# Board of Education of City School District of Cincinnati v. Department of Health, Education & Welfare

> District Court, S.D. Ohio · February 17, 1987 · 655 F. Supp. 1504

URL: https://www.frixlaw.com/law-library/cases/1423307

## Case

- **Full name:** BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF CINCINNATI, Et Al., Plaintiffs, v. the DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Et Al., Defendants
- **Court:** District Court, S.D. Ohio
- **Decided:** February 17, 1987
- **Citations:** 655 F. Supp. 1504
- **Precedential status:** Published
- **Opinion:** Opinion by Porter
- **Judges:** David S. Porter
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

OPINION
DAVID S. PORTER, Senior District Judge.
I. PROCEDURAL POSTURE
This case is now before this Court for final disposition pursuant to instructions of the United States Court of Appeals for the Sixth Circuit. In May 1974 the Board of Education of the Cincinnati City School District [hereinafter Board] filed this suit, challenging the Department of Health, Education and Welfare’s [HEW] decision that they were ineligible for funding under the Emergency School Aid Act [ESAA], 20 U.S.C. §§ 1601-19 (Supp.1974).
1
The Board sought declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 , 2202.
In April 1975, acting in the belief that the matter was submitted on the merits for judicial review on cross-motions for summary judgment (docs. 7, 11), this Court decided on the record then before it that the Board’s motion should be denied while HEW’s should be granted (docs. 20, 21). We determined that HEW’s ineligibility determination was not arbitrary, capricious,
*1509
or otherwise inconsistent with the Administrative Procedure Act, ( 5 U.S.C. § 706 (2)(A)-(D)), the ESAA, or the regulations promulgated thereunder, 45 C.F.R. §§ 185.01
et seq. Board of Education of the City School District of the City of Cincinnati v. Department of Health, Education and Welfare, Region 5,
396 F.Supp. 203 (S.D.Ohio 1975).
On appeal the Sixth Circuit Court of Appeals affirmed our denial of the Board’s motion, but reversed our grant of summary judgment to HEW. The Sixth Circuit reminded us that courts “should be slow in disposing of a case of any complexity on motion for summary judgment.”
Board of Education of the City School District of the City of Cincinnati v. Department of Health, Education and Welfare, Region 5,
532 F.2d 1070, 1071 (6th Cir.1976). The Court found that summary judgment was improper in this instance because all four of the grounds advanced by HEW for denial of the funds involved genuine issues of material fact.
Id.
The Sixth Circuit therefore ordered “the case remanded for appropriate evidentiary hearing and findings of fact.”
Id.
Moreover, the Court of Appeals stated that the factual issues in the school desegregation case
Bronson v. Board of Education,
No. C-l-74-205 (S.D.Ohio), involved many of the same issues of fact, which “should be determined either before or contemporaneously with the determination of the issues of fact in the present case.”
Id.
We were directed “not to enter a final judgment in this present case until a final judgment has been entered in
Bronson.” Id.
The Sixth Circuit also ordered that the $1,200,000 escrow account established by this Court’s order be maintained until the final disposition of the litigation at both the trial and appellate court levels.
Id.
Following the remand of this case, the Board supplemented its complaint, alleging that HEW improperly denied the school district funds again in the 1976 ESAA program for the same reasons it had improperly denied the 1974 grant application (doc. 41). This Court entered a preliminary injunction directing HEW to hold in escrow the funds requested in the 1976 application (doc. 43). After we denied HEW’s motion to dissolve the preliminary injunction relating to the 1976 application (doc. 50), the parties agreed to reduce the amount to be held in escrow for the 1976 application to $1,696,762 (doc. 60). The Sixth Circuit affirmed our denial of HEW’s motion for reconsideration and dissolution of the preliminary injunction, agreeing that it was proper for the supplemental proceeding on the 1976 application to be stayed pending the resolution of the
Bronson
litigation (doc. 62).
On June 22, 1984 a consent decree was entered in the
Bronson
case, thus resolving it without trial on the merits. The settlement of that case, albeit without adjudication of the issues of fact, meant that we could proceed to final judgment in this case. Therefore this case was reactivated in September 1984.
Our first goal was to comply with the Sixth Circuit’s instruction that we conduct an “appropriate evidentiary hearing and findings of fact.” 532 F.2d at 1071 . Unfortunately the
Bronson
litigation offered us little guidance in resolving whatever issues of fact were common to both cases, so we sought to determine the proper procedure to follow in carrying out the Sixth Circuit’s mandate. At our request, in October 1984 the parties submitted briefs on the question of the proper scope of our review in this case (docs. 67, 69, 70). With regard to the issue of the appropriate record for review, HEW also pointed out that the complete administrative record had not ever been submitted to this Court. Doc. 69 at 13. They proposed that they would assemble such a record, after which the Board would have an opportunity to file additional material.
Id.
Rather than ruling immediately on the scope of and proper record for review, we waited until HEW filed what they considered to be the complete administrative record, to which extensive reference will be made herein. In addition to the documents that had been before this Court in 1975, they submitted all non-privileged doc
*1510
uments and data gathered by HEW from the Board, and the analyses and correspondence generated within HEW during its review of the Board’s 1974 and 1976 ESAA applications. Altogether, seven boxes of material were submitted.
Once the record had been supplemented, we scheduled a hearing on the adequacy of HEW’s fact-finding process. At the request of counsel for the Board, this hearing was postponed to allow them enough time to review the administrative record and determine whether depositions would be necessary to supplement it. On February 6,1985 a meeting was held with counsel for both parties at which the schedule for the hearing was discussed.
See
doc. 74. At the conference, counsel for the Board indicated that they were not then prepared to specify what, if any, additional discovery they wished to undertake to supplement the record.
In a letter dated February 26,1985, counsel for the Board informed this Court that they would “argue the inadequacy of the fact-finding process basically from the ‘administrative record’ as presented to us by the defendants.” They also anticipated presenting limited testimony from John Grate, a Cincinnati School District employee who had been principally responsible for preparing and coordinating the ESAA applications. The evidentiary hearing was never held, however, because counsel for the Board ultimately decided they did not want to call any witnesses.
In the absence of any additional evidence or testimony on the adequacy of the fact-finding process, the parties were asked to submit proposed findings of fact and conclusions of law addressing both the scope of judicial review and the merits of the case. After receipt of these submissions (docs. 78, 79, 80, 81), this Court called a status conference to discuss what further proceedings were appropriate in this case.
At the conference, held May 6, 1986, counsel for the Board stated that they wanted to supplement the paper administrative record submitted by HEW. Specifically, the Board wanted the Court to consider an affidavit of John Grate, which had been filed already as an attachment to the Board’s memorandum opposing dissolution of the preliminary injunction (doc. 46). In addition the Board requested the inclusion of the depositions of O.O. Barr and Mary Jane Calais which had been taken in the
Bronson
case. After some discussion, counsel for HEW agreed that they would not object to these additions to the record (doc. 84 at 8).
The Board agreed to supply these additional documents to the Court and HEW. HEW also agreed to give the Board copies of the documents that had been withheld from the administrative record, and which this Court ruled were not privileged (doc. 82). The Board was allotted three weeks in which to supplement their brief to this Court in light of these additions to the record, which they did (doc. 85). HEW was given an additional week thereafter for a reply, but they chose not to do so. Following oral argument on June 6, 1986, the parties were asked to address the issue of whether interest could be ordered on the money held in escrow. Plaintiffs filed a memorandum (doc. 88), as did defendants (doc. 90). The case was thus finally submitted for disposition on the merits.
