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Ronald Reagan Presidential Library
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Collection: Roberts, John G.: Files
Folder Title: JGR/Testimony Approval
(05/17/1983-05/23/1983)
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THE WHITE HOUSE
WASHINGTON
May 17, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Testimony of Assistant Attorney General
Reynolds Before the House Subcommittees
on Post-Secondary Education and Civil
and Constitutional Rights
The above-referenced testimony is scheduled to be delivered
tomorrow, partly in response to a letter from the subcom-
mittees raising specific questions on civil rights enforce-
ment with respect to higher education. The testimony
reviews the enforcement authorities available to the Depart-
ment of Justice, including Title VI (race), Title IX (gender),
and section 504 (handicap). It discusses consent decrees
and negotiation efforts to correct the existence of predom-
inantly black and white institutions in the college systems
of Louisiana, Mississippi, and North Carolina, noting that
the Department relies on enhancing the quality of education
at predominantly black institutions and out-reach programs
at the white institutions, rather than admissions quotas.
In the gender area the testimony discusses the determination
not to appeal the University of Richmond V. Bell decision,
and the direction to the Department of Education (based on
the North Haven decision) that it may only investigate
specific programs receiving federal financial assistance.
In the handicap area the testimony notes that efforts to
revise 504 regulations for federally assisted programs have
been abandoned, but that the Department has sent federal
agencies prototype regulations for federally conducted
programs, and expects the different agencies to issue such
regulations soon.
The subjects covered by the testimony are always controversial,
but there is nothing new in this testimony. I see no legal
objections.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 OUTGOING
Robints
H - INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Dorrespondent: Jim Murr
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Testimony of William Bradford Reynolds
re: Department of justice Enforcement of
Civil Rights Laws with Respect to
institutions of Higher Learning May 18, 1983
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
*Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
WHOII
ORIGINATOR 83,05,17
/ 1
Referral Note:
WAT 18
A 8305117
583105117
Referral Note:
I
/
/ /
Referral Note:
/
/
/ /
-
Referral Note:
/
/
I 1
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
c Completed
C Comment/Recommendation
R Direct Reply w/Copy
B Special Referral
B Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
K Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE
Type of Response = Initials of Signer
Code = "M"
Completion Date = Date of Dutgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
U.S. Department of Justice
Assistant Attorney General
CUSTIME
Legislative Affairs
IF YOU HAVE ANY COMMENTS
CONTACT JIM MURR, 395-4870
OMB.
16
Department of Justice
DRAFT
TESTIMONY OF
WM. BRADFORD REYNOLDS
ASSISTANT ATTORNEY GENERAL
CIVIL RIGHTS DIVISION
before the
SUBCOMMITTEE ON POST-SECONDARY EDUCATION
COMMITTEE ON EDUCATION AND LABOR
and
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
on the
DEPARTMENT OF JUSTICE ENFORCEMENT OF
CIVIL RIGHTS LAWS WITH RESPECT TO
INSTITUTIONS OF HIGHER LEARNING
May 18, 1983
Mr. Chairman and Members of the Subcommittees, I welcome
the opportunity to discuss with you the efforts of this Admini-
stration to enforce civil rights statutes in the area of higher
education.
The Department of Justice has several responsibilities under
laws banning discrimination by institutions of higher learning.
The Department has independent litigating authority under two
statutes, Titles IV and VII of the 1964 Civil Rights Act, 42
U.S.C. 2000d and 2000e. Title IV authorizes the Attorney General
to bring suit, in certain instances, to remedy discrimination
based on race, color, religion, national origin or sex in public
educational institutions. The Department has used this statute
both to attack vestiges of racial discrimination which remain in
some higher education systems and to attack sex discrimination.
Title VII prohibits discrimination in employment based on race,
color, national origin or sex. The Department of Justice has
jurisdiction under Title VII over public employers, and has used
this jurisdiction to attack discriminatory employment practices
by institutions of higher learning. In addition, we have authority
under Title IX of the 1964 Civil Rights Act, 42 U.S.C. 2000h-2,
to intervene in cases presenting allegations of Equal Protection
Clause violations based on race, color, religion, sex, or national
origin, and have done so in two cases alleging sex discrimination
by colleges.
- 2 -
The Department also has important enforcement authority
tied to federal financial assistance. Title VI of the 1964 Civil
Rights Act, 42 U.S.C. 2000c, Title IX of the Education Amendment
of 1972, 20 U.S.C. 1681, and Section 504 of the Rehabilitation
Act of 1974, 29 U.S.C. 794, all prohibit various forms of discrim-
ination in federally assisted programs or activities. Funding
agencies enforce these statutes by negotiation, administrative
fund termination proceedings, and by referral to the Department
of Justice for commencement of a suit for injunctive relief.
While the agencies which extend federal assistance are pri-
marily responsible for insuring that the recipients of that
assistance honor the prohibitions of Titles VI and IX and Section
504, the Department of Justice also has an important role to
play. First, we represent the agencies in court challenges to
their enforcement of these statutes. Such challenges include
appeals from fund termination proceedings, injunctive suits by
recipients, and suits by other interested parties. Second,
Executive Order 12250 commissions us to coordinate all agencies'
efforts to enforce civil rights statutes tied to federal assis-
tance. Third, as mentioned above, we have authority to sue reci-
pients of federal funds when federal agencies refer cases to us.
As my testimony will indicate, the Department has done much
under these several statutes. We have attacked the vestiges of
racial discrimination which exist in the higher education systems
- 3 -
of several states. We have vigorously defended the Department of
Education's efforts to investigate sex discrimination in the
employment practices of several institutions of higher learning.
And, while it has been determined that the antidiscrimination
funding statutes do not give the Government the authority always
to address the entire range of practices of recipients of federal
assistance, they plainly do provide the Government with the
ability to reach and eliminate unlawful discrimination in all
federally assisted programs or activities. To that end, both
through litigation and our coordination efforts under E.O. 12250,
the Justice Department has been, and continues to be, a strong
ally in the Federal agencies' persistent efforts to remove discri-
mination from all funded programs.
Since the categories under which we have jurisdiction are
easily severable, I will discuss each separately, and will
address the specific questions you raised in your letter as I
address each subject.
1. Title VI. As you know, Title VI states:
No person in the United States shall, on
the basis of race, color, or national
origin, be excluded from participation in,
be denied the benefits of, or be subjected
to discrimination under any program or
activity receiving Federal financial assis-
tance.
The Department of Education administers most federal assis-
tance to colleges and universities, and SO our litigation in
this area depends primarily on actions of that agency.
- 4 -
When this Administration first took office, the Department
of Justice had Title VI litigation pending against the higher
education systems of two states, Louisiana and Mississippi. Both
had been referred to us by HEW some years ago. Each case alleged
that the states had established dual systems of higher education
by discriminatorily creating segregated colleges and maintaining
them as predominantly white and predominantly black institutions
even after Brown V. Board of Education. Since such systemic
discrimination in the admissions practices, as well as all other
phases of college administration, necessarily segregates students
on the basis of race in all federally funded campus activities,
elimination of discrimination in each federally assisted "program
or activity" requires systemwide relief.
In enforcing Title VI we seek to ensure quality desegregated
higher education. Our goals are twofold: First, to enhance
educational offerings at historically black institutions which have
suffered terribly from the discriminatory allocation of public
resources. Second, to attract both to traditionally black and
traditionally white institutions students of the other race. In
this endeavor, we envision enhanced education and desegregation as
laudable and complementary aims.
In September of 1981, we entered into a consent decree
settling the Louisiana higher education case. This decree, copies
of which I have previously provided the Committees, embodies the
- 5 -
goals just mentioned. For example, at Grambling State University
the decree provides for a new school of nursing; for joint degree
programs with the LSU Medical Center in the fields of physical
therapy, rehabilitation counseling, and medical technology; for
masters degree programs in public administration, teaching, social
work and criminal justice; and for an M.B.A. degree program in
cooperation with Louisiana Tech. Similarly wideranging curriculum
enhancements were required for the New Orleans and Baton Rouge
campuses of Southern University.
The decree also includes a faculty development program
designed to improve the quality of instruction at Grambling and
Southern. Improvements in existing facilities and the construction
of certain new facilities at those predominantly black institutions
is mandated under the decree as well. In order to ensure funding
adequate to meet the operating needs of Grambling and Southern,
the decree provides for a review of the state appropriations formula
and a special appropriation of $1 million to be used for the general
enhancement of those institutions.
Under the decree predominantly white institutions employ
a variety of techniques to increase other-race enrollments. Con-
siderable emphasis has been placed on programs designed to inform
students of available educational opportunities and to recruit other-
race students. Developmental or remedial educational programs have
been utilized to reduce black attrition rates. Cooperative efforts
- 6 -
between geographically proximate institutions is required,
including faculty and student exchanges and joint decree programs.
These and other measures that we have adopted help to ensure equal
access for all students, regardless of race, to a quality educational
institution of their own choosing.
