each agency will utilize ·the standards set·
f6rth in this Policy _Guidance Document to develop spe~ific
criteria applicable to its own programs and activities.
42 U.S.C. § .2000d-1 note.
28 C.F.R. § 0.51.
�CLINTON LIBRARY PHOTOCOPY
Background
Title VI of the Civil Rights A_ct of 1964 prohibits
. recipients of Feder~l fi~ancial assistan~e from discrimin~ting
.against or otherwise excluding individuals on the basis of race,
color, or national origin in any·of theiractivities.
Section
601 of ~itl~ VI, 42 U.S.C. § 2_000d, provides:
No persori in the United States shall, on the ground of
race, color~ or natibnal origin; be excluded from'
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving F~deral financi~l assistance.
The term "prograi11 or activity" is broadly defined:
§ 2000d-4a.
42 U.S~C.
Consistent with the model-Title VI regulations drafted by a
Presidential taskforce in 1964, virtually every executive agency
has promulgated regulations to implement Title VI that prohibit
recipients from •irestrict [ingl an individual in any way in the
enjoyment of any advantage or privilege enjoyed by others
receiving any service, financial· aid, or other benefit ·under the
program 11 and "utiliz[ing] criteria or methods of administration
~hich have the effect of subjecting indi~iduals to
discrimination" or have "the effect of defeating or substantially
. impairing accomplishment of the objectives of the program as
respect indi victuals of a particular race, color, or national_ .
origin."
. In Lau v. Nichols, 414 u.s. 563 (1974), the Supreme Court
. interpreted these provisions to find that a fund recipient had an
obligation to ensure that language barriers were not -excluding·
limited-English proficient (LEP) persons from receiving the
services available to similarly-situated ,persons who spoke
English. L.all involved a group.of students of Chinese origin who
did not speak English to whom the recipient provided the same
services -~ an education provided solely in English -- that it
provided students who did speak English.
The Court held that
Title VI was violated under these circumstances, holding that
l[i]t seems obvious that the Chinese-speaking minority receive
fewer benefits than the English~speaking majority from
respondents' school system which denies them a meaningful
opportunity to participate in th~ educational program.~- all
earmarks of the discrimination banned bf,::: the Title VI
�CLINTON LIBRARY PHOTOCOPY
regulations:
In the past 25 years, courts routinely have applied
Lau both inside and outside the education .context.
Link·Between Natjonal Qrjgin and Language
·A vast majority of people who live fn the United States
speak and read Engli~h sufficiently to-f~nction in day-to-day
life without any special language assistance. Thus, for these
p~ople the use by Stat~ and local governments ~nd private
entities only of English in federally assisted programs and
a~tivities poses no obstacle to full participation in these
programs and activities.
·
Not surprisingly, . the small minority who ar·e of limited
· English proficiency is composed primarily of persons born in
foreign couhtries (with a small residual 9f.the s6ns and
daughters of immigrants and some Native Americans). Despite
efforts to gain proficiency in English, their English language
proficiency may be limited for some time. Unless steps are taken
to respond to this difficulty; people who do not speak and/or
read English m~y be effectively denied ~ccess to the benefits and
services for which they are otherwise qualified, and which their
taxmoney, just like that of people who do speak English,
supports.
Many recipients· of Federal financial assistance recognize
.that the failure to p~ovide language· assistance to such persons
can have the effect of pr~venting them fro~ participating in
federally assisted programs and activities; and thus may deny
them needed·access· t6 services and benefits enjoyed.by other
Americans.
Often, the failure of·a recipient to remove language
414 u.s. at 568.
Congress manifested its approval of Lall
by enactingprovisions in the Education Amendments of 1974, Pub.
L. No. 93-3BO, §§ 105, 204, 88 Stat. 503-512, 515, which provided
funds to assist school districts in providing bilingual education.
to comply with Title VI and its regulations as interpreted in ·
L.au.
See also 20 U.S.C. § 7402(a) (15) mthe Federal Government,
as exemplified by titie VI of the Civil Rights Act ,of 1964 * * *,
h~s a special and continuing obligation to ensure that States and
loc~l school districts take appropriate action to provide equal
educational opp·ortuni ties to children and youth of limited
English proficiencf,~)
·
<see,.e.g., Sandoval v. Hagan, 7 F. Supp. 2d 1234 (M.D.
Ala. 1998); Pabon v. Levine, 70 F.R:D. 674. (S.D.N.Y. 1976);
Mendoza y. Lavine, ~12 F. Supp. 1105 (s:D.N.Y. 1976).
·
�CLINTON LIBRARY PHOTOCOPY
barriers is attributable to nothin~ more than ignorance of the
fact that some members of the community are unable to communicate
ih English, to a general attachment to the status quo, or a lack
of awareness ~f their obligation to address this situation.
In
some cases, however,· the failure to ·address language barriers may
not be simply an oversight, -but rather may be attributable, at
·least in part, to invidious discrimination on the basis of
nation~l origin and race.
While there is not always a one-to-one
relationship between the language one speaks and one 1 s national
~rigin, often language-does serve as an identifier not only of
one 1 s national origin, but als6 that one may be new to this
country.
The ~arne sort of prejudice and xenophobia that may be
at the root of discrimination again~t persons from other nations
may be invoked when a person speaks the language of another
nation.
Inoeed, the Supreme Court has recognized that many times
reactions to ·persons speaking· languages other than English is
linked to invidious discrimination.
Language elicits a response from others, ~anging from
admiration and respect, to distance and alienation/'to
ridicule and scorn.
Reactions of the latter type all too
often result from or initiate racial hostility. ·
It
may 0ell b~, for certain ethnic groups and .in some
communities, that proficiency in a particular language, like
skin coldr, should be treated as a surrogate for race under
an equal protection: analysis.
·
Title VI itself prohibits only intentional discrimination on
the basis of national origin. But Congress intended that the
agencies cha·rged with promulgating regulations to effectuate
Title VI would have authority to extend the prohibition to those
actions and inactions with the greatest potential to be rooted in
. A close. relationship often ~xists between language and
national origin.minority group status. As the Supreme Court
observed,. n[l] anguage permits an individual to express both a
personal identity and membership in a community, and those who
share. a common language may interact in ways more intimate than
those with6ut this bond. Herhande~ v: New York, 500 U.S. 352, 370.