II. STANDARD OF AND RECORD FOR REVIEW
It is undisputed that our review of HEW’s decision is governed by the Administrative Procedure Act, 5 U.S.C. § 706 . What is disputed is the appropriate subsection for us to apply in this case. The APA provides that a reviewing court shall “decide all relevant questions of law” and “hold unlawful and set aside agency action, findings, and conclusions” if they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706 (2)(A), or if they do not meet constitutional, statutory, or procedural requirements. 5 U.S.C. §§ 706 (2)(B)-(D). The court “shall review the whole record” in making these determinations. 5 U.S.C. § 706 . The vast majority of administrative decisions are reviewed under these provisions. If, however, the matter is “reviewed on the record of an
*1511
agency hearing,” the reviewing court may set the action aside if it is “unsupported by substantial evidence.” 5 U.S.C. § 706 (2)(E). Alternatively, a reviewing court may set aside an agency action that is “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” 5 U.S.C. § 706 (2)(F).
Plaintiffs contend that the facts in this case are subject to de novo review under section 706(2)(F) because HEW’s action was adjudicatory in nature and HEW’s fact-finding procedures were inadequate. Doc. 67 at 3-7,
citing Camp v. Pitts,
411 U.S. 138 , 93 S.Ct. 1241 , 36 L.Ed.2d 106 (1973);
Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971);
Newsome v. Vanderbilt University,
653 F.2d 1100 (6th Cir. 1981).
Specifically, the Board contends that HEW did not conduct hearings with appropriate procedural safeguards. Doc. 67 at 5. Nor did HEW maintain a complete contemporaneous record of their fact-finding and decision-making process.
Id.
The Board also argues that HEW did not conduct an independent fact-finding procedure to aid its determination of the unconstitutionality of the Board's nonimplementation of the 1973 busing resolution.
2
Id.
Finally, the Board contends that
ex parte
communications between HEW and parties other than the Board affected the denial of their application, and that the failure of HEW to disclose these contacts underscored the inadequacy of HEW’s fact-finding process.
Id.
at 7-8.
Although HEW agrees that the decision to deny funding was an adjudicative decision, they contend that it is not subject to de novo review under section 706(2)(F). Doc. 69 at 8. HEW asserts that its fact-finding procedures were adequate because they were adopted pursuant to duly promulgated regulations which placed the burden of establishing eligibility on the prospective grantee.
Id.
at 9. The regulations implementing ESAA did not require hearings regarding eligibility prior to an award of assistance.
See
45 C.F.R. § 185 .-46(e) (1974). Moreover, HEW points out that they compiled a substantial record of the steps leading to their decision, and the reasons therefor, which were communicated to the Board.
Id.
at 8 .
We find that the key issue is whether HEW’s fact-finding procedures were adequate. There is little to guide us, however, in making that determination. The two key Supreme Court cases on this question,
Camp v. Pitts,
411 U.S. 138 , 93 S.Ct. 1241 , and
Overton Park,
401 U.S. 402 , 91 S.Ct. 814 , upon which both parties rely, offer little assistance. In both of these cases, the Supreme Court determined that the fact-finding was not inadequate. Moreover, there are few cases holding that agency fact-finding was so deficient that de novo review was required. But
see, Porter v. Califano,
592 F.2d 770, 782-783 (5th Cir.1979) (finding substantial bias).
In the Sixth Circuit, however, it is clear that de novo review “is the exception rather than the rule” unless such review is provided by statute.
Upjohn Manufacturing Co. v. Schweiker,
681 F.2d 480, 483 (6th Cir.1982). In that case the Sixth Circuit rejected the assertion that informal fact-finding procedures were “inadequate in the sense that they are subject to de novo review.”
Id.
In this case HÉW’s informal fact-finding produced a vast quantity of documents and statistics, which suggest that their procedure was comprehensive if not particularly selective. In light of the law in this Circuit, therefore, we find that a de novo hearing within the meaning of 5 U.S.C. § 706 (2)(F) is not appropriate here. Rather, we believe the proper standard of review is that of §§ 706(2)(A)-(D). Thus, we must determine if HEW’s decisions, were “arbitrary, capricious, an abuse of discretion, or otherwise unlawful,” § 706(2)(A), or whether they fail to meet procedural, statutory, or constitutional requirements, §§ 706(2)(B)-(D).
We think that this conclusion is consistent with the Sixth Circuit’s instructions
*1512
when they remanded this case to us. The Court of Appeals’ direction “for appropriate evidentiary hearing and findings of fact,” 532 F.2d at 1071 , did not mean that we should hold a trial and make up a new record in our Court. Such a mandate would be inconsistent with the Supreme Court’s holding in
Camp v. Pitts
that a trial de novo was inappropriate for court review of a similar informal, adjudicatory agency decision.
See
411 U.S. at 142 , 93 S.Ct. at 1244 . Since we cannot interpret the Court of Appeals’ instructions to be contrary to Supreme Court precedent, we believe they did not intend us to hold a de novo trial of the facts upon which HEW based its decision.
We still must ascertain what they did mean by their instruction concerning the “appropriate evidentiary hearing and findings of fact.” Most simply it means that we are to decide the disputed issues of material fact which the Sixth Circuit found to exist with regard to each of the four grounds advanced by HEW for denying ESAA funds. See 532 F.2d at 1071 . Thus, instead of deciding this complex case on cross motions for summary judgment, we should allow both parties to submit evidence in addition to the administrative record, if necessary, to support their position, and then base our findings of fact thereon.
This does not constitute a de novo review within the meaning of section 706(2)(F). Rather, defendants have pointed out, this is a proper interpretation of the Sixth Circuit’s instructions when read in light of
Overton Park.
In that case the Supreme Court instructed the district court that review of the Secretary’s decision
*1513
It is also noteworthy that O.O. Barr, an HEW Office of Civil Rights official involved in Cincinnati’s eligibility determination, believed this to be the decisive issue. See Finding 77.
*1512
... is to be based on the full administrative record that was before the Secretary at the time he made his decision.
But since the bare record may not disclose the factors that were considered or the Secretary’s construction of the evidence it may be necessary for the District Court to require some explanation
in order to determine if the Secretary acted within the scope of his authority and if the Secretary’s action was justifiable under the applicable standard.
401 U.S. at 420 , 91 S.Ct. at 825 (emphasis added). The defendants thus urge us to conclude that the Court of Appeals’ instruction meant that we should “hold a hearing to determine what is properly in the administrative record and whether any additional explanation by way of testimony or other evidence is necessary to properly review the Secretary’s decision.” Doc. 69 at 12. We agree. Thus, the Court of Appeals would have us take evidence and make findings of fact in order to evaluate the Board’s claim that HEW’s decisions must be set aside.
Moreover, this interpretation of the Court of Appeals’ order is proper in light of their further instruction that “[t]he issues of fact involved in
Bronson
should be determined either before or contemporaneously with the determination of the issues of fact in the present case.” 532 F.2d at 1071 . We believe that this order indicates that the Court of Appeals thought, as do we, that the critical question in both cases was one which we found to be unresolvable on the record that was before us in 1975.
3
*1513
That is, whether the nonimplementation of the previously adopted desegregation plan was a constitutional violation by the Board, rendering them ineligible for ESAA funds. The Sixth Circuit expected that this issue would be resolved in
Bronson.
The
Bronson
case settled, however, without any such findings or admissions of discriminatory acts by the Board.
4
Thus we are left with a critical issue that must be resolved in this case.
As to the proper record for review, we recognize that the Administrative Procedure Act provides that we “shall review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706 . The Supreme Court has interpreted this to mean that we should review “the full administrative record that was before the Secretary at the time he made his decision,”
Overton Park,
401 U.S. at 420 , 91 S.Ct. at 825 , or “the administrative record already in existence.”
Camp,
411 U.S. 138 , 93 S.Ct. 1241 , 36 L.Ed.2d 106 (1973).
5
The Board has argued that this Court’s review should not be confined to the administrative record submitted by HEW. Rather, they contend that they are entitled to supplement that record by presenting additional testimony and evidence to this Court. Doc. 67 at 8-15. The
Board asserts that this is necessary to enable them to prove that the principal, if not the sole reason for HEW’s conclusion that the Board was ineligible for ESAA funding was the Board’s failure to implement their December 10, 1973 busing resolution. They assert that they would also be able to prove that there has been improper
ex parte
contacts between HEW decision-makers and the Cincinnati Chapter of the NAACP.