We have declined, however, to impose racial quotas for
students or faculty. As in every field, the goal of nondiscrimi-
nation in higher education is paramount. Each individual has a
right under the Constitution to be judged on the basis of his or
her qualifications, background, skills and talents, and not
merely as a member of a particular racial group. Quotas are
fundamentally inconsistent with this principle, and, as a matter
of both law and policy, they deserve no place among the arsenal
of weapons used to fight the very evil they perpetuate.
We are presently negotiating with Mississippi officials
in an effort to settle that longstanding litigation. Last year
the Department of Education requested us to take enforcement
action under Title VI against the Alabama and Ohio systems of
public higher education. Pursuant to Congress' express policy
preferring voluntary compliance, we have been actively negotiating
with those systems in an effort to remedy constitutional violations.
Adams V. Bell, cited in your request, is a suit against
the Department of Education. The court's decision requires the
Department of Education to enforce Title VI by negotiating with
- 7 -
specified states -- including Kentucky and Virginia -- concerning
their higher education systems. The Department of Education
can better respond to inquiries about the status of these nego-
tiations.
Four attorneys from the Civil Division are assigned to
represent the Department of Education in the Adams litigation.
The number of attorneys the Civil Rights Division assigns to
Title VI higher education cases varies with the complexity of
the litigation or negotiations. While on occasion as many as
ten attorneys may work on a higher education case, routinely
about five attorneys are assigned to them.
Finally, your letter asks about the status of "the consent
decree [] in North Carolina (pursuant to P.E. Bazemore, et al. and
United States of America, et al. V. Friday). The Bazemore case is
not a higher education case. It addresses employment discrimination
by North Carolina's agricultural extension service. Officials of
the North Carolina State University were named only because the
agricultural extension service is tangentially connected to the
state's land grant college program. In any event, while the
district court ruled against the Government at the trial level, we
are presently pursuing an appeal in the United States Court of
Appeals for the Fourth Circuit.
The Department's litigation with the North Carolina higher
education system is styled North Carolina V. HEW. A few years
- 8 -
ago North Carolina sued HEW to enjoin administrative proceedings
the agency had initiated. Following extended negotiations, a
comprehensive settlement was reached between the state, its colleges
and universities and the Department of Education. While the Depart-
ment of Education is plainly better suited to discuss details of
that settlement with you, I should note in passing that the North
Carolina settlement served in many respects as the model for our
higher education settlement in Louisiana and contained a number of
the same features I described earlier in connection with the
Louisiana consent decree. You should also know that the North
Carolina federal district court approved the settlement involving
that State's higher education institutions. However, a separate
challenge filed by the NAACP Legal Defense Fund in the D.C. federal
courts -- which was unsuccessful in the district court -- is
presently pending in the United States Court of Appeals for the
D.C. Circuit.
2. Title IX. Title IX of the Education Amendments of 1972
states:
No person in the United States shall, on
the basis of sex, be excluded from parti-
cipation in, be denied the benefits of,
or be subjected to discrimination under
any education program or activity receiving
Federal financial assistance.
As with Title VI, our enforcement activity under this
provision is necessarily conducted in close cooperation with the
- 9 -
Department of Education. The principal issue we have addressed
is the legal one involving the question of the statute's coverage.
The first major effort of this Administration under Title IX
was the North Haven V. Bell case. Although the case did not deal
directly with higher education, it was a significant Title IX
case with direct impact on institutions of higher education. In
that case, we argued before the Supreme Court that Congress intended
to prohibit sex discrimination in employment in any federally
assisted education program or activity, whether or not the primary
purpose of funding was to aid in the employment of personnel
for the financially assisted program. The Court ruled along the
lines of our brief, thereby significantly enhancing Title IX as
a vehicle for addressing sex discrimination in employment in
institutions of higher education -- as well as other areas
affected by Title IX. In fact, prior to the decision in North
Haven, we had sought Supreme Court review of two higher education
cases in which courts enjoined federal administrative action
against Seattle University and the Junior College District of
St. Louis. After North Haven, the injunctions were lifted.
We have also broadly construed the types of assistance
which may subject a recipient to Title IX review. We recently
filed briefs with the Supreme Court in Grove City College V.
Bell, No. 82-792, and Hillsdale College V. Department of Educa-
tion, No. 82-1538. In both cases, the colleges contend that
- 10 -
because the only federal aid they receive is student aid, the
institutions are not "recipients" of federal aid and therefore
are not subject in any way to Title IX. We argued successfully
in the lower federal courts in both cases that the college's
receipt of federal student aid put the college in the position
of receiving a form of federal financial assistance within the
meaning of Title IX. Supreme Court review was sought and the
Court granted the college's petition for a writ of certiorari in
the Grove City case; briefs are due to be filed by the parties
this summer.
In addition to discussing the coverage of Title IX over
employment practices, the North Haven decision confirmed that
Title IX enforcement activities must be "program specific" -- that
is, they must address discrimination occurring in the specific
programs or activities receiving federal assistance. As a result
of that directive from the High Court, the Departments of Educa-
tion and Justice have worked together to bring the enforcement
efforts in this area in line with the program-specific requirement.
Department of Education's Assurance of Compliance regulation, for
example, no longer is construed as having application to an insti-
tution as a whole, but only to those federally assisted programs
at the institution. Moreover, as part of the Justice Department's
coordination role under the federal funding statutes, we are
independently analyzing Title VI and Section 504 coverage in
light of North Haven and the circuit court decisions both before
and after North Haven that have interpreted the statutes as
being program-specific.
- 11 -
In this regard, you have asked that I discuss University
of Richmond V. Bell. There, the University sued the Secretary
of Education to enjoin the Department from investigating allega-
tions that the University discriminated against women in its
intercollegiate athletic program. The government counterclaimed
that the University's failure to turn over requested information
violated Title IX and the University's own assurances of compliance
that it signed when it received federal assistance. The district
court enjoined the investigation, holding that no allegation had
been made, nor any evidence introduced, to indicate the University's
intercollegiate athletic program did in fact receive direct
federal financial assistance, and therefore the federal government
had no authority under Title IX to investigate the allegation of
sex discrimination.
Both the Justice Department and the Department of Education
carefully reviewed the district court decision and decided not
to appeal. As the court noted, the University received only
federal student aid and a federal library grant. Totally absent
from the case was proof, or even a suggestion, that the alleged
discrimination affected any specific programs which received
federal financial assistance. This deficiency, in our view,
made federal investigation in this case improper under the
standard established in North Haven requiring that federal en-
forcement of Title IX be program specific.
- 12 -
In this connection, it should be noted that Congress did
not, in enacting Title IX, give the Government unrestricted
authority to investigate sex discrimination in educational insti-
tutions generally. The plain language of the statute makes this
clear. A comparison of Section 901 and Section 904 shows that
the latter provision is institution-wide in scope, in contrast
to the program-specific nature of section 901. The Supreme
Court relied on this very comparison in its North Haven ruling.
Moreover, the legislative history of Title IX reveals that the
program-specific limitation was needed in the statute in order
to secure passage. The intent of Congress was that the Govern-
ment assure itself that the action it seeks to investigate under
Title IX occurs in a federally assisted program or activity
before the investigation is undertaken.
As you may know, after the Government decided not to
appeal the Richmond decision, Clarence Pendleton, Jr., Chairman
of the Civil Rights Commission, and I exchanged letters discussing
the case. In these letters I explained to Mr. Pendleton the
basis, in some detail, for the Government's decision not to
appeal the Richmond case. This determination was, of course,
based on the particulars of the litigation and the specific court
ruling. It in no way signalled a relaxation of our enforcement
commitment under the anti-discrimination statutes covering
federally assisted programs or activities. I have furnished to
the Committees my correspondence with Chairman Pendleton.
j
- 13 -
In addition, earlier this year, at the request of Secretary
Bell, the Civil Rights Division of the Department of Justice,
following discussions with the Secretary and members of his staff,
and an exchange of enforcement information, prepared a memorandum
discussing the impact of North Haven on the scope of an agency's
investigatory authority under Title VI, Title IX, and Section 504.
This memorandum undertakes to deal with the practical implications
of the "program specific" limitation in these statutes in some
detail. Rather than repeat the contents of the memorandum, I
have attached a copy to this testimony.
Another sex discrimination case which was pending when
we took office was United States V. Massachusetts Maritime Acadamy.
That case, in which we alleged that the school refused to admit
women as cadets, was filed under Title IV of the 1964 Civil Rights
Act, 42 U.S.C. 2000c-6. After we put on our case in the summer
of 1982, the court denied defendant's motion to dismiss the case.
The court recessed the trial, and has scheduled it to resume on
May 31.
3. Section 504. Section 504 states:
No otherwise qualified handicapped indi-
vidual in the United States as defined in
section 706(7) of this title, shall, solely
by reason of his handicap, be excluded from
the participation in, be denied the benefits
of, or be subjected to díscrimination under
any program or activity receiving Federal
financial assistance or under any program
or activity conducted by any Executive
agency or by the United States Postal
Service.
