« PreviousContinue »
the convenience of the applicant or re and arguments advanced on either side cipient or of the Department requires of the issues. A transcript shall be that another place be selected. Hear made of the oral evidence except to the ings shall be held before a hearing ex extent the substance thereof is stipuaminer designated in accordance with 5 lated for the record. All decisions shall U.S.C. 3105 and 3344 (section 11 of the be based upon the hearing record and Administrative Procedure Act).
written findings shall be made. (c) Right to counsel. In all proceedings (e) Consolidated or joint hearings. In under this section, the applicant or re cases in which the same or related cipient and the Department shall have facts are asserted to constitute nonthe right to be represented by counsel. compliance with this regulation with
(d) Procedures, evidence, and record. (1) respect to two or more Federal assistThe hearing, decision, and any admin ance statutes to which this part apistrative review thereof shall be con- plies, or noncompliance with this part ducted in conformity with sections 5-8 and the regulations of one or more of the Administrative Procedure Act, other Federal departments or agencies and in accordance with such rules of
issued under title VI of the Act, the reprocedure as are proper (and not incon- sponsible Department official may, by sistent with this section) relating to agreement with such other departthe conduct of the hearing, giving of
ments or agencies where applicable, notices subsequent to those provided provide for the conduct of consolidated for in paragraph (a) of this section,
or joint hearings, and for the applicataking of testimony, exhibits, argu tion to such hearings of rules of procements and briefs, requests for findings,
dures not inconsistent with this part. and other related matters. Both the
Final decisions in such cases, insofar as Department and the applicant or re
this regulation is concerned, shall be cipient shall be entitled to introduce
made in accordance with $100.10. all relevant evidence on the issues as (Authority: Sec. 602, Civil Rights Act of 1964; stated in the notice for hearing or as 78 Stat. 252; 42 U.S.C. 2000d-1) determined by the officer conducting
(45 FR 30918, May 9, 1980, as amended at 65 the hearing at the outset of or during FR 68054, Nov. 13, 2000) the hearing. Any person (other than a Government employee considered to be $ 100.10 Decisions and notices. on official business) who, having been (a) Decisions by hearing examiners, invited or requested to appear and tes After a hearing is held by a hearing extify as a witness on the Government's
aminer such hearing examiner shall eibehalf, attends at a time and place ther make an initial decision, if so auscheduled for a hearing provided for by thorized, or certify the entire record this part, may be reimbursed for his
including his recommended findings travel and actual expenses of attend and proposed decision to the reviewing ance in an amount not to exceed the
authority for a final decision, and a amount payable under the standardized
copy of such initial decision or certifitravel regulations to a Government cation shall be mailed to the applicant employee traveling on official business. or recipient and to the complainant, if
(2) Technical rules of evidence shall any. Where the initial decision referred not apply to hearings conducted pursu- to in this paragraph or in paragraph (c) ant to this part, but rules or principles of this section is made by the hearing designed to assure production of the examiner, the applicant or recipient or most credible evidence available and to the counsel for the Department may, subject testimony to test by cross-ex within the period provided for in the amination shall be applied where rea rules of procedure issued by the responsonably necessary by the officer con sible Department official, file with the ducting the hearing. The hearing offi reviewing authority exceptions to the cer may exclude irrelevant, immate initial decision, with his reasons thererial, or unduly repetitious evidence. All for. Upon the filing of such exceptions documents and other evidence offered the reviewing authority shall review or taken for the record shall be open to the initial decision and issue its own examination by the parties and oppor- decision thereof including the reasons tunity shall be given to refute facts therefor. In the absence of exceptions
the initial decision shall constitute the final decision, subject to the provisions of paragraph (e) of this section.
(b) Decisions on record or review by the reviewing authority. Whenever a record is certified to the reviewing authority for decision or it reviews the decision of a hearing examiner pursuant to paragraph (a) or (c) of this section, the applicant or recipient shall be given reasonable opportunity to file with it briefs or other written statements of its contentions, and a copy of the final decision of the reviewing authority shall be given in writing to the applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to $100.9(a) the reviewing authority shall make its final decision on the record or refer the matter to a hearing examiner for an initial decision to be made on the record. A copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or reviewing authority shall set forth a ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.