Id.
at 14. Moreover, they allege that they could show that the three other grounds proffered by HEW for ineligibility were actually “hypertechnical justifications for the ineligibility decision.”
Id.
at 13.
HEW has opposed any supplementation of the record to include material which was not “before” the agency official making the challenged decision. Doc. 69 at 13-15. In particular, they object to any inquiry into the mental processes of the administrative officials who made the ineligibility decision.
Id.
at 13. According to HEW, such inquiry is appropriate only in unusual circumstances, such as when there has been a strong showing of bad faith or improper behavior.
Id.
In this case, HEW asserts, the Board “has only made a bare-bones allegation of impropriety which is contradicted by the sequence of events surrounding the decisions.”
Id.
at 15.
*1514
We disagree. The Board has made specific allegations regarding the reason for HEW’s denial of ESAA funding to them, and we believe that they are sufficiently plausible to justify the admission of additional evidence in support of their theory. Moreover, these allegations relate specifically to the non-implementation issue which we must decide due to the absence of any findings in
Bronson
on the constitutionality of the Board’s actions.
Finally, the admission of these additions to the record appears proper in light of the Sixth Circuit’s instructions to us. In particular, we think that the consideration of documents prepared in connection with the
Bronson
case is proper because the Sixth Circuit told us to postpone our decision until the resolution of that case. The documents in question are depositions of two HEW officials that describe HEW’s decision-making process with regard to the Board’s application. Consequently they are also appropriate for us to consider because they “disclose the factors that were considered or the Secretary’s construction of the evidence.”
Overton Park,
401 U.S. at 420 , 91 S.Ct. at 825 . We therefore consider their inclusion in the record necessary to comport with our understanding of the Court of Appeals’ instructions to us as discussed above.
Pursuant to the above legal analysis, this Court gave both parties an opportunity to supplement the administrative record compiled by HEW should they so desire. The Board requested that three additional documents be included in the record, and HEW did not object.
See
document 85 at 8. Thus, we have consensus between the parties on what constitutes the entire administrative record on which we may base our decision.
In summary, this case is now submitted for final disposition on the merits, as distinguished from being submitted on cross-motions for summary judgment. Consequently our present analysis must be far different from that employed in 1975. Instead of being bound by the requirements of Federal Rule of Civil Procedure 56, and determining whether there are disputed material facts, we must now make findings of fact and conclusions of law on the Board’s charges that HEW improperly denied them ESAA funding in 1974 and 1976.
We must do this in light of the standard of review established by sections 706(2)(A)-(D) of the Administrative Procedure Act. Thus, we must determine whether HEW’s rejections were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” 5 U.S.C. § 706 (2)(A), and if the decisions “meet constitutional, statutory, or procedural requirements.” 5 U.S.C. § 706 (2)(B)-(D). We must determine, for example, whether HEW’s funding decisions evidenced bias or other improper motive, and whether the nonimplementation of the December resolution was really the sole reason for HEW’s decisions. Moreover, we must also decide all relevant questions of law, including whether HEW was correct that the Board was ineligible for ESAA funds because it had unlawfully discriminated against children by failing to implement the Board’s December 1973 desegregation resolution.
Our task is formidable in light of the fact that we must do all of this on the basis of an unwieldy administrative record, and without the benefit of a decision regarding these matters in
Bronson,
in which a resolution was expected by the Court of Appeals that would be dispositive of this case.
6
We now proceed to that task.
7
*1515
III. FINDINGS OF FACT
At the request of the Court, the Board submitted proposed findings of fact and conclusions of law (doc. 78) to which HEW responded (doc. 79) and the Board replied (doc. 80). Both parties were permitted to submit additional briefs in light of our ruling regarding privileged documents and the expansion of the administrative record (docs. 82, 85), but only plaintiffs chose to do so. (Doc. 85.) We have used these submissions as a framework which we have adapted in light of our own independent review and analysis of the complete record, and the relevant law.
A. BACKGROUND
1. In 1963 a class action suit was filed against the Cincinnati Board of Education alleging,
inter alia,
that the Board was operating de facto racially segregated schools.
Deal v. Cincinnati Board of Education,
244 F.Supp. 572 (S.D.Ohio 1965),
aff'd,
369 F.2d 55 (6th Cir.1966),
cert. denied,
389 U.S. 847 , 88 S.Ct. 39 , 19 L.Ed.2d 114 (1967)
[Deal I], aff'd on other issues,
419 F.2d 1387 (6th Cir.1969),
cert. denied,
402 U.S. 962 , 91 S.Ct. 1630 , 29 L.Ed.2d 128 (1971)
[Deal II].
The
Deal
litigation lasted over eight years, and included two decisions by this Court, two appeals to the Sixth Circuit, and two denials of certiorari by the Supreme Court. In sum, the result of this litigation was a 1966 holding that the Board had no constitutional duty to alleviate the racial imbalance that was found to exist in the Cincinnati public schools because it had not been intentionally caused by the Board.
Deal I,
369 F.2d at 61, 63-65 .
Moreover, both this Court and the Court of Appeals concluded that numerous specific actions and policies of the Board challenged by the
Deal
plaintiffs did not violate their constitutional rights.
Deal II,
419 F.2d 1387 . Specifically, the Court of Appeals affirmed the district court’s finding that there was no evidence that the Board assigned teachers or other staff members on the basis of race.
Id.
at 1394 . To the contrary, the Court found “that the Board was actively attempting to integrate its staff at all levels____”
Id.
The Sixth Circuit found “no inequality of educational facilities based upon racial classifications,” and no evidence of gerrymandering of school boundary lines to exclude blacks from certain schools.
Id.
at 1392, 1394 .
2. During the pendency of
Deal ,
the Cincinnati Board of Education adopted a resolution entitled “Statement of Position on Race.” (Box 6, Folder 2, Board Minutes of February 28, 1966.
8
) The resolution stated in part:
On March 9, 1964 the Board adopted a policy statement on the selection of sites for schools, establishment of attendance area boundary lines and assignment of pupils. This statement of the Board’s position expresses the present policy of the Board to avoid predominantly Negro schools to the extent that the Board has any control over the causes which create such predominance; but stated that in exercising its control, the Board would not deviate from the requirement of Ohio law that schools be located where they will be most convenient for the largest number of students. The Board also expressed its willingness to make race of students one of the elements to be considered in the establishment of attendance zone lines along with other factors which have always been considered, such as safety of children, travel distance, capacity of the school and close relationship between parents and teachers. ******
The Board and the administration have taken many positive actions to achieve these ends: the employment and assignment of integrated staffs have been increased markedly; interracial experiences for children in predominantly Negro and white attended schools have
*1516
been amplified; district boundaries have been drawn to avoid predominantly Negro-attended schools in those situations where that has been possible; efforts have been intensified to provide multiracial instructional materials; steps have been multiplied to compensate for educational and other deprivations in some communities and deliberate efforts have been made to insure good human relations both within the classroom and in out-of-class activities.
This Board and the administration have examined these past and current efforts and are seeking additional successful approaches. A careful examination of techniques that have been tried in other cities reveals that procedures such as bussing, open enrollment, deliberate balancing, shifting of attendance boundaries, [and] reorganization of grades or educational parks have not contributed a total solution for all situations.
Nevertheless, the leadership of the school system does not wish to close the door on further experimentation and innovation. All reasonable approaches to better interracial experiences will be considered, and those that seem likely to work will be tried on an experimental basis. It is stressed that no single technique will solve this problem in the Cincinnati school district or any other large city.
Id.
at 59-60.