- 14 -
The issues presented in the enforcement of 504 are similar,
but not always identical, to those presented in a Title VI or
Title IX case. As the statute is drafted, additional questions
have frequently arisen regarding, for example, whether a handi-
capped person is "otherwise qualified" for a particular federally
assisted program or activity, or the extent to which the program
in question should undergo needed alteration in order to accommo-
date handicapped participants. Whenever such issues are presented,
the Government's responsibility is to see to it that handicapped
individuals are afforded the maximum benefit and consideration
required by law.
In this regard, our enforcement of Section 504 is necessarily
shaped in large measure by court decisions interpreting the statute.
The lead case is, of course, Southeastern Community College V.
Davis, involving the Supreme Court's only extensive discussion
of 504. That unanimous decision offers substantial and binding
guidance on the manner in which the statute should be enforced.
Since the case involved a post-secondary institution, its effect
on the enforcement of 504 in those institutions is apparent. More-
over, certain of the Court's language plainly has broader implica-
tions. Its characterization of Section 504 as a nondiscrimination,
not an "affirmative action", statute (442 U.S. at 411) clearly has
general applicability. So, too, does the Court's acknowledgement
that a recipient's obligation to accomodate handicapped interests
- 15 -
may well not demand program alterations of such magnitude that they
would result in an "undue financial and administrative hardship"
to the recipient (442 U.S. at 412).
It is, of course, one thing to state the general principle;
it is quite another to insure its proper application in different
factual settings. Our litigation effort has attempted to strike
the proper balance that is fully sensitive to the interest of the
handicapped complainants, on the one hand, and faithful to the
intended reach of the statute, on the other hand. To this end,
we argued in Nelson V. Thornburgh, that Section 504 required the
provision of a reader for a blind welfare case worker by the State
of Pennsylvania. In another case, Peck V. County of Alameda, we
supported reimbursement to a deaf juror of the costs of a sign
language interpreter used during the trial in which the juror
participated. And more recently, in Georgia Association of Retarded
Citizens V. McDaniel, we advised a federal appeals court that,
contrary to some lower court decisions, Davis did not require
invalidation of the Department of Education's Section 504 regu-
lations dealing with procedural safeguards available to handicapped
children receiving an elementary and secondary public education.
On another front, we also filed an amicus brief in the
Supreme Court in University of Texas V. Camenisch, No. 80-318,
giving implicit recognition to a private right of action under
Section 504. In addressing the issue in that case - whether
- 16 -
a deaf college student was entitled under 504 to an interpreter -
this Administration set out its view that complying with 504
may indeed require expenditures by the recipient of federal
assistance, and that interpreter's services are the type of
auxiliary needs which colleges covered by 504 could well, in
proper circumstances, be compelled to provide. The precise
"line drawing" that must take place under Section 504 in such
cases will invariably turn on the facts of particular cases, and
general pronouncements in this area are thus of little value.
We will continue to look primarily to the courts for guidance in
shaping Section 504 enforcement, participating where appropriate
in an effort to assist the judiciary in making these difficult
decision of statutory interpretation.
You also asked specifically about our coordination acti-
vities under Executive Order 12250. Those activities span the
spectrum of federal assistance statutes, including more than 50
code provisions in addition to Titles VI and IX and Section 504.
In light of this wide-ranging responsibility, our enforcement
plans plainly cannot be directed only at institutions of higher
learning, but must respond to civil rights offenses of whatever
kind or variety in all programs or activities receiving federal
financial assistance.
It is true that our regulatory review efforts have since
1981 concentrated most heavily on Section 504. During the past
18 months, we have approved 10 different agency regulations
- 17 -
addressing the requirements of 504 in federally assisted programs.
We also undertook an extensive study of the 504 coordination
regulations for federally assisted programs, at the conclusion
of which it was decided not to issue a notice of proposed rule-
making soliciting comments on proposed regulatory revisions, but
rather to leave in place the existing coordination regulations
and seek, where necessary, to obtain clarification through the
courts. At the same time, we have sent to all federal agencies
a prototype regulation for enforcing Section 504 in federally
conducted programs. We have previously provided the Committees
a copy of the prototype. Such guidance was desperately needed
since most agencies have yet to issue any regulations in this
area, despite the fact that the "federally conducted" amendment
to Section 504 was added in 1978. Our hope, and expectation, is
that, with the prototype regulation, most executive agencies
will be able to publish their own 504 NPRM for federal programs
in the very near future.
This canvass of our enforcement activities is obviously
not intended to be exhaustive. It is, however, representative
of the kinds of things we are doing under the several civil
rights statutes I have mentioned. As my testimony of a little
over one week ago before the Subcommittee on Civil and Constitu-
tional Rights substantiated, our record is an impressive one of
which we can be proud. It demonstrates an unflagging commitment
- 18 -
to ferret out and eliminate unlawful discrimination in all of
its ugly forms, wherever it might be found. That is the battle
for all of us to fight -- together, not separately -- if we are
to prevail.
Thank you. I will be happy to answer any questions.
U.S. Department of Justice
Civil Rights Division
Office or the Assistent Attorney General
Birchington, D.C. 20530
March 15, 1983
The Honorable T.M. Bell
Secretary of Education
U.S. Department of Education
400 Maryland Avenue, S.W.
Washington, D. C. 20202
Dear Mr. Secretary:
Enclosed is the Memorandum we discussed concerning
investigatory activities of the Department of Education under
Title VI of the Civil Rights Act of 1964 (42 U.S.C. s 2000d),
Title IX of the Education Amendments of 1972 (20 U.S.C.
s 1681) and Section 504 of the Behabilitation Act of 1973
(29 U.S.C. 5 794). I would be pleased to discuss this matter
with you further if you have additional questions following
review of the enclosure.
Sincerely,
We Bradford Reynolds
Assistant Attorney General
Civil Rights Division
CC: Daniel Oliver
Harry Singleton
U.S. Department of Justice
Civil Rights Division
Office of the Amistant Attorney General
Washington, D.C. 20530
March 15, 1983
MEMORANDUM
The civil rights statutes, Title VI (42 U.S.C. 2000d),
Title IX (20 U.S.C. 1681), and Section 504 (29 U.S.C. 794),
provide the Department of Education (hereinafter the "Department")
with authority to regulate and investigate recipients of
financial aid from the Department on a program-specific
basis. Based on the Department's descriptions of its financial
assistance programs, it appears that the Department's funding
statutes fall into three broad categories: (1) assistance
to a specific program of a recipient, as determined by the
statute's particularized purpose(s) and the use of the Federal
financial assistance by the recipient; (2) general assistance
to recipients; and (3) assistance for the construction of
facilities. The purpose of this memorandum is to explore
programmatic enforcement procedures within each of these
categories.
Investigatory Responsibilities
The obvious starting point in the Department's
investigatory process is with receipt of an allegation of
discrimination, or upon submission of evidence giving rise to
a reasonable belief that discrimination is occurring at an
institution. In the normal course, it is presumed that the
Department can ascertain from its own funding records whether
financial assistance is being provided to the purportedly
offending institution, and, if so, under what funding program
or programs. The enforcement experience of the Civil Rights
Division under the various Federal assistance statutes confirms
that this basic record information is readily available in
most instances and easily ascertainable.
If the challenged institution is not one receiving
Federal financial assistance under a Department program, the
alleged discriminatory behavior cannot be investigated by the
Department's Office of Civil Rights (OCR). This conclusion
does not foreclose a private action by the complainant, nor
does it immunize the institution from possible investigation
by another Federal agency (e.g., Office of Revenue Sharing)
if that agency is providing financial assistance.
- 2 -
Assuming Department funding under one or more of its
financial assistance programs, OCR's investigatory authority
is shaped by the nature, purpose and use of the particular
kind of assistance provided to the recipient. It is in this
connection that the several categories of funding statutes
become important.
A. Specific Assistance Programs. A recipient receiving
Federal financial assistance under specific, particularized
assistance programs of the Department may, under the above
civil rights statutes, only be regulated and investigated in
those programs.
Examples of the proper approach to enforcement of
civil rights protections under these statutes include: a
recipient which receives only adult education assistance (20
U.S.C. 1203) may only be regulated and investigated in the
operation of its adult education program; a recipient which
receives assistance only for its library (e.g. under the
College library resources program (20 U.S.C. 1022-24) or the
public library services program (20 U.S.C. 352054)) may only
be regulated and investigated in the operation of its library; a
recipient which receives assistance for its bilingual vocational
education program (20 U.S.C. 2411-21) may only be regulated
and investigated in the operation of its bilingual vocational
education program; a recipient which receives only work study
funds (42 U.S.C. 2753) or Pell grant funds (20 U.S.C. 1070a)
may only be regulated and investigated in its student financial
aid activities. 2/
17 A recipient receiving Federal financial assistance under
more than one program administered by the Department may be
regulated and investigated in all such programs.