(e) Review in certain cases by the Secretary. If the Secretary has not personally made the final decision referred to in paragraphs (a), (b), or (c) of this section, a recipient or applicant or the counsel for the Department may request the Secretary to review a decision of the Reviewing Authority in accordance with rules of procedure issued by the responsible Department official. Such review is not a matter of right and shall be granted only where the Secretary determines there are special and important reasons therefor. The Secretary may grant or deny such request, in whole or in part. He may also review such a decision upon his own motion in accordance with rules of procedure issued by the responsible Department official. In the absence of a review under this paragraph, a final decision referred to in paragraphs (a), (b), (c) of this section shall become the
final decision of the Department when the Secretary transmits it as such to Congressional committees with the report required under section 602 of the Act. Failure of an applicant or recipient to file an exception with the Reviewing Authority or to request review under this paragraph shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review.
(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this regulation, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended under such law or laws to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this regulation, or to have otherwise failed to comply with this regulation unless and until it corrects its noncompliance and satisfies the responsible Department official that it will fully comply with this regulation.
(g) Post-termination proceedings. (1) An applicant or recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and provides reasonable assurance that it will fully comply with this part. An elementary or secondary school or school system which is unable to file an assurance of compliance with $100.3 shall be restored to full eligibility to receive Federal financial assistance, if it files a court order or a plan for desegregation which meets the requirements of $ 100.4(c), and provides reasonable assurance that it will comply with the court order or plan.
(2) Any applicant or recipient adversely affected by an order entered
pursuant to paragraph (f) of this sec hereby superseded to the extent that tion may at any time request the re such discrimination is prohibited by sponsible Department official to re this regulation, except that nothing in store fully its eligibility to receive this regulation shall be deemed to reFederal financial assistance. Any such lieve any person of any obligation asrequest shall be supported by informa sumed or imposed under any such sution showing that the applicant or re perseded regulation, order, instruction, cipient has met the requirements of or like direction prior to the effective paragraph (g)(1) of this section. If the date of this regulation. Nothing in this responsible Department official deter regulation, however, shall be deemed to mines that those requirements have supersede any of the following (includbeen satisfied, he shall restore such eli ing future amendments thereof): gibility.
(1) Executive Order 11063 and regula(3) If the responsible Department of tions issued thereunder, or any other ficial denies any such request, the ap
regulations or instructions, insofar as plicant or recipient may submit a re such Order, regulations, or instructions quest for a hearing in writing, speci prohibit discrimination on the ground fying why it believes such official to of race, color, or national origin in any have been in error. It shall thereupon
program or situation to which this regbe given an expeditious hearing, with a ulation is inapplicable, or prohibit disdecision on the record, in accordance
crimination on any other ground; or with rules of procedure issued by the
(2) Requirements for Emergency responsible Department official. The
School Assistance as published in 35 applicant or recipient will be restored FR 13442 and codified as 34 CFR part to such eligibility if it proves at such
280. hearing that it satisfied the require
(b) Forms and instructions. The rements of paragraph (g)(1) of this sec
sponsible Department official shall tion. While proceedings under this
issue and promptly make available to paragraph are pending, the sanctions
interested persons forms and detailed imposed by the order issued under
instructions and procedures for effecparagraph (f) of this section shall re
tuating this part. main in effect.
(c) Supervision and coordination. The
responsible Department official may (Authority: Sec. 602, Civil Rights Act of 1964;
from time to time assign to officials of 78 Stat. 252; 42 U.S.C. 2000d-1)
the Department, or to officials of other $ 100.11 Judicial review.
departments or agencies of the Govern
ment with the consent of such departAction taken pursuant to section 602 ments or agencies, responsibilities in of the Act is subject to judicial review connection with the effectuation of the as provided in section 603 of the Act. purposes of title VI of the Act and this (Authority: Sec. 603, 78 Stat. 253; 42 U.S.C.
regulation (other than responsibility 20000-2)
for review as provided in 100.10(e)), in
cluding the achievements of effective $ 100.12 Effect on other regulations; coordination and maximum uniformity forms and instructions.