· (1991) (plurality opinion).
Hernandez v. New York, 500 U.S. 352, 371 (1991)
opinion) .
Alexander v. Choate,
469 U.S.
387, 293
(1985).
(plurality
�··cLINTON LIBRARY PHOTOCOPY
invidious discrimination.
Time and again in the legislative
history of Title VI are refer~nces to the provisi6n's broader
prophylact~c purposes I not just to prohibit discrimination, but
to· "prevent, 11 · "preclude," "end,'' or "get away from"
discr·imination; to "insure" or "make sure" that· discrimination
does not' occur; to avoid the use of funds to ."perpetuate" or
"cause" discrimination; and toprevent the use of funds ih·a way
that has the effect of excluding persons, or denying them
b~nefits~ based on their race, color, or national origin.
For
· this reason, the Supreme Court has consistently h~ld that agency
regulations prohibiting discriminatory effects are valid.
Because the effect of a language barrier oh an LEP person is
the same regardless of the intent of the fund recipient, the
·Department of Justice adheres to the Supreme Court's
·
determination in Lau that the failure to take reasonable steps to
p:r::ovide "meaningful opportunity" for LEP individuals to
· partitipate in a redipient's programs and ~ctivities violates a
recipient'~ obligations under Title VI and its regulations.
MeaningfJJJ Opportunity
The holding of L..a1l is that recipients must take reasonable
steps.t6 proyide "meaningful" access to the information and
services they provide.
What constitutes reasonable steps to meet
this· obligation will be contingent on a number of factors,
including the size of the population that is being denied access,
and the nature of the program.
T.his analysis requires a factintensive inquiry into the actual effects of the recipient's
actions and inactiOns on LEP persons.
·
·
I d . at 2 9 3- 2 94 .
See, .e.g., Civil Rights· Hearings before the House Comm. On
the Jtidician,ssth Cong., 1st Sess. 2683-2684 1 2774 (1963);
Cjyj J Rights: :Hearings before the House Comm. On Rules, 88th
Cong., 2d Sess.: 94, 321 1 330 1 336 1 343, 346-348, 422 (1964);
Cjyj] Rights- the_President's Prbgram. 1963: Heaiings before the
Senate Comm. on the Judiciary, 88th Cong., . 1st Sess. 328, 330 1
397-403,- 413 (1963); 110 Cong. Rec. 1519-1520, 1527-1528 (Rep.
Celler) 1 1542 (Rep. Lindsay), 1599 (Rep. Minish), 1613 (Rep.
Celler), 1629 (Rep. Halpern) 1 1677 (Rep. Celler), 2595 (Rep.
Donahue) 1 6562 (Sen. Kuchel) 1 .7065.
Alexander v. Choate, 469 U.S. at 293-294.
�CLINTON LIBRARY PHOTOCOPY
One important factor in determining the reasonableness of
these steps is the number of people who will be excluded from the
program-or activity unless the language barriers are lessened.
What may be reasonable steps for a recipient who serves one LEP
person a year will be different than what is re~son~ble for a
recipient that serves several LEP persons a day.
For this·
reason, the Department of Justice has imposed a higher burden on.
recipients who served a significant number of LEP persons, or
where a significant proportion of the population consists of
persons hot pr?ficient in English.
1)
Recipients often communicate with the public in writing,
either on. paper and over the Internet. Written translations are
a highly effectiveway of communicating with large numbers of
people who do not· speak or read English.
To assist executive.
agencies in defining the circumstances in which Federal aid
recipients must provide written language assistance, the
Department of Justice, shortly after L.a.u, specified the standard
to be used (28 C.F.R. § 42.405(d) (l)):
·
Where a significant number or proportion of the population
eligible to be_served or likely to be directly affected by a
federally assisted program (e.g., affected by relocation)
needs service or information in a language other than
English in order effectively to be informed of
to
participate in the program, the recipient shall take .
reasonable steps, considering the scope of the program and
the size and concentration of such population, .to provide
information in appropriate ·languages to s:uch persqns. This
requirement applies with regard_to writtenmaterial of the
type which is ordinarily distributed to the public._
or
This Coordination Regulation grew out of the Supreme Court
decision in Lall, where the Court found tt significant tha_t 1, 800
non-En.glish 'speaking students had been precluded from effectively
participating in the federally assisted school program because
This provisi0n is contained in the Department's regulation
entitled °Coordination 6f Enforcement of Non-discrimination in
Federally Assisted Programs,o 28 C.F.R. Subpt .. F (hereinafter.·
°Coor.dination Reg-ulation°)
issued in 1976, which, by its terms,
0
govern[s] the respective obligations of Federal agencies
regarding enforcement of title VI."
28 C.F.R. § 42.401.
It
· expands upon the basic prohibitions on discriminatory conduct
first set forth in· the model Title VI regulations and then
incorporated in each agency's Title VI regulations, in particular
the prohibitions cited by the Supreme Court in L.au.
I
�CLINTON LIBRARY PHOTOCOPY
language assistance was not_provided; those 1,800 students
represented less than two percent of the school district's total
student population. As Justice Blackmun underlined in his
concurring opinion in L.a.u (joined by Chief Justice Burger) that
was "a very substantial group" and a different question would be.
presented only where there .were "very few'' limited-Englishproficient individuals or just one.
In our view; then, the
"significant number or proportion" test_is meant to include all
programs and activities where more than relatively few li~ited.. English-proficient individuals are "eligible to be served or
likely to. be directly affected, 11 or where limited-English-·
proficient individuals constitute more than a slight percentage
of those ."eligible to be served or likely to be directly
The ~an Francisco s~hool district had approximatel~ 100,000
students at that time, according to the opinion of the court of
appeals in L.a.u . . 483 F.2d 791, 793 (9th Cir. 1973).
414 U.S. at 572.
Our conclusion.as to the meaning of "significant number.or
p;r-oportion" is buttressed by the approach taken by the .Department
. _of Agriculture in implementing 'the .Food Stamp Act of 1977.
7
U.S.C. § 2020(e) (1) & (2).
The Act requires States to provide
written and oral language assistance in areas where."a
substantial number of members of low-income households speak a
language other than English." The Agriculture Department has.
interpreted "substantial number" generally to mean any amount
more than a relatively few.