3. In 1967, a group of business leaders commissioned a study of the Cincinnati Public Schools which was completed in August, 1968. Titled
Report: Cincinnati School Survey,
this study became known as the Campbell Report. (Box 5, File 4A, Nos. 16 and 17.) One aspect of this wide-ranging study was a review of interracial education. The Campbell Report stated,
“[W]e recommend that the Cincinnati School System should work toward the provision of high quality integrated education for all children under its jurisdiction.” Id.
at 91. (Emphasis in original.) The Campbell Report recommended,
inter alia,
experimental programs and concluded that “Cincinnati should develop plans for gradually integrating all its schools, to the limits that the geographic distribution of its population permits.”
Id.
at 91-92.
4. As a result of the Campbell Report, a number of community-wide task forces were established to review its recommendations. One such group was the Task Force Committee on Education and Race, which in March, 1969 recommended, among other things, that the Board of Education declare it to be “the policy of the Cincinnati Board of Education that quality integrated education is the highest goal of the Cincinnati Public Schools.”
9
(Box 1, Folder 1, No. 11 at 38.) In furtherance of this goal, the Board adopted several integrative program goals, which are summarized in the findings below.
5. On June 8, 1970 the Planning Program and Organization Committee of the Cincinnati Board of Education reported that it believed that the Board should include among its stated goals that of fostering better intercultural understanding. At the June 8, 1970 meeting the Board also resolved to consider as one of its program goals “the provision of quality interracial and intersocio-economic educational experience for both the student and the teacher of the Cincinnati Public School System, thereby giving both the student and the teacher a more realistic knowledge of the multi-cultural nature of our society.” (Box 6, Folder 4, Board Minutes of June 8, 1970 at 225.)
6. On June 29, 1970 the Board adopted the following statement as part of its “Program Goals for 1971”:
F.
Intercultural Understanding.
It is basically desirable to have intercultural, interracial, and intersocio-economic understanding for all students in order to prepare them for citizenship in a pluralistic and democratic society and to foster cooperation and understanding rather
*1517
than friction and misunderstanding within the schools themselves.
Therefore, it will be one of the goals of the Cincinnati Board of Education to provide interracial and intersocio-economic educational understanding for both the students and the teachers of the Cincinnati Public School system thereby giving the students and the teachers a more realistic knowledge of the multi-cultural nature of our society.
Recognizing that provincialism contributes to misunderstanding among groups separated by geography as well as other factors, the schools must devise methods for regular dialogue among representatives of different areas, bringing differences and even conflicting views into the open discussion and examination.
Better intercultural understanding comes about as a result of effective communication among staff, community, and students who share in the development of common goals. Effective programs to do this job are very difficult to devise; yet the community looks more and more to the schools to help solve problems which might have their roots in the community. One suggested approach to the problem is to strengthen present community associations. Such associations may provide the needed medium of communication among staff, parents, community and students in the local school context. Much work has been done and much work still has to be done in the area of human relations, and it requires the wholehearted involvement of all groups concerned if it is to succeed.
Ohio law requires the equal opportunity for every child to attend the most convenient school regardless of race, creed or national origin. With this in mind, the Board of Education supports the neighborhood school concept. Nothing in the goal set forth in this Section F shall conflict with the legal requirement of convenience nor require the voluntary or involuntary transportation of students.
(Box 6, Folder 4, Board Minutes of June 29, 1970 at 255.)
7. On July 10, 1972 the Board authorized the appointment of a Task Force to Study Racial Isolation. (Box 6, Folder 5, Board Minutes of July 10, 1972 at 358.) Pursuant to Board action on September 11, 1972, the Division of Research, Statistics and Information prepared a report in which they classified schools according to the feasibility of relieving overcrowding through school district changes. Redistricting a school district was not regarded as a feasible alternative, however, “if it seemed likely that nearly all pupils transferred would be of one race and would in the situation under review tend to increase segregation in any school affected.” (Box 5, Folder 6A, No. 7.)
On December 11,1972 the Board adopted the Policy on Grouping. (Box 6, Folder 5, Board Minutes of December 11, 1972 at 483.) On February 26, 1973 it received the Majority and Minority Reports of the Task Force to Study Racial Isolation. (Box 7, Folder 3, Nos. 11 and 12.) The Task Force members differed in their views, with the result that the Majority Report contained three alternative proposals and the Minority Report presented a view which differed substantially from that expressed in the first two alternatives of the Majority Report.
After the Board’s receipt of the Task Force’s Reports, on March 12, 1973, Board member Robert S. Brown made the following statement which appears in the minutes of the Board meeting of that date:
The Board of Education should
not impose
any method upon the school system, including busing, to achieve racial balance. The Board’s duty is to
foster
joint participation by schools and communities in recognizing and resolving educational inequities. Without mutual planning and support for acceptable and effective methods, we face the specter of the least acceptable method of all — court ordered busing, with all its limitations. We know of no community, black or white, in Cincinnati which favors this alternative.
*1518
(Box 6, Folder 5, Board Minutes of March 12, 1973, emphasis in original.)
10
8. On March 26, 1973 the Board of Education adopted a formal policy statement, based upon the language of the 1968 Campbell Report and the Task Force Report on Education and Race, as follows:
Quality integrated education is the highest goal of the Cincinnati Public Schqols. While this purpose shall remain clear, devices used to achieve this goal may vary with time and circumstances. Whenever a relevant decision is to be made, the potential for achieving integration shall be assigned a high priority.
Board Policy No. 5145.1. (Box 6, Folder 5, Board Minutes of March 26, 1973.) On that same date member Brown made the following statement:
STATEMENT OF MEMBER BROWN
One of the unfortunate aspects of the current debate of the Racial Isolation Report is the degree to which the superficial and inflammatory issue of busing, has been permitted to obscure the paramount tragedy of segregation. I have no brief for busing except as the only method so far conceived to get children from their homes to their schools. If another way could be found, Cincinnati would not spend $1,600,000 per year, to transfer children to their “neighborhood schools.”
While it is self-evident that solutions, enjoying public support and acceptance, should be adopted, as far as possible, tangential concerns, such as transportation, should not be permitted to eclipse the urgency of the problem itself. An excellent educational program in an integrated setting should be, to my mind, the most critical priority of this school board. Recent events, however, have left me unclear as to whether this priority is shared by other Board members. For that reason I recommend for adoption, the attached policy statement based on the 1968 Task Force on Race and Education, which examined the recommendations in the Campbell Report, to replace the March 1964 statement of the Board. This statement, with which board members have long been familiar, does not, as this Board should not, take any positions with respect to questions of methodology such as busing, magnet schools, or redistricting. Those issues should be resolved gradually on a pragmatic basis. It does make clear the urgency of integration as an integral part of “quality education” and justifies the careful deliberation on which we should now embark.
Id.
at p. 99.
9. On July 9, 1973 the Superintendent reported to the Board about steps being taken for reducing racial isolation, which were as follows:
PROPOSAL FOR REDUCING
RACIAL ISOLATION
On March 26, 1973, the Board of Education adopted as policy “... that quality integrated education is the highest goal of the Cincinnati Public Schools. While this purpose shall remain clear, devices used to achieve this goal may vary with time and circumstances. Whenever a relevant decision is to be made, the potential for achieving integration shall be assigned a high priority.”
As a matter of record, the Administration wishes to report that the following is the first step toward implementation of that policy and includes plans that will involve staff and students in September, 1973.
The incidence of racially identifiable staff will be reduced through attrition and transfer. New teachers will be assigned to school on the bases of: 1) their area of training and certification, and 2) their race. The intent will be to have the racial balance of each school staff approach the racial composition of the staff of the entire school system with ten percent leeway in either direction. A num
*1519
ber of years will be required to reach this goal through attrition; therefore, we will work with teachers and the recognized teacher organization to encourage volunteer transfers so that the goal will be reached as rapidly as possible.
An open enrollment plan for students will be implemented in September, 1973, under the following conditions: 1) that the receiving schools have available space, and 2) that the transfers will improve racial balance.
Those schools which are not enrolled to capacity have been identified. Numbers of students the school may receive and the racial composition of students acceptable to the receiving school have also been identified. Exemplary programs, alternate forms of education, and courses unique to a receiving school will be identified.
