Federal Financial Assistance and Civil Rights Requirements

May 18, 2022 R47109

Federal Financial Assistance and Civil Rights
May 18, 2022
Requirements
Christine J. Back
As the Supreme Court has recently observed, Congress has “broad authority under the Spending
Legislative Attorney
Clause of the Constitution to set the terms on which it disburses federal funds.” Congress directs

federal agencies to distribute billions of dollars in federal financial assistance to further various
Jared P. Cole
policies in a broad range of contexts—from hospitals, local police departments, and
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transportation projects, to school lunch programs and airport construction. In disbursing these

funds, Congress sets conditions, parameters, and objectives concerning recipients’ use of federal
money. A longstanding and related federal policy has been to ensure that recipients of federal

financial assistance do not use that aid in connection with discriminatory practices.
Congress has legislated with this goal in mind. Four civil rights statutes condition the receipt of “federal financial assistance”
on recipients’ compliance with a mandate not to discriminate in federally funded programs or activities: Title VI of the Civil
Rights Act of 1964 (“on the ground of race, color, or national origin”), Title IX of the Education Amendments of 1972 (“on
the basis of sex” in education programs), Section 504 of the Rehabilitation Act of 1973 (“by reason of . . . disability”), and
the Age Discrimination Act of 1975 (“on the basis of age”). While these statutes differ in important ways, federal courts have
commonly interpreted them as legislation enacted pursuant to Congress’s Spending Clause authority. Because federal
financial assistance reaches many contexts and programs, these statutory mandates correspondingly apply to a broad range of
entities and activities, although there are exceptions. For instance, Title IX and the Age Discrimination Act contain express
exceptions permitting sex and age-based distinctions respectively, in certain circumstances.
Both federal agencies and courts play important roles in interpreting and applying these statutes to ensure compliance by
recipients of federal aid. Federal agencies, for example, issue regulations and guidance addressing potential violations under
these statutes, and enforce these requirements through investigations and compliance reviews. While agencies may terminate
or suspend federal funding for violations, they may only do so after exhausting a statutorily-required procedure. Rather than
resulting in the termination of funds, however, agency investigations most commonly end in a recipient’s agreement to
reform its discriminatory practices. Federal courts play a crucial role in enforcing these laws as well, as individuals can bring
a private suit against recipients of federal financial assistance for discriminatory conduct that violates these laws and obtain
relief, including monetary damages.
It may not always be clear whether an entity is a recipient of federal financial assistance for the purposes of these four civil
rights statutes. For example, federal aid can take different forms, and it may not be clear whether certain types of aid
constitute federal financial assistance. In addition, the Court has distinguished between entities that Congress intended to treat
as recipients subject to these four civil rights laws and mere beneficiaries of that assistance who are not subject to those laws.
Congress has wide latitude in setting the terms and conditions of a federal program. For example, Congress may create new
statutes addressing other forms of discrimination, or amend the four statutes discussed in this report to clarify, expand, or
narrow their prohibitions, add or remove specific exceptions, or address available remedies. Further, as federal courts and
federal agencies address debates or uncertainty over these statutory requirements, Congress can resolve such debates by
amending the statutes to clarify their application. Congress can also define or differentiate certain forms of federal aid as
“federal financial assistance” to which the four civil rights statutes apply, and clarify which entities are to be treated as
recipients and those which are not. Critically, however, because these four civil rights laws are understood as Spending
Clause legislation, they are subject to constitutional limitations recognized by the Supreme Court. Specifically, the Court
requires that changes to these laws’ made pursuant to Congress’s Spending authority, such as changes to the funding
conditions or available remedies, must be clear and unambiguous. Likewise, any newly enacted statutory provisions tying the
receipt of federal funding to civil rights compliance must also give recipients clear notice of the applicable requirements.

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Federal Financial Assistance and Civil Rights Requirements

ongress has authorized federal agencies to distribute federal funding to aid a wide range of
industries and entities. For instance, the Department of Education disburses financial
C assistance to elementary and secondary schools, as well as most institutions of higher
education.1 The Department of Health and Human Services issues funding to many health care
providers.2 The Federal Aviation Administration provides grants to thousands of airports to, for
example, fund infrastructure improvements.3
The recipients of federal financial assistance are obligated to comply with various laws and
regulations, including the requirements of four major civil rights laws: Title VI of the Civil Rights
Act of 1964 (Title VI) which prohibits discrimination based on race, color, or national origin;4
Title IX of the Education Amendments of 1972 (Title IX), which bars discrimination based on sex
in educational programs;5 Section 504 of the Rehabilitation Act (Section 504), which forbids
discrimination based on a disability;6 and the Age Discrimination Act of 1975, which bars
discrimination based on age.7 Congress and federal courts have often treated these statutes as
interrelated, as all four prohibit discrimination in federally funded programs.8

1 See Education and Title VI, U.S. DEP’T. OF EDUC., Office of Civil Rights, https://www2.ed.gov/about/offices/list/ocr/
docs/hq43e4.html (last visited May 16, 2022) (“Agencies and institutions that receive ED funds covered by Title VI
include . . . 17,000 local education systems; 4,700 colleges and universities; 10,000 proprietary institutions; and other
institutions, such as libraries and museums”).
2 See Frequently Asked Questions, DEP’T OF HEALTH AND HUMAN SERVICES, OFFICE FOR CIVIL RIGHTS,
https://www.hhs.gov/civil-rights/for-individuals/faqs/what-qualifies-as-federal-financial-assistance/301/index.html (last
visited May 16, 2022); Cummings v. Premier Rehab Keller, No. 20-219 (Apr. 28, 2022), slip op. 2 (“Premier Rehab is
subject to these statutes, which apply to entities that receive federal financial assistance, because it receives
reimbursement through Medicare and Medicaid for the provision of some of its services.”).
3 See, e.g., 2022 Airport Improvement Program (AIP) Grants, FEDERAL AVIATION ADMINISTRATION,
https://www.faa.gov/airports/aip/2022_aip_grants/ (“The Airport Improvement Program (AIP) airport grant program
funds airport infrastructure projects such as runways, taxiways, airport signage, airport lighting, and airport markings. .
. . Airports are entitled to a certain amount of AIP funding each year, based on passenger volume. If their capital
project needs exceed their available entitlement funds, then the FAA can supplement their entitlements with
discretionary funding.”); see generally CRS Report R43327, Financing Airport Improvements, by Rachel Y. Tang.
4 42 U.S.C. §§ 2000d et seq.
5 20 U.S.C. §§ 1681 et seq. In 2010, Congress enacted Section 1557 of the Affordable Care Act, which bars
discrimination on each of the grounds of these four civil rights laws in federally funded health care programs or
activities. See 42 U.S.C. § 18116 (“[A]n individual shall not, on the ground prohibited under title VI of the Civil Rights
Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is
receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or
activity that is administered by an Executive Agency or any entity established under this title (or amendments). The
enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age
Discrimination Act shall apply for purposes of violations of this subsection.”).
6 29 U.S.C. §§ 794 et seq.
7 42 U.S.C. §§ 6101 et seq. In addition to these four civil rights statutes predicated on the receipt of federal funds, other
statutes also apply civil rights obligations. The Religious Land Use and Institutionalized Persons Act (RLUIPA), for
example, creates protections for “the religious exercise” of residents in federally funded institutions (primarily prisons),
although there are other ways RLUIPA may apply to covered institutions. 42 U.S.C. § 2000cc-1.
8 For example, Congress amended these four civil rights statutes together in the Civil Rights Restoration Act in
response to a Supreme Court decision interpreting Title IX, which narrowed that statute’s coverage in a way that
Congress viewed to “cast doubt upon the broad application of title IX of the Education Amendments of 1972, section
504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and title VI of the Civil Rights Act of
1964.” Civil Rights Restoration Act of 1987, P.L. 100-259 § 2 (finding that “legislative action is necessary to restore
the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those
laws as previously administered”).
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As explored in more detail below, these civil rights laws are generally enforced in two ways.
First, when an agency distributes financial assistance, it is responsible for ensuring recipients’
compliance with the relevant civil rights laws in the funding programs it administers. This
responsibility includes the promulgation of regulations implementing each of the four statutes, as
well as enforcement activity and investigations that can result in an agency suspending or
terminating funds.9 Second, private litigants harmed by a violation of these laws can sue in
federal court to enforce relevant requirements against recipients directly.10 Crucially, due to the
limited detail in the statutory text of these laws, federal judicial and agency interpretations of their
provisions play an important role in determining the obligations of recipients under each statute.
This report opens with a brief discussion of the Supreme Court’s treatment of Title VI, Title IX,
Section 504, and the Age Discrimination Act as legislation enacted pursuant to Congress’s
authority under the Spending Clause before turning to an examination of these statutes’
requirements, which apply to recipients of federal financial assistance. The report then notes how
federal agencies and federal courts enforce these statutory and regulatory requirements. Given the
legal obligations that come with the receipt of federal financial assistance, this report also
explores questions regarding which types of federal aid qualify as federal financial assistance for
the purposes of these civil rights spending laws,11 and which entities constitute recipients of such
assistance. This report closes with potential legislative considerations, including a discussion of
the unique aspects of legislation enacted pursuant to Congress’s Spending Clause authority.
Spending Clause Statutes
The Supreme Court has generally treated the four civil rights statutes discussed in this report—
Title VI;12 Title IX;13 Section 504;14 and the Age Discrimination Act of 197515—as enacted based
on Congress’s Spending Clause power16 in Article I, Section 8, Clause 1 of the U.S.
Constitution.17 Pursuant to this authority, “Congress may attach conditions on the receipt of

9 See infra “Administrative Requirements.”
10 See infra “Judicial Enforcement Through a Private Right of Action.”
11 The receipt of federal financial assistance to religious providers can also have First Amendment-related implications.
These issues, including the legal relevance of “direct” versus “indirect” federal financial assistance for First
Amendment purposes, is beyond the scope of this report. For further discussion, see CRS Report R46517, Evaluating
Federal Financial Assistance Under the Constitution’s Religion Clauses, by Valerie C. Brannon.
12 42 U.S.C. §§ 2000d et seq.
13 20 U.S.C. §§ 1681 et seq.
14 29 U.S.C. §§ 794 et seq.
15 42 U.S.C. §§ 6101 et seq.
16 See Barnes v. Gorman, 536 U.S. 181, 189 n.3 (2002) (referring to the Rehabilitation Act as “Spending Clause
legislation”); id. at 185-86 (“Title VI invokes Congress’s power under the Spending Clause, U.S. Const., Art. I, § 8, cl.
1, to place conditions on the grant of federal funds.”); Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ.,
526 U.S. 629, 640 (1999) (stating that the Court has “repeatedly treated Title IX [of the Education Amendments of
1972] as legislation enacted pursuant to Congress’ authority under the Spending Clause”). Meanwhile, courts have
described the Age Discrimination Act of 1975 as modeled after Title VI, Title IX, and the Rehabilitation Act. See
generally, e.g., Schmitt v. Kaiser Foundation Health Plan of Washington, 965 F.3d 945, 953 (9th Cir. 2020) (“Title VI
served as the model for Title IX, the Age Discrimination Act, and the Rehabilitation Act, so we interpret the four
statutes similarly.”) (citations omitted); Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d
931, 934 n.1 (D.C. Cir. 1986) (Ginsburg, J.) (stating that the Age Discrimination Act of 1975 follows the model of Title
VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972).
17 U.S. CONST., art. I, § 8, cl. 1 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common Defence and general Welfare of the United States”). Given the Supreme
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federal funds, and has repeatedly employed the power ‘to further broad policy objectives by
conditioning receipt of federal moneys upon compliance by the recipient with federal statutory
and administrative directives.’”18 While Congress uses its spending authority for various
purposes—directing federal aid, for example, to facilitate infrastructure initiatives or support
public education or health care programs—an important federal goal has been to ensure that
federal dollars received by states and other recipients are not used in connection with
discriminatory practices.
With respect to civil rights policy, an early model for such Spending Clause legislation was
Section 601 of Title VI,19 which Congress enacted in 1964 in part to address the distribution of
extensive federal funding to entities that racially segregated their facilities.20 Section 601
conditions the receipt of federal funding on entities’ compliance with the mandate that no person
be subjected to discrimination based on race in federally funded programs or activities.21
Congress later enacted Title IX in 1972 to prohibit discrimination on the basis of sex in education
programs or activities,22 Section 504 in 1973 to bar discrimination based on disability,23 and the
Age Discrimination Act in 1975 to address age discrimination.24
The Court has observed that a distinctive feature of these statutory requirements, in contrast to
civil rights requirements that apply under other federal laws, is that covered entities voluntarily
agree to Spending Clause civil rights requirements as conditions for receiving federal funding.25
“Unlike ordinary legislation, which ‘imposes congressional policy’ on regulated parties
‘involuntarily,’” the Court explained, “Spending Clause legislation operates based on consent.”26