2/ For a listing of additional specific assistance statutes,
see Appendix A, infra.
- 3 -
A small number of the specific assistance statutes
administered by the Department, while not constituting a
general grant in aid to the recipient, do encompass multiple
programs or activities of the recipient. In such case, the
recipient's application should delineate the specific programs
for which Department assistance is being requested, and a
presumption thus attaches that all programs so identified
in the application do indeed receive federal aid. Unless
the Department has independent knowledge that only certain
of these programs are receiving Departmental assistance, or
a showing is made by the recipient that a listed program is
nonfunded -- which would in either event rebut the presumption --
the Department may regulate and investigate all such programs.
B. General Aid Programs. When the Federal financial
assistance that the Department provides is in the form of a
general grant or general aid that is not earmarked for
particularized programs, all the programs and activities of
the recipient fulfilling the broad purposes of the assistance
statute are presumed to be covered by the applicable civil
rights laws. In order for a recipient in such circumstances
to avoid Department investigation of any of its programs,
evidence sufficient to rebut the presumption as to that
particular program (s) must be forthcoming. Once the Department
is satisfied that the identified program(s) does not in fact
receive any of the Federal financial assistance going to the
recipient in the form of general aid, further investigation
in that area is foreclosed as being outside the coverage of
the civil rights statutes.
3/ An example of a multiple program assistance statute
Is 20 U.S.C. 3231, which provides for bilingual education
assistance to a school district that may be used for, inter
alia, elementary and secondary bilingual education programs,
adult bilingual education programs, and preschool bilingual
education programs, and requires the recipient to list the
activities for which it wishes to receive assistance. If a
school district lists in its application only elementary and
secondary bilingual education programs, the presumption is
that they alone receive Federal funds and are subject to
Department scrutiny. If, on the other hand, the adult and
preschool bilingual education programs are listed on the
application as well, then all the listed programs are presumed
to be within the coverage of the civil rights statutes,
subject to rebuttal only to the extent it can be shown that
those programs are in fact not receiving federal funds.
- 4 -
For example, if the Department determines that a local
educational agency receives impact aid funds (20 U.S.C. 236-
44), the Department may presume that all of the elementary
and secondary programs and activities of the school district
receive Federal financial assistance. 4/ Therefore, it may
regulate and investigate all such programs and activities
except to the extent that the recipient demonstrates some of
its programs do not receive such funds. A similar analysis
obtains for recipients of Federal financial assistance for
developing institutions (20 U.S.C. 1051, see 20 U.S.C. 1052(a) (1) (D)).
The Department may assert jurisdiction over all academic,
administrative, and student service activities of such a
recipient under the same rebuttable presumption mentioned
above. 5/
C. Construction Programs. The Department also provides
construction funds to institutions to assist in the building
or renovating of school facilities. In such circumstances,
the civil rights Federal funding laws permit the Department
to reach discrimination in all of the programs and activities
conducted within the wholly or partially funded buildings,
whether they were built for athletics or philosophy. The
Department administers a number of such construction assistance
statutes including those under the federal impact aid program
(20 U.S.C. 631; id. 646); Higher Education Act (20 U.S.C.
1132c); and Library Services and Construction Act (20 US.C.
355a).
CONCLUSION
Congress undertook through Title VI of the Civil Rights
Act of 1964, Title IX of the Education Amendments of 1972,
and Section 504 of the Rehabilitation Act of 1973 to reach
discrimination based on race, sex and handicap, respectively,
4/ Other programs conducted by the local educational agency
beyond the scope of the broad purposes of the impact aid
statute would not be covered.
It should also be noted that Congress did not intend that
the termination of Federal financial assistance under general
aid programs be wholesale in nature. Only the portion of the
general federal aid used in the part of the recipient's programs
where discrimination has occurred may be cut-off. This may
involve a pro-rata termination of Federal financial assistance
if the precise amount of Federal financial assistance involved
cannot be determined.
5/ For a listing of other general assistance statutes, see
Appendix B, infra.
- 5 -
in any program or activity receiving Federal financial
assistance. The Supreme Court held in North Haven Board of
Education V. Bell, 50 U.S.L.W. 4501, 4507 (1982), that the program-
specific nature of those crosscutting discrimination statutes
must be faithfully observed in their implementation and
enforcement.
Thus, where, as the court held in University of Richmond V.
Bell, 543 F. Supp. 321 (E.D. Va., 1982), the desired
investigation involves a program (i.e., athletics) other than
the one (i.e., student financial aid) receiving Federal funds
under a specific assistance statute (i.e., Pell Grants), the
Department cannot conduct such an investigation without first
establishing that the challenged program (i.e., athletics)
receives Federal funding. It is only when the institution
receives a general Federal grant that the Department can
indulge the presumption of comprehensive programmatic coverage
for investigatory purposes, subject of course to rebuttal by
the recipient as to any program not actually receiving Federal
assistance.
One important caveat needs to be added. In the educational
arena, particularly, discrimination in an institution's
admissions' policy necessarily infects all programs and
activities of the college or university. In view of this
reality, claims of discrimination in the student admissions
area, if reasonably grounded, provide adequate basis for the
Department to investigate the admissions program even when it
is not funded, so long as any of the institution's other
programs or activities receives Federal financial assistance.
6/ TO similar effect are: Dougherty County School System V. Bell,
No. 78-3384 (11th Cir., Dec. 20, 1982); Hillsdale College V.
HEW, No. 80-3207 (6th Cir., Dec. 16, 1982); Rice V. President
and Fellows of Harvard College, 663 F.2d 336 (1st Cir., 1981);
Brown V. Sibley, 650 F.2d 760 (5th Cir., 1981); Board of
Public Instruction of Taylor County V. Finch, 414 F.2d 1068
(5th Cir., 1969); Othen V. Ann Arbor School Board, 507 F. Supp.
1376, 1383 (E.D. Mich. 1981), aff'd on other grounds, No. 81-1259
(6th Cir., Feb. 2, 1983); Mandel V. HEW, 411 F. Supp. 542
(D. Md. 1976), aff'd en banc by an equally divided court, 511
F.2d 1273 (4th Cir.), cert. denied. 439 U.S. 862 (1978).
- 6 -
We would not expect this analysis to occasion much
change in the Department's current investigation practices.
TO the extent it becomes necessary to better tailor future
investigatory efforts to discrete funded programs -- rather
than launching a broad-based inquiry of the institution as a
whole -- that is a statutory mandate recognized by the U.S.
Supreme Court, and we can hardly afford to ignore it.
the Bradford Repnolds
Assistant Attorney General
Civil Rights Division
- 7 -
APPENDIX A
Other specific assistance statutes administered by the
Department of Education include: grants for the disadvantaged
including those going to local educational agencies (20
U.S.C. 2711; id. 3803(a) (1) (A)), state agency program for
migrants 20 U.S.C. 3803 (a) (2) (A)), handicapped (20 U.S.C.
3803(a) (2) (B) neglected and delinquent (20 U.S.C. 3803(a) (2)(C)),
state administration (20 U.S.C. 2844), evaluation and studies
(20 U.S.C. 1226b); migrant education (20 U.S.C. 2561); state
grants pursuant to 20 U.S.C. 3811 et seq., Secretary's discretionary
fund (20 U.S.C. 3851), inexpensive book distribution (20
U.S.C. 3851 (b) (1) arts in education (20 U.S.C. 3851 (b) (2)
alcohol and drug abuse education (20 U.S.C. 3851(b)(3)),
law-related education (20 U.S.C. 3001-03), discretionary
projects (20 U.S.C. 3851(a)); training and advisory services
(42 U.S.C. 2000c-3), Follow Through (Part B, Headstart Follow-
Through Act), Ellender Fellowships; women's educational
equity programs (20 U.S.C. 3341-48), bilingual education training
grants (20 U.S.C. 3261), bilingual desegregation grants (20
U.S.C. 3261); individual Indian education programs (20 U.S.C.
24laa; id. 3385; id. 1211a), individual education for the handi-
capped programs (20 U.S.C. 1411; id. 1419; id. 1422; id. 1421;
id. 1424; id. 1423; id. 1424a; id. 1451-52; id. 1433; id. 631;
id. 632; id. 634; id. 1431; id. 1432; id. 1434; id. 1418);
individual rehabilitation services and handicapped research
programs (29 U.S.C. 720 (b) (1); id. 730; id. 770; id. 780; id.
796; id. 711(c); id. 774; id. 776); individual vocational and
adult education programs (20 U.S.C. 2330-34; id. 2350-56; id.
2303, id. at 2401-02; id. 2370; id. at 2380; id. at 2305; id.
2302(d); id. 11; id. 1203), individual student financial assistance
programs (20 U.S.C. 1070b) id. 1987aa; id. 1070c); individual
higher and continuing education programs (20 U.S.C. 1070d; id.
1070el; id. 20 U.S.C. 1221e-1(b) (2); id. 20 U.S.C. 1133; id.