Parents and students will be encouraged, but not coerced, to take advantage of this opportunity.
(Box 6, Folder 5, Board Minutes of July 9, 1973 at 300.) On that same date Board member Ronald Temple made a statement opposing the foregoing proposal. That statement concluded:
In sum, I have concluded that the only systematic educationally sound way to attack the problem of racial isolation and educational reform is through racially balanced
alternative programs and schools.
Ultimately this would include every school in the district. Practically, let us make a beginning this September.
Id.
at 302 (emphasis supplied.)
11
10. On August 1, 1973 Superintendent Waldrip notified the teaching staff of the inauguration of the Board’s staff balancing policy commencing September 1,1973. His letter of that date states, in part:
On July 9 I set before the Board of Education and Cincinnati citizens my suggestions for reducing racial isolation within our schools. Toward that end we are inaugurating in September, 1973, a voluntary open enrollment procedure for students. We would like also to offer staff members a similar opportunity.
(Box 7, Folder 4, No. 2.)
B. THE EMERGENCY SCHOOL AID ACT
11. By July 1973 the Board began to formulate an application for funding under the Emergency School Aid Act (ESAA), 20 U.S.C. §§ 1601-19 , which had been enacted in 1972.
12
(Box 1, Folder 5, No. 1). The ESAA was intended to aid school districts in the voluntary reduction of minority group isolation. It included the following statement of “Congressional findings and purpose:”
a) The Congress finds that the process of eliminating or preventing minority group isolation and improving the quality of education for all children often involves the expenditure of additional funds to which local educational agencies do not have access.
b) The purpose of this chapter is to provide financial assistance—
1) to meet the special needs incident to the elimination of minority group segregration and discrimination among students and faculty in elementary and secondary schools;
2) to encourage the voluntary elimination, reduction or prevention of minority group isolation in elementary and secondary schools with substantial proportions of minority group stu-' dents; and
3) to aid school children in overcoming the educational disadvantages of minority group isolation.
20 U.S.C. § 1601 (1974 Supp. IV).
The ESAA also expressed support for neighborhood schools, providing “Nothing in this chapter shall be construed as requiring any local educational agency which assigns students to schools on the basis of geographic attendance areas drawn on a
*1520
racially nondiscriminatory basis to adopt any other method of student assignment.” 20 U.S.C. § 1618 (1974 Supp. IV). Moreover, ESAA prohibited the Act from being construed as requiring “the assignment or transportation of students or teachers in order to overcome racial imbalance.” 20 U.S.C. § 1652 (1974 Supp. IV).
12. The Emergency School Aid Act grants were administered by HEW’s Assistant Secretary for Education. Applications for ESAA funds were processed by Office of Education staff subject to the Act’s provisions and the administrative guidelines adopted by the Office of Education pursuant to the Act, 45 C.F.R. § 185.01
et seq.
(1974). The Act provided for basic grants, 20 U.S.C. § 1605 (a)(1),
13
and pilot grants, 20 U.S.C. § 1605 (b).
14
The ESAA grant process involved two facets. First, was the “civil rights” portion of the review which established the school district’s eligibility for assistance. The criteria for eligibility were set forth in 20 U.S.C. § 1605 and in the corresponding regulations at 45 C.F.R. § 185.11 . These provisions generally required that the school district had implemented (or would, if assistance was made available) a desegregation plan aimed at eliminating, reducing or preventing foreseeable minority group isolation in the schools.
15
Once this “basic” eligibility was established, it was necessary to determine if any of the “limitations on eligibility” of 45 C.F.R. § 185.43 applied.
The “limitations on eligibility” provided that an educational agency was ineligible for assistance if it had transferred property to discriminatory nonpublic schools, § 185.-43(a), if it had demoted or dismissed minority group personnel, § 185.43(b), if it had or maintained class assignment procedures resulting in classroom segregation, § 185.-43(c), or if it discriminated in other ways against children, § 185.43(d).
16
The determination of whether a school desegregation plan met those eligibility criteria was made entirely by the Office of Civil Rights (OCR) and presented to the Office of Education for routine adoption. Deposition of Mary Jane Calais, at 8, 10. The chief OCR investigator who reviewed Cincinnati’s eligibility for ESAA funding was Ortha 0. Barr, Jr., a Civil Rights Specialist in HEW’s Cleveland office. He reported to the Director of the Cleveland OCR office, Ruth Hart Stromberg. Strom-berg’s immediate supervisor was OCR Regional Director, Kenneth A. Mines, who in turn reported to the OCR Director in Washington.
The second prong of the grant process was an evaluation of the eligible proposals according to criteria set forth in 20 U.S.C. § 1609 (c), and detailed in the objective guidelines set out at 45 C.F.R. § 185.14 .
*1521
These criteria included “objective” factors, such as the need for ESAA funds as indicated by the number of minority children in the district compared to other districts in the state, and the effective net reduction to be accomplished by the plan. There were also “educational and programmatic” factors, including the proposed activities, staffing, delivery of services, parent and community involvement, and resource management. 45 C.F.R. § 185.14 (a), (b). Each proposal within a state was reviewed by a non-federal panel, including persons from inside and outside the state, who were of different races, and who were either community members or educational professionals.
Once these evaluations were completed, the proposals which had been determined to be eligible by OCR in each state were ranked according to their scores and funded in the order of their ranking. ESAA’s “funding criteria” required that the limited available funds, (which had been apportioned among the states), be awarded to applicants “from a State ... in the order of their ranking on the basis of the criteria set out in this section until the sums allotted to such State” were exhausted. 45 C.F.R. § 185.14 (c)(2). If all of the money allocated to each state was not thereby exhausted, the remaining money was reallocated to eligible projects elsewhere.
C. CINCINNATI’S 1974 ESAA PROPOSAL
13. On August 2, 1973 representatives of the Cincinnati public schools, including Superintendent Donald R. Waldrip and Assistant Superintendent John Grate, met in Chicago with several ESAA program officers, officials from the Office of Civil Rights (OCR), and Mary Jane Calais, Regional Commissioner of the U.S. Office of Education (OE), Region V. (Box 1, Folder 5, No. 2.) The Cincinnati officials discussed their plan for ESAA funding, with particular attention on their desegregation plan.
Id.
According to the uncontroverted affidavit of John Grate, “At this time the affirmative actions of CBE [Cincinnati Board of Education], namely, voluntary transfer, staff assignment and the Aiken building program to reduce racial isolation were discussed and supportive documents transmitted. Dr. Waldrip and Mr. Grate were advised that these actions formed the basis of eligibility for ESAA funds and were encouraged to pursue application for funds.” Affidavit of John Grate, September 20, 1974, Attachment to Document 11, at 1. [Hereinafter 1974 Grate Affidavit.]
14. On August 6, 1973 Waldrip wrote to Calais indicating that Cincinnati intended to file its “application at the earliest possible funding opportunity.” (Box 1, Folder 5, No. 3.) He indicated that Cleveland OCR officials viewed the Board-approved plans to reduce racial isolation through staff assignments, student transfer, and school building construction as constituting “the beginning of eligibility.”
Id.
Moreover, Waldrip informed Calais that “[o]ne component of our plan calls for voluntary student transfers with alternative and exemplary programs representing incentives.”
Id.
Waldrip expressed his eagerness to obtain 1974 ESAA funds in order to “enhance our chances of success in the first year of our program to initiate ESAA programs to attract children and parents into the schools involved in the voluntary transfer program.”
Id.
15. In September, Grate and other members of the Board staff attended meetings conducted by Ohio Department of Education and HEW officials to learn of ESAA guidelines and procedures for making application. 1974 Grate Affidavit at 1.
16. On October 5,1973 a letter of Intent to Apply for ESAA funds was filed with Louis Irons, EEO Program Manager, U.S. Office of Education Region V.
Id.