Court’s treatment of these laws as Spending Clause legislation, for ease of reference, this report refers to them as the
civil rights spending statutes. See generally Cong. Rsch. Serv., ArtI.S8.C1.2 Spending Power, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S8-C1-2/ALDE_00001055/ (last visited May 18,
2022).
18 South Dakota v. Dole, 483 U.S. 203, 206 (1987) (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (opinion
of Burger, C.J.). For further discussion of Congress’s Spending Clause power, see CRS Report R46827, Funding
Conditions: Constitutional Limits on Congress’s Spending Power, by Victoria L. Killion.
19 See Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 258 (2009) (stating that “Congress modeled Title IX
after Title VI of the Civil Rights Act of 1964, and passed Title IX with the explicit understanding that it would be
interpreted as Title VI was”) (internal citation omitted) (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 694–696
(1979)); Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 277–78 n.2 (1987) (explaining that “Congress’ decision
to pattern § 504 after Title VI is evident in the language of the statute, compare 29 U.S.C. § 794 with 42 U.S.C. §
2000d, and in the legislative history of § 504”) (citations omitted).
20 See generally Regents of Univ. of California v. Bakke, 438 U.S. 265, 413, n. 11 (1978) (Stevens, concurring in the
judgment in part and dissenting in part, joined by Chief Justice Burger, Justice Stewart, and Justice Rehnquist) (“It is
apparent from the legislative history that the immediate object of Title VI was to prevent federal funding of segregated
facilities.”) (citing 110 Cong. Rec. 1521 (1964) (remarks of Rep. Celler); id., at 6544 (remarks of Sen. Humphrey)). For
further discussion, see CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back.
21 See 42 U.S.C. § 2000d.
22 Pub. L. No. 92-318, 86 Stat. 373 (1972) (codified at 20 U.S.C. §§ 1681 et seq.)
23 P.L. 93-113, 87 Stat. 394 (1973) (codified at 29 U.S.C. § 794).
24 P.L. 94-135, 89 Stat. 728 (1975) (codified at 42 U.S.C. §§ 6101 et seq.)
25 Cummings v. Premier Rehab Keller, No. 20-219 (Apr. 28, 2022), slip op. 4.
26 Id. (quoting Pennhurst v. Halderman, 451 U.S. 1, 16, 17 (1981).
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Antidiscrimination Requirements for Recipients of
Federal Financial Assistance
While Title VI, Title IX, Section 504, and the Age Discrimination Act share certain common
features, they are nonetheless distinct in ways apart from addressing discrimination based on
different characteristics.27 For example, Title IX and Section 504’s prohibitions apply to a
program’s employment practices as well as its treatment of applicants for and participants in its
federally funded activity;28 Title VI and the Age Discrimination Act generally do not apply to
employment practices.29 Title IX and the Age Discrimination Act contain several statutory
exceptions that permit certain distinctions based on sex and age respectively, with Title IX being
the only statute with a religious exception.30 The following section provides a brief overview of
the statutory and regulatory requirements31 that apply to a covered “program or activity”32 and
notes some distinctive features of these statutes.33
Title VI of the Civil Rights Act of 1964
Section 601 of Title VI provides that “[n]o 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

27 See, e.g., Alexander v. Choate, 469 U.S. 287, 294-96 and n. 11 (1985) (discussing the potential applicability of the
Court’s Title VI interpretation to Section 504 and stating that “there are reasons to pause before too quickly extending”
the Court’s Title VI analysis to § 504; footnoting, among other things, that its precedent construing Title VI as
coextensive with the Equal Protection Clause “locked in a certain construction of Title VI [that] would not seem to
have any obvious or direct applicability to § 504.”).
28 See infra “Title IX of the Education Amendments of 1972” and “Section 504 of the Rehabilitation Act of 1973.”
29 See infra “Title VI of the Civil Rights Act of 1964” and “The Age Discrimination Act of 1975.”
30 See infra “Title IX Religious and other Exceptions” and “Exceptions Permitting Age-Based Distinctions.”
31 As discussed in other sections of this report, federal agencies that distribute federal financial assistance are
authorized to promulgate regulations effectuating and interpreting these statutory mandates. These federal regulations
generally set out the types of conduct that might constitute a violation under one of the four spending civil rights
statutes. See generally, e.g., 28 C.F.R. Part 42, Subpart C (Department of Justice (DOJ) regulations addressing
“Nondiscrimination in Federally Assisted Programs – Implementation of Title VI of the Civil Rights Act of 1964”); 28
C.F.R. § 42.104(b) (setting out specific discriminatory actions); 45 C.F.R. Part 86 (HHS regulations addressing
“Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance”);
45 C.F.R. § 86.31(b) (setting out specific discriminatory actions).
32 All four statutes contain similarly-phrased provisions that define a “program or activity” to mean “all the operations
of” any entity that falls within at least one of four categories, “any part of which is extended Federal financial
assistance.” See 42 U.S.C. § 2000d-4(a) (defining “program or activity” for Title VI purposes as “all the operations of”
an entity that falls under one or more of four categories, “any part of which is extended Federal financial assistance.”);
20 U.S.C. § 1687 (parallel Title IX provision defining a “program or activity”); 29 U.S.C. § 794(b) (parallel provision
of Section 504 of the Rehabilitation Act); 42 U.S.C. § 6107(4) (parallel provision of the Age Discrimination Act).
33 This section is intended to provide a general understanding of these statutes’ requirements in the context of this
report’s broader discussion of civil rights obligations triggered by the receipt of federal financial assistance. A
considerable range of legal issues, however, can arise under these statutes, including debates over their precise
requirements in circumstances such as racial and sexual harassment, disparate impact analysis, standards governing
single-sex athletics, the application of Title IX to discrimination based on sexual orientation or gender identity, and the
potential interaction of these statutory requirements with other legal requirements. Some of these issues are addressed
in other CRS products. See, e.g., CRS Legal Sidebar LSB10726, Sexual Harassment and Assault at School: Divergence
Among Federal Courts Regarding Liability, by Jared P. Cole; CRS Report R46832, Potential Application of Bostock v.
Clayton County to Other Civil Rights Statutes, by Christine J. Back and Jared P. Cole; CRS Report R46534, The Civil
Rights Act of 1964: An Overview, by Christine J. Back; CRS Report R45665, Civil Rights at School: Agency
Enforcement of Title VI of the Civil Rights Act of 1964, coordinated by Jared P. Cole.
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subjected to discrimination under any program or activity receiving Federal financial
assistance.”34 In notable contrast to the other statutes discussed in this report, the Supreme Court
interprets the requirements of Title VI coextensively with the Equal Protection Clause of the
Fourteenth Amendment.35
In general, Title VI prohibits covered programs or activities36 from various forms of race-based
conduct,37 such as admitting or denying admission to a program based on an individual’s race,38
providing differentiated levels of service to program participants based on race,39 or responding
with deliberate indifference to racial harassment.40 In addition, federal regulations interpreting
Title VI prohibit practices that have a disparate impact on participants based on race or national

34 42 U.S.C. § 2000d. For further discussion of Title VI, see CRS Report R46534, The Civil Rights Act of 1964: An
Overview, by Christine J. Back (Sept. 21, 2021).
35 See generally, e.g., Gratz v. Bollinger, 539 U.S. 244, 275-76 n.23 (2003) (“We have explained that discrimination
that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal
funds also constitutes a violation of Title VI.”) (citing Alexander v. Sandoval, 532 U.S. 275, 281 (2001)). As is the case
with state actors under the Equal Protection Clause, a federally funded institution is generally prohibited from using
racial classifications unless the classification at issue is narrowly tailored to serve a compelling government interest.
See Fisher v. Univ. of Texas at Austin, 570 U.S. 297, 310 (2013) (citing Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
For further discussion of the Court’s interpretation of Title VI as coextensive with equal protection, see CRS Report
R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back (Sept. 21, 2021). By contrast, the Court has
not read Title IX as coextensive with equal protection. See, e.g., Fitzgerald v. Barnstable School Committee, 555 U.S.
246, 256-58 (2009) (discussing “divergent coverage” of Title IX in comparison to the Equal Protection Clause).
36 Id. § 2000d-4(a). See also id. § 2000d-4(a)(3)(A)–(B) (outlining when an entire corporation, partnership, private
organization or sole proprietorship constitutes a “program or activity”).
37 See generally Education and Title VI, U.S. DEP’T. OF EDUC., Office of Civil Rights, https://www2.ed.gov/about/
offices/list/ocr/docs/hq43e4.html (last visited May 16, 2022) (“Programs and activities that receive ED funds must
operate in a non-discriminatory manner. These may include, but are not limited to: admissions, recruitment, financial
aid, academic programs, student treatment and services, counseling and guidance, discipline, classroom assignment,
grading, vocational education, recreation, physical education, athletics, housing and employment, if it affects those who
are intended to benefit from the Federal funds. Also, a recipient may not retaliate against any person because he or she
opposed an unlawful educational practice or policy, or made charges, testified or participated in any complaint action
under Title VI.”).
38 See generally, e.g., Grutter, 539 U.S. at 316–17 (reflecting that petitioner brought a Title VI claim alleging that the
law school’s denial of her admission was based on race). See also 28 C.F.R. § 42.104(b)(1)(i) (DOJ Title VI regulation
prohibiting covered recipients from “[d]eny[ing an individual any disposition, service, financial aid, or benefit provided
under the program” on the ground of race, color, or national origin); id. at (b)(1)(v) (prohibiting covered recipients
from “[t]reat[ing] an individual differently from others in determining whether he satisfies any admission, enrollment,
quota, eligibility, membership, or other requirement or condition which individuals must meet in order to be provided
any disposition, service, financial aid, function or benefit provided under the program” on the ground of race, color, or
national origin).
39 See 28 C.F.R. 42.104(b)(1)(ii) (DOJ Title VI regulation stating that a “recipient to which this subpart applies may not
. . . on the ground of race, color, or national origin . . . [p]rovide any disposition, service, financial aid, or benefit to an
individual which is different, or is provided in a different manner, from that provided to others under the program”).
See generally, e.g., Astaraee v. Villanova University, 509 F. Supp. 3d 265, 269–72 (E.D. Pa. 2020) (analyzing Title VI
claim raised by doctoral student alleging differential treatment in his oral examination process and dismissal from the
program based on his Iranian national origin, in contrast to other non-Iranian students).
40 See, e.g., Bryant v. Independent School Dist. No. I-38 of Garvin County, OK, 334 F.3d 928, 934 (10th Cir. 2003)
(concluding that “deliberate indifference to known instances of student-on-student harassment is a viable theory in a
Title VI intentional discrimination suit” and directing the district court on remand to apply the deliberate indifference
standard applicable to Title IX harassment claims); L. L. v. Evesham Twp. Bd. of Educ., 710 F. App’x 545, 549 (3d
Cir. 2017) (listing elements of hostile environment or racial harassment claim under Title VI and reversing summary
judgment as to one of the plaintiffs’ hostile environment claims); DJ by and through Hughes v. Sch. Bd. of Henrico
Cnty., 488 F.Supp.3d 307, 332–36 (E.D. Va. 2020) (discussing alleged facts of racial harassment, race-based attack of
student, and the school’s response to the racial harassment; denying the defendant’s motion to dismiss the plaintiff’s
Title VI claim).
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origin.41 While individuals may generally bring a private right of action to seek relief for Title VI
violations,42 no private right of action is available to enforce Title VI disparate impact
regulations.43
Title VI’s requirements, however, generally do not bear on a program or activity’s employment
practices “except where a primary objective of the Federal financial assistance is to provide
employment.”44 Thus, where a primary objective of a funded program or activity is to provide
services unrelated to employment, Title VI’s requirements generally do not apply to an entity’s
employment practices.45
Title IX of the Education Amendments of 1972
Section 901 of Title IX of the Education Amendments of 1972 provides that “[n]o person in the
United States shall, on the basis of sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education program or activity receiving Federal
financial assistance,” subject to certain exceptions discussed below.46 Unlike Title VI, which

41 See, e.g., 28 C.F.R. § 42.104(b)(2) (DOJ Title VI regulation stating that a “recipient, in determining the type of
disposition, services, financial aid, benefits, or facilities which will be provided under any such program, or the class of
individuals to whom, or the situations in which, such will be provided under any such program, or the class of
individuals to be afforded an opportunity to participate in any such program, may not . . . utilize criteria or methods of
administration which have the effect of subjecting individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as
respects individuals of a particular race, color, or national origin.”). For further discussion of Title VI and disparate
impact liability, see CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back.
42 See infra “Judicial Enforcement.”
43 In its decision Alexander v. Sandoval, 532 U.S. 275 (2001), the Court held that individuals cannot enforce Title VI
disparate impact regulations in a private right of action. Id. at 293 (“Neither as originally enacted nor as later amended
does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under
§ 602. We therefore hold that no such right of action exists.”) (footnote omitted). For further discussion of Title VI and
disparate impact liability, see CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back.
44 See 42 U.S.C. § 2000d-3 (“Nothing contained in this subchapter shall be construed to authorize action under this
subchapter by any department or agency with respect to any employment practice of any employer, employment
agency, or labor organization except where a primary objective of the Federal financial assistance is to provide
employment.”). See generally, e.g., Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1531-32 (10th Cir.
1995) (dismissing plaintiff’s Title VI claim alleging discrimination in employment because she had offered “no
evidence that the federal funds [her employer] receives are for a primary objective of providing for employment”).
45 See 28 C.F.R. § 42.104(c)(1) (“Whenever a primary objective of the Federal financial assistance to a program to
which this subpart applies, is to provide employment, a recipient of such assistance may not . . . subject any individual
to discrimination on the ground of race, color, or national origin in its employment practices under such program
(including recruitment or recruitment advertising, employment, layoff, or termination, upgrading, demotion, or transfer,
rates of pay or other forms of compensation, and use of facilities).”); id. at 42.104(c)(1)(i) - (ii) (stating that Title VI
applies to “programs as to which a primary objective . . . is (i) to assist individuals, through employment, to meet
expenses incident to the commencement or continuation of their education or training, or (ii) to provide work
experience which contributes to the education or training of the individuals involved”). But see id. at 42.104(c)(2) (“In
regard to Federal financial assistance which does not have providing employment as a primary objective, the provisions
of paragraph (c)(1) of this section apply to the employment practices of the recipient if discrimination on the ground of
race, color, or national origin in such employment practices tends, on the ground of race, color, or national origin, to
exclude persons from participation in, to deny them the benefits of or to subject them to discrimination under the
program receiving Federal financial assistance. In any such case, the provisions of paragraph (c)(1) of this section shall
apply to the extent necessary to assure equality of opportunity to and nondiscriminatory treatment of beneficiaries.”)
(emphasis added). More generally, Title VII of the Civil Rights Act of 1964 applies to employers with at least 15
employees and bars all covered employers from discriminating against applicants for employment and employees based
on race, among other protected traits. See 42 U.S.C. §§ 2000e et seq.
46 20 U.S.C. § 1681(a).
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applies to federally funded programs or activities of various kinds, Title IX applies only to
education47 programs or activities.48 Common examples of entities subject to Title IX include
elementary and secondary schools in local school districts that receive federal funding.49 In
contrast to Title VI, Title IX’s prohibition applies to a covered entity’s treatment of its employees
as well as program participants.50
In general, Title IX prohibits covered programs from engaging in various forms of sex-based
conduct, such as admitting or denying admission to a program based on an individual’s sex,51
providing differentiated levels of service to program participants based on sex,52 or responding
with deliberate indifference to the sexual abuse or sexual harassment of program participants.53 In
addition, federal agencies including the Department of Justice (DOJ),54 the Department of