within the Department and within the (a) Effect on other regulations. All reg
Executive Branch of the Government ulations, orders, or like directions
in the application of title VI and this heretofore issued by any officer of the
regulation to similar programs and in Department which impose require
similar situations. Any action taken, ments designed to prohibit any dis
determination made, or requirement crimination against individuals on the
imposed by an official of another Deground of race, color, or national ori partment or Agency acting pursuant to gin under any program to which this
an assignment of responsibility under regulation applies, and which authorize
this section shall have the same effect the suspension or termination of or re
as though such action had been taken fusal to grant or to continue Federal fi
by the responsible official of this Denancial assistance to any applicant for partment. or recipient of assistance for failure to (Authority: Sec. 602, Civil Rights Act of 1964; comply with such requirements, are 78 Stat. 252; 42 U.S.C. 2000d-1)
$ 100.13 Definitions.
(ii) The entity of such State or local As used in this part:
government that distributes such as(a) The term Department means the
sistance and each such department or Department of Education.
agency (and each other State or local (b) The term Secretary means the Sec
government entity) to which the asretary of Education.
sistance is extended, in the case of as(c) The term responsible Department
sistance to a State or local governofficial means the Secretary or, to the
ment; extent of any delegation by the Sec (2)(i) A college, university, or other retary of authority to act in his stead postsecondary institution, or a public under any one or more provisions of system of higher education; or this part, any person or persons to (ii) A local educational agency (as dewhom the Secretary has heretofore del- fined in 20 U.S.C. 8801), system of vocaegated, or to whom the Secretary may tional education, or other school syshereafter delegate such authority.
tem; (d) The term reviewing authority (3)(i) An entire corporation, partnermeans the Secretary, or any person or ship, or other private organization, or persons (including a board or other
an entire sole proprietorship body specially created for that purpose
(A) If assistance is extended to such and also including the responsible De
corporation, partnership, private orgapartment official) acting pursuant to
nization, or sole proprietorship as a authority delegated by the Secretary
whole; or to carry out responsibilities under
(B) Which is principally engaged in $100.10(a)(d). (e) The term United States means the
the business of providing education, States of the United States, the Dis
health care, housing, social services, or trict of Columbia, Puerto Rico, the
parks and recreation; or Virgin Islands, American Samoa,
(ii) The entire plant or other comGuam, Wake Island, the Canal Zone,
parable, geographically separate faciland the territories and possessions of
ity to which Federal financial assistthe United States, and the term
ance is extended, in the case of any "State" means any one of the fore
other corporation, partnership, private going.
organization, or sole proprietorship; or (f) The term Federal financial assist (4) Any other entity that is estabance includes (1) grants and loans of lished by two or more of the entities Federal funds, (2) the grant or donation described in paragraph (g)(1), (2), or (3) of Federal property and interests in of this section; any part of which is exproperty, (3) the detail of Federal per- tended Federal financial assistance. sonnel, (4) the sale and lease of, and the
(Authority: 42 U.S.C. 2000d-4) permission to use (on other than a casual or transient basis), Federal prop
(h) The term facility includes all or erty or any interest in such property
any portion of structures, equipment, without consideration or at a nominal
or other real or personal property or consideration, or at a consideration
interests therein, and the provision of which is reduced for the purpose of as facilities includes the construction, exsisting the recipient, or in recognition of the public interest to be served by
ation or acquisition of facilities. such sale or lease to the recipient, and (i) The term recipient means (5) any Federal agreement, arrange- State, political subdivision of any ment, or other contract which has as State, or instrumentality of any State one of its purposes the provision of as or political subdivision, any public or sistance.
private agency, institution, or organi(g) The term program or activity and zation, or other entity, or any indithe term program mean all of the oper vidual, in any State, to whom Federal ations of
financial assistance is extended, di(1)(i) A department, agency, special rectly or through another recipient, inpurpose district, or other instrumen- cluding any successor, assign, or transtality of a State or of a local govern feree thereof, but such term does not ment; or
include any ultimate beneficiary.
(j) The term primary recipient means any recipient which is authorized or required to extend Federal financial assistance to another recipient.
