Report on the Implementation of Title VI of the Civil Rights Act of 1964 in Regard to Hospital Discrimination - Recommendations for 1966

    N. A. A. €. B. Lacan DEerense AND EnucaTionaL Fund, INC. 

10 Columbus Circle, New York, N. Y. 10019 

JUDSON 6-8397 

2S 

MEMORANDUM 

TOs HON. JOHN W, GARDNER December 16, 1965 
Secretary 
Department of Health, Education and Welfare 
Washington, D. C. 

FROM: NAACP Legal Defense and Educational Fund, Inc. 
10 Columbus Circle 
New York, New York 

SUBJECT: REPORT ON THE IMPLEMENTATION OF TITLE VI 
OF THE CIVIL RIGHTS ACT OF 1964 IN REGARD TO 
HOSPITAL DISCRIMINATION. RECOMMENDATIONSFOR 1966, 

Legal Action 

An end to exclusion or unequal treatment of Negro patients 

and physicians in the South was envisioned when the Legal Defense 

Fund won a decisive victory in a suit against two North Carolina 

hospitals, upheld by the U. S. Supreme Court last year, outlawing 

discrimination in any institution receiving federal aid. 

Virtually all hospitals have received funds under the Hill- 

Burton Hospital Construction Act, including approximately 2000 

hospitals and clinics in the South. 

Unfortunately, after Fund lawyers had filed more than a 

dozen suits challenging discrimination in hospitals, clinics and 

medical societies, it became apparent that unequal practices were 

abandoned only in the institutions or organizations that were 

actually sued. 

Contributions are deductible for U. S. income tax purposes 



John W, Gardner -2- December 16, 1965 

We faced the disheartening prospect of filing suit against 

virtually every health facility in the South to gain equal treat- 

ment for Negro citizens. 

‘g The 1964 Civil Rights Act 

Passage of the 1964 Civil Rights Act promised a breakthrough 

in the struggle against hospital discrimination, Lengthy and ex- 

pensive lawsuits could be bypassed, Complaints of discrimination 

could be filed) atzectiy with HEW and relief for Negroes who had 

been unfairly treated could be obtained on a much broader scale and 

more rapidly than heretofore, 

The implications of Title VI for the treatment of Negroes 

in American hospitals and medical facilities are profound. 

Most American hospitals, whether owned by government or 

nonprofit organizations, receive financial assistance from the 

Federal government for: hospital construction; vocational 

rehabilitation; treatment of indigents; and research, 

The Medicare Program will shortly increase the character 

and extent of Federal assistance. It has been estimated that over 

2,000 medical facilities have received Federal funds in states 

where segregation and other forms of discrimination against Negroes 

is customary, 

In order to implement Title VI, Civil Rights groups began 

filing complaints with the Department of Health, Education and 

Welfare shortly after implementing regulations for Title VI went 

into effect. 

Many hospitals throughout the South refuse to admit 

qualified Negro physicians to the staff, which means that the 

Wie aac 



John W, Gardner -3- December 16, 1965 

Negro physician must turn patients requiring hospitalization over 

to white doctors, that he is excluded from the teaching 

opportunities of the hospital and from any scientific exchange with 

white colleagues. 

Despite the national shortage of nurses, many Southern 

hospitals exclude Negroes from nurses training courses. 

By early 1965, Legal Defense Fund lawyers had prepared a 

procedure for receiving and filing complaints which had been 

referred to Fund lawyers and civil rights groups throughout the 

South. By early November, a total of 135 documented complaints had 

been transmitted to HEW by the Fund. Approximately 100 complaints 

had come from other sources, including the Medical Committee for 

Human Rights, the NAACP and the National Medical Association. 

The first 12 complaints were filed with the Department 

February 11, 1965. The hospitals in question segregated Negro 

patients and staff members from white patients and staff members 

in rooms, wards, restrooms, waiting rooms, cafeterias and other 

facilities. 

Some of the hospitals segregated newborn babies, others 

provided inferior facilities for Negroes. One hospital had refused 

to permit a Negro to visit a white patient in the white section of 

the hospital. 

Following theel2—0riGinal complaints filed with the Depart- 

ment nas 11, 1965, the NAACP and the Legal Defense Fund 
g 

filedta tional 125 complaints alleging discrimination against 

Negrateeeet tgs aioctors, nurses and others in hospitals in 
Hig ; 

every southern state. In addition to complaints filed by the NAACP 
es 



John W. Gardner o4-. December 16, 1965 

and the Legal Defense Fund it has been estimated that complaints 

have been received by the Department from other sources including 

MCHR amd tje NMA making the total of over 300. 

These complaints attacked a wide variety of hospital 

practices and have been characterized by Assistant Secretary of HEW, 

James Quigley as " legitimate in that the hospitals in question 

were either totally or partially segregated." 

To date the Department has found only about 35 of the 

facilities as to which complaints have been filed in compliance 

with Title VI of the Civil Rights Act of 1964. 

No action has been taken with respect to the remainder 

despite the fact that many of these facilities have been 

investigated and reinvestigated by the Department and have refused and 

and are refusing to end discrimination. 