·
Specifically, the Agriculture Department requires that both
bilingual written materials and bilingual staff or interpreters
·be provided as follows:
in food stamp certification offices
.serving an area with about 100 or morelow-income households in
which a language othei than English is spoken and there is no
adult fluent 'in English; and; in areas with fewer than100
low-inco~e households, if ~ majority of the low-income households
consist of persons who speak a language other than English and
the household incl~des no adult fluent in English,
In addition,
written bilingual materials on program informational activities
must be provided outside certification offices as ,follows: in
areas with small low-income populations (less tha·n 2, 000
low-income household~) if ·there are about 100 or more low-income
households in which a language other than English is spoken and
.there is no.adult fluent in English; and, in areas with larger
low-income populations~ if about five percent or more of the
.low-income households consist of non-English speakers.
7 C.F.R .
. § ·272. 4 (b) .·
.
.
�CLINTON LIBRARY PHOTOCOPY
affected."
2)
A·recipient 1 s obligation to provide meaningful
opportunity is not limited to writ~en t~anslation .. Although the
Cooidination Regulati6n addresses requirement~ for provision of
written language assistance, ·the experience of agencies in
carrying out their Title VI compliance activities has been that
oral communication between recipients and program beneficiaries
often is an integril part of the ex~hange of information. Thus,
recipients that limit language assistance only to the provision
of written materials may·not be allowing limited-Englishproficient- persons "effectively to be informed of or to·
participate in the piogram."
For example, a federally assisted health-care provider would
face substantial problems in providing medical care to limitedEnglish-proficient ·patients if the provider were unable to
understand the patients 1 oral description of their symptoms and
could not-orally communicate the course of treatment being ·
recommended.
Similarly, a federally assisted law enforcement
agehcy 0ould face substantial problems in providing protection
and service to a community that includes i~dividuals who are
limited-Ehglish~proficient .if the agency 0ere not able to
communicate orally with these citizens.
In such cases,
"meaningful opportunity" to benefit from the service requires the
recipient to take steps to assure that translation services are
promptly available.
3)
For those who do not serve a LEP population of
Significant number Or proportion," the general Obligation tO
take reasonable steps to provide meaningful opportunity still
applie~.
While ~here is no justific~ti6n for these iecip{ents to.
choose not to provide any language assistance at.all, each
recipient 1 s responsibilities generally aie defined on a flexible
. case-by-case basis taking into account the nature ~nd scope of
the federally assisted program, and the_size, concentration, and
other characteristics of the limited-English-proficient
population.
In other words, both the needs of the limited~nglish-proficient population and the needs of the recipient in
II
Title VI does not require recipients to remove language
when English is an essential aspect of the program (such
as providing civil service examinations in English when the job
requires ·person to communicate in English, ~ Frontera v.
Sjndell, 522 F,2d 1215 (6th Cir. 1975)), or there is another
"substantial legi tim·ate justification for the challenged
practice." Elston v. Talladega County Bd. of Educ., 997 F. 2d
1394, 1407 (11th Cir. 1993). Similar balancing tests are used in
other ~ondiscrimination provisions that are concerned with
effects of an entity 1 s actions.
For example, under Title VII of
the Civil Rights Act of 1964, employers need not cease practices
ba~riers
�CLINTON LIBRARY PHO!OCO PV
conducting its program or activity are taken into account.
The appropriate mix of written and oral language assistance
is judged according to this rule of reasonablenes~.
Thu~,
instead of translating all written materials, a r~cipient ~ay
·meet its obligation by making available oral assistance, ·or by
commissioning translations on request. For example; whether a
particular form or instruction has to be in a language other than
·English may dependon whether it is expected that the form be ·
filled out lort the spot,l or whether it may be returned at a
~ater time or by mail, thus allowing the individual to seek his
or her own translation services.
In addition, neither Title VI
nor its regulations requires recipients to provide interpr~ters
if non~ are needed, o.r to translate documents that no members of
the public will read.
It is the responsibility of Federal
assistance-granting agencies, in conducting their Title· VI
compliance activities, to m·ake tnore specific judgments by
applying their program expertise to concrete cases.
a~so
.
As another example, a hospital serving a.significant nonEnglish speaking Vietnames~ population n~eds to provide
_
translation services to that population.
In addition, it needs
to provide a quality of translation service appropriate for the
program, L.e......_, .·someone who can interpret the medical terminology
appropriate to the situation.
However, this does not mean that a
hospital has to have immediately available translation services
that have a discriminatory effect if they are "consistent with business necessity" and there is
no "alternative employment practice" that is equally effective.
42 U.S.C. § 2000e-2(k). · Under Section 504 of the Rehabilitation
Act/ 29 U.S.C. § 794 recipients need to provide access to
persons with disabilities if such steps do not impose an undue
bu~den on·the recipient.
AJexand~r v. Choate, 469 U.S. at 301.
1
The January 2 9 19 98 "Department of Health and Human
(HHS) Guidance Memorandum entitled ITitle VI Prohibition
Against National Origiri Discrimination ~ Persons with Li~ited~
English ProficiencY:;~ sets forth factors that should be considered
in providing oral non-English services. This document can be
found at the HHS website at http://www.hhs.gov/progorg/ocr/
)epfinal.htm. ·They include the size of the LEP population
eligible for the program in question/ the setting in which
interpreter ser~ices ar~ needed/ the availability of staff
members and/or volunteers to provide interpreter services ·during
its hours of operation, and the proficiency of available staff.
members or volunteers available .to provide the needed. services.
I
S~rvices
I
�CLINTON LIBRARY PHOTOCOPY
_for every conceivable language it might encounter, if it has no reason to believe it will
encounter such languages on other than an extremely intermittent
basis . . Even in this situation, though, a hospital should ):lave a
procedure to·provide such translation services within a
reason~ble amount of time.
Moreove~, as written translations ar~
only required for material iordinarily distributed to the .
public,:;~ likewise recipients are re·quired to provide oral·
language assistance only with regard to matters within the scope
of ordinary program business.· Again, the. reasonableness of the
translation services required is going to.be fact-driven.
Moreover, the type of program may be significant. The
obligations of a federally assisted hospital that offers crucial
medical services may differ from.those of. a federally assisted
zoo or theate~.