(k) The term applicant means one who submits an application, request, or plan required to be approved by a Department official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term application means such an application, request, or plan. (Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1) [45 FR 30918, May 9, 1980, as amended at 65 FR 68054, Nov. 13, 2000]
APPENDIX A TO PART 100-FEDERAL FI
NANCIAL ASSISTANCE TO WHICH
THESE REGULATIONS APPLY
Assistance to States 1. Loans for acquisition of equipment for academic subjects, and for minor remodeling (20 U.S.C. 445).
2. Construction of facilities for institutions of higher education (20 U.S.C. 701-758).
3. School Construction in federally-affected and in major disaster areas (20 U.S.C. 631-647).
4. Construction of educational broadcast facilities (47 U.S.C. 390-399).
5. Loan service of captioned films and educational media; research on, and production and distribution of, educational media for the handicapped, and training of persons in the use of such media for the handicapped (20 U.S.C. 1452).
6. Demonstration residential vocational education schools (20 U.S.C. 1321).
7. Research and related activities in education of handicapped children (20 U.S.C. 1441).
8. Educational research, dissemination and demonstration projects; research training; and construction under the Cooperation Research Act (20 U.S.C. 331-332(b)).
9. Research in teaching modern foreign languages (20 U.S.C. 512).
10. Training projects for manpower development and training (42 U.S.C. 2601, 2602, 2610a-2610C).
11. Research and training projects in Vocational Education (20 U.S.C. 1281(a), 1282–1284).
12. Allowances to institutions training NDEA graduate fellows (20 U.S.C. 461-465).
13. Grants for training in librarianship (20 U.S.C. 1031-1033).
14. Grants for training personnel for the education of handicapped children (20 U.S.C. 1431).
15. Allowances for institutions training teachers and related educational personnel
in elementary and secondary education, or post-secondary vocational education (20 U.S.C. 1111-1118).
16. Recruitment, enrollment, training and assignment of Teacher Corps personnel (20 U.S.C. 1101-1107a).
17. Operation and maintenance of schools in Federally-affected and in major disaster areas (20 U.S.C. 236-241; 241-1; 242-244).
18. Grants or contracts for the operation of training institutes for elementary or secondary school personnel to deal with special educational problems occasioned by desegregation (42 U.S.C. 2000c-3).
19. Grants for in-service training of teachers and other schools personnel and employment of specialists in desegregation problems (42 U.S.C. 2000c-4).
20. Higher education students loan program (Title II, National Defense Education Act, 20 U.S.C. 421-429).
21. Educational Opportunity grants and assistance for State and private programs of low-interest insured loans and State loans to students in institutions of higher education (Title IV, Higher Education Act of 1965, 20 U.S.C. 1061-1087).
22. Grants and contracts for the conduct of Talent Search, Upward Bound, and Special Services Programs (20 U.S.C. 1068).
23. Land-grant college aid (7 U.S.C. 301-308; 321-326; 328-331).
24. Language and area centers (Title VI, National Defense Education Act, 20 U.S.C. 511).
25. American Printing House for the Blind (20 U.S.C. 101–105).
26. Future Farmers of America (36 U.S.C. 271-391) and similar programs.
27. Science clubs (Pub. L. 85-875, 20 U.S.C. 2, note).
28. Howard University (20 U.S.C. 121–129).
29. Gallaudet College (31 D.C. Code, Chapter 10).
30. Establishment and operation of a model secondary school for the deaf by Gallaudet College (31 D.C. Code 1051-1053; 80 Stat. 10271028).
31. Faculty development programs, workshops and institutes (20 U.S.C. 1131-1132).
32. National Technical Institute for the Deaf (20 U.S.C. 681-685).
33. Institutes and other programs for training educational personnel (parts D, E, and F, Title V, Higher Education Act of 1965) (20 U.S.C. 1119-1119C-4).
34. Grants and contracts for research and demonstration projects in librarianship (20 U.S.C. 1034).
35. Acquisition of college library resources (20 U.S.C. 1021-1028).
36. Grants for strengthening developing institutions of higher education (20 U.S.C. 1051-1054); National Fellowships for teaching at developing institutions (20 U.S.C. 1055), and grants to retired professors to teach at developing institutions (20 U.S.C. 1056).