The Department has in no case sought to cut off Federal 

funds to these hospitals although many are in open defiance of 

Title VI. We understand thay four hospitals in Mississippi which 

refused to sign compliance forms with the Department, have not 

received payments because of Title VI 

In short, Department policy seems to be that if a hospital 

or state agency disbursing Federal funds executes a piece of paper 

stating that it will not discriminate it is safe from a cut off of 

Federal funds. 

aes pads clear by the fact that in addition to refusing 

to cégmnenceuneee dings to at ® Federal funds the Department has 

in RON AS ee tare legal. action to force the hospitals to comply with 

eheir srepresentatrereaee 

ep. 
the Ringiiance form. 



Bee seen bs aad S28 a 

John W, Gardner -5- December 16, 1965 

Unless some examples are made, Title VI violations will 
oy ; t 

continue to remaintwidespread, ; 
x 
zation to cut off Federal funds HEW has interpreted the authori 

to apply only to newWerequests. Hospitals against which complaints 

of discrimination have been lodged and verified by investigation 

continue to receive Funds allocated prior to complaints. 

The NAACP Le EY Defense Fund has made extensive reports to the 

Department of Health, Education and Welfare, «including recommendations 

for improving investigative and enforcement procedures, Under- 

standably, the Department, in launching a new program on such a vast 

scale, had had difficulty providing qualified staff. Investigators 

drawn from the South often fail to observe discriminatory practices 

which have long repraseeeed the southern way of life. The Fund has 

asked that Negro investigators be employed. 

The Pattern 

HEW has consistently taken a narrow view of its obligations 

under Title VI. A number of startling examples illustrate this 

point. 

1. One of the hospitals complained about in the 

February 11, 1965 series of complaints, the King's 

Daughter Hospital in Canton, Mississippi, not only 

refused to comply with Title VI, but has reduced 

the number of beds in the hospital so that no 

Negroes and whites will have to share rooms. 

Ironically, the hospital continues to receive 

funds from the Department to finance future 

expansion of its facilities and is presently con- 

ora 



John W, Gardner | 6- December 16, 1965 

structing a new hospital building with Federal funds 

which will contain only private rooms. Federal 

money has, therefore, been employed by this 

hospital for the purpose of maintaining segrega- 

tion and because all rooms will be private will not 

add hospital beds to those available to the commu- 

nity. 

The Department has refused to make available 

to the Legal Defense Fund its reports regarding 

this hospital despite the fact that we represent 

persons who have complained about segregation of 

its facilities and have made repeated requests for 

the reports. 

The Department has apparently adopted a construction 

of Title VI which permits HE‘ investigators to 

accede to the position taken by some southern 

hospitals that they may refuse to hire Negro nurses 

or may hire them and pay them less than white nurses 

for the same work. This is justified on the basis 

that Title VI excludes consideration of employment 

practices. 

But, Negro patients are obviously denied the 

benefits of hospital assistance programs covered by 

Title VI, and subjected to discrimination, when 

treated by nurses chosen or paid on a racial basis. 

Indeed, (when one considers the national short- 

age of nurses) the policy of refusing to hire nurses 



John Wl, Gardner December 16, 1965 

because of race so clearly effects the well being 

of pat ts at Federally assisted hospitals that even 

a white patient should be able to object to the 

practice. 



ei 

John W, Gardner © SB December 16, 1965 
ae 

yeing informed by Mr. Quigley in August 1965 

that a large number of the hospitals, as to which compieente 

have been pending, have been investigated and reinvestigated 

and still refusing to comply with Title VI, we requested 

notice of such standards, if any, as have been formulated 

to determine when the sanctions of Title VI will be applied. 

We also requested notice of the hospitals which 

have refused to negotiate or refused to comply with Title 

VI after negotiation; in addition to the reason each such 

hospital is not now in full compliance. The Department has 

refused to inform us of the standards formulated to 

determine what Title VI sanctions will be applied. It has 

refused to inform us of the status of hospitals as to which 

complaints have been pending for many months and which are 

not yet in compliance, 

Many attempts to obtain this information have been 

met with no response from the Department, 

4, The Department has refused to allay fears that it 

will permit federal funds to go to non-complying hospitals 

under the Medicare Program. Such a refusal would be tragic. 

The primary incentive for desegregation, which the Devart- 

ment has, is a new grant program. Few hospitals will 

desegregate after receipt of federal funds is assured. 

Most hospitals continue to discriminate as if no 

complaint was filed, Take, for example, the Jefferson 

County Hospital in Pine Bluff, Arkansas. On February ll, 

1965, we complained that the hospital maintains a separate 



John W. Gardner One ’ December 16, 1965 

Negro unit called the northwest wing. Recently, two Negro 

women unsuccessfully sought to ence to have their children 

delivered in the "white only" southwest wing. As recently 

as October 1965, a Negro woman was subjected to this very 

same practice and in the interim the hospital has continued 

to receive federal funds. When we asked why funds were not 

cut off, the reply was that the Title VI cut-off procedure 

was too cumbersome to employ. 