47 See id. As Title IX does not define “education,” some federal courts conduct a context-specific analysis of whether a
challenged program is an education program or activity within the meaning of Title IX. See, e.g., Doe v. Mercy Cath.
Med. Ctr., 850 F.3d 545, 553–58 (3d Cir. 2017) (observing that Congress did not define the term “education” in 20
U.S.C. § 1681(a) and analyzing whether a residency program at a hospital constituted an education program subject to
Title IX’s requirements; holding that plaintiff had plausibly alleged that the residency program was subject to Title IX);
Roubideaux v. North Dakota Dep’t. of Corr. and Rehab., 570 F.3d 966, 977–78 (8th Cir. 2009) (observing that the
“term ‘education’ is not defined by the statute or in the regulations governing Title IX”; analyzing whether a “‘prison
industries’ program” constituted an education program subject to Title IX, discussing specific features of the program,
and holding that it was not an education program).
48 See 20 U.S.C. § 1687 (defining “program or activity” to mean “all the operations of” various entities that fall within
four categories, “any part of which is extended Federal financial assistance, except that such term does not include any
operation of an entity which is controlled by a religious organization if the application of section 1681 of this title to
such operation would not be consistent with the religious tenets of such organization”).
49 See generally Title IX and Sex Discrimination, U.S. DEP’T. OF EDUC., https://www2.ed.gov/about/offices/list/ocr/
docs/tix_dis.html (last visited Nov. 29, 2021) (“Title IX applies to schools, local and state educational agencies, and
other institutions that receive federal financial assistance from the Department. These recipients include approximately
17,600 local school districts, over 5,000 postsecondary institutions, and charter schools, for-profit schools, libraries,
and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of
Columbia, and territories of the United States.”).
50 See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 530 (1982) (“In our view, the legislative history thus
corroborates our reading of the statutory language and verifies the Court of Appeals’ conclusion that employment
discrimination comes within the prohibition of Title IX.”). See also, e.g., 28 C.F.R. § 54.500 (DOJ regulation
addressing discrimination on the basis of sex in employment in education programs or activities).
51 See, e.g., Tingley-Kelley v. Trs. of Univ. of Pa., 677 F. Supp. 2d 764, 775–81 (E.D. Pa. 2010) (analyzing Title IX
claim alleging denial of admission to graduate veterinary school based on sex). See 28 C.F.R. § 54.300 (DOJ Title IX
regulation stating that “[n]o person shall, on the basis of sex, be denied admission, or be subjected to discrimination in
admission, by any recipient to which §§ 54.300 through §§ 54.310 apply, except as provided in §§ 54.225 and §§
54.230.”).
52 See 28 C.F.R. § 54.400(b)(2) (“Except as provided in §§ 54.400 through 54.455, in providing any aid, benefit, or
service to a student, a recipient shall not, on the basis of sex . . . [p]rovide different aid, benefits, or services or provide
aid, benefits, or services in a different manner”).
53 See generally Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998) (holding that a school district may be
held liable for damages in a private right of action under Title IX for its deliberate indifference to a teacher’s sexual
harassment of a student). For more information, see CRS Report R45685, Title IX and Sexual Harassment: Private
Rights of Action, Administrative Enforcement, and Proposed Regulations, by Jared P. Cole and Christine J. Back (Apr.
12, 2019).
54 See Letter from Pamela S. Karlan, Principal Deputy Assistant Attorney General for the Civil Rights Division, to
Federal Civil Rights Directors and General Counsels (Mar. 26, 2021), available at: http://www.justice.gov/crt/page/file/
1383026/download (concluding that Title IX prohibits discrimination on the basis of gender identity and sexual
orientation).
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Education (ED),55 and the Department of Health and Human Services (HHS)56 currently interpret
“on the basis of sex” in Title IX to prohibit discrimination based on sexual orientation or gender
identity, in light of the Supreme Court’s 2020 decision Bostock v. Clayton County. In Bostock, the
Court interpreted the prohibition of sex discrimination in Title VII of the Civil Rights Act of 1964
to prohibit discrimination based on sexual orientation and gender identity.57 DOJ has pointed to
similarities in the statutory text of Title IX and Title VII, as well as federal courts’ reliance on
Title VII precedent to analyze Title IX claims, to support applying the reasoning of Bostock to
Title IX.58
Title IX Religious and other Exceptions
Title IX has nine statutory exceptions that identify certain sex-based distinctions that do not
violate its mandate prohibiting discrimination “on the basis of sex.”59 One exception, for
example, applies specifically to educational institutions “controlled by a religious organization.”60
This religious exception provides that Title IX’s requirements shall not apply to such institutions
“if the application of this subsection would not be consistent with the religious tenets of such
organization.”61 As the statutory text indicates, this exception applies in circumstances where a
religious entity’s compliance with Title IX would conflict with a religious tenet.62 Put another
way, the Title IX religious exception is not a wholesale or blanket exception that makes religious
entities generally exempt from the statute’s requirements, nor does it operate to permit any and all

55 See Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual
Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32,637 (June 22, 2021), available
at: https://www.federalregister.gov/documents/2021/06/22/2021-13058/enforcement-of-title-ix-of-the-education-
amendments-of-1972-with-respect-to-discrimination-based-on.
56 See Notification of Interpretation and Enforcement, 86 Fed. Reg. 27,984 (May 25, 2021) (“This Notification is to
inform the public that, consistent with the Supreme Court’s decision in Bostock and Title IX, beginning May 10, 2021,
the Department of Health and Human Services (HHS) will interpret and enforce section 1557 of the Affordable Care
Act prohibition on discrimination on the basis of sex to include: Discrimination on the basis of sexual orientation; and
discrimination on the basis of gender identity.”).
57 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020). For further discussion of the Bostock decision, see CRS
Report R46832, Potential Application of Bostock v. Clayton County to Other Civil Rights Statutes, by Christine J. Back
and Jared P. Cole (July 2, 2021).
58 See Letter from Pamela S. Karlan, Principal Deputy Assistant Attorney General for the Civil Rights Division, to
Federal Civil Rights Directors and General Counsels (Mar. 26, 2021), available at: http://www.justice.gov/crt/page/file/
1383026/download.
59 20 U.S.C. § 1681(a)(1)–(9).
60 See 20 U.S.C. § 1681(a)(3) (“[T]his section shall not apply to an educational institution which is controlled by a
religious organization if the application of this subsection would not be consistent with the religious tenets of such
organization”). See also, e.g., Maxon v. Fuller Theological Seminary, No. 20-56156, 2021 WL 5882035, at *1 (9th Cir.
Dec. 13, 2021) (addressing whether Title IX’s text referring to institutions that are “controlled by a religious
organization” required institutions seeking the exemption to be controlled by an external religious organization;
concluding that the defendant seminary, which was controlled by its religious board of trustees rather than an external
organization, qualified for the Title IX exception).
61 See 20 U.S.C. § 1681(a)(3).
62 See id. See also, e.g., Maxon, 2021 WL 5882035, at *1-2 (9th Cir. Dec. 13, 2021) (affirming district court’s
application of Title IX’s religious exemption to dismiss plaintiffs’ claim challenging the defendant seminary’s
expulsion of students for marrying same-sex partners; discussing the school’s religiously-based standards concerning
sex and marriage and concluding that “[t]o the extent that Plaintiffs were dismissed because their marriages were with
spouses of the same sex, rather than the opposite sex, Plaintiffs’ claim fails because the religious exemption applies to
shield these religiously motivated decisions that would otherwise violate Title IX’s prohibition on sex
discrimination.”).
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kinds of sex-based conduct by a religious entity.63 To that end, DOJ and ED regulations
addressing Title IX’s religious exception provide that an entity seeking to assert it must submit a
written statement “identifying the provisions of these Title IX regulations that conflict with a
specific tenet of the religious organization.”64
ED regulations also identify various educational institutions that may assert the exception.65 Such
institutions include, among others, “a school or department of divinity,” an educational institution
that “requires its faculty, students, or employees to be members of, or otherwise engage in
religious practices of, or espouse a personal belief in, the religion of the organization by which it
claims to be controlled,” and an educational institution with “a published institutional mission
that is approved by the governing body of an educational institution and that includes, refers to, or
is predicated upon religious tenets, beliefs, or teachings.”66 It appears that few federal courts have
analyzed the scope and application of Title IX’s religious exemption.67
Title IX’s separate definition of a covered “program or activity” similarly provides that “such
term does not include any operation of an entity which is controlled by a religious organization if
the application of section 1681 of this title to such operation would not be consistent with the
religious tenets of such organization.”68
Other exceptions to Title IX permit sex-based distinctions in certain circumstances, such as sex-
based admissions to private single-sex colleges;69 and the consideration of sex in the membership
practices of certain fraternities and sororities at institutions of higher education and voluntary
youth organizations such as the Girl Scouts and Boy Scouts.70 Another Title IX exception permits
covered programs and activities to provide “father-son or mother-daughter activities at an
educational institution,” so long as “opportunities for reasonably comparable activities” are
“provided for students of the other sex.”71 In addition to its exceptions, another Title IX provision
separately provides that educational institutions receiving federal funds can maintain separate
living facilities based on sex.72 Long-standing Title IX regulations addressing athletics programs

63 See id.
64 See 28 C.F.R. § 54.205(b) (DOJ regulation addressing Title IX’s religious exemption; 34 C.F.R. § 106.12(b) (ED
regulation addressing Title IX’s religious exemption).
65 See 34 C.F.R. § 106.12(c).
66 See id.
67 See generally, e.g., Goodman v. Archbishop Curley High Sch., Inc., 149 F. Supp. 3d 577, 584 (D. Md. 2016) (“Few
courts have addressed the breadth of Title IX’s religious exemption and none have addressed it in the context of
employment discrimination or retaliation claims.”).
68 See 20 U.S.C. § 1687 (defining “program or activity” to mean “all the operations of” various entities that fall within
four categories, “any part of which is extended Federal financial assistance, except that such term does not include any
operation of an entity which is controlled by a religious organization if the application of section 1681 of this title to
such operation would not be consistent with the religious tenets of such organization.”).
69 See 20 U.S.C. § 1681(a)(1) (providing that with respect to admissions in educational institutions, Title IX’s
prohibition “shall apply only to institutions of vocational education, professional education, and graduate higher
education, and to public institutions of undergraduate higher education”) (emphasis added); Naranjo v. Alverno Coll.,
487 F. Supp. 635, 637 (E.D. Wis. 1980) (“By its express terms, it is apparent that the proscription of [Title IX] does not
apply with regard to admissions to private institutions of undergraduate higher education.”). See also 20 U.S.C. §
1681(a)(5) (stating that “in regard to admissions this section shall not apply to any public institution of undergraduate
higher education which is an institution that traditionally and continually from its establishment has had a policy of
admitting only students of one sex”).
70 20 U.S.C. § 1681(a)(7).
71 Id. § 1681(a)(8).
72 Id. § 1686 (“Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be
construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living
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in federally funded schools also permit certain sex-based distinctions in athletic teams and
competition.73
Section 504 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act prohibits any program or activity receiving federal financial
assistance from excluding any person from participation in, denying the benefits of, or
discriminating against any person “solely by reason of her or his disability” in the program or
activity.74 As with Title IX, Section 504 applies to both a covered program’s treatment of program
participants as well as its employment practices.75
As a general matter, federal courts often analyze and construe the requirements of Section 504
and the Americans with Disabilities Act (ADA) in a similar manner.76 Section 504 prohibits
covered programs and activities77 from various forms of disability-based conduct such as denying
an individual admission to a program based on a disability,78 or providing differentiated levels of
service based on disability.79 Section 504 also requires that covered programs or activities