17. In October the Board adopted the Report of its Facilities Committee which recommended that approximately $1.4 million “be expended to enlarge the capacity and enhance the design of the new elementary school in the Cheviot-Midway-West-wood area so as to permit construction of a magnet school which will reduce racial isolation.” (Box 6, Folder 5, Board Minutes of October 8, 1973.)
*1522
18. On October 24, 1973 the Superintendent’s Administrative Conference decided to focus the ESAA program on an Aiken High School District Instructional Component, a Staff Development Component, and a magnet school component. 1974 Grate Affidavit at 2.
19. John Grate headed the proposal development task force which began preparing the manuscript and collecting the necessary data.
Id.
20. On November 13, 1973 Grate telephoned an unidentified Equal Opportunity Specialist in HEW’s Chicago office to inquire about assurances needed for the ESAA application. (Box 1, Folder 5, No. 5.)
21. During November the eligibility and program components of the Board’s application were the subject of meetings with school administrators and consultants, the Aiken Internal Task Force, the District-Wide Advisory Council made up of community and neighborhood representatives, and personnel from the Ohio Department of Education. 1974 Grate Affidavit at 2.
22. At this time the Cincinnati Board of Education included Robert S. Brown, Janet S. Duff, Rev. Tecumseh X. Graham, Virginia K. Griffin, Charles D. Lindberg, Mary T. Schloss, and Ronald J. Temple. School Board elections in November, 1973 resulted in the election of two new members, scheduled to take office in January, 1974. The new Board was considered to be more conservative regarding integration than the outgoing Board. The so-called “liberal” Board members, including Brown, Duff, Graham, and Temple, reportedly believed “that the ‘conservative’ board would be unlikely to continue the steps already taken toward reduction of racial isolation in the school district.” “Board May Integrate Schools,”
Cincinnati Post,
December 10, 1973.
17
(Box 6, Folder 7, No. 1.) Brown was quoted as having said that the Board election results showed that reduction of racial isolation on a gradual basis was an option “no longer open to us.”
Id.
23. At the December 10, 1973 Board meeting, member Ronald J. Temple moved for the adoption of a “Resolution Ordering the Racial and Economic Integration of Pupils in the Cincinnati Public Schools.” (Box 6, Folder 5, Board Minutes of December 10, 1973 at 459.) The resolution called for the rescission of school district lines, assignment of children to schools on the basis of race and family income, and busing to achieve that racial and economic integration by September 1, 1974.
18
Id.
Lame-duck Board members Graham and Duff joined Temple and Brown in voting for the adoption of the resolution.
Id.
At the same meeting, Superintendent Waldrip recommended that the Board apply for ESAA funds by the December 26, 1973 deadline.
Id.
at 469 .
24. During December a draft of the ESAA application was submitted to schools, central administration, and the District-Wide Advisory Council for review and comment. 1974 Grate Affidavit. A Public Hearing was held on December 17, 1973. (Box 1, Folder 1, ESAA Application at VI-8, 1-23.)
*1523
25. Cincinnati’s application for ESAA funding was submitted on December 26, 1973. (Box 1, Folder 1.)
(1) CINCINNATI’S ELIGIBILITY FOR FUNDING
26. Two days after the submission of Cincinnati’s proposal, on December 28, 1973, a form titled “OCR Verification of Applicant’s Plan Status” was completed by the Office of Civil Rights. (Box 1, Folder 1.) The form indicated that the Board could be considered for ESAA assistance because it “has adopted and is implementing” a plan “to eliminate or reduce minority group isolation in one or more of [Cincinnati’s] minority group isolated schools,” as required by 45 C.F.R. § 185.11 (b)(2).
27. Cincinnati’s desegregation plan was described in Section II of the application, entitled “Plan for Reducing Racial Isolation.” According to the application, Cincinnati’s eligibility for ESAA funds was “built upon the implementation of voluntary plans to reduce minority group isolation in the school district.”
Id.
at II — 1. Three specific plans were cited as having been implemented or being in the process of implementation to reduce or prevent racial isolation, including a building program, transfers of staff, and an open enrollment plan.
Id.
The Board’s December 10, 1973 Resolution was included as the last two pages of this section, at 11-15 to 17, but this plan was otherwise neither integrated into the application, nor even mentioned. For example, the ESAA Program Overview on IV-25 indicated that there were three components to it,
viz,
the Aiken Area Instructional Component, Staff Development, and Magnet Schools; there is no mention of compulsory busing or the elimination of all neighborhood school districts. The Timetable of Major Events in the ESAA Program, listing steps necessary for its preparation and implementation, at IV-116 to 119, makes no mention of the assignment of students to schools on racial and economic bases, nor of the September 1, 1974 deadline for achieving that goal via compulsory busing.
We think it significant that there is no indication in the entire ESAA application of any procedures to implement the December 10 Resolution or to make it a part of the plan for reducing racial isolation. Thus we disagree with defendants, and find that despite its inclusion in the application, the December 10 Resolution did not constitute an integral part of Cincinnati’s overall program for achieving desegregation.
19
(Cf. Doc. 79 at 7.)
28. At its regular meeting on January 14, 1974 the Board approved a Plan for Quality Integrated Education. Five Board members, including Robert Braddock, Virginia K. Griffin, Henry Kasson, Mary T. Schloss, and Charles D. Liridberg, voted in favor of the resolution while Robert S. Brown and Ronald J. Temple opposed it. (Box 6, Folder 6, Board Minutes of January 14, 1974 at 15.) In addition, the Board approved some Findings concerning the December 10 “Brown-Temple” Resolution, including assertions that the Resolution had not been in good faith, that it was “incomplete, inaccurate, misleading, and erroneous,” that it was unworkable and inadequate, and that it resulted in unclear and conflicting directives.
Id.
at 9-13 .
29. The Plan for Quality Integrated Education adopted in January 1974 had the following features:
a) Mandatory balancing of teaching staff by September 1, 1974, so that each school’s teaching staff would substantially approximate the racial balance of the teaching staff district wide.
b) An immediate affirmative action program for hiring of non-professional personnel, such that the racial balance of the non-professional staff approximate the racial balance of the adult population of the school district.
c) An immediate affirmative action plan arrived at by substantially increasing the percentage of black administrators
*1524
and supervisors within the school system, to continue even during times of staff reduction.
d) An expansion of the Open Enrollment Program, whereby students could transfer to another school if that school had the capacity and if the transfer would improve racial balance.
e) An expansion of the Alternative Schools Program.
f) An increase in the opportunity for interracial interchanges among students.
g) An attempt to cooperate with other school districts to insure quality integrated education to all students in the metropolitan area.
h) An across-the-board effort to upgrade the quality of education in all schools.
Id.
at 13-15 . ’
30. The day after the Board’s adoption of the Plan, HEW’s Equal Opportunity Specialist O.O. Barr wrote to J.C. Johnson, President of the Cincinnati Chapter of the NAACP. (Box 1, Folder 5, No. 8.) Barr indicated that he had been unable to reach Johnson by telephone at the Cincinnati NAACP office, and that he was “most anxious” to speak with Johnson “concerning the situation in the Cincinnati Public Schools.”
Id.
Mr. Barr did talk with Johnson January 18, 1974 (Box 1, Folder 5, No. 11). Barr then wrote to Johnson on January 21 to request a meeting with him in Cincinnati during the week of March 4.
Id.
In that letter Barr requested that Johnson advise him “in the event your organization files any legal actions against the Cincinnati School Board.”
20
Id.
31. On January 18, 1974 Barr also called John Grate about the need for additional information to establish Cincinnati’s ESAA eligibility. (Box 1, Folder 5, No. 9.) That same day Ruth Hart Stromberg (Chief of HEW’s Elementary and Secondary Education Board OCR, Cleveland) wrote to Superintendent Waldrip reiterating Barr’s message about the importance of providing additional information.
Id.
Although Stromberg’s six-page letter set forth ten points about which she sought additional information, she was most concerned with Part I which she labeled, “Implementation of Desegregation Plan.” Under that heading, she indicated that “there is a serious question” whether Cincinnati had “satisfied the eligibility for assistance requirements as set forth in Section 185.11 of the Regulations.”