1121; id. 1130; id. 1134d; id. 1134; id. 1134L; id. 1134n; id.
1135a-3); libraries and learning resources (20 U.S.C. 355e;
id. 1022-24; id. 1031-34; id. 1041-46).
- 8 -
APPENDIX B
Other general aid programs include certain assistance
to new community colleges under the Fund for the Improvement
of Postsecondary Education program (20 U.S.C. 1135a-2) and
aid to land grant colleges (7 U.S.C. 321-2a).
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
May 20, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Statement on Implementation of the
Federal Strategy for Prevention of
Drug Abuse and Drug Trafficking - 1982
The Department of Justice has submitted the above-referenced
testimony, which is to be delivered by DEA Acting Administra-
tor Francis Mullen on May 24 before the House Select Committee
on Narcotics Abuse and Control. The somewhat laborious
statement begins with an overview of the drug trafficking
and abuse situation, discussing heroin, cocaine, ampheta-
mines, methaqualone, and marihuana. The next portion of the
testimony reviews the involvement of organized crime -- both
traditional (Mafia) and non-traditional (motorcycle gangs,
prison gangs, South American syndicates) -- in narcotics
trafficking. The remainder of the testimony surveys DEA
efforts to combat the problem, focusing on international
control efforts (eradicating drugs in source countries such
as Pakistan and Thailand) as well as domestic law
enforcement. In the latter category Mullen discusses the
new FBI/DEA arrangement, the Vice President's South Florida
Task Force, the new Organized Crime Drug Enforcement Task
Force Program, and the new National Narcotics Border
Interdiction System.
I see no legal objections. There is nothing new in this
testimony. Mullen notes at several points that international
eradication efforts are only a long-term proposition, and
that domestic law enforcement must be the primary focus.
This simply reflects the well-known tension between DEA and
Dom DiCarlo's Bureau of International Narcotics Matters at
the State Department. There is no need for us to comment.
U.S. Department of Justice
Assistant Attorney General
Legislative Affairs
IF YOU HAVE ANY COMMENTS PLEASE
CONTACT GREG JONES, OMB, AT
395-3802.
ID #
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Subject: Statement on Implimentation of the Federal
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5/81
DRAFT
Statement
of
Francis M. Mullen, Jr.
Acting Administrator
Drug Enforcement Administration
U. S. Department of Justice
on
Implementation
of the Federal Strategy
for Prevention of Drug Abuse
and Drug Trafficking - 1982
Before the
Select Committee on
Narcotics Abuse and Control
U. S. House of Representatives
Charles B. Rangel, Chairman
May 24, 1983
DRAFT
Chairman Rangel and distinguished members of the Select
Committee:
I am pleased to have the opportunity to appear before this
Committee today to discuss the Drug Enforcement Administration's
role in the implementation of the 1982 Federal Strategy for
Prevention of Drug Abuse and Drug Trafficking.
Mr. Chairman, I know that you and the other members of the
Committee join me in being encouraged by recent evidence that
certain elements of drug abuse in the U. S. have abated somewhat:
marihuana use among teenagers appears to be down slightly, the
sharp increase in PCP abuse experienced during the past decade is
tapering off, and we have seen a significant reduction in abuse of
methaqualone in the past year. However, Our optimism over these
specific positive trends, must be tempered by the hard realization
that the seriousness of the drug abuse problem overall remains with
us.
National trends project that major drugs of abuse will continue
to be abundant at least through 1985, and our drug abuse problems
will remain as long as there is a world glut in narcotics and
dangerous drugs.
-1-
Drug trafficking is the most serious crime problem confront-
ing America today. It is inextricably tied to organized crime,
which seeks to exploit the more vulnerable in our population
through patterns of violence, public corruption, and illegal
profiteering that combine to threaten each person and
institution in our society. It is a particularly difficult
problem because these organizations are secretive, self-
perpetuating criminal enterprises whose vast financial
resources and involvement in a myriad of business
activities -- both legitimate and illegitimate -- make
them less susceptible to penetration by law enforcement.
The goal of DEA is to stabilize and then minimize the drug
problem by vigorous law enforcement actions designed to
disrupt criminal drug trafficking organizations. Through
the apprehension, conviction, and punishment of drug
traffickers, through the removal of their drugs from the
illegal market, and through assuring the certain loss
of their accumulated profits and proceeds, DEA seeks to
immobilize this world-wide criminal enterprise. In
combination with strong drug abuse prevention and
education efforts and a committed international narcotics
control program, drug law enforcement can have a significant
impact on reducing drug abuse and the crime, violence, and
corruption associated with it.
-2-
It is in pursuit of this goal that the 1982 Federal Strategy
and the activities of DEA are directed. Before detailing the
specific programs and efforts DEA has undertaken, I would
like to provide the Committee with an overview of the current
drug trafficking situation.
ASSESMENT OF THE DRUG TRAFFICKING SITUATION
HEROIN
The increase in heroin availability and abuse in the United
States is largely attributable to the growing availability of
Southeast Asian heroin. On the west coast, it has a 10
percent share of the national market. An influx of
higher-purity Mexican heroin which provides about 36 percent
of theheroin in the United States. Mexico continues to
provide the majority of the heroid in the midwest and west.
Southwest Asian heroin continues to account for more than
half of the United States heroin supply, and tends to be
dominant in the eastern part of the country.
Iran, Afghanistan, and Pakistan are the major producers
of opium in Southwest Asia, with the majority originating
in Pakistan and moving overland through Europe to the
United States. Southeast Asian heroin from the Golden
Triangle (Burma, Thailand, and Laos) enters the United States
primarily on a direct route from Thailand to the western
states. Mexican heroin continues to enter the United States
overland.
-3-
Heroin will remain available for the forseeable future
because of extensive opium cultivation and expanding
heroin conversion capabilities. Southwest Asian producers
have ample opium stockpiles that assure a sustained
supply. The prospect for effective suppression in Iran
and Afghanistan are not good because of their critical
domestic problems. Record opium harvests in the Golden
Triangle of Southeast Asia may motivate traffickers in
that area to accelerate their activities. Finally, Mexico's
current economic distress may tend to induce more people
to assume greater risks in cultivating opium and smuggling
heroin across the U. S. border, working in opposition to
the Mexican government's opium eradication efforts.
COCAINE
Colombia is the principal processor of cocaine hydrochloride
in South America, and provides the majority of the cocaine
sold in the U. S.. Bolivia and Peru are the most important
sources of coca leaf. Colombian cocaine reaches the U. S.
by a variety of means, most notably vessel and private aircraft
entering Florida.
Cocaine availability and abuse are expected to continue
in the U. S. is because of several factors: the high
profit margin realized by drug traffickers, the presence
of highly organized Colombian trafficking networks using
sophisticated smuggling techniques, the broad geographic
-4-
and sociological appeal of cocaine in this country,
sophistication in smuggling techniques, and the fact that
coca cultivation is expanding. The health cpnsequences
of cocaine abuse are expected to become more and more
severe as alternative dangerous means of administer-
ing the drug, such as "freebasing" and "speedballing", become
more popular. Enforcement efforts in South Florida may be
expected to continue to influence the use of alternative
trafficking routes.
AMPHETAMINE
The primary source of illicit methamphetamine in this country
remains domestic clandestine laboratories, augmented by some
smuggling from Mexico. Our intelligence indicates heavy
trafficking of methamphetamine by West Coast motorcycle groups,
both in the west and in other parts of the United States. In
addition, various motorcycle gangs control virtually all illicit
manufacture and distribution in Texas, where one-third of the
clandestine laboratory seizures were made in 1982. Most of
these Texas gangs maintain links in other states and in Canada.
METHAQUALONE
Vigorous diplomatic efforts aimed at curtailing the diversion
of bulk methaqualone from legitimate international commerce have
caused a reduction in methaqualone availability and abuse in
the United States. In addition, enforcement activities have
resulted in numerous major seizures of the drug, arrests of
-5-
high-level traffickers, and several clandestine
laboratory seizures.
The primary source of counterfeit Quaalude tablets is
clandestine tableting operations located in South America,
which utilize bulk powder diverted from a variety of sources
worldwide. Diversion from domestic sources -- including
"stress clinics" and other means of prescription fraud --
account for a much smaller but significant portion of the
illicit supply. Methaqualone is trafficked primarily from
Colombia to Florida, where smuggling of the drug is frequently
carried out by cocaine and marihuana trafficking organizations.
International cooperative efforts should continue to restrict
the supply of bulk methaqualone to the illicit market in the
United States. As the supply of methaqualone declines, however.
trafficking in counterfeit methaqualone, containing dangerous
amounts of diazepam (Valium) and other substances, will continue
to increase. The People's Republic of China, which has recently
been a major source of bulk methaqualone powder, has agreed to
place restrictions on the export, sale, and distribution of
methaqualone powder, further limiting traffickers' access to
the raw material.