facilities for the different sexes.”). See also 34 C.F.R. § 106.33 (“A recipient may provide separate toilet, locker room,
and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such
facilities provided for students of the other sex.”).
73 34 C.F.R. § 106.41(b). Congress specifically required promulgation of regulations pertaining to athletics. Education
Amendments of 1974, P.L. 93-380, § 844, 88 Stat. 484 (1974) (codified at 20 U.S.C. § 1681 note.); see McCormick ex.
rel. McCormick v. Sch. Dist. Of Mamaroneck, 370 F.3d 275, 287 (2d Cir. 2004) (describing the rulemaking process
including the publishing of the final rule and the congressional hearings thereafter).
74 29 U.S.C. § 794(a).
75 With respect to claims alleging discrimination in employment, Section 504 expressly provides that the standards to
be applied when determining a violation of Section 504 “shall be the standards applied under title I of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.).” 29 U.S.C. § 794(d). See generally Consol. Rail Corp. v.
Darrone, 465 U.S. 624, 631–34 (1984) (addressing the scope of a private right of action under Section 504 and
concluding that Section 504 reaches employment discrimination based on disability). See also 28 C.F.R. § 42.510 –
§ 42.513 (DOJ regulations setting out requirements of Section 504 concerning employment).
76 See generally Durand v. Fairview Health Servs., 902 F.3d 836, 841 (8th Cir. 2018) (analyzing claims brought under
both Section 504 of the Rehabilitation Act and Title III of the ADA and stating that “[a]lthough there are differences
between the ADA and the [Rehabilitation Act], . . . the case law interpreting the two statutes is generally used
interchangeably.”); Wright v. New York State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (in the context of
analyzing claims brought under Section 504 and Title II of the ADA, stating “[b]ecause the standards under both
statutes are generally the same and the subtle distinctions between the statutes are not implicated in this case, ‘we treat
claims under the two statutes identically’” (quoting Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003))).
77 See 29 U.S.C. § 794(b).
78 See, e.g., Sjostrand v. Ohio State Univ., 750 F.3d 596, 599–602 (6th Cir. 2014) (where plaintiff alleged that she was
denied admission to a PhD program based on her disability, Crohn’s disease, discussing circumstances surrounding her
application and rejection and holding that plaintiff had submitted sufficient evidence to submit ADA and Rehabilitation
Act claims to a jury). See also 28 C.F.R. § 41.51(b)(1)(i) (“A recipient, in providing any aid, benefit, or service, may
not . . . on the basis of handicap . . . [d]eny a qualified handicapped person the opportunity to participate in or benefit
from the aid, benefit, or service”); 45 C.F.R. § 84.38 (“A recipient to which this subpart applies that provides preschool
education or day care . . . may not, on the basis of handicap, exclude qualified handicapped persons and shall take into
account the needs of such persons in determining the aids, benefits, or services to be provided.”).
79 See generally, e.g., L.E. v. Ragsdale, No. 21-4076, 2021 WL 4841056, at *2–3 (N.D. Ga. Oct. 15, 2021) (stating that
“‘[d]isparate treatment involves discriminatory intent and occurs when a disabled person is singled out for disadvantage
because of his disability,’” and stating that such a claim “‘requires a plaintiff to show that he has actually been treated
differently than similarly situated non-handicapped people’”) (citations omitted). See also 28 C.F.R. § 41.51 (DOJ
regulation listing actions that constitute disability discrimination under Section 504, including providing “different or
separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to
others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are
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reasonably accommodate an individual with a disability to enable their meaningful access to or
participation in the program or activity80 (such as adapting classroom equipment for use by
children with physical impairments).81
Physical Access and Related Requirements
Section 504 has also been interpreted to require that covered programs and activities make their
facilities physically accessible to individuals with disabilities,82 though this obligation does not
require a recipient to make each and every part of its existing facilities accessible.83 Relatedly,
DOJ regulations implementing Section 504 do not require “structural changes in existing facilities
where other methods are effective in achieving compliance.”84 Entities may satisfy compliance,
for example, by acquiring or redesigning equipment, delivering services from an accessible site,
altering existing facilities, or through other methods that “make its program or activity accessible
to handicapped persons.”85 Where structural changes are necessary, federal regulations require
that they be made expeditiously.86

as effective as those provided to others”).
80 See generally Alexander v. Choate, 469 U.S. 287, 301 (1985) (interpreting Section 504 to require that “an otherwise
qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers”;
explaining that “to assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have
to be made”); Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010) (“An organization that receives federal funds
violates § 504 if it denies a qualified individual with a disability a reasonable accommodation that the individual needs
in order to enjoy meaningful access to the benefits of public services.”). See also 28 C.F.R. § 42.503(e) (“Recipients
shall insure that communications with their applicants, employees and beneficiaries are effectively conveyed to those
having impaired vision and hearing.”); id. at § 42.503(f) (“A recipient that employs fifteen or more persons shall
provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory, manual, or speaking skills
where a refusal to make such provision would discriminatorily impair or exclude the participation of such persons in a
program or activity receiving Federal financial assistance. Such auxiliary aids may include brailled and taped material,
qualified interpreters, readers, and telephonic devices. Attendants, individually prescribed devices, readers for personal
use or study, or other devices or services of a personal nature are not required under this section. Departmental officials
may require recipients employing fewer than fifteen persons to provide auxiliary aids when this would not significantly
impair the ability of the recipient to provide its benefits or services.”).
81 See 45 C.F.R. § 84.44(d)(1) (“A recipient to which this subpart applies shall take such steps as are necessary to
ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to
discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or
speaking skills.”); id. at § 84.44(d)(2) (“Auxiliary aids may include taped texts, interpreters or other effective methods
of making orally delivered materials available to students with hearing impairments, readers in libraries for students
with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar
services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use
or study, or other devices or services of a personal nature.”). See also 34 C.F.R. 104.4(b)(2) (ED regulation addressing
obligations under Section 504 and stating that “[f]or purposes of this part, aids, benefits, and services, to be equally
effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped
persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or
to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.”).
82 See generally Barden v. City of Sacramento, 292 F.3d 1073, 1075 (9th Cir. 2002) (discussing the requirements of
Section 504 and stating that “[o]ne form of prohibited discrimination is the exclusion from a public entity’s services,
programs, or activities because of the inaccessibility of the entity’s facility”). See also 28 C.F.R. § 42.521(a) (“A
recipient shall operate each program or activity to which this subpart applies so that when each part is viewed in its
entirety it is readily accessible to and usable by handicapped persons. This section does not require a recipient to make
each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.”).
83 See 28 C.F.R. § 42.521(a).
84 Id. at § 42.521(b).
85 Id.
86 See id. at § 41.57(b) (requiring that “such changes shall be made as soon as practicable”); id. at § 42.521(d)
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The statutory text of Section 504 explicitly excepts “small providers” from “mak[ing] significant
structural alterations to their existing facilities for the purpose of accessibility, if alternative
means of providing the services are available.”87 Section 504 does not define “small providers,”88
but federal regulations describe such providers as a “recipient with fewer than fifteen
employees.”89
Federal regulations also govern construction. New facilities “constructed by, on behalf of, or for
the use of a recipient,” must “be designed and constructed in such a manner that the facility is
readily accessible to and usable by handicapped persons.”90
The Age Discrimination Act of 1975
The Age Discrimination Act of 1975 provides that “no person in the United States shall, on the
basis of age, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under, any program or activity receiving Federal financial assistance.”91 HHS has
coordinating authority over the Age Discrimination Act,92 which means that other federal
agencies’ regulations implementing the Act must be consistent with HHS’s government-wide
regulations93 and subject to HHS approval.94
As a general matter, the Act prohibits covered programs or activities95 from various forms of age-
based conduct such as denying an individual admission to a program on the basis of that

(requiring that “such changes shall be made as expeditiously as possible”); 45 C.F.R. 84.22(d) (requiring such changes
“as expeditiously as possible”).
87 See 29 U.S.C. § 794(c).
88 See id.
89 See 28 C.F.R. § 42.521(c) (DOJ regulation). See also 45 C.F.R. § 84.22(c) (HHS regulation addressing “[s]mall
health, welfare, or other social service providers” as a recipient “with fewer than fifteen employees that provides health,
welfare, or other social services”). In the case of small providers, DOJ regulations state that if an entity determines,
after consulting with the individual with a disability, “that there is no method of complying . . . other than making a
significant alteration in its existing facilities,” the recipient may refer the individual “to other available providers of
those services that are accessible.” See 28 C.F.R. § 42.521(c).
90 See 28 C.F.R. § 42.522(a) (noting that the requirement regarding new facilities applies to construction that began
after the regulations’ effective date).
91 42 U.S.C. § 6102.
92 See 42 U.S.C. § 6103(a)(4) (directing “the head of each Federal department or agency which extends Federal
financial assistance to any program or activity by way of grant, entitlement, loan, or contract” to issue final regulations
implementing the Age Discrimination Act of 1975, and requiring that such regulations “be consistent with the final
general regulations issued by the Secretary [of HHS],” and stating that such regulations “shall not become effective
until approved by the Secretary.”). See also Nondiscrimination on the Basis of Age in Programs or Activities Receiving
Federal Financial Assistance from HHS, 47 Fed. Reg. 57850 (Dec. 28, 1982) (“The Act requires each department or
agency which operates programs of Federal financial assistance to issue proposed and then final regulations which must
be consistent with the general regulations. The Secretary of HEW (now HHS) must approve all agency and department
regulations.”).
93 See generally 45 C.F.R. Part 90. See also 45 C.F.R. § 90.2(a) (“The purpose of these regulations is to state general,
government-wide rules for the implementation of the Age Discrimination Act of 1975, as amended, and to guide each
agency in the preparation of agency-specific age discrimination regulations.”).
94 See supra note 92.
95 42 U.S.C. § 6107(4) (defining “program or activity).
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individual’s age96 or providing differentiated services to a program participant based on age
except in specified circumstances.97
Exceptions Permitting Age-Based Distinctions
Importantly, and relevant for a program with age-based participation criteria such as a child care
or age-specific education program, the Age Discrimination Act permits certain age-based
distinctions.98 The statute, for example, expressly allows programs and activities to consider age
when “such action reasonably takes into account age as a factor necessary to the normal operation
or the achievement of any statutory objective of such program or activity.”99 The statute also
contains an exception providing that the Act “shall not apply to any program or activity
established under authority of any law which (A) provides any benefits or assistance to persons
based upon the age of such persons; or (B) establishes criteria for participation in age-related
terms or describes intended beneficiaries or target groups in such terms.”100 Thus, if federal
legislation creates a program or activity to target certain age groups, such a program or activity is
likely to fall under one or more of these exceptions.
The requirements of the Age Discrimination Act do not apply to a covered program’s
employment practices.101 Instead, the statute points to the Age Discrimination in Employment Act
as governing employment-related claims.102

96 See, e.g., Harris v. Members of Bd. of Governors of Wayne State Univ., No. 10-11384, 2011 WL 3799769, at *1, 3-4
(E.D. Mich. Aug. 26, 2011) (where 54-year old plaintiff brought an Age Discrimination Act claim alleging that the
denial of his admission to graduate school was based on age, stating that the Act prohibits discrimination based on age
in admissions, and discussing the elements necessary to establish a prima facie case of age discrimination).
97 See generally 45 C.F.R. § 90.12(b) (HHS regulation stating that a “recipient may not, in any program or activity
receiving Federal financial assistance . . . use age distinctions or take any other actions which have the effect, on the
basis of age, of: (1) [e]xcluding individuals from, denying them the benefits of, or subjecting them to discrimination
under, a program or activity receiving Federal financial assistance; or (2) [d]enying or limiting individuals in their
opportunity to participate in any program or activity receiving Federal financial assistance.”).
98 42 U.S.C. § 6103(b).
99 Id. § 6103(b)(1). See also 45 C.F.R. § 90.13 (defining the terms “normal operation” and “statutory objective”); id. at
§ 90.14 (HHS regulation stating that an “action reasonably takes into account age as a factor necessary to the normal
operation or the achievement of any statutory objective of a program or activity, if: (a) Age is used as a measure or
approximation of one or more other characteristics; and (b) The other characteristic(s) must be measured or
approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory
objective of the program or activity; and (c) The other characteristic(s) can be reasonably measured or approximated by
the use of age; and (d) The other characteristic(s) are impractical to measure directly on an individual basis.”).
100 Id. § 6103(b)(2). See 45 C.F.R. § 90.3(b)(1) (stating that the Act does not apply to: “An age distinction contained in
that part of a Federal, State or local statute or ordinance adopted by an elected, general purpose legislative body which:
(i) Provides any benefits or assistance to persons based on age; or (ii) Establishes criteria for participation in age-related
terms; or (iii) Describes intended beneficiaries or target groups in age-related terms.”).
101 See 42 U.S.C. § 6103(c)(1) (“Nothing in this chapter shall be construed to authorize action under this chapter by any
Federal department or agency with respect to any employment practice of any employer, employment agency, or labor
organization, or with respect to any labor-management joint apprenticeship training program.”). See also 45 C.F.R. §
91.3(b)(2) (“The Act and these regulations do not apply to . . . [a]ny employment practice of any employer,
employment agency, labor organization, or any labor-management joint apprenticeship training program, except for
any program or activity receiving Federal financial assistance for public service employment under the Comprehensive
Employment and Training Act (CETA), (29 U.S.C. 801 et seq.)[.]”).
102 42 U.S.C. § 6103(c)(2) (“Nothing in this chapter shall be construed to amend or modify the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 621–634), as amended, or to affect the rights or responsibilities of any person or
party pursuant to such Act.”).
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Enforcement of the Civil Rights Spending Statutes
The civil rights requirements that apply to recipients of federal financial assistance are generally
enforced in two ways: (1) by the individual federal agencies that distribute financial assistance to
recipients—typically through the potential suspension or termination of funds,103 and (2) through
private rights of action brought directly against recipients in federal court for violations of these
nondiscrimination laws.104 As a general matter, administrative enforcement of these statutory
requirements can help ensure that federal aid is not used to support discrimination,105 while
private enforcement can seek relief for discriminatory harm to individuals.106
Administrative Requirements
Federal agencies generally enforce these civil rights requirements against the recipients they
fund.107 They are responsible for promulgating regulations to implement these laws and may
terminate or suspend assistance in cases of non-compliance.108