21
Id.
She also stated that “[i]t was most important” to receive the material requested in Part I of the letter as soon as possible.”
Id.
In Part I, Stromberg acknowledged that “the district’s application does not specifically allege reliance upon the desegregation plan adopted by the Board of Education on December 10, 1973,” but she nonetheless wanted information about the steps underway or projected for its implementation.
Id.
She also told Waldrip that he should contact Mr. Barr if he had any questions.
32. Mr. Grate sent some of the requested material to Mr. Barr on February 1, 1974. (Box 1, Folder 5, No. 13.) As of February 8 Stromberg had not received it, however, and she wrote to Waldrip, empha
*1525
sizing “the absolute necessity of furnishing evidence at the earliest'possible time that the provisions of Section 185.11 of the Regulations have been satisfied. This matter is quite urgent because until such time as your District has demonstrated that it has met the eligibility requirements of Section 185.11, there is no basis for conducting a further review.”
22
(Box 1, Folder 5, No. 15.) The requested material had apparently been addressed incorrectly. (Box 1, Folder 6, No. 16.) Replacement materials were sent February 11 and additional materials were sent February 20.
(Id.,
Nos. 17, 18.) Mr. Barr requested additional information and documents on February 22, 1974.
(Id.,
No. 20.)
33. HEW sent an OCR review team to conduct an on-site civil rights eligibility review from March 4-7, 1974. On the first day of that review Barr met with NAACP representative Johnson as prearranged through correspondence dated January 21, January 28, February 2, and February 28 (Box 1, Folder 6, Nos. 10, 11, 14 and 22.) The notes from the meeting are brief, but they indicate that Barr and Johnson discussed discrimination in private schools and the impact of some proposed budget reductions on teacher in-service training and special programs.
23
(Box 1, Folder 5, No. 24.) Barr was also given the telephone numbers of Mr. and Mrs. Spencer.
Id.
34. On March 7, 1974 the OCR review team met with Superintendent Waldrip, John Grate, and James Jacobs for a closing conference. The typed minutes of the meeting prepared by Barr and another OCR representative indicate that the plaintiffs were advised of specific additional materials needed to assure technical compliance. (Box 1, Folder 5, No. 25.) With regard to “Implementation of Desegregation Plan,” Waldrip was told to keep OCR “fully informed regarding any and all steps taken to implement any desegregation plan.” Moreover, he was told that “[t]his is a potential legal problem in view of the 6th. Circuits [sic] position regarding implementation of desegregation plans.”
Id.
When Waldrip asked “whether it would have been better to have left the December 10, 1973 Resolution out of the Application,” he was told that it would have made no difference “because the passage of the Resolution was a matter of record.”
Id.
In response to Waldrip’s question as to “whether the adoption of the January 14, 1974 Resolution made the District ineligible,” he was informed that “this was a legal question” and that “OCR only gathered the facts.”
24
*1526
35. Although it is unclear from the record when the “Title VII ESAA Review Report” (Box 1, Folder 4) resulting from this inspection was actually completed, the Report refers to events as late as April 18, 1974, so it could not have been completed prior to the date.
25
The ESAA Review Report indicated that Cincinnati’s “[bjasic ESAA eligibility was founded upon implementation of an Open Enrollment Plan beginning September 1973.”
Id.
Although the “very minimal” reduction of minority group isolation resulting from this plan did not make Cincinnati ineligible for funding, the Report indicated that it would have “funding implications.”
26
The Report indicated that Cincinnati was not in compliance regarding transfer of property, faculty assignments, racially isolated classes, nondiscriminatory assignment of students to classes, and other discriminatory treatment. The other discriminatory treatment was the Board’s January 14 action “to delay, impede or obstruct lawful implementation of a desegregation plan and that it therefore constituted an unconstitutional segregative act.”
Id.
36. On March 11, 1974 J.C. Johnson and Marian Spencer of the Cincinnati NAACP wrote to Barr setting forth their organization’s position regarding the Board’s ESAA application. (Box 1, Folder 5, No. 26.) In that letter they asserted that the ESAA application as filed had two major thrusts, the first of which was the implementation of the December 10, 1973 desegregation plan.
Id.
The NAACP believed that the Board’s adoption of its January 14, 1974 plan “effectively rescinded” the December plan and constituted “an attempt to avoid rather than encourage integration.” Therefore, they felt “that to fund with ESAA monies any proposal based on that plan would be ... contrary to the purpose of the act.”
Id.
37. On March 13,1974 Stromberg wrote to Kenneth Mines, Region V, OCR Director, informing him that “[t]he initial 48-hour turnaround decision establishing basic eligibility
27
of the Cincinnati Public Schools was based on the December 10, 1973 resolution of the Cincinnati School Board to completely desegregate the schools by September, 1974.”
28
(Box 1, Folder 5, No. 31.) Stromberg noted that the ESAA application had included “[rjeference to an Open Enrollment Plan” and that the new school board’s decision not to implement the busing resolution made their eligibility contingent on the open enrollment plan. She noted that this plan had achieved “minimal reduction in minority group isolation” in the few months since its institution in September 1973. Consequently, she suggested that the plan’s limited effectiveness, which
*1527
was an important factor in funding decisions under 45 C.F.R. § 185.14 (a)(2),
29
should be brought to Mines’ attention.
30
38. On March 19, 1973, Kenneth Mines and Mary Jane Calais of HEW’s Chicago office, notified Waldrip that they had not yet received the material requested in Stromberg’s January 19, 1974 letter to Waldrip. (Box 1, Folder 5, No. 33.) Because of the inability of Cincinnati to furnish the material until the week of March 25, 1974, when • some funding decisions were to be announced, Cincinnati’s eligibility determination was being postponed until April.
Id.
39. One component of Cincinnati’s ESAA plan was the reduction of racial isolation through transfers of teachers to achieve staff balance in each school approximating that of the overall teaching staff.
See
Box 6, Folder 5, Board Minutes of July 9, 1973; Box 7, Folder 4, No. 2; Box 1, Folder 1 (ESAA Application). In January, 1974 when the Board adopted a mandatory staff balancing policy to be fully implemented by September 1974 (Box 6, Folder 6, Board Minutes of January 14, 1975), there was some discontent among teachers and the general public.
31
In response to this community pressure, the Board modified its mandatory staff balancing plan on March 18, 1974. As modified, the plan provided that no more than twenty percent of the staff of any school would be transferred in any year to achieve staff racial balance. (Box 6, Folder 6, Board Minutes of March 18, 1974.)
Barr called Waldrip on March 24, 1974 to request information on this change. The information was sent March 27. (Box 1, Folder 5, No. 33.) On March 29 Barr again called Waldrip, this time to arrange a meeting to discuss the change. (Box 1, Folder 5, Number 37.) The meeting was scheduled for April 3.
Id.
40. On March 29,1974 Stromberg wrote an Action Memorandum to Kenneth Mines entitled: “Proposed Letter Finding Cincinnati Public Schools, Cincinnati, Ohio Ineligible for Funding under Its Title VII ESAA Application and In Violation of Title VI.” (Box 1, Folder 4, No. 38.) The
only
issue discussed was whether the Board’s January 14, 1974 decision not to implement the December 10, 1973 resolution constituted discrimination against children as defined in ESAA regulations.
32
Id.
A prominent theme in the memo was the attitude of the Cincinnati NAACP.
Id.
at 1-2 . Stromberg noted that NAACP President Johnson had told the ESAA review team that the NAACP was going to file suit against the District for its failure to implement the December desegregation
*1528
resolution. Moreover, he had told the review team that he did not believe Cincinnati was eligible for or should be granted ESAA funds.
Id.
Stromberg went on to note that,
The District is apparently subject to the imminence of legal action by the NAACP charging unconstitutional racial discrimination, and
it would seem likely that HEW may be made a co-defendant, if OCR determines the District eligible under the existing conditions
where the Open Enrollment Plan on which ESAA eligibility is based has had minimal effectiveness in reducing racial isolation and the current Board has resolved not to implement the plan calling for complete integration of students.