A number of the hospitals complained against have 

eliminated some, but not all of the practices complained 

about. Yet they refuse to desegregate wards and rooms. 

They continue to place Negroes in Negro rooms and wards 

unless the patient affirmatively requests otherwise. 

The Department has a long list of such hospitals 

but takes the view (privately) that it will be subjected 

to political pressure if it attempts to move against such 

hospitals. 

We learned soon after filing complaints with the 

Department that despite the clear-cut intention of Congress 

to end all forms of discrimination in federal programs, HEW 

had taken no steps towards implementing Title VI, It had 

no staff or plan of any kind to end discrimination in 

hospitals until Civil Rights groups began to file large 

nonbais of complaints. 

In the following months the Department's investi- 

gative resources improved. 

There are now some dedicated people at the 



December 16, 1965 

yho are attempting to make Title VI work, 

al personnel are still unequipped and 

unwilling to enforce Title VI. 

Set ae There is no specific appropriation for Title VI 

enforcement and the personnel who enforce it are often 

borrowed from other programs. A larger staff in Washington 

and in Regional offices, committed to civil rights problems, 

is necessary. These persons must be under the control of 

officials directly responsible for civil rights and not 

placed in operating agencies which do not have the confidence 

of Negro communities or sufficient experience or independence 

to enforce Civil Rights Act guarantees of equality. 



John W. Gardner ais December 16, 1965 

OUR RECOMMENDATIONS 

Based on the foregoing information plus the legal Defense 

Fund's general experience in this field, we offer the following 

recommendations to HEW. We feel that HEW should proceed along 

these lines, if it is going to alter the present pattern of dis- 

crimination in southern hospitals: 

Medicare 

1. It is critical that the Department must make a 

firm policy decision that no funds under the Medicare Program will 

be paid to hospitals which are not in compliance with Title VI. 

To pay these funds to southern hospitals and then 

attempt to negotiate their compliance with Title VI would be to 

throw away a superb opportunity to end racial discrimination in 

southern hospitals. 

A primary incentive for compliance with Title VI-- 

funds from a new federal-program will be lost if Medicare funds 

are paid before the Department ascertains the hospitals are in 

compliance. 

To negotiate compliance after funds are paid would 

be to emasculate the effect of Title VI. In addition, the Depart- 

ment should be given authority to employ (or borrow from other 

agencies) new staff. We recommend an increase of about 25 new 

staff members for the compliance office at HEW in Washington and 

regional offices. 



John W. Gardner ah ee December 16, 1965 

In addition, we recommend that approximately 50 

temporary staff members be borrowed from other federal agencies. 

The primary responsibilities of these new staff members would 

be to assure that only facilities in compliance would receive 

federal funds under the Medicare Program. If this recommendation 

is adopted, we predict an end to most of the discriminatory 

practices of southern hospitals, 

Pinpointing Responsibility 

2. Civil rights compliance in the Department should 

be made the permanent responsibility of an Assistant Secretary 

and his staff. The Assistant Secretary should have the power to 

hire and direct new staff members. Under no circumstances, should 

new staff members be placed in HEW operating agencies themselves. 

Cut Off and/or Litigate 

3. The Department must immediately take steps to cut 

off federal funds from and/or commence litigation against facil- 

ities which have been investigated and reinvestigated and still 

are not in compliance with Title VI. 

Withholding Funds 

fe 
4, The authority of the Department to defer payment 

of any new grant until the hospital is in compliance should be 

firmly established. 



John W, Gardner -13= December 16, 1965 

Control State Agencies 

5. The Department must insure that state agencies 

which disperse federal funds are enforcing the compliance agree- 

ments which they have received from individual hospitals. 

Nurses 

6. Negro nurses should be protected by Title VI. 

7. The Department should develop techniques for 

investigating hospitals for discrimination before a formal com- 

plaint is filed. 



~nagptlititnansstione ¥ 

John W. Gardner -14- December 16, 1965 

LEGAL DEFENSE FUND PLANS FOR 1966 IN THE HEALTH FIELD 

‘With the privilege of evaluation and criticism comes the 

responsibility for constructive action. In addition to our on-* 

going role as the legal arm of the civil rights movement--our 

January docket report will list 25 hospital suits--the Legal 

Defense Fund, as of January lst, will: 

1. Hold a six-months intensive program. Three 

part-time field workers will be recruited in each of the eleven 

states of the old South. Legal assistance in interpreting the 

law and processing complaints will be provided by the regular 

staff of the Fund. It is hoped that most of the major institu- 

tions in these states presently receiving or requesting federal 

funds could be covered in this period. 

Thus we will accelerate the compiling and filing of 

complaints covering the hundreds of hospitals for which data 

has not yet been reported, but which are known to dieeeiminate 

against Negroes, 

2. The Fund will have a study made of present 

participation of Negroes on every level of skill in health facil- 

ities in the South. The report should include recommendations 

for increasing this participation and providing upward mobility 

for Negroes in professional positions. 

Additional evidence resulting from this program 

should stimulate HEW to more vigorous action in implementing 

Title VI of the Civil Rights Act in hospitals and other health 

facilities. 
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