103 See, e.g., 42 U.S.C. § 2000d-1.
104 See, e.g., Cannon v. Univ. of Chi., 441 U.S. 677, 709, 717 (1979) (concluding that the text, history, and purpose of
Title IX “counsel implication of a cause of action in favor of private victims of discrimination”; and holding that the
private plaintiff in that case could maintain her Title IX lawsuit). The Department of Justice may also bring suit to
enforce certain nondiscrimination provisions against recipients. See Nat’l Black Police Ass’n, Inc. v. Velde, 712 F.2d
569, 575 (D.C. Cir. 1983) (“Title VI clearly tolerates other enforcement schemes. Prominent among these other means
of enforcement is referral of cases to the Attorney General, who may bring an action against the recipient.”); Dep’t of
Justice, Title IX Legal Manual, Chapter VII (Updated Aug. 12, 2021), https://www.justice.gov/crt/title-
ix#VII.%C2%A0%20Federal%20Funding%20Agency%20Methods%20to%20Enforce%20Compliance (“The
Department of Justice’s statutory authority to sue in federal district court on behalf of an agency for violation of Title
VI (and, likewise, Title IX) is contained in the phrase “by any other means authorized by law.”).
105 See generally, e.g., Cannon v. University of Chicago, 441 U.S. 677, 704-05 (1979) (“Title IX, like its model Title
VI, sought to accomplish two related, but nevertheless somewhat different, objectives. First, Congress wanted to avoid
the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens
effective protection against those practices.”). See also id. at 704 (explaining that the “first purpose is generally served
by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory
practices”).
106 See id. at 705-06 (discussing why the termination of funds “may not provide an appropriate means of accomplishing
the second purpose” of protecting individual citizens against discriminatory practices and stating that the “award of
individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent
with—and in some cases even necessary to—the orderly enforcement of the statute.”). This is not to say that federal
agency enforcement and judicial actions always operate with independent purposes, as the two may overlap.
107 See 28 C.F.R. § 42.401 (“Responsibility for enforcing title VI rests with the federal agencies which extend financial
assistance.”); 28 C.F.R. § 41.5 (“Each agency shall establish a system for the enforcement of section 504 [of the
Rehabilitation Act] and its implementing regulation with respect to the programs and activities to which it provides
assistance.”). Agencies often have a designated unit that carries out their enforcement responsibilities under these and
other civil rights statutes. See, e.g., About DOCR, U.S. Dep’t of Transp., https://www.transportation.gov/civil-rights/
about-docr (last visited April 22, 2022) (stating that the Departmental Office of Civil Rights “is responsible for
ensuring that recipients of funds from the Department of Transportation (DOT) conduct their Federal assisted programs
and activities in a non-discriminatory manner and in accordance with United States civil rights laws and labor laws.”);
About OCR, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/aboutocr.html (last visited April 22, 2022)
(“These civil rights laws enforced by OCR extend to all state education agencies, elementary and secondary school
systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies,
libraries, and museums that receive U.S. Department of Education funds.”).
108 Agencies have sometimes delegated their responsibilities to enforce civil rights requirements tied to receipt of
financial assistance to another agency. See, e.g., Agreement Between National Aeronautics and Space Administration
and Department of Education To Delegate Certain Civil Rights Compliance Responsibilities for Elementary and
Secondary Schools and Institutions of Higher Education, 52 Fed. Reg. 43385 (Nov. 12, 1987).
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Agency-Specific Regulations
Agencies that distribute federal financial assistance are authorized and directed to promulgate
regulations implementing each of the civil rights spending statutes.109 As a general matter, an
agency’s regulations can sometimes adopt requirements specific to their jurisdiction. For
instance, Department of Transportation regulations implementing Section 504 contain provisions
specific to airport facilities.110
To guide agency enforcement of Title VI, Title IX, and Section 504, an Executive Order directs
the Attorney General to coordinate federal agencies’ implementation of these statutes.111 Under
this EO, agency regulations must comply with the Attorney General’s requirements, and are
subject to his or her approval.112 DOJ has also promulgated regulations that guide agencies in
their own enforcement of Title VI.113 By contrast, HHS is entrusted with coordinating authority
for the Age Discrimination Act of 1975.114
Enforcement Tools: Investigations, Voluntary Resolutions, Terminating Funds
Agencies enforce the nondiscrimination requirements for recipients of federal financial assistance
pursuant to procedures set out in the administrative enforcement provisions of the civil rights
spending statutes.115 Those provisions generally authorize agencies to enforce their rules
implementing the nondiscrimination mandates through enforcement proceedings that can suspend

109 42 U.S.C. § 2000d-1 (Title VI); 20 U.S.C. § 1682 (Title IX); 29 U.S.C. § 794 (Rehabilitation Act); 42 U.S.C. § 6101
(Age Discrimination Act).
110 49 C.F.R. § 27.71.
111 Executive Order 12250, Leadership and Coordination of Nondiscrimination Laws (Nov. 2, 1980).
112 See id. Relatedly, DOJ regulations coordinating Title VI provide that agencies use enforcement procedures as
contained in DOJ Guidelines. 28 C.F.R. § 42.411. Those Guidelines may be found at 28 C.F.R. § 50.3.
113 28 C.F.R. § 42.401-15. Numerous agencies have incorporated their Title VI enforcement procedures when
promulgating other regulations pursuant to the civil rights spending statutes, such as Title IX and the Rehabilitation
Act. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Financial Assistance;
Final Common Rule, 65 Fed. Reg. 52,858 (2000) (reflecting the incorporation by numerous agencies of the
enforcement provisions of Title VI for purposes of Title IX regulations); see e.g., 45 C.F.R. § 84.71 (Department of
Health and Human Services Title IX regulation incorporating Title VI procedures). DOJ regulations implementing
Executive Order 12250 provide that agencies establish an enforcement system for Section 504 that includes the
procedures an agency has adopted under Title VI. 28 C.F.R. 41.5(a). Various agency regulations implementing Section
504 simply incorporate the enforcement provisions of Title VI. See, e.g., 45 C.F.R. § 84.61 (Department of Health and
Human Services); 34 C.F.R. § 104.61 (Department of Education); 28 C.F.R. § 42.530(a) (Department of Justice).
114 HHS was charged with promulgating regulations under the Age Discrimination Act and other agencies must issue
regulations consistent with them. 42 U.S.C. § 6103. Those regulations contain their own enforcement procedures. 45
C.F.R. § 91.41-50.
115 42 U.S.C. § 2000d-1 (Title VI); 20 U.S.C. § 1682 (Title IX); 42 U.S.C. § 6104(a) (Age Discrimination Act). Section
504 of the Rehabilitation Act lacks these express requirements regarding funding termination or suspension. However,
Executive Order 12250 directs the Attorney General to coordinate the implementation of the law and provide that
agency regulations under the Rehabilitation Act, as well as Title VI and Title IX, be consistent with the requirements
established by the Attorney General and be subject to his or her approval. Executive Order 12250, Leadership and
Coordination of Nondiscrimination Laws (Nov. 2, 1980). DOJ regulations implementing this Executive Order provide
that agencies establish an enforcement system for Section 504 that includes the procedures an agency has adopted
under Title VI. 28 C.F.R. 41.5(a). Various agency regulations implementing Section 504 simply incorporate the
enforcement provisions of Title VI. See, e.g., 45 C.F.R. § 84.61 (Department of Health and Human Services); 34 C.F.R.
§ 104.61 (Department of Education); 28 C.F.R. § 42.530(a) (Department of Justice).
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or terminate assistance.116 However, agencies may only do so once they have alerted the recipient
of their noncompliance and determined that compliance cannot be reached voluntarily.117
DOJ has promulgated its own regulations implementing Title VI for those programs it funds.118 In
light of DOJ’s coordinating role with respect to Title VI, Title IX, and Section 504, the
enforcement provisions of these regulations can provide a helpful model for how the civil rights
spending statutes may be enforced.119 These regulations provide that in order to receive financial
assistance, applicants, as a condition for approval, must include assurances that the recipient’s
program will comply with the regulations.120 The regulations also provide that individuals who
believe themselves subjected to discrimination in an applicable program may file a complaint
with the DOJ.121 These regulations also direct the DOJ to conduct periodic compliance reviews,
and conduct an investigation when appropriate.122 When investigations reveal noncompliance,
DOJ will seek to resolve the issue informally.123 If a recipient fails or refuses to comply with Title
VI, the Department may suspend or terminate assistance.124 Before doing so, consistent with the
statutory provisions mentioned above, the Department must notify the recipient of the failure to
comply and determine that compliance cannot be attained voluntarily.125 In addition, suspension
or termination is only allowed after a finding on the record, after an opportunity for a hearing, of
noncompliance.126
Judicial Enforcement Through a Private Right of Action
Private parties may also enforce the civil rights spending statutes through suit in federal court
against the recipients of federal financial assistance. The Supreme Court has interpreted Title VI,
Title IX, and Section 504 of the Rehabilitation Act to allow private suits for injunctive relief and
compensatory monetary damages.127 Federal law also allows recovery of attorney’s fees in such

116 42 U.S.C. § 2000d-1 (Title VI); 20 U.S.C. § 1682 (Title IX); 42 U.S.C. § 6104(a) (Age Discrimination Act).
117 42 U.S.C. § 2000d-1 (Title VI); 20 U.S.C. § 1682 (Title IX); 42 U.S.C. § 6104(c) (Age Discrimination Act).
118 See 28 C.F.R. § 42.105-110.
119 Executive Order 12250, Leadership and Coordination of Nondiscrimination Laws (Nov. 2, 1980).
120 28 C.F.R. § 42.105. See 45 C.F.R. § 91.33 (HHS regulations implementing Age Discrimination Act requiring
assurances of compliance from recipients).
121 28 C.F.R. § 42.107(b).
122 28 C.F.R. § 42.107(a), (c). HHS regulations implementing the Age Discrimination Act provide for investigations
when complaints are not resolved through mediation or reopened due to violation of a mediation agreement. 45 C.F.R.
§ 91.44.
123 28 C.F.R. § 42.107(d)(1).
124 28 C.F.R. § 42.108.
125 Id.
126 28 C.F.R. § 42.108(c)(1), (2). The regulations contain provisions for a hearing before an agency official. 28 C.F.R. §
42.109. In addition, the Attorney General must approve decisions to terminate or suspend assistance. 28 C.F.R. §
42.108(c)(3); § 110(e). Also, termination may only come after 30 days’ notice to Congress. Id. § 42.10(c)(4). See also
45 C.F.R. § 91.47 (incorporating Title VI enforcement provisions for the Age Discrimination Act).
127 Barnes v. Gorman, 536 U.S. 181, 185 (2002); Alexander v. Sandoval, 532 U.S. 275, 279 (2001); Franklin v.
Gwinnett Cty. Pub. Sch., 503 U.S. 60, 76 (1992). Title VI and Title IX do not expressly provide for a private right of
action. However, the Court has held that Title VI and Title IX contained an implied cause of action to enforce their
provisions. See Cannon v. Univ. of Chicago, 441 U.S. 677, 703 560 (1979) (“We have no doubt that Congress intended
to create Title IX remedies comparable to those available under Title VI and that it understood Title VI as authorizing
an implied private cause of action for victims of the prohibited discrimination.”). See also Barnes v. Gorman, 536 U.S.
181, 185 (2002) (reasoning that “the remedies for violations of … § 504 of the Rehabilitation Act are coextensive with
the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964”). The Court
has since modified its approach to recognizing implied private rights of action, generally requiring express statutory
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suits.128 However, the Court has interpreted Section 504, which adopts the remedies available
under Title VI, not to allow for punitive damages.129 Recently, when addressing whether a private
individual suing under Section 504 and Section 1557 of the Affordable Care Act could recover
emotional distress damages, the Court interpreted these statutes to foreclose that relief as well.130
The judicial enforcement provisions of the Age Discrimination Act stand in some contrast to the
other spending statutes. As an initial matter, the Supreme Court has not addressed its provisions in
much more than a passing manner.131 Unlike the other civil rights spending statutes,132 the Act
requires plaintiffs to exhaust their administrative remedies before bringing suit in federal court.133
In addition, there may be questions about what remedies the Age Discrimination Act allows. The
statute mentions injunctive relief and the award of attorney’s fees,134 but does not mention
compensatory damages.135
When Do the Civil Rights Spending Statutes Apply?
As discussed above, the civil rights spending statutes apply to recipients of federal financial
assistance. Having examined the statutes’ substantive requirements and enforcement procedures,
this report now considers two threshold questions that often arise in determining their application.
First, what counts as “federal financial assistance”? Second, who exactly is a “recipient” of that
assistance?