·
�;
...
CLiNTON LIBRARY PHOTOCOPY
4)
Finally; in evaluating whether Title VI requires a
particular type of bilingual service, it should be remembered
that other Federal statutes may impose more stringent standards.
For example,. the Voting Rights Act, among other things,· sets
forth specific requirements as to when bilingual ballots must be
provided.
To the extent that these requirements are more
stringent than those required by Title VI or this guidan9e, the
requirements of. such statutes would be controlling.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
.
001. memo
RESTRICTION
02/14/00
P5
.
Mark C. Van Noi·man to Lynn Cutler re: Collection of Child Support·
from Tribal Casino Awards (2 pages)
'CLINTON LlBRAK\' fHUl'OCOPY
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
·Cynthia Rice (Subject Files)
OA!Box Number: 15429
FOLDER TITLE:
Child Support-Gambling [1)
Richard Stalcup
rx22
RESTRICTION CODES
Presidential Records Act· [44 U.S.C. 2204(a)]
PI National Security 'Classified Information [(a)(l) of the.PRA]
· P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Reiease would violate a Federal statute [(a)(3) of the PRA]
·
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advise between the President
and his advisors, or between such advisors [a)(S) of the PRA]
· P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Info-rmation Act- [5 U.S.C. 552(b)]
b(l) National security classified infonruition [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) Of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA] ·
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA] ·
�v,_r.a.-zr...,"' .
..u.-•'
................... _·.a."~ .,."'•
v...a."ll:
..,"!'11."
U.S. Department of Justice
Office of Tribal Justice
·Room 222911, Mo/n J~t.rUc~ Buildmg
950 h~~nzylvurlie~ Avcm111, N. W.
(201) 514-8811
. FAX (201) 514-90711
Wtuh/nglon, DC 205.30~0001
Februai"y 14, 2000
. ·RE:
Cpllection of child support from tribal ~asino awards
This :rrteinorandwn briefly sets forth some preliminary consideragons that should be taken
into account when deciding whether the United States should require tribal casinos. to· develop a.
mechanism to deduct overdue child support obligations from reportab1e aWa_rds at tribal casinos.
The United States recognizes that Indian t:ribes are "domestic dependent 11ations'1 with
..inherent sovereign powers over their members and territory." Executive Order No.
13084, Consultation and Coordinationwith Indian Tribal Governments (May 14, 1998).
.
It is well-established that "[t]he United States has a-unique legal relationship with Indian
.tribal gove111ments." EO 13084. This "unique" relationship is akin to the relationship
between a trustee and beneficiary, pursuant to which the United States ''bas charged itself
with nioral obligations ofthe highest responsibility" toward tribes. Seminole Nation v.
United States. 316 U.S. 286, 297 (1942).
This general ''trust responsibility'' arises from two primary sources.' First, the United
States pledged protection to tribes in treaties. ~econd, the Uriited States engaged in a
course of dealing with tribes that left them in a dependent position, given rise to a moral
. obligation to promote tribal interests.
•
..
;
.
This ..tnist responsibility" includes a federal responsibility to protect "the sovereignty of
each tribal government" and to protect tribal resources. See 25 U,S~C. sec. 360i.
.
These principles temper United States' deailngs with tribes. The United States deals with
tribes on a government-to-government basis, based primarily on federal consultation with .
·tribes whenproposed federal actions might affect triba1 interests, see EO 13084, and
tribal consent when tribal actjon might be required to promote a federal interest. Thus,
the fed~ral government is cautious not to. require tribes to administer federal programs .
·CLINTON LIBRARY .PHOTOCOPY
.
.
�u,:.r
~'!f
uu
!llVI'I--
~.,-;<TO-
rAA-- .<;u...-- .., ... ..,
-uv-,.,---------~
..
-=•~"'"'"'~~------------~----.,-..,..,~--------,
f
. . 0.
unless the tribe in~olved chooses to take on that responsibility. This is true even in cases
federal program is primarily designed to benefit the tribe involved._ See, e.g.,
where
25 u.s. sec. 450f (requiring tribal :i:equest before responsibility for federal programs
may be contracted to tribes); !4:., sec.2503(d) (providing that tribal administration of
federal schools programs is "strictly vol~tary;').
the
c.
-
-
'
As in the case with state governments, 1 the federal government can, and does, require
tribes to undertake generally applicable minimal administrative burdens to p;omote
federal interests. See.~. 25 U.S.C. sec. 2719(d) (requiring tribal casinos to apply·
federal income tax reporting and withholding laws to tribal casino awards); cf. 26 U.S.C.
sec; 3402(q) (setting forth requirements for withholding from winnings from state
lotteries). Where more extensive tribal action is necessary, consistentwith. the trust
responsibility,' the federal government ordinarily offers the tribe a choice to operate the
program with federal support orto leave the program operation to a federal ager~cy.
----···· ·····-------~- ~--·--- ··-·· .. -······ -·· --····. ------------ ___________________ _: ___ ._ ______________ ___,.._-------------;-----------------:_
___
...__.;.
________ ---------------------- ----~ ~------------·--···
· Collecting overdue child support would potentially be rnore burdensome than
withholding federal income tax. At a minirimm, it would require tribal casinos to have
access tO the appropriate data base --' presumably computerized - and undertake an
individualized check for overdue child support each time a. payout is made~ Consistent
with the trust relationship=- the federal governnie.llt would ordinarily consult with tribes
. prior to imposing a burden on tribal economic development efforts, even where the
burden furthers stich laudable purposes as chHd support enforcement.
._i_
·. CLINTON LIBRARY PHOTOCOPY
1
This policy of restraint is analogous in purpose to the Tenth Amendment. The Tenth
· Amendment limits the federal government's ability to require states to regulate, unless that
requirementis tied to states' acceptance federal funds. See Printz v. United States, 521 U.S ...
898 (1997) (holding that requiring local officials to conduct background checks on prospective
handgun purchasers violates the Tenth Amendrrient). While the Tenth Amendment applies, by
its precise terms, only to states, the federal policy of restraint has caused the federal government
.· ,
to avoid requiring tribes to regulate unless tribes consent to undertake that regulatory obligation.
of
....
�Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
06/09/99 •
PS
Sandra Yaminto Janet Murguia, Fredrickson, Chow, et. AI. re: Work
Incentives Improvement Act (partial) (1 page)
06/04/99
PS
.003. fax
Melinda Haskins fax re: Draft Program Integrity and Administrative
Reforms (1 page)
04/20/99
PS.
·. 004 .. Jetter
Dennis Burke to JacobLew re: Work Incentives Improvement Act of
1999 (4 pages)
02/09/99
P5
001. memo
Judy Chesser and Web Phillips to Jack Smalligan and Melinda
.Haskins re: Prisoner Provision in J effords/Kennedy ( 1 page)
002. email .
.
.
CLINTON LillRARYPHOTOCOPY
COLLECTION:
Cllnton Presidential Records
Domestic Policy Council
Cynthia Rice (Subject Files)
· ONBox Number: 15431
FOLDER TITLE:
Disability-Work Incentives Improvement Act-T .A. to Hill"Part II
· Richard Stalcup
rx56 ·
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. SS2(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of
PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
·P4Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose ~onficjential advise between the President
arid his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly uiJ.warranted invasion of
personal privacy [(a)(6) of the PRA]
the
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM~·Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
b(l) ·National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
.
·
b(3) Release would violate·a Federal statute [(b)(3) of the FOIA]
b( 4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitUte clearly unwarranted invasion of
. personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
·.
p~rposes [(b)(7) of the FOIA]
. ·
·
b(S) Release would disclose information concerning the regulation of
· financial institutions [(b)(S) of theFOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
a
�FROM: HASKINS,
. . ---T-.. ,
P.,5/8
)t
· U.S. Depamnent of Jutke
v
. Office ofi.egislative Affails.
.
.
l
I
Wi:tftbwrllft. D.C. JaSSO
..
February 9, 1999
B'n!l0l8ble Iacob 1. lAW
Director
.
Offigc of~ and Budget
\.
· Wuh.ingQ:!n. D.C. 20503
Dear Mr. Lew:.
· This Mts forth tb.t:! ~mr:nfs oftbc Dep111tM:nt of .L·stite on S. 331. the :'Wotlc
...
In.Uvcs Improvc=lODt ACt or 1999' Our CODUDemt 11'0 llmltad to comtituti9Jia] issues raised ..
1
•
by provls!cns in tb= bill (§ 4Q2(b), (rl)) cc;pmllqihc @Cing pro-ri.si~ w the su~ion af
~security· benefits oiprisouers ltld other cottfined pemms preiently ~ at 42 U.S.C. §
402(x)..
Section 402(x) pt'BDtly plovidcs, is1ter alia. tbat monthly social security bendbs shall
Mt be paid tQ a person 'tbt any ~EWDlh .W wlddl that I.Ddi~ "'II conS.twd m aja11. priwm. or
other penal imtituti.OD or ccmectlomt
pumumt to hi$ ·conviction of m o.tf~ puni$hablc
by i:nprlsomneiJt fot ~ tbu.l )'ear (reptdleM of tho acQ.1Al ~ ~) ••• :" 42
faoilit7
U.s.c. § 4P2(x)(l)(A)(i). Sac:tion 402(b) aftM bill wouldMJend tbarpmvision 'by providing
tbat the pri6<m confinement lri&erfnl susp1111lon ofbeuetba need no 1m:Jger be besec1 upon an
. Offense punishable by imprisonment 1br DlOra tbJw. uno ycllt. U~ tbia am.Ddm,cmt_ pzUOA t:1t
jail co.a&ement will 1rii8Sf wsprmsion of benefits wJaen QOllli.nemmt is based upon convlcti.on
. of any uenmhml offense.. (mcludi:ag, !Or example, confinement iujail !or a misderoamot).
"
'
r
.
'
•
.
. Section 402(x)•e c~ ptl1vlslo.o.s for stispcmjoD ofbme5ts dminJ pcrio~ Of \
cantineme.nt bucd oil conViction tor felony otf,ensas hav~ been @ellrmpc! u a Yf1.t'krty of
constitnrlonal arounds. fD.cltJd.iai claims 1hBt suchausptusiw "riolatcs the due pKiceSS (incbidq
its ·cquai Pl$cti.on component) and ex post Dc1o clause~ ofthe ConstitutiQD. Howevtr, a:S -we
are 21w~ all such coQ51inrtional cbullclpa havo btm tejec.ttwl by 'the cmuts. .&;;. uImtl;rv.. AMel144 P.3d 622 (9'1- Cir. 1998); Da;yiav. Bowen. 82S P.2cl 799 (41h Clr. 1987);
WjJ.¢y. ~ 824 F.2d 1120 {D.C. (...11'. 1987); ADdulfr y. Bp'8J., 802. P.2d -404 (11 dl Cir.
1986); lcft&!m y Heckler. 766 F.2d 383 (8\h Cir. 1985).
·Bec;awe section 4Q2(b) oftJ:u. hill would sub~ally e;xpmul the class o!pertans whose ·
··. ~nti would aubjcct them to suspeasion of~, it should be anticipB:ted that it will be
subject to farther ~tutional Cballenp on gl'OUr1ds simllar to '&bow nli~ raised ap!Jm
sr:r.tinn 402(x). We believe, hoWever, that the expagdcd stispension ofbc:ncfits proV"lsion .
.
proposed· by section402(b) b likely to be sustained apinst cons.tituti.o.oal challenge on es~Oiililly
the SiUllC ji."'Uods ~ted by the co~ in upholdhi& the ~ su~$inn provisicms of ~on
CLINTON LlBRARY PHOTOCOPY
.··:
n.~
�~- ·,~~m9912:12ro:CU~~-~D~~~~~~F~W~M:~W~Kffim~&~Kr.~~~~~~~~~
L.- -·
(!.
·.,.,.-.
itt~
402(X). Indeed, boawse lllCiion 402(b) IDONIIIli10nDJy dimlloa 'baosfiQ to'IIIQ..
!ban
did prior kw, ~ belkwe it k eve 1a1 vuW!reblc to equal prot.ectioJl aod o1lw CO!lSfitutional_ .
· challqcthanthepriorlaw. ~Caai.YmY. Cmgtn'r,gfSocW Segity, 991 F. Supp.411.41~ ·
(0. Del. 1998).
.
.