OTHER DANGEROUS DRUGS
The abuse of non-amphetamine stimulants such as Preludin and
Ritalin, and anorectic drugs such as phendimetrazine is
-6-
increasing gradually. These substances reach the illicit
market primarily through prescription fraud, theft, and
other forms of diversion. There is some evidence
that certain stimulants are being smuggled into the
United States from Canada. There is also evidence
that pheny1-2-proponal (P2P), a methamphetamine precursor
in Schedule II of the Controlled Substances Act, is being
smuggled from Canada by motorcycle gang trafficking groups.
Abuse of barbiturates and diazepam is declining. For the
most part, abused barbiturates are legitimately manufactured or
smuggled into the United States; there is little clandestine
manufacturing. The decline in barbiturate use in recent years is
most likely a consequence of rescheduling, public awareness of the
dangers of barbiturate use, and the availability of other
depressants, such as methaqualone and diazepam. Although diazepam,
a non-barbiturate sedative, has consistently had the most frequent
incidence of reported abuse, in 50 percent of abuse episodes the
source for the diazepam was legal prescriptions. The balance of
abuse episodes was accounted for by diversion from licit channels,
an activity that is expected to continue because the relatively
low price of diazepam tablets.
During the last three years, the widespread use of pharmaceutical
narcotic substitutes for heroin has become common among heroin
users and addicts in some cities. The combination of Talwin,
-7-
n analgesic, and pyribenzamine, an antihistamine under
he street name "T's and Blues", appears to be supplanting
heroin in some cities. Through a cooperative effort involving
the manufacturer of Talwin, the Food and Drug Administration
and the DEA, a new Talwin formulation has been introduced
into the market to replace the current product. This new
formulation may prove to be less susceptible to abuse than
the earlier form. Additionally, during the past year a
codeine and glutethimide combination has been reported
under the street name "Fours and Doors". Dilaudid abuse
in the United States has increased substantially in the
last two years.
During the past several years, the wholesale vending of
"look-alike" drugs has become a major drug abuse problem.
Look-alikes are tablets or capsules that are manufactured
to resemble controlled substances, but that contain non-
controlled over-the-counter drugs. The user who consistently
ingests five or six of these pills is exposed to great
danger when he inadvertently does the same thing with real
controlled drugs such as amphetamine. In addition, incidents
of overdosing on look-alikes have been reported.
MARIHUANA
Despite a continuation of the decline in popularity among
high school students, marihuana abuse and availability
-8-
continue to be widespread nationally.
Colombia continues to be the major cultivator and exporter
of marihuana to the United States, and despite high levels
of enforcement pressure, the Caribbean area, is expected
to continue to supply about one-half of the marihuana
consumed in the United States. Marihuana is smuggled in
multi-ton shipments by vessel and by private and general
aviation aircraft.
Colombian marihuana smuggling is highly organized. A few
large multi-drug organizations operating in the northern
coastal cities of the country arrange and supervise most of
the smuggling operations. These organizations deal easily
in multi-ton quantities and often work together to arrange
large deliveries to the United States, where their U. S.
members control off-loading and distribution.
Following Colombia, Mexico and Jamaica are the major exporters
of marihuana to the U. S. Due to the success of the Mexican
Government's vigorous eradication campaign, which has been in
effect since 1976, Mexico's share of the overall U. S. marihuana
market has declined steadily in the past several years. By
contrast, Jamaica is becoming a more important source country.
DOMESTIC MARIHUANA PRODUCTION
Drug law enforcement in the United States is facing a new
challenge: the burgeoning cultivation of high-potency cannabis
-9-
r own borders.
ed crop control and enforcement efforts aimed at
arihuana took hold, U. S. users began to look for
rces. This situation has led to cannabis cultivation
ercial purposes in almost every state. Sinsemilla
1, a potent and expensive variety first developed in
nd California, is now being grown in other states and
able around the country.
d local authorities reported to DEA that they
d in excess of 2.5 million cannabis plants during
season. Based on accepted estimates for domestic
a production in 1981, it appears that more cannabis
licated in 1982 than was previously believed to exist.
tion in the United States appears to be generally
ized and diverse; growers range from former moon-
to unemployed lumberjacks, from legitimate farmers
individual user growing his own supply. Generally,
produce and sell independently. Certain outlaw
cle gangs are involved in the domestic marihuana
but at this time we have not seen a single group
rol of a significant part of this market. There have
cidents of violence associated with domestic production
growers and thieves, between growers and law enforce-
ficers, and against innocent citizens.
-10-
ORGANIZED CRIME
Worldwide drug trafficking enterprises have become in-
creasingly organized and sophisticated. Organized crime --
motivated by greed and fed by enormous profits -- has found
in the illicit drug trade a vehicle for perpetuating and
enhancing its wide range of lucrative criminal activities.
DEA records indicate that during Fiscal Year 1982, 1,337
Class I violators were arrested. This classification
represents individuals occupying positions in the drug
distribution hierarchy at the very highest levels,
including heads of criminal organizations and financiers.
This is still a small percentage of the leading figures
behind the billions of dollars in retail drug sales in
the United States each year. Drug trafficking and the
myriad of other crimes associated with it have a
devastating effect on our society and economy.
Organized criminal groups are involved across the whole drug
trafficking spectrum. They obtain illicit substances overseas,
arrange for importation into the United States, and establish
elaborate enterprises for cutting the imported drugs and
distributing them throughout the country. Drug money is
laundered through seemingly legitimate businesses specifically
-11-
set up as "fronts" for drug dealers. Profits are
reinvested in the drug business much like a legitimate
corporate enterprise. Profits from drug trafficking
are also being invested in legitimate businesses.
In the United States, there are numerous complex criminal
organizations associated with each other in what is variously
known as the Mafia, Syndicate, or La Cosa Nostra. These
organized crime "families" are bound together by blood,
tradition, and philosophy. The popular notion that these
traditional organized crime families are not involved in
the drug traffic is not true. Many traditional organized
crime groups are involved in drug trafficking in one way or
another, and many operate extensive, sophisticated, and
powerful drug trafficking networks.
The problem of organized crime today is not limited to
traditional organized crime. In the past twenty years,
we have witnessed the emergence of new organized criminal
enterprises dealing not only in drugs, but also in other
criminal activities traditionally controlled by the
"Syndicate".
Over the past decade, hundreds of chapters of outlaw motor-
cycle gangs have developed around the United States and in
foreign countries. Prison gangs, first established as a
-12-
result of associations developed in the California
prison system, today operate both inside and out-
side prison, and are spreading across the country.
Other emergenging organizations, such as Southeast
Asian groups, the violent Colombian groups known as
"Cocaine Cowboys", the "Dixie Mafia", and other drug
cartels derive their primary source of revenue from
drug trafficking.
The involvement of organized crime with the illegal
drug trade is only part of the problem. Organized
groups of criminals assault and murder, not only each
other, but innocent bystanders as well. Public
officials at all levels are being corrupted by drug
money. We have reports of rural sheriffs and police
officers accepting payments of $50,000 or more merely
to "look the other way" while traffickers make a
single landing at a makeshift airstrip. Clearly,
the violence and corruption attending the illicit
drug business threaten the very foundations of our
system of law and order.
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UNITED STATES GOVERNMENT STRATEGY
On October 4, President Reagan released the 1982 Federal
Strategy for the Prevention of Drug Abuse and Drug Trafficking.
The Strategy sets the tone and direction for the United States
Government's overall effort to reduce drug abuse during the
coming years. DEA is involved in the drug law enforcement and
international aspects of this Federal response, which is also
directed at education and prevention, treatment and research.
INTERNATIONAL NARCOTICS CONTROL
In the international forum, the United States Government is
developing and implementing a long-range, organized effort
to work with drug source nations to eliminate illicit drug
production and to interdict drugs in transit. Some specific
initiatives of this aspect of the Strategy include:
o Encouraging and assisting other countries to
develop programs to eradicate illicit drugs
grown or produced within their borders, and
to address their internal drug problems;
O
Exploring with other governments ways to
monitor and to impede the substantial cash
generated by illicit drug transactions; and
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o Participating in international drug
control and enforcement organizations
to gain greater cooperation among
all nations in which illicit drugs
are produced, transmitted, and/or
consumed.
At the core of DEA's international activities is support for
source country efforts to interdict drugs before they enter
international commerce. This strategy has a substantial impact
on the drug traffic because the quantities of drugs seized at
the source are much larger and purer than those seized on the
streets of United States cities. Toward meeting this objective,
DEA provides technical assistance through training and exchanges
of intelligence in cooperative investigations. DEA personnel
stationed overseas also work with the State Department and our
diplomatic missions in support of host country efforts to
eliminate cultivation, production, and conversion of drugs.
DEA has assigned approximately 275 individuals to 62 offices
in 41 countries through the world. Our country attaches,
agents, intelligence analysts, and support personnel oversee,
encourage, advise, and assist host countries in the develop-
ment and implementation of effective measures to control
licit drug crops, reduce illicit cultivation and conversion,
and interdict illicit drug shipments at staging areas
in-country and along trafficking routes. As a result
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outstanding cooperation between DEA and our host country counter-
parts, there have been significant advances in coordinated
operations with some source and transit countries. This
progressive approach to cooperative international narcotics
control has given the United States enhanced operational
capabilities, and has been invaluable in the investigation of
major drug trafficking organizations.