language before inferring private rights of action or remedies. See Alexander v. Sandoval, 532 U.S. 275, 287 (2001)
(“Having sworn off the habit of venturing beyond Congress’s intent, we will not accept respondents’ invitation to have
one last drink.”). As noted earlier, a private suit under Title VI may only seek relief for intentional, not disparate
impact, discrimination. See supra “Title VI of the Civil Rights Act of 1964.”
128 42 U.S.C. § 1988(b) (Title IX and Title VI); 29 U.S.C. § 794a(b) (Section 504 of the Rehabilitation Act).
129 Barnes v. Gorman, 536 U.S. 181, 189-90 (2002).
130 Cummings v. Premier Rehab Keller, No. 20-219 (Apr. 28, 2022), slip op. 7 (“Under Barnes [v. Gorman], we
therefore cannot treat federal funding recipients as having consented to be subject to damages for emotional distress. It
follows that such damages are not recoverable under the Spending Clause statutes we consider here.”).
131 See, e.g., Nat’l Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 466 n.3 (1999) (noting that the scope of Title IX,
VI, 504 of the Rehabilitation Act, and the Age Discrimination Act are “defined in nearly identical terms”).
132 See, e.g., Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009) (“Title IX has no administrative
exhaustion requirement.”); Wade v. Knoxville Util. Bd., 259 F.3d 452, 460 (6th Cir. 2001) (noting that “plaintiff was
not required to exhaust administrative remedies before bringing a Title VI claim”). As noted above, the private right of
action available is implied, rather than express.
133 42 U.S.C. § 6104(f); D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 455 (5th Cir. 2010).
134 42 U.S.C. § 6104(e).
135 42 U.S.C. § 6104(e)(1). A number of federal district courts have concluded that the Age Discrimination Act
therefore does not authorize compensatory damages. Doe v. Regents of Univ. of California, No. 21-CV-09605-LB,
2022 WL 833627, at *6 (N.D. Cal. Mar. 20, 2022); Young v. W. Virginia Univ., No. 1:21-CV-35, 2021 WL 6882317,
at *10 (N.D.W. Va. June 25, 2021), report and recommendation adopted, No. 1:21-CV-35, 2022 WL 816041 (N.D.W.
Va. Mar. 17, 2022); Montalvo-Padilla v. Univ. of P.R., 498 F. Supp. 2d 464, 467 n.3 (D.P.R. 2007); Tyrrell v. City of
Scranton, 134 F. Supp. 2d 373, 383 (M.D. Pa. 2001). Cf. 42 U.S.C. 2000d-7 (expressly providing that states are not
immune from suit in federal court for violations of Title VI, Title IX, Section 504, and the Age Discrimination Act, and
that remedies both at law and in equity are available against states to the same extent as they are against public or
private entities other than a state).
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What Is Federal Financial Assistance?
A clear form of federal financial assistance is funding provided through a federal grant or loan.136
Title VI, Title IX, and the Age Discrimination Act, for example, all explicitly describe “federal
financial assistance” as grants, loans, or contracts.137 Section 504 of the Rehabilitation Act does
not provide examples of what constitutes federal financial assistance,138 but agency regulations
implementing Section 504 note that federal assistance “means” grants, loans, and contracts.139
While money is a common form of federal financial assistance, there are other types as well.140
According to agency regulations, the donation of real or personal property from the federal
government, as well as the sale or lease of federal property at a reduced cost can constitute federal
financial assistance.141 Likewise, the detail of federal employees to states and local governments
can constitute federal financial assistance.142
One situation in which these civil rights laws can differ is with respect to a “contract of insurance
or guaranty.”143 Title VI, Title IX, and the Age Discrimination Act all exempt such contracts from
their requirements.144 As explained by the U.S. Court of Appeals for the Fifth Circuit, Congress
initially exempted such contracts from Title VI’s requirements in order to prevent the statute
“from reaching individually owned homes financed with federally guaranteed mortgages, or
individual bank accounts in a bank with federally guaranteed deposits.”145 Just as Section 504
lacks examples of what constitutes federal financial assistance, it lacks examples of what forms of

136 See Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 604 (1986) (“We examine first the grants of
federal funds to airport operators, which clearly are federal financial assistance.”).
137 42 U.S.C. § 2000d-1 (Title VI); 20 U.S.C. § 1682 (Title IX); 42 U.S.C. § 6103(a)(4) (Age Discrimination Act)
(describing federal financial assistance as a “grant, entitlement, loan, or contract”). As discussed in this section, grants,
loans, and contracts are not the only forms of aid that can constitute federal financial assistance.
138 29 U.S.C. § 794.
139 See, e.g., 28 C.F.R. § 42.540(f) (Dep’t of Justice); 45 C.F.R. § 84.3 (Dep’t of Health and Human Servs.); 34 C.F.R.
§ 104.3(h) (Dep’t of Educ.). The Supreme Court has also interpreted “federal financial assistance” under Section 504 as
“clearly” including grants. See Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 604 (1986) (“Section 504
prohibits discrimination against any qualified handicapped individual under ‘any program or activity receiving Federal
financial assistance.’ We examine first the grants of federal funds to airport operators, which clearly are federal
financial assistance . . . .”).
140 See Dep’t of Justice, Title IX Legal Manual, Chapter VII (describing different kinds of federal financial assistance,
such as the use of federal property at reduced cost). See Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. at 607
n.11 (“Although the word ‘financial’ usually indicates ‘money,’ federal financial assistance may take nonmoney
form.”).
141 See, e.g., 28 C.F.R. § 42.540(f) (Department of Justice); 45 C.F.R. § 84.3 (Department of Health and Human
Services); 34 C.F.R. § 104.3(h) (Department of Education).
142 See Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 612 n.14 (1986) (“Since the first regulations
under Title VI, the interpretation of federal financial assistance has been that the detail, or loan, of federal personnel
can constitute federal assistance.”).
143 See Dep’t of Justice, Title VI Legal Manual, Chapter V (C)(2)(d); Dep’t of Justice, Title IX Legal Manual, III(A)(3).
144 42 U.S.C. § 2000d-1 (Title VI); 20 U.S.C. § 1682 (Title IX); 42 U.S.C. § 6103(a)(4) (Age Discrimination Act). See
United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1048 (5th Cir. 1984); Moore v. Sun Bank of N. Fla., N.A., 923
F.2d 1423, 1426 (11th Cir. 1991). Section 1557 of the ACA, which prohibits discrimination on various grounds in
health programs receiving federal financial assistance, describes such assistance as “including credits, subsidies, or
contracts of insurance.” 42 U.S.C. § 18116.
145 United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1048 (5th Cir. 1984) (“As the legislative history makes
abundantly clear, in excluding ‘contracts of insurance or guaranty’ from Title VI, Congress intended to prevent Title VI
from reaching individually owned homes financed with federally guaranteed mortgages, or individual bank accounts in
a bank with federally guaranteed deposits.”).
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assistance do not qualify as federal financial assistance.146 A number of agency regulations
nonetheless exclude contracts of insurance and guaranty from their definition of federal financial
assistance under Section 504.147 Courts, however, have taken different approaches in determining
whether such contracts should, in fact, be exempt.148
Who Is a Recipient of Federal Financial Assistance?
Only recipients of federal financial assistance are obligated to comply with the requirements
discussed above.149 The Supreme Court has treated these statutes as stemming from Congress’s
power to place conditions on federal grants. It has reasoned that they operate like a contract
between recipients and the federal government—a “recipient’s acceptance of the funds triggers
coverage under the nondiscrimination provision.”150 By limiting their reach to recipients of
federal financial assistance, Congress only “imposes” these statutory requirements “upon those
who are in a position to accept or reject those obligations as a part of the decision whether or not
to ‘receive’ federal funds.”151
Who qualifies as a recipient of federal financial assistance for purposes of these civil rights laws,
however, is not always self-evident. For example, when financial assistance is passed through
multiple entities or benefits multiple groups, questions may arise as to who precisely is a recipient
of that assistance for purposes of these statutes.
Direct v. Indirect Recipient152
Recipients include entities that apply for and receive federal financial assistance directly from a
federal agency. For example, if a local police department applies for and receives a direct grant
from DOJ to support a particular program, the police department is a recipient of federal financial

146 29 U.S.C. § 794.
147 See, e.g., 28 C.F.R. § 42.540(f) (Department of Justice); 45 C.F.R. § 84.3 (Department of Health and Human
Services); 34 C.F.R. § 104.3(h) (Department of Education).
148 Compare Gallagher v. Croghan Colonial Bank, 89 F.3d 275, 278 (6th Cir. 1996) (“[W]e hold that Croghan [Colonial
Bank] did not receive federal financial assistance for purposes of the Rehabilitation Act by disbursing loans to students
pursuant to federal student loan legislation.”), with Moore v. Sun Bank of N. Fla., N.A., 923 F.2d 1423, 1433 (11th Cir.
1991) (“Sun Bank, through participation in the SBA’s guaranteed loan program, is a ‘program or activity receiving
Federal financial assistance’ and is thereby amenable to suit under section 504.”).
149 See Paralyzed Veterans, 477 U.S. at 605.
150 Id. at 605 (describing Title VI, Title IX, and Section 504 of the Rehabilitation Act); Barnes v. Gorman, 536 U.S.
181, 186 (2002) (interpreting Section 504 of the Rehabilitation Act, which incorporates the remedies of Title VI, and
noting that “we have repeatedly characterized [Title VI] and other Spending Clause legislation as “much in the nature
of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions” (quoting
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981)) (internal quotation marks omitted)). The
Court has not examined the Age Discrimination Act in as much depth as Title IX, Title VI, and the Rehabilitation Act,
but has noted that the scope of all four are “defined in nearly identical terms.” Nat’l Collegiate Athletic Ass’n v. Smith,
525 U.S. 459, 466 n.3 (1999) (noting the scope of the Age Discrimination Act, Title IX, Title VI, and Section 504 of
the Rehabilitation Act). See Action All. of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 935 n.1
(D.C. Cir. 1986) (Ginsburg, J.) (observing that the Age Discrimination Act was modeled after Title VI and Title IX).
151 Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 606 (1986).
152 It is important to clarify that whether such federal financial assistance is “direct” or “indirect” can have potential
constitutional implications for religious programming of a religious provider that receives federal funds. See CRS
Report R46517, Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses, by Valerie C.
Brannon.
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assistance.153 Entities that receive reimbursements from the federal government through Medicare
for services rendered can also be recipients.154 Importantly, however, entities that indirectly
receive assistance through another entity may sometimes qualify as recipients as well.
In Grove City College v. Bell, the Supreme Court held that a college’s receipt of federal funding
indirectly through a student aid program constituted receipt of federal financial assistance under
Title IX.155 In that case, the college declined to participate in “direct institutional aid programs,”
as well as certain other federal student assistance programs, in an attempt to avoid federal
oversight.156 However, the college still enrolled students who received federal grants earmarked
for education expenses.157 In concluding that Title IX applied to the college, the Court pointed to
a number of factors that indicated it was a recipient of federal financial assistance.
First, the students received grants created under the Education Amendments of 1972, the same
law that imposed Title IX’s requirements; and the statute’s legislative history showed a direct
connection between those grants and Title IX.158 Second, the Court reasoned that Congress
intended those student grant programs to aid colleges and universities, and the “economic effect
of direct and indirect assistance is often indistinguishable.”159 This intent was clear both from the
legislative history, as well as the stated purposes of the legislation itself, one of which was to
“provid[e] assistance to institutions of higher education.”160 Third, Title IX was drafted with
essentially identical language to Title VI, which Congress intended to apply to colleges taking
student aid.161 Finally, there was a “longstanding and coherent administrative construction of the
phrase ‘receiving Federal financial assistance” that interpreted student aid as constituting federal
financial assistance to schools. Congress had “never disavowed” this position and had “acted
consistently with it” a number of times.162 Given the “clear statutory language,” plain
congressional intent, and consistent agency practice, the Court rejected the argument that federal

153 See Dep’t of Justice, Title VI Legal Manual, Chapter V(D)(2).
154 See Cummings v. Premier Rehab Keller, No. 20-219 (Apr. 28, 2022), slip op. 2 (“Premier Rehab is subject to these
statutes, which apply to entities that receive federal financial assistance, because it receives reimbursement through
Medicare and Medicaid for the provision of some of its services.”).
155 Grove City Coll. v. Bell, 465 U.S. 555, 560–61, 563 (1984). Congress amended Title IX (as well as Title VI, Section
504 of the Rehabilitation Act, and the Age Discrimination Act) to supersede the portion of the Court’s [Grove City
College] decision that concluded Title IX only applied to the specific program that receives federal funds. Id. at 570–
74. See Civil Rights Restoration Act of 1987, P.L. 100-259 (1988).
156 Grove City Coll., 465 U.S. at 559.
157 Id. at 565, 566 n.13. Students enrolled at the college also received Guaranteed Student Loans, which the district
court ruled were “contract[s] of guaranty.” The district court ruled that Title IX does not permit terminating such
assistance to enforce its terms. Grove City Coll. v. Harris, 500 F. Supp. 253, 260 (W.D. Pa. 1980); see 20 U.S.C. §
1682. The Supreme Court did not take a position on this aspect of the court’s reasoning. Grove City Coll., 465 U.S. at
561 n.9.
158 Grove City Coll., 465 U.S. at 563.
159 Id. at 564–65.
160 Id. at 565-66; see 20 U.S.C. § 1070(a)(5).
161 Grove City Coll., 465 U.S. at 566.
162 Id. at 566–68. The Court noted that Title IX’s history was unique in that the General Education Provisions Act
afforded Congress “an opportunity to invalidate aspects of the regulations it deemed inconsistent with Title IX.” Under
that process, the Department submitted Title IX regulations to Congress for review, and the rules would go into effect
after 45 days unless Congress disapproved of the regulations in a concurrent resolution. P.L. 93-380, 88 Stat. 567 Sec.
509(A)(2). No disapproval resolutions were passed and the regulations went into effect. N. Haven Bd. of Ed. v. Bell,
456 U.S. 512, 533 (1982).
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funds received by the educational institution indirectly through students should be treated
differently than direct federal grants to the institution.163
Primary and Subrecipient
A closely related issue that sometimes arises with respect to who qualifies as a recipient of federal
financial assistance is a distinction between the primary recipient of federal aid and a subrecipient
of that aid.164 Often a primary recipient receives the funds directly from the federal government
but then distributes it to subrecipients to carry out a specific program.165 For instance, federal
funds are sometimes distributed directly to states as primary recipients, who are then entrusted
with allocating those funds to subrecipients—such as local entities like school boards—consistent
with federal guidelines.166 Federal agency regulations implementing the funding-based
nondiscrimination statutes often define “recipients” as entities taking federal financial assistance
directly or through another recipient.167 Courts appear to generally treat these “subrecipients” as
recipients of federal financial assistance that must comply with the civil rights laws predicated on
federal funding.168