.
ptovisio~ 11.£~ 402(d.) of thl! bill
Wo do have camtitutlonal COilCOtDS ngring b
(""ConrlnUect ·DtmUal. otDcad.~ w Sax Oift.n&n Rcmasaing Cogfincd u, Publlo Instltutious
·Upon Com.plctio" of Prison Tflm"). 1bat subsection would~ b cuaent pro"'isions tor
suspension af btrlefiu to a pmuu 'Who
·
·
· (ili) tmmadletely upon C01UPletion of oozrtinem=t as 4eaibW mctauJC
·(I) purswmt to co11.YiodOD of, a c:riminal offense 1111 elemam of \\'hie& iJ sexual•
actf.vity, is confined. by Q1W'C ~in am WtitutiDn at public expense pursuant
·to a findlag that the illdivldual ta a sexually daD.gcroua peno:a. or a ea,,.,.
~r or a 111imllatflldinJt,.
t
Inlttall.Y, ~ ptO'\'isioA Dppeo1'l to umme that pcrsou may be constitutiODidly confined
puauant to a post-serricc-of~semence caurt otdar based IOlely upon~ fiudina that the individuai
is a sexually dmgerotJ.J penon or & sexuAl p.rcdalor 01 a aimilad!ndinl-,. Such 11ft ~mt~tption
•
~~
.
~-be inconsist~t With the· SUDremo Court's m:ent artieulation ofthe peri11issiblc prediCAteS
fQr such co~ in ADM! Y,
117 B. Ct. 2072 (1997). l'ba:o, U1e CoUit !reid that
a nanai:rntnaJ. commltmmt atatu1e is~ !rima.inablc ifit ooupa proof of
daruzerousness 10 public heald:t ad safcd.y with pzoof of causal ccmd!tions ~as mel:1tal ill.ttcss.,
Hmdripks,
.
m.mtal almormallty, 01 ot:b.ef voUtJonal.impa1lmem. rt:ndt:iua·me ~o ~ &eyon.d h~
or her oamrol. Id.. ~tt?..079-81. k also Hiller v. Doe,. S09 U.S. 312. 314-15 (1993). The
ijcmdricks opinion also expressly Btat.e4 that "[a] finruni o£ dangerwmc::u, atlllding Plane, is
ordinarily not a suf!lc:ilwt ~ upoA which to JustiiY iftdminite involuntarY Q}mmitment."' ·117
s.et. at 2080~ W8 therefore tecoinmtmd that section 402(drs description of the findings upon
which a post--senteo:e ~~ !USJ'CU'lOD of~
be \1oscd" moditled.
tD camorm to tliu. stAmdanis ~· forth m. Hendr4t4- e.a.• a fiDd.ms that the person ia dangerous to
birDSe1f or to oth~.dW!I rq .ttfm1Bllllnel.\ numtal ab~, ot other volitional impaiimt:Dt
may
~him dMQBl'OWI ~ODd bls c:cmtroL
.
Our fUttMr COQQCmS respectb)g section 4m(d) are based upon~ .uat1~s~r.awi ·
·~cc:Uvity Qf the ctu,mc.uoli dt&iDa ~ C!tc&ory ofpost-seatencc OoDfhlees subject to
. suspmsion of benefits by tiUs povwon. The tmdarinc1usive and nanowly selective ilattn of
that classification COUld .WJect tbe p:ovmial:l to picqlble GmJtitutioual. ~~- on·equat .
~ andtot q.post 1Bcto ~UDds.
•••
'
.
If cbnllcnged on eq\&al protection gtaunds, this proVIsion woWd be subject to the low~
levd of constitutional scrutiny- i.e., it WOUld be upheld if dderW.blc on my •'retic11Al basis.,.,
· See. ;.&., Wl.tler v. Aptll, 144 F,,d at t$~. 'Tho c:uzrcnt ~ionc oheecloa 402(x). for
eXa:mple., were challcnpd on 'the ;munds that t:l:ae
no retiollal basis for suspending benefits .
with respect to fflony prisoners While not doing so with·~ to Q1ls~·'u"'r vrJ~anei-3. ln
..
~uoltm v. CQmp;'r of SociaL $eMf;¥. the court' uphekhhc p~vision aD. the arot.mda that
was
CLINTON LIBRARY PHO,TO(:OPY
.
-·'
�( :/:-:'·12 -lDQ9 12:12 TO: c R!Cil - llPC
FROM:HASKI .
.
1«5\
n rJ "[•]~ bcuel:its
,.,-.....
tbtthuborl period ofl!m.e lbal1ilc>IO convicmd of misclcm<:ani>n ll!e
~ wuuld do little ta bolp pmcve tha nolwaey oftbc social ~ty bmt ~" 998
F. Supp. at 416.
v
Hwe. sectiOn 402(d) would draw de:~ ~iislativeclassi:ficationa (a) ~persons.
confiDC!d by post~sentencl court DI'der related to a. crim.insl aff=se ~~aD. elemeot of which is
sexual actiVity,'" m1 p;oo.ns ~by orders rela1ed to !U other crimirull otftnses; and (b)
.between persons CODfin=d ptllSU8Ilt to a finding that the individual is 1'-!exually dttlgerous'l' or a
"I«<CUAA predator," Mid ~ OOllfi"neQ. ~to ftndjnx~ uf dana=ousnr:as or tbnat llJ;l.I'Q'l.utecl
to stxwd coD5ideratlcms. We believe eou:ts.lPiY' fiml it di:ftlcult to find a rational basis £Or this
disti.Dction. which seems tc rczder 1hc provislon 'Ulldetin~lusivc in its covmge. . Inasmuch as mr
legitimate basis far~ ~u$~ of~ u..w ~the payment of benefits thal are.
unnc=~ and tedt.mda!JI ~the ~on's support is provided a:tpUbllc expense whill
confirt6d, there sccma .uo ~basil to .distinguUd1 botween~ wnfiDcd by QOUt't o~,. · .
bAsed oA seXual cbnst!tOusni!!Ul '? opDOSCd ro perSQDS con:fincd by ..court order based on other
fornu of dangerousness or threat 1be distimltlon appean to be tml'elated to the legitimate: basis
ibr the ~lon-l.e.J pru~n aftho ~w soeur.ity mmt ftm.r1 against ~ecessaey
.
cq~ond~.
.