Mr. Chairman, although DEA's first priority in the fight against
drug abuse is vigorous law enforcement action, we are firm in
our commitment to the United States' international programs, and
we are proud of our contributions to the international drug
control effort. If you will permit me, I would like to give you
and the other members of the Committee a few recent examples of
how DEA's international role has assisted in this effort.
of the three opium producing countries in Southwest Asia,
Pakistan is the only country in which DEA maintains a
presence. It is also the only country in the region to
remain largely unaffected by changes in government during
the past four years. DEA enjoys a good relationship with
the Pakistan Narcotics Control Board (PNCB) and has assisted
the PNCB in the identification of trafficking organizations
and the location of heroin processing laboratories.
Unfortunately, the tribal area of the Northwest Frontier
Provinces (NWFP) of Pakistan, the principal opium growing
area of the country, is an area over which the Government of
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Pakistan has difficulty exerting influence, and in which
narcotics traffickers freely smuggle opium and convert it
to heroin. The Government of Pakistan must be extremely
cautious in taking any measures that could upset the delicate
relationship it maintains with the Pathan tribes of the NWFP.
The Soviet presence in Afghanistan has heightened this
sensitivity, making it even more difficult for the Government
of Pakistan to take steps that might antagonize these fiercely
independent tribes. Despite these difficulties, DEA is working
vigorously with law enforcement counterparts to eliminate
heroin laboratories in this area.
DEA is providing the PNCB with intelligence that has led and
will continue to lead to major seizures and the identification
and immobilization of heroin conversion laboratories and the
major trafficking organizations that operate them. Since
1980, we have assisted the PNCB and Pakistan Customs in
providing basic and advanced narcotics enforcement training
to more than 750 Pakistan enforcement officials.
The consequences of increased supplies of Southwest Asian
heroin are being experienced in several Western European
nations as well as the United States. DEA's timely and active
support to European nations has helped to contain this problem.
The international enforcement community, with DEA participation,
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has had significant success in penetrating several drug
trafficking networks and disabling heroin conversion
laboratories in Italy and Southwest Asia.
In Southeast Asia last year, the Government of Thailand
launched several major suppression operations against
the Shan United Army (SUA), which controls most of the
narcotics activity along the Thai/Burma border. Despite
these efforts, opium continues to be plentiful in the area.
DEA is working with Thai authorities to develop intelligence
on trafficking organizations operating along the Thai/Burma
border to enhance the Thai government's ability to suppress
operations and reduce the amount of opium grown and converted
into heroin. In addition, DEA personnel in Southeast Asia
are supporting our domestic investigations of Thai nationals
trafficking in Southeast Asian heroin in Los Angeles and
New York.
The diversion of legitimately produced pharmaceuticals from
international commerce is a major problem affecting the United
States. Methaqualone, a powerful sedative-hypnotic trafficked
to the United States from European and Asian sources, had
been this country's fastest growing drug problem until a
series of diplomatic initiatives were undertaken to limit the
manufacture and exportation of methaqualone to meet minimal
legitimate medical needs.
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Through the efforts of the U. S. diplomatic community
supported by DEA's International Diversion Program,
Germany, Austria, Hungary, and the People's Republic
of China have all agreed to reduce or cease methaqualone
production and to place strict controls on its exportation.
As a result, seizures of methaqualone between 1981 and
1982 decreased by more than 80 percent and drug injuries
have been reduced by 40 percent since 1980.
If we are to have any significant reduction in the avail-
ability of illicit drugs in the United States, then we and
the governments of other nations must work together to
eliminate the cultivation and production of illicit drugs
in the source countries where supplies are most heavily
concentrated. I believe we must be aware, however, that
our government's international drug control activities are
long-range diplomatic efforts over which we have limited
control, and that the effective elimination of drugs at
their foreign sources may be several years off. In the
interim, we must accelerate our efforts in those areas over
which we do have control -- domestic law enforcement and drug
education.
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DOMESTIC DRUG LAW ENFORCEMENT
A primary goal of the 1982 Strategy is to bring to bear the
full range of Federal, State, and local government resources
against drug trafficking organizations in the United States.
This goal emphasizes the arrest and conviction of high-level
drug traffickers, the forfeiture of their assets, and the
removal of drugs from the illicit market. Specific
objectives of the domestic drug law enforcement aspect of
the Strategy include:
o
Increasing the capabilities of Federal
drug law enforcement through improved
management, broadened involvement, and
enhanced cooperation and coordination
among Federal agencies;
Improving cooperation and coordination
among Federal, State, and local law
enforcement agencies, and encouraging
state and local efforts to eradicate
illicit drug production and cultivation; and
o
Targeting investigative resources on the
range of key criminal activities associated
with trafficking organizations.
In pursuit of these objectives, a number of initiatives and
programs have been undertaken to supplement DEA's ongoing
enforcement activities.
In January 1982, the Attorney General assigned the FBI
concurrent jurisdiction with DEA over Federal drug
investigations and announced that the Administrator of DEA
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would function under the general supervision of the Director
of the FBI. Both agencies, working together, developed
operating guidelines for drug investigations. They provide
that DEA continues as the principal Federal drug law
enforcement agency responsible for enforcing the Controlled
Substances Act, the diversion control progam, drug
intelligence analysis, and publication of appropriate
strategic assessments; and that the FBI continues as the
principal Federal investigative agency attacking organized
crime.
These guidelines place strong emphasis on major distributors
and organizations involved in the manufacture, distribution
and financing of illicit controlled substances. High-level
conspiracy investigations are the foundation of all joint
DEA/FBI investigative efforts.
In granting concurrent jurisdiction to the FBI, the Attorney
General added to the nation's drug enforcement law effort the
support of 7,700 FBI agents in more than 500 offices around
the country. Since the new DEA/FBI alliance was formed, work-
ing together, we have more than 450 major joint investigations
directed at the upper echelon of the drug trafficking networks.
As part of our joint efforts, we are cross-training DEA and FBI
agents to enhance interagency understanding and make each agency's
expertise available to the other.
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FBI Special Agent accountants bring valuable expertise to
the financial aspects of drug investigations. The FBI's
network of informants and its investigative expertise
in the area of organized crime are all important tools
brought into the Federal drug law enforcement partnership.
In addition, we are coordinating utilization of each
agency's scientific laboratories to make the special
capabilities of each available. Intelligence
personnel from both agencies are working together to ensure
that all criminal intelligence data bases are searched to
provide specific targeting information to agents in the
field.
Three other Administration initiatives have addressed
forcefully and directly the 1982 Strategy's call for
broadened Federal coordination: the Vice President's South
Florida Task Force, the Organized Crime Drug Enforcement
Task Force Program (OCDETF) and the newly created National
Narcotic Border Interdiction System (NNBIS).
In March 1982, Vice President Bush announced the formation
of the South Florida Task Force to address the severe drug
trafficking and other related crimes in that part of the
country. The Task Force consists of personnel from DEA,
U. S. Customs, the Bureau of Alcohol, Tobacco, and Firearms,
-22-
the Department of Defense, and the U. S. Coast Guard.
DEA and Customs participate in this program under a Joint
Task Group currently consisting of 54 Customs Special
Agents and Patrol Officers and 21 DEA Special Agents.
This group, directed by a DEA Task Force leader and a Customs
Deputy Task Force leader, conducts both pre- and post-drug
smuggling investigations, as well as financial investigations
throughout the State of Florida. As this Committee is well
aware, DEA and Customs have a long history of cooperation
both within and beyond South Florida. This cooperation
includes the exchange of information at both the Headquarters
and field levels, and joint participation in various
investigative operations.
As a result of our cooperative effort in South Florida, nearly
1,300 violators have been arrested and seizures totalling more
than 780 tons of marihuana and more than 3,000 pounds of cocaine
have been made during the 13 months of the initiative's operation.
Another crucially important component of the cooperative Federal
effort in South Florida is the implementation of increased
military assistance now available under new amendments to the
posse comitatus statute. These amendments permit appropriate
use of military resources in interdicting drug shipments.
They are provided through intelligence and tracking
-23-
by military aircraft and vessels of ships or airplanes
suspected of carrying drugs to the United States. The
contribution of the military has been invaluable in
helping to reduce the drug flow into Florida and other
states adjoining the Gulf of Mexico and the Caribbean.
To accomplish our initiatives in South Florida, law
enforcement resources were shifted from other areas of the
country, and drug traffickers began to shift their routes
toward those areas. Clearly, a national approach to the
drug trafficking situation was needed, and the
Administration began drafting new initiatives to address
this need.