163 Grove City Coll., 465 U.S. at 564–69. See Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 452–53 (5th
Cir. 2005) (“Thus, under Grove City and Paralyzed Veterans of America, the relevant question is not whether the
University passes federal funds through to students—who, it should be noted, typically pass them back to the
University in the form of tuition payments and other expenses—but whether the University is an ‘intended recipient’ of
the funds Congress has appropriated. . . . In sum, here, no less than in Grove City, the University is an intended
recipient of federal financial assistance. Accordingly, for that reason, it is subject to the requirements of § 504 of the
Rehabilitation Act.”).
164 See Dep’t of Justice, Title VI Legal Manual, Chapter VII (“Many programs have two or more recipients. The
primary recipient directly receives the federal financial assistance. The primary recipient then distributes the federal
assistance to a subrecipient to carry out a program. See, e.g., 28 C.F.R. § 42.102(g). The primary recipient and all the
subrecipients are covered by and must conform their actions to Title VI.”). Agencies sometimes, particularly in the
context of religious programming by recipients of federal financial assistance, characterize funding that passes through
an intermediary as “direct,” while referring to “indirect” assistance as that provided to a beneficiary and paid through a
voucher or certificate to the provider. See, e.g., 7 C.F.R. § 16.2 (Department of Agriculture); see Federal Agency Final
Regulations Implementing Executive Order 13559: Fundamental Principles and Policymaking Criteria for Partnerships
With Faith-Based and Other Neighborhood Organizations, 81 Fed. Reg. 19,355, 19,413 (2016).
165 See Dep’t of Justice, Title VI Legal Manual, Chapter VII.
166 See, e.g., Rogers v. Board of Education, 859 F. Supp. 2d 742, 752 n.11 (D. Md. 2012) (“The fact that the Board
received this money as a disbursement from the State of Maryland, rather than directly from the federal government,
does not defeat Plaintiffs’ Title VI claims. The reach of Title VI does not depend on whether a state receives federal
funding and then distributes it to local educational agencies and others, or instead allows the aid to go more directly to
the ultimate recipients.”).
167 See, e.g., 34 C.F.R. § 106.2 (“Recipient means any State or political subdivision thereof, or any instrumentality of a
State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or through another recipient and which operates an
education program or activity which receives such assistance, including any subunit, successor, assignee, or transferee
thereof.”); 28 C.F.R. § 42.102 (defining recipient as “any State, political subdivision of any State, or instrumentality of
any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any
individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient” for
purposes of Title VI); 28 C.F.R. § 42.540 (“Recipient means any State or unit of local government, any instrumentality
of a State or unit of local government, any public or private agency, institution, organization, or other public or private
entity, or any person to which Federal financial assistance is extended directly or through another recipient, including
any successor, assignee, or transferee of a recipient.”); 28 C.F.R. § 42.702 (“Recipient means any state or political
subdivision, any instrumentality of a State or political subdivision, any public or private agency, institution,
organization, or other entity, or any person to which federal financial assistance is extended, directly or through
another recipient. ‘Recipient’ includes any successor, assignee, or transferee.”).
168 See Grove City Coll. v. Bell, 465 U.S. 555, 564 n.11 (1984) (observing that the argument that indirect funding
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Intended Recipients v. Beneficiaries
Another consideration in applying these civil rights spending statutes is distinguishing between
the intended recipients of federal aid, who must comply with those requirements, and mere
beneficiaries of federal funding, who are not subject to the requirements.169 The Court’s decision
in Department of Transportation v. Paralyzed Veterans of America illustrates the distinction. In
that case, the Court considered whether Section 504 of the Rehabilitation Act applied to
commercial airlines based on funds extended to airports.170 The Court first examined the
underlying grant statutes, which established an “Airport and Airway Trust Fund,” and authorized
disbursements from the Fund for the “Airport Improvement Program.”171 Under that program
airport operators submitted grant applications for airport development projects and funds were
disbursed to support various construction projects.172 The Court concluded that Congress made it
clear that the funds should go to airport operators, and thus they were the recipients of federal
financial assistance for purposes of Section 504.173 By contrast, airport users, such as airlines,
were not given any funds and thus were not recipients.174
The Court observed that the scope of Section 504 is limited to “those who actually ‘receive’”
funds because the statute operates “as a form of contractual cost of the recipient’s agreement to
accept the federal funds.”175 Under Section 504, as well as Title VI and Title IX, the Court noted,
“Congress enters into an arrangement in the nature of a contract with recipients of funds,” and
accepting those funds “triggers coverage under the nondiscrimination provision.”176 This

cannot constitute federal financial assistance would be “problematic,” as that view “logically would exclude from
coverage under Title IX local school districts that receive federal funds through state educational agencies,” a result
that “Grove City wisely does not attempt to defend”); Moreno v. Consolidated Rail Corp., 99 F.3d 782, 787 (6th Cir.
1996) (en banc) (“It makes no difference, in our view, that the federal funds of which Conrail is the recipient come to it
through the State of Michigan rather than being paid to it by the United States directly. . . . The ultimate beneficiaries of
the federal funds at issue in the case before us are the members of the traveling public, just as the ultimate beneficiaries
in the funds at issue in Grove City were the students—but Conrail, like the college, is clearly a ‘recipient’ of federal
funds.”); Bentley v. Cleveland Cnty. Bd. of County Comm’rs, 41 F.3d 600, 603 (10th Cir. 1994) (rejecting, in a Section
504 case, the defendant county’s argument that “it is not a covered ‘program or activity’ . . . because it received the
[federal] funds indirectly from the State Department of Transportation”); Rogers, 859 F. Supp. 2d at 752 n.11; Doe v.
League Sch. of Greater Bos., Inc., No. 16-CV-11940-IT, 2017 WL 3594257, at *4 (D. Mass. Aug. 21, 2017)
(concluding that a private school, which received federal funds through a public agency pursuant to the Individuals
with Disabilities Education Act, was subject to Title IX); Graves v. Methodist Youth Servs., Inc., 624 F. Supp. 429,
433 (N.D. Ill. 1985) (“Thus, when defendant received its funding from [the Illinois Department of Children and Family
Services] which was reimbursed by the federal government, this was equivalent to Grove City College receiving
indirect federal funds through its students who received BEOGs. In both cases, federal funds were received ‘through
another recipient.’ Consequently, relying on the Third Circuit’s holding in Grove City College, and on the definitions of
‘recipient’ in the regulations issued by the Office of the Secretary of Labor and the Department of Health and Human
Services, this court concludes that defendant indirectly received federal funding. Since this is so, it is subject to the
Rehabilitation Act.”).
169 Id. at 604.
170 Dep’t of Transp. v. Paralyzed Veterans, 477 U.S. 597, 606–07 (1986).
171 Id. at 604.
172 Id. at 605.
173 Id. at 605.
174 Id. at 605.
175 Id.
176 Id. The Court favorably cited to an appellate decision that relied on similar reasoning to conclude that Title VI does
not apply to direct benefit programs like Social Security because of the absence of a contractual relationship. Soberal-
Perez v. Heckler, 717 F.2d 36, 41 (2d. Cir. 1983) (“This emphasis upon the contractual nature of the receipt of federal
moneys in exchange for a promise not to discriminate is still another reason to conclude that Title VI does not cover
direct benefit programs since these programs do not entail any such contractual relationship”), cert. denied, 466 U.S.
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limitation of coverage to actual recipients ensures that Section 504 obligations apply only to those
who can choose to accept or reject those requirements when deciding to receive federal funds. In
that case, while the airport operators were in that position, the airlines were not.177
The Court also rejected the contention that the money given to airports constituted indirect
assistance to airlines because the funds were spent in ways that benefitted airlines.178
Distinguishing between “intended beneficiaries” and “intended recipients,” the Court explained
that federal financial assistance can certainly be indirect, as it was in its previous decision of
Grove City College where Congress’s intended aid recipient was the college, not the students who
received the money before passing it on to the school.179 Nevertheless, that principle did not mean
“that federal coverage follows the aid past the recipient to those who merely benefit from the
aid.”180 Here, the airlines were only beneficiaries of federal aid given to airport operators, not the
intended recipients of that aid.181 The Court emphasized that applying Section 504 to entities that
simply derive economic benefit from federal funds would give that provision “almost limitless
coverage.”182 The statute therefore, in the same manner as Title IX, “draws the line of federal
regulatory coverage between the recipient and the beneficiary.”183
Relatedly, the Court in National Collegiate Athletic Association v. Smith addressed another
limitation on which entities qualify as recipients of federal financial assistance.184 In that case, the
Court examined whether the NCAA’s receipt of dues from federally funded colleges and
universities rendered it a recipient under Title IX.185 The Court rejected this argument, concluding
that it would contradict the reasoning of Grove City College and Paralyzed Veterans: an entity
that receives federal assistance, “directly or through an intermediary,” is a recipient; but an entity
that only benefits economically from that assistance is not.186 The Court contrasted the situation
in Grove City College, where the student aid was “earmarked” for education expenses, to the facts
in Smith, where there was no indication “that NCAA members paid their dues with federal funds
earmarked for that purpose.”187 The NCAA may have benefited economically from the dues it
received from colleges that accept federal assistance, but that fact alone could not transform the
NCAA itself into a recipient of federal assistance.188
According to the Court, therefore, the intended recipients of federal financial assistance are
subject to the civil rights spending laws, regardless of whether the receipt of funds is direct or

929 (1984).
177 Paralyzed Veterans, 477 U.S. at 606.
178 Id.
179 Id.
180 Id. at 607.
181 Id. The Court also rejected the conclusion of the appellate court below that the federal air traffic control system was
a form of federal financial assistance to airlines. The Court ruled that the air traffic control system was a “federally
conducted program that has many beneficiaries but no recipients.” Id. at 612.
182 Id. at 608.
183 Id. at 609.
184 Nat’l Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 462 (1999).
185 Id. at 468–69.
186 Id.
187 Id. at 468.
188 Id. at 469–70. The Court declined to rule on two arguments not decided in the courts below. First, whether the
NCAA actually received federal financial assistance through the National Youth Sports Program it administered; and
second, whether “when a recipient cedes controlling authority over a federally funded program to another entity, the
controlling entity is covered by Title IX regardless whether it is itself a recipient.” Id. at 469–70.
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indirect. Entities that only benefit economically from federal assistance, however, are not.189
Likewise, if an entity simply receives payments from third parties who themselves are recipients
of federal funds, absent some indication that the entity is the intended recipient of assistance
(such as federal funds earmarked for that purpose), the entity is not subject to the civil rights
spending laws.190
Program-Specific Provisions
The antidiscrimination requirements of Title VI, Title IX, Section 504, and the Age
Discrimination Act generally apply to recipients of federal financial assistance provided under all
federal programs, regardless of whether statutory text creating a specific federal program refers to
these four statutes explicitly.
In addition to these statutory requirements, some federal programs also have antidiscrimination
requirements that apply specifically to recipients under a particular program. For example,
Section 654 of the Head Start Act contains antidiscrimination requirements specific to entities
that receive grants under the Head Start child development program.191 The Work Force
Innovation Opportunity Act (WIOA) also contains antidiscrimination requirements applicable to
entities that receive federal financial assistance under that statutory program.192 While discussing
such program-specific provisions in detail is beyond the scope of this report, as a general matter
these provisions at times address distinct factual contexts or characteristics, or set out a different
scope of coverage than the four cross-cutting statutes discussed in this report.193
Legislative Considerations
As discussed in this report, the requirements of Title VI, Title IX, Section 504, and the Age
Discrimination Act generally apply to recipients of federal financial assistance, barring an
exception. Whether amending these statutes, or enacting new civil rights requirements based on
Congress’s Spending Clause power, Congress has broad authority to set civil rights conditions on
the receipt of federal funding.194 Legislation enacted on this basis, however, involves different
legal considerations and requirements than civil rights legislation enacted under Congress’s