· .· Further; ,;W bellirve that this uudcrinclv.si-ve class~ COl1ld also .readel section 40'2(d)
tnc~re ~blc to cballenp oo ex pest &cto ;rotmds aa well. Tho a"'enco of a rational ·
. :regula.toey jusd.tlcat1o11 far Lh~ ~tioa. ofpctaons subject. to swpawion ofbenefiti would·
lenci SUPPOrt to c:onteo.tior.tS that the prmisions is clearlY p1JDitive in intent and thus. when applied
on til$ basis of offmses comnlitted bafore ~ of til= penalizing proV1Sfon, viclaiiw cf ilie
ex pe3.t 6oto clauu. S;s. Vlll~ v, Bowm. R24 F.2d at 1121 (''By singltng
feloDI for the
· disability, Con~..s ma.T(es one qui• tmph:ious that its iDte.nt was punitive'').
out
.
.
.
.
Tbese!Xi"llStitDtianal conc=ras rmty be JUbstamially addressed, however, by tcodifYins
scGtion 40l(d) to ameliorate tbs questioDablo ciMsifi.oatimt ln order to ~ these ooneerns
(as well 38 ~Ee n.oted. &bove with respect to tbe standards of Kamas v. Heu.driclq), wblte at the
same time encompassioi pemms who are law.fully confinable due to soxu.el dangerousneSs, tls:
provision could bl znodificd ~ provt= u wlluw~ or liiiilgl.laiC to~ !a;m.; ~
.
.
(ill) immediately upon completiDD of confinement as dasedbecl iii ~;~.We
(i) pursuMt to~ ofa.~rlaWW. offense. is continecl by cmzrt ordcr.in an
institu~OD. at pub&
punuant to a &ding that the illdivi4aal.is dqorws
expense
to others or ta tn~elf due ~ mentalllJncss, 1IICI1tzll ilbnormaiitr. or other volitioml
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CLINTON LIBRARY PHOTO('np·v
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�.Withdrawal/Redaction Sheet
Clinton Library .
DOCUMENT NO.
AND TYPE
001. fax
SUBJECTffiTLE
DATE
Dennis Burke to Jacob Lew re: Work Incentives Improvement Act of
1999 (4 pages)
·
02/09/99
· ·RESTRICTION .
P5
CLINTON LIBRARY PHOTOCOPY
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Cynthia Rice (Subject Files)
OAIBox Number: 15431
FOLDER TITLE:
Disability-Work Incentives Improvement Act-T.A to Hill-Part I
Richard Stalcup
rx55
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PS Release would disclose confidential advise between the President
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C. Closed in accordance with restrictions contained in.donor's deed
of gift.
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Freedom of Information Act- [5 U.S.C. 552(b)]
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.
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·
....... ..,.,.,._ ..... : ..... '"" .... ,.n,... rth\iO\ ro.Ffho. ~()JA 1
�U.S. Dc:partmellt of Justice
Otlice of Legislative Affairs
Offic:e o1'\ht: A~istant Attomq Geneml
. February 9, 1999 .
Honorable Jacob J. Lew
Directot· ·
Office of Management and l:ludget
W3Shiniton. D.C. 205m··
Dear Mr. Ll;'\v;
This sets forth the comments of the Departmetlt of Justice on S. 331 1 the "Work
Incentives:: rmJ'ITOVe>.me.nt Act of 1999". Our commonts ere limi~d to rou:sLilulionatissues raised
by provisions in the bill(§ 402(b)J (d)) expanding the existing provisions for the suspension of
social securHy b~liefits of prisoners and other confined pmsons presently codified at 42 U.S.C. § ·
402(x).
. Se-.c:tion 402(x) presently provides, inter nlia, that monthly social security benefits shall'
not be paid:to a person for any month in which that individual "is c:;onfured in ajail, prison, or
ulht:r ptmal institution or correctionaL facility pursuant to his conViction of an offense pu.¢shable
by imprisonment for more than 1 year (regardless of the actual ~ent~nc.e iml)Osed)•.. :" 42
U.S.C. § 402(x)(l)(A)(i). Section 402{b) of the bill would amend that provision by p:('oviding · ·
... that the pri£OI1 con.finement triggering 3\i:spe.usion ofb=nefik; u~ no longer be based upon an
offense punishable by imprisonment for more than one year. Under this amendmen~ prison or
jail oon:tlnementwill trif;8er suspension ofbenefits when confinement is based upon conviction
of any ''criminal offense" (inclurung. for example. confinement in jail for a misdemeanol'). ·
Section 402(x)'s current provisionS ibt· :;~p~ion of benefits during periods of
confinement based on conviction for felony offenses have been challenged on a variety of
constitUtional grounds, including claims that such suspension violates the due process (including
its equal proteCtion component) and ex J'O~t ~cto clauses of the Constitution. l!ov.~·cr, as we
are amrre, all such constitutional challenges have been rejected by the courts. See,
Butler~, Apfel, 144 F.3d 622 (9t11.Ci.J.·~ 1998); Dayis v. BOwen, 825 F.Zd 799 (411 ' C:tt_ 1987);
Wile3! v, Bow~, 824 'F.2d 11.20 (D.C. Cir. 1987); Anduiar y: Bow~ 802 F.2d 404 (ll~~,Cir.
1986}; Jensen v. Heckler. 766 F.2d 383 (81bCh:, 1985).
u,
-'
Because section 402(b) of the bill W()uld substantially expand the class ofper.sons whose
confu:tementa would :subject them to su:)pc:.oSion of benefits, it shOUld be antk~1pated. tha.t it will be · ·
subject to further constitutional challenge ori grounds similar to those raised raised against
section 4U:l(x). We believe, however, that the exparided swpensi.on of benefits provision.
proposed by section 402(b) is likely tA he snstained a.g2inst r;:onmtutional ohdllengc on cs:scntially
the .5ame grounds cited by the courts in Upholding the current suspension provisions of section ·
CLINTON LIBRARY PHOTOCOPY
�--C--
402(x). Indee~ because section 402(b) ~uniformly denies benefits to those in prison than did prior law: we believe it is even less vulnerable to equal protection and other constitutional
challenge than the prior. h1w. & Cd-'5llivcra v. CoUJm't ufSocial Security, 998 F. Supp. 411,416
(D. Del. 1998).