A third major initiative has recently commenced. Last
October, the President announced an eight-point program
to combat organized crime and drug trafficking. The
Organized Crime Drug Enforcement Task Force Program
(OCDETF) established 12 new regional task forces across
the country, a Presidential Commission on Organized Crime
and Drug Trafficking, and a special Governor's Project to
enlist the 50 state governors in a united campaign against
drug trafficking and organized crime.
The 12 Task Foces, headquartered in Boston, New York,
Baltimore, Atlanta, Houston, St. Louis, Chicago, Detroit,
Denver, Los Angeles, San Francisco, and San Diego, operate
under the direction of the Attorney General and also
work with state and local law enforcement officials.
These Task Forces are utilizing the law enforcement
resources of the Federal government including DEA, the
FBI, the Internal Revenue Service, ATF, Immigration and
Naturalization Service, the U. S. Marshals Service,
U. S. Customs, and the Coast Guard. In those regions
of the country where it will be effective, Department
of Defense tracking and pursuit capabilities are available
to support Task Force efforts.
Recognizing the increased involvement of organized crime
in drug trafficking, these Task Forces are targeting and
pursuing the highest levels of organized criminal enterprises
trafficking in drugs. Their focus is on those who direct,
supervise, and finance the illicit drug trade, levels of
involvement that are appropriate to the Federal role.
The Task Forces complement existing Federal enforcement
efforts against drugs and organized crime through the
application of additional resources.
Last December,
the Congress appropriated $127.5 million for the
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Program for the remainder of the fiscal year. This funding
permits creation of over 1,100 investigative and prosecutorial
positions. For its part, DEA has already committed 270 senior
Special Agents to the program and the increased resources are
allowing us to restaff their former positions.
This commitment allows us to further an intensive and
coordinated campaign against international and domestic
drug trafficking and other organized criminal enterprises.
We are making full use of financial investigative techniques,
including tax law enforcement and forfeiture actions, to
identify and convict high-level traffickers and enable the
Government to seize assets and profits derived from
drug trafficking. Meeting these objectives will also
result in the seizure of large quantities of illegal drugs,
and the disruption of sophisticated drug trafficking
organizations.
Less than two months ago, President Reagan announced the
implementation of a fourth major initiative: the formation
of the National Narcotics Border Interdiction System
(NNBIS). NNBIS is designed to coordinate the work of those
Federal agencies with existing responsibilities and
capabilities for interdiction of sea-borne, air-borne, and
cross-border importation of drugs. This program will
complement the work of the regional Organized Crime Drug
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Enforcement Task Forces, and, based on lessons learned in
South Florida, will expand the interdiction concept to all
borders of the country.
NNBIS will monitor suspected smuggling activity and
coordinate the various Federal agencies' seizures of
contraband and arrests of illegal drug importers. Headed
by Vice President Bush, NNBIS will operate under the
direction of an Executive Board composed of the Secretaries
of State, Treasury, Defense and Transportation, the Attorney
General, the Counselor to the President, the Director of
Central Intelligence Agency, and the Director of the
White House Drug Abuse Policy Office.
Mr. Chairman, I thus far have spoken about four major Federal
Government initiatives in which DEA plays a central role.
I should like also to outline for you some of the more
significant ongoing DEA operations and programs that
support the objectives of the 1982 Federal Strategy.
DEA has been successful in its efforts to minimize diversion
of legitimate controlled substances from the pharmaceutical
industry. We continue to maintain a strong cyclic investigation
program and other domestic programs.
In recent years, DEA has redoubled its efforts to attack the
growing problem of practitioner-level diversion. The Targeted
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Registrant Investigation Program (TRIP) was developed in
1980 to direct available investigative resources toward
the highest level of practitioner violators. During 1982,
DEA initiated more than 300 cases involving willful
diversion by practioners.
The investigation of so-called "stress clinics" and "store
front clinics", which act as prescription mills for controlled
drugs is a good example of this effort. In the Detroit area
alone, we estimate that these clinics distributed between
six and seven million dosage units of highly abused drugs over
a two year period. Twenty-nine indictments were returned in
one case against two physicians, seven pharmacists, and
six corporations on a range of charges, including illegal
distribution, conspiracy and continuing criminal enterprise.
In addition to its criminal diversion activities, DEA
continues to promote the self-policing efforts of the
pharmaceutical industry through its diversion prevention
efforts. The quantities of controlled drugs prevented from
entering the illicit distribution channels by informed and
highly-motivated manufacturers and distributor registrants
cannot be measured, but the response from industry over the
past ten years has been positive and has shown other tangible
results. For example, the amount of time required for cyclic
investigations has been greatly reduced, allowing more
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investigative resources to be channelled into the TRIP
program.
Also, DEA has been working with the American Medical
Association on a program to aid the states in identifying
the nature, magnitude, and source of prescription
drug diversion and abuse within their jurisdictions.
Another domestic program important to the 1982 Federal Strategy
involves the production of marihuana within our own borders.
In 1982, DEA's Domestic Marihuana Eradication Program was expanded
to include 25 states -- 18 more states than participated in the
1981 program. DEA's role in this cooperative venture is to
encourage state efforts and to contribute funding, training, and
investigative and aerial support to state and local law enforcement
agencies engaged in domestic marihuana eradication and suppression.
Last year, DEA provided the states with nearly $1 million to help
defray the expenses of their program. The DEA Airwing flew 481
missions for a total of 1,332 flying hours in support of the
eradication effort. By all measures, the Domestic Marihuana
Eradication Program was extremely successful. More than two
million marihuana plants were eradicated, over 2,500 violators
were arrested, and 785 weapons were seized. Operational
relationships and procedures have become more established, an
intelligence data base has been developed, an an additional 15
states have asked to participate in the 1983 program.
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Adequate, timely, and reliable intelligence is important to the
entire 1982 Strategy. The El Paso Intelligence Center (EPIC)
continues to grow as a full-service intelligence center, providing
24-hour tactical intelligence to Federal and state law enforce-
ment agencies. In the past year, EPIC supported intensified
air and maritime operations in the Caribbean - Central America -
South America area, serving as the primary clearinghouse for
intelligence data.
Its contribution to increased information exchange with the
military under the posse comitatus amendments have been
invaluable. During 1982, the Internal Revenue Service
became the eighth permanent Federal agency represented
at EPIC, and 45 states and two U. S. territories now
participate formally in the program or through their
membership in multistate regional intelligence networks.
A fourth domestic program, the DEA/State and Local Task
Force Program, has proven itself an effective complement
to the Federal drug enforcement effort. These Task Forces
increase the effectiveness of State and local drug enforcement
activities aimed at the mid-level violator, the link between
supplier and consumer. In 1982, the Task Forces continued to
elevate the level of cases in which they were involved. The
overall conviction rate for Task Force cases ranges. from 95 to
98 percent in Federal and state courts.
DEA continues to focus ongoing efforts on financial investigations
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involving international money flows and the drug traffickers'
assets. These investigations, which involve close cooperation
among DEA, Customs, IRS, and the FBI, are generally aimed at
isolated violators who direct, control, and profit from the
drug traffic. These investigations also target re-investible
profits for forfeiture, which contributes significantly to the
immobilization of major trafficking organizations. During
1981, DEA, in cooperation with other agencies, was responsible
for the seizure of drug related cash and property valued at
$161 million; in 1982, this figure rose to $188 million.
Mr. Chairman, these are some examples of how DEA has
participated in the Administration's strategy for the
prevention of drug trafficking. There are a few points
I would like to make in conclusion. While DEA's commitment
to the international aspect of the drug control effort is
firm, I believe we must recognize that controlling the
drug problem from source countries is a long-term
proposition. For the present, it cannot be our primary
solution. The wide-spread availability of drugs and the
involvement of organized criminal enterprises dealing in
violence and corruption pose real and immediate dangers to
our society. For the present, I believe that we must accelerate
our efforts toward achieving those elements of the drug control
Strategy within our grasp. Our most immediate need is for
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continued vigorous pursuit of a strong law enforcement program.
Furthermore, we must lend our fullest possible efforts toward the
education of our citizens about the hazards of drug use.
I strongly endorse the drug abuse prevention efforts of
Mrs. Reagan and the many programs with which she works. I am
encouraged, too, that professional associations and parent
groups such as Pharmacists Against Drug Abuse and the National
Federation of Parents for a Drug Free Youth are becoming involved
in the education effort. The continued interest and participation
of the various elements of our society, both inside and
outside the government, is our strongest weapon against
the drug abuse problem.
The President has said that the campaign against drug abuse
in the United States is a campaign we cannot afford to lose.
Mr. Chairman, I am optimistic that the significant inroads we
have made in limiting the availability of illicit drugs in this
country will continue, and that we will reach a point where we
see broad reductions, not only in the availability of drugs, but
also in the demand for them by our citizens. DEA is proud of
its role in this campaign and pledges its full dedication to the
goals of the Federal Strategy.
Thank you for this opportunity to discuss our role in the
implementation of the 1982 Federal Strategy and for your
assistance and support.
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