189 Grove City Coll. v. Bell, 465 U.S. 555, 569–70 (1984); Dep’t of Transp. v. Paralyzed Veterans, 477 U.S. 597, 604
(1986).
190 Nat’l Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 469–70 (1999).
191 42 U.S.C. § 9849.
192 29 U.S.C. § 3248. For discussion of WIOA, see CRS Report R44252, The Workforce Innovation and Opportunity
Act and the One-Stop Delivery System, by David H. Bradley.
193 See, e.g., 29 U.S.C. § 3248(a)(2) (prohibiting the exclusion of, denial of benefits to, or discrimination because
religion, political affiliation, or belief). While some program-specific provisions may prohibit discrimination based on
the same characteristic as one of the four cross-cutting statutes (race or sex, for example), these provisions at times
have a different scope than Title VI or Title IX. Cf. 29 U.S.C. § 3248(a)(2) (mandating that no individual be “denied
employment in the administration of or in connection with, any such program or activity because of race”); 42 U.S.C. §
2000d-3 (reflecting that the requirements of Title VI do not apply to “any employment practice . . . except where a
primary objective of the Federal financial assistance is to provide employment.”). Cf. 29 U.S.C. § 3248 (a)(2)
(prohibiting discrimination because of sex); 20 U.S.C. § 1681(a) (prohibiting discrimination on the basis of sex in
federally funded education programs or activities).
194 Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (“Congress has broad power to set
the terms on which it disburses federal money to the States, but when Congress attaches conditions to a State’s
acceptance of federal funds, the conditions must be set out ‘unambiguously’”) (internal citation omitted).
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Commerce Clause power195 or its authority to enforce the Thirteenth, Fourteenth, and Fifteenth
Amendments of the U.S. Constitution.196 This section sets out at least two unique features of
Spending Clause legislation before turning to a brief discussion of issues or questions that may
arise when amending or enacting civil rights laws on this basis.
Unique Features: Clear Terms and Sovereign Immunity
Two distinctive features of Spending Clause legislation include the requirement that such
legislation be “unambiguous” in the conditions that it applies to recipients, and that Congress can
condition the receipt of federal funds on a state’s voluntary waiver of sovereign immunity to a
suit.
First, unlike legislation enacted on other constitutional bases, the Court has characterized
Spending Clause legislation as akin to a contract.197 Civil rights laws enacted on this basis, the
Court has explained, “condition an offer of federal funding on a promise by the recipient not to
discriminate, in what amounts essentially to a contract between the Government and the recipient
of funds.”198 Because a recipient must voluntarily and knowingly accept the terms of this
“contract,” the Court requires that such legislation be “clear” and “unambiguous[]” in stating the
terms that recipients agree to as conditions for receiving federal financial assistance.199 As the
Court recently explained, “the ‘legitimacy of Congress’ power’ to enact Spending Clause
legislation rests not on its sovereign authority to enact binding laws, but on ‘whether the
[recipient] voluntarily and knowingly accepts the terms of th[at] ‘contract.’”200 Accordingly,
ambiguities in statutory conditions or requirements in Spending Clause legislation can prompt
legal challenges to those provisions.201 Related to the necessity for clear and unambiguous terms,

195 See generally, e.g., United States v. Lopez, 514 U.S. 549, 558-59 (1995) (discussing three categories of activity that
Congress may regulate under its Commerce Clause power, such as regulating “the use of the channels of interstate
commerce” and “those activities having a substantial relation to interstate commerce”). For further discussion, see CRS
Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, coordinated by Andrew Nolan
and Kevin M. Lewis.
196 See generally, e.g., United States v. Morrison, 529 U.S. 598, 618-21 (2000) (discussing Congress’s authority to
legislate under Section 5 of the Fourteenth Amendment and limitations on that authority, including that such legislation
address state action). See also Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981) (“Unlike
legislation enacted under § 5 [of the Fourteenth Amendment], however, legislation enacted pursuant to the spending
power is much in the nature of a contract”). For further discussion, see also CRS Report R45323, Federalism-Based
Limitations on Congressional Power: An Overview, coordinated by Andrew Nolan and Kevin M. Lewis.
197 See, e.g., Cummings v. Premier Rehab Keller, No. 20-219 (Apr. 28, 2022), slip op. 1 (“‘Legislation enacted
pursuant to the spending power is much in the nature of a contract: in return for federal funds, the [recipients] agree to
comply with federally imposed conditions.’”) (quoting Pennhurst, 451 U.S. at 17).
198 Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 286 (1998) (describing the operation of Title VI and
Title IX).
199 See Pennhurst, 451 U.S. at 17 (stating that “if Congress intends to impose a condition on the grant of federal
moneys, it must do so unambiguously” and that Congress must “speak with a clear voice” to enable recipients to
“exercise their choice knowingly, cognizant of the consequences of their participation.”). See also, e.g., Arlington Cent.
School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (“Congress has broad power to set the terms on which
it disburses federal money to the States, but when Congress attaches conditions to a State’s acceptance of federal funds,
the conditions must be set out ‘unambiguously’”) (internal citation omitted).
200 Cummings, No. 20-219 (Apr. 28, 2022), slip op. 4 (citing Barnes v. Gorman, 536 U.S. 181, 186 (2002) (quoting
Pennhurst, 451 U.S. at 17)).
201 See, e.g., Pennhurst, 451 U.S. at 10, 24-27 (where parties debated whether a provision in the Developmentally
Disabled Assistance and Bill of Rights Act of 1975 required federal funding recipients to provide individuals
“‘appropriate treatment’ in the ‘least restrictive’ environment,” concluding that the debated provision did not impose
such a requirement).
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the Court has emphasized in its Spending Clause jurisprudence that entities must have adequate
“notice” of their obligations.202
Second, Congress may also condition receipt of federal financial assistance on a state’s agreement
to voluntarily waive its sovereign immunity to suit.203 The waiver, however, must be
“‘unequivocally expressed’ in the text of the relevant statute.”204 By way of example, to effectuate
such a waiver, Congress enacted a 1986 provision that provides that a “State shall not be immune
under the Eleventh Amendment of the Constitution of the United States from suit in Federal court
for a violation of” Section 504, Title IX, the Age Discrimination Act, and Title VI.205 Sovereign
immunity is thus no bar to suits seeking judicial enforcement of those specific statutory
provisions against state entities.206 By contrast, Congress cannot subject states to suit when it
enacts legislation under its Commerce Clause power.207
Should there be legislative interest in changing or clarifying the statutory requirements of Title
VI, Title IX, Section 504, or the Age Discrimination Act, Supreme Court precedent requires—to
the extent those amendments are premised on Congress’s Spending Clause authority—that
conditions be imposed in clear and unambiguous terms.208 As federal courts and agencies address
the proper interpretation of these civil rights statutes,209 Congress can resolve uncertainties by

202 See, e.g., Arlington Cent. School Dist., 548 U.S. at 296 (where parties debated whether the Individuals with
Disabilities Education Act (IDEA) required defendant school district to compensate the prevailing party for expert fees,
describing the Court’s analysis as asking whether a state official “would clearly understand that one of the obligations
of the Act is the obligation to compensate prevailing parents for expert fees. In other words, we must ask whether the
IDEA furnishes clear notice regarding the liability at issue in this case.”); Davis Next Friend LaShonda D. v. Monroe
County Bd. of Educ., 526 U.S. 629, 640 (1999) (“Because we have repeatedly treated Title IX as legislation enacted
pursuant to Congress’ authority under the Spending Clause . . . private damages actions are available only where
recipients of federal funding had adequate notice that they could be liable for the conduct at issue.”) (internal citations
omitted); Pennhurst, 451 U.S. at 25 (“In this case, Congress fell well short of providing clear notice to the States that
they, by accepting funds under the Act, would indeed be obligated to comply with § 6010.”).
203 See Sossamon v. Texas, 563 U.S. 277, 280, 284-86 (2011) (addressing whether states, by accepting federal funding,
had waived their sovereign immunity to suits for money damages under the Religious Land Use and Institutionalized
Persons Act of 2000; explaining that while a state “may choose to waive its immunity in federal court at its pleasure,”
concluding that the federal statutory text at issue “was not the unequivocal expression of state consent that our
precedents require”); Gruver v. Louisiana Board of Supervisors for Louisiana State Univ. Agricultural and Mechanical
College, 959 F.3d 178, 180-81 (5th Cir. 2020) (explaining that “a state may waive its immunity, and Congress can
induce a state to do so by making waiver a condition of accepting federal funds”).
204 Sossamon, 563 U.S. at 284 (“A State’s consent to suit must be ‘unequivocally expressed’ in the text of the relevant
statute.”) (citations omitted).
205 See 42 U.S.C. 2000d-7. See generally Lane v. Pena, 518 U.S. 187, 197-98 (1996) (explaining that 42 U.S.C. §
2000d-7 had been “enacted in response to our decision in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105
S.Ct. 3142, 87 L.Ed.2d 171 (1985), where we held that Congress had not unmistakably expressed its intent to abrogate
the States’ Eleventh Amendment immunity in the Rehabilitation Act,” and was intended to “provide the sort of
unequivocal waiver that our precedents demand”).
206 See Gruver, 959 F.3d at 181 and n.2 (“Every circuit to consider the question—and all but one regional circuit has—
agrees that section 2000d–7 validly conditions federal funds on a recipient’s waiver of its Eleventh Amendment
immunity”) (citing cases in footnote).
207 See generally Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 727 (2003) (“Congress may not abrogate
the States’ sovereign immunity pursuant to its Article I power over commerce.”). In certain circumstances, Congress
may abrogate state sovereign immunity pursuant to “a valid exercise of its power under § 5 of the Fourteenth
Amendment.” See id. at 726, 729-30 (pointing to Congress’s abrogation of “States’ sovereign immunity in Title VII of
the Civil Rights Act of 1964, 78 Stat. 255, 42 U.S.C. § 2000e–2(a)”).
208 See supra note 199. See also CRS Report R46827, Funding Conditions: Constitutional Limits on Congress’s
Spending Power, by Victoria L. Killion.
209 In recent years, for example, federal courts and federal agencies have addressed debated matters of interpretation
regarding Title IX’s statutory requirements as they relate to athletics programs in federally funded schools and sexual
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amending the statutes to clarify their operation and scope, including in response to Supreme
Court decisions construing these statutes. The Court, for example, has interpreted Section 601 of
Title VI to prohibit intentional discrimination only210 and to foreclose private suits to enforce Title
VI federal disparate impact regulations promulgated by DOJ and other agencies pursuant to
Section 602.211 In addition, the Supreme Court has repeatedly addressed which type of monetary
remedies are available for statutory violations in a private suit,212 holding that neither punitive213
nor emotional distress damages are available.214 Meanwhile, should there be legislative interest in
creating new civil rights requirements pursuant to Congress’s Spending authority, such newly
enacted prohibitions or requirements must also be stated in clear and unambiguous terms.
Potential Considerations When Enacting New Programs
In creating new programs or reauthorizing existing programs that distribute federal financial
assistance, several potential considerations may arise. First, while it is well-established that
grants, loans, or contracts distributed from a federal agency directly to a recipient constitute
“federal financial assistance” within the meaning of Title VI, Title IX, Section 504, and the Age
Discrimination Act,215 other types of federal assistance may raise questions regarding whether
that aid also constitutes the type of “federal financial assistance” that triggers the application of
those statutory requirements. To avoid these potential ambiguities, Congress could explicitly
designate whether the federal assistance provided under a particular federal program is or is not
“federal financial assistance.” Should Congress expressly designate assistance under a program as
not constituting “federal financial assistance,” that designation, among other things, would
operate to exempt recipients of that assistance from the four civil rights statutes discussed in this
report.
Questions can also arise regarding whether certain entities are “recipients,” particularly in cases
where the federal financial assistance flows from a federal agency to the intended recipient
indirectly.216 While courts have considered several factors to determine whether an entity is a
“recipient,”217 Congress may also clarify in statute which entities are or are not “recipients” under
a particular program.

harassment liability. See e.g., CRS Legal Sidebar, LSB 10726, Sexual Harassment and Assault at School: Divergence
Among Federal Courts Regarding Liability, by Jared. P. Cole; CRS Legal Sidebar, LSB 10531, Title IX’s Application
to Transgender Athletes: Recent Developments, by Jared P. Cole.
210 See Alexander v. Sandoval, 532 U.S. 275, 280 (2001) (stating that it is “beyond dispute that private individuals may
sue to enforce § 601” and “similarly beyond dispute—and no party disagrees—that § 601 prohibits only intentional
discrimination.”).
211 As noted earlier, the Court interpreted Title VI to foreclose a private right of action to enforce Title VI disparate
impact regulations in its 2001 decision Alexander v. Sandoval. See supra note 43.
212 See, e.g., Cummings, No. 20-219 (Apr. 28, 2022), slip op. 3-5 (discussing the Court’s precedent addressing the
availability of monetary damages for intentional violations of Title IX, and punitive damages under Title VI and
Section 504, in the absence of text in these statutes expressly identifying available remedies in a private right of action).
213 Barnes v. Gorman, 536 U.S. 181, 189 (2002) (holding that punitive damages may not be awarded in a private suit
under Title VI and Section 504).
214 The Court in Cummings recently reached the question of whether emotional distress damages are available in the
context of claims brought under Section 504, and Section 1557 of the Affordable Care Act, and held that such damages
“are not recoverable under the Spending Clause antidiscrimination statutes we consider here.” Cummings, No. 20-219
(Apr. 28, 2022), slip op. 16.
215 See supra “What Is Federal Financial Assistance?”
216 See Grove City Coll. v. Bell, 465 U.S. 555, 560–61, 563 (1984).
217 See supra “Who Is a Recipient of Federal Financial Assistance?”
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Author Information

Christine J. Back
Jared P. Cole
Legislative Attorney
Legislative Attorney

Disclaimer
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