-
·We do have constitutional concerns regarding thr. provisioru of section 402(d) -of the .bill(''Continued Denial ofBenefits to Sex Offenders Remaining Confined to Public Institutions
Upon C".on,pleticn of Prison Tenn"). That subs~ctloJ) wou1d expand. the current provisions for '
suspension of benefits to a person who
- (iii) immediately upon completion of con:fin.entent as de~cribcd in claus~
(i) pursuant to conviction of a crimiruil offense an element of which is- sexual
activity~ is confined by court onfer in m institution at public expense pursuant
to a finding that the individual is a sextially dangerous person or a sexual -
predator or a similar finding.
· Initially! this provision appears to assume that persons may be constitutionally confmed
pursuant to a post-service-of-sentence COLI!l order based solely upon ·•a finding thatthe individual.
is a sexualJy dangerous person or a sexual predator or a similar finding.', Such an assumpti1-m ·
. may be inconSistent with the Supreme Court's recent articulation of the permissible predicates
tbr such confinement in Kansa.~ v. He-J!drick~. 117 S.Ct. 2072 (1997). There, th.l: Corut l11:lu t.hac
.a noncriminal commitment statute. is constitutionally 5ustainable if it couples proof of
. dangerousnos!S to public health aml safety With proof of causal conditions. such as mental illness~
mental abnormality, or other volitional impairment r~dering the confmee dangerous heyon.d his
or her control. Id..at 2079-81.- See also Hellerv. Doel509 U.S. 312, 314-15 (1993). l11e
Hendricks opiJlion also e~re~~ly stated th~t '"[11.] finding of cUm.sorou:mcss, stzmdi.ug wouc=, is
ordinarily not s. sufficient ground upon which to justify inikfmite involuntazy commi.nnent." 1I 7
s;ct. nt 2080. We thc:rcf'ot·c:: l'~inmend ihat section 402(d)' s description of tlte findings upon
which a post-sentence corrfi.Jlement warranting suspension ofbenefits may be ha~ect be modified
_ro conform to the standards set forth in Hendricks -.e.g., a finding that the person is dartg~us to.
· himself or ro others dnP. to menta.{ illneQs~ mental.a.bnormnHty, m· other volitioual impairment·
. rendering him dangerous beyond his oontrol.
Our further concerns respecting section 402(d) are based upon- tne nSlTr.ovvness and
· selectivity of the classification defining the category of post-sentence confinees subject to
suspen:sion (!fhf.~efits by this provision. The undcrinclwive illld narrowly .sc1~ctive riature of
that classification could subject the provision to plausible constitutional challenge on equal ·
pt"9~tio.f.)
i:lllu/or e:x: post facto grounds.
· ·
. .
If challenged on equal protection groundS, this provision would be subject to the lowest
level of c.onstitutional scrutiny - i.e., it would bo uphold if defe.usiblc on any "rational basis.,
See. e.g., Butler v.
Apfel~
144 F.3d at 625. The current provisions of section 402(x), for . .
cxrunph::, were challenged ori. the grounds that there 'WaS no ration.al basis for suspending benefits
with respect to felony prisoners while not doina so with respect to mi~nAro.e-.anor pri.<~oners. In ·
Ci_!?a.lvera v. Comm.•r ofSocjgl1 Sec~, the court upheld the provision on the grounds that
CLINTON LIBRARY PHOTOCOPY
�(.·
. ('[s]uspending benefits for the short period of time that those convicted of misdemeanors are
incarcera-redwould do little to help preserve the solvency of the social security trust funds." 998
F. Supp. at416.
·
·
Here, section 402(d) would draw de facto legislative classifications (a) between persons
· confined by post..sentence court order related to a criminal offense uau element of which 1s
sexual activity)~' and persons confined by orders related to all other criminal offenses~ and (b)
between persons confined plirsuant to a :finding that the individual is "sexually dangerous" or a
"sexual predator,'' and persons confined pursuant 10 fuidings of daligerousne.ss or threat unrelated
to sexual c~.msiderations. We believe eourts may tmd it difficult to find a rational ba.c;is for this
. distinctio~ which seems to render the proVision underinclusive in its coverage. Inasmuch as the
legitimate basis for the suspension of benefitS is to prevent the payment of benefits that are
unnecessary and redundant because the person's support is provided at public expense while
confined, ·there seems no rational basis to distinguish between persons confined by court·order
based on sexual dangerousness as opposed to ·persons confined by co-urt order based on other
forms of dangerowness or threat. The distinction appears to .be unrelated to the legitimate basis
for the suspension- i.e., protection of the social security trust fund against urmecessary
expendit~es.
·
·
Further, we believe that this underinclusive classification could also render section 402(d)
more vulnerable to challenge on ex post facto grounds as well. TI1e absence of a rational
regllla.tory justification for the classification of persons subject to suspension of benefits would
lend support to contentions that the provisions is clearly punitive in intent and thus. when applied
on the basis of offenses committed before enactment of the penalizing provisio.n,.violative of the·
pos.t facto clause. Se;;; WiJey v. Bowen. 824 F.2d at 1121 ('1By singling out felons for the
disability! Congress makes one quit~ suspicious that its intent was punitive'1-
·ex
These constitutional concerns may be substantially addressed, however, by modifying
. section 402(d) to ameliorate the questionable classification. In order to address these concerns
. (as well as those noted abo"·e with respect to the standards of Kansas v. Hendrlc!Wt while at the .
same time encompassing persons who are lawfully confmable due to sexual dangerousness. the \ _ .
provision ooutd be modified to p~vide as follows! or language to the same effect:
W
.
.
y'Y)fi
{iii) imniedia.tely upon· completion of confinement as described in claus~
(i) pursuant to conviction of a criminal offense. is confined by court order in an
institution at public expense pursuant to a finding that the individual is chm.gerous
to others or to himself due to mental illnes~, mental abnonnality, or other volitional
A~
.~.e(
hnpairment.
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�·(
Thank YOU for requesting our. views. If we can be offirrtb.et assistance in thi:3 matter?
please do not hesitate to contact this office.
ShJ.cerely,
.
~~fr
Denru.s K. Burke
·
Acting Assistant Attorney G-eneral
·. ,·.
CLINTON LIBRARY PHOTOCOPY
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