Id.
(Emphasis in original.)
Stromberg characterized the January 14, 1974 resolution as “action which operated to delay, obstruct, and nullify steps lawfully taken for the purpose of protecting rights guaranteed by the 14th Amend-ment____”
Id.
This conclusion was based,
inter alia,
upon Stromberg’s reliance on the recitals in the December 10, 1973 resolution which set forth detailed “findings” about the segregated and unequal opportunities for minority students resulting from the Board’s deliberate acts and omissions.
She also reported that “[t]he
Superintendent and his administrative staff are not taking any steps to implement the directives of the Brown-Temple Resolution of December 10, 1973,”
and emphasized that OCR had repeatedly requested such information.
Id.
at pp. 4-6 . (Emphasis in original.)
Finally, Stromberg recommended that Cincinnati “should be advised that by virtue of its intentional segregative act it is ineligible for Title VII ESAA funding. Since the same fact constitutes a violation of Title VI, the Cincinnati School District should also be advised of its right to a hearing.”
Id.
at 6 .
41. On April 1, 1974 HEW’s Office of the General Counsel wrote to Mines expressing their concurrence with the analysis contained in Stromberg’s letter. Specifically, they said, “We concur in the reasoning and conclusions set forth in the March 25, 1974 draft memorandum proposed by Mr. Barr
33
pertaining to the ineligibility of Cincinnati for Title VII ESAA fund-ing____” (Box 1, Folder 4, Ex. 6.) The letter went on to state that they agreed “that Cincinnati is ineligible for ESAA funding unless the Board takes steps to implement the December 10, 1973 resolution.”
Id.
at 2 .
42. At the meeting scheduled for April 3, 1974 to discuss the Board’s faculty balancing plan there was “considerable discussion” about the effect of the Board’s January 14, 1974 action. (Box 1, Folder 5, No. 41.) Barr informed the Cincinnati officials that he had received a letter about this from the NAACP, “but that this would have no effect because the issue was a legal question to be decided by our OGC.”
Id.
43. Pursuant to James Jacobs’ request at the close of the April 3 meeting, Kenneth Mines furnished a written status report regarding Cincinnati’s eligibility for ESAA funding. (Box 1, Folder 5, No. 40.) Mines’ five-page letter of April 5 summarized the substance of his staff’s comments during the April 3 meeting, noting those “areas in which there remain serious problems.”
Id.
With regard to faculty assignments, Mines indicated that the Board’s March 18, 1974 action would result in five schools not meeting HEW’s requirement of having the proportion of minority teachers at “each school be between 75 percent and 125 percent of the overall proportion of minority teachers in the district.
Mines indicated that “the procedure used in assigning students to classes must be modified to prevent racially isolated or identifiable classes in the future.” He also outlined the steps that the Board should follow to demonstrate that any nonpublic schools receiving property or services from
*1529
Cincinnati were not operated in a discriminatory manner.
Finally, he noted that the “serious legal question concerning the affect [sic] of the Board’s action on January 14, 1974” had been referred to their General Counsel. He promised to advise Waldrip “immediately upon receipt of the [OGC] determination” concerning Cincinnati’s ESAA eligibility and possible Title VI violation.
34
Moreover, he added that “on the basis of the information furnished, there does not appear to be any action being taken to implement an alternative plan which would be equally effective in reducing the isolation or segregation of minority group students within your District’s various schools.”
44. During April 1974, Cincinnati officials continued to submit the materials necessary for achieving technical compliance. On April 9 and 18 Waldrip submitted material concerning the nondiscrimination policies of several nonpublic schools. (Box 1, Folder 5, Nos. 43, 47.) On April 23 Grate submitted the printed minutes from the Board’s December 10, 1973 meeting. (Box 1, Folder 5, No. 51.)
45. On April 19, 1974 the Acting Chief of the Elementary and Secondary Education Branch sent Kenneth Mines a memo entitled “School Districts Found Eligible for Funding by Cleveland OCR.” (Box 1, Folder 5, No. 48.) The memo said that Cincinnati was ineligible because of the new Board’s actions impeding, delaying or obstructing the December 10, 1973 resolution “to completely desegregate all public schools.”
35
Id.
46. On or about the same date, Barr drafted an eight-page letter of ineligibility to Cincinnati (Box 1, Folder 5, No. 49) which, with minor changes, was sent to Cincinnati on April 25, 1974. (Box 1, Folder 5, No. 52.) Thus, HEW did not notify the Board that they were ineligible for ESAA funding until three weeks after the OGC’s April 1 determination that they were ineligible.
See supra
Finding 41.
47. The April 25 letter set forth the reasons for the ineligibility decision. (Box 1, Folder 5, No. 52.) First, the letter stated that the nonimplementation of the December resolution “constitutes discrimination against children” contrary to 45 C.F.R. § 185.43 (d). Cincinnati was told they could seek a waiver which, in their ease, “would require evidence that either the December 10, 1973 resolution is being implemented or that an alternative plan is being implemented that would be equally effective in reducing the isolation or segregation of minority group students within your District’s various schools.”
Id.
at 2 .
The letter then went on to say that there were three other areas in which Cincinnati had failed to establish eligibility. With regard to teacher assignments, Cincinnati was found not to satisfy the requirements of regulation 185.43(c) as interpreted by HEW. Specifically, they found that “two schools would remain with a disproportionate minority group faculty as of September, 1974.”
Id.
at 4 . Despite the fact that the Board anticipated that this would be corrected by September 1975, HEW determined that the Board was not in compliance.
Third, although HEW expressed some concern about Cincinnati’s method of student assignment, they indicated that “this area will not raise any question regarding eligibility” if HEW received Cincinnati’s written confirmation that the improper assignments would be eliminated by Septem
*1530
ber 1974.
36
Id.
at 5 . Finally, Cincinnati was declared ineligible for failing to provide adequate determinations of nondiscrimination regarding the nonpublic schools to which the Board provided services as required by state law.
Id.
at 6 . The Board was also told how to establish eligibility in each of these areas by applying for a waiver.
48. In response to the ineligibility determination, the Board President wrote to Calais on May 2, objecting chiefly to HEW’s finding of ineligibility regarding nonimple-mentation of the December resolution. (Box 1, Folder 5, No. 53.) The Office of Civil Rights was asked to respond to the Board’s challenge to the civil rights ruling. (Box 1, Folder 5, No. 56.) Therefore, prior to May 16 Barr prepared a draft letter in response, but it was never sent. (Box 1, Folder 5, No. 61.) Barr’s draft indicated that the conclusion regarding Cincinnati’s ineligibility due to nonimplementation was “compelled by numerous decisions of the Supreme Court and other federal courts concerned with similar factual situations.”
Id.
at 2 . Moreover, the draft stated that the “efforts now underway” in Cincinnati were “not sufficient” because of failure to achieve compliance with the regulations concerning faculty assignments, student assignments, and transfers of property to nonpublic schools.
Id.
49. The complaint in this case was filed May 14, 1974.
50. On May 29 the OCR did respond to the Board President’s May 2 inquiry. This letter differed markedly in substance from the one drafted by Barr, which is summarized in Finding 40 above. The OCR merely acknowledged receipt of the letter and disagreed “with the allegations therein.” In addition, OCR offered further assistance to Cincinnati in establishing ESAA eligibility.
37
(Box 1, Folder 5, No. 64.)
51. On May 29, 1974 the NAACP filed a class action suit against the Board and others seeking to enjoin the defendants from operating an unconstitutional, racially segregated school system.
Bronson v. Board of Education.
(Box 7, Folder 1, No. 1.). The complaint sought,
inter alia,
that the Board be required to implement the December 1973 desegregation plan and be restrained from effecting the January 1974 plan “insofar as its application would impair or delay the desegregation.”
Id.
at 7-8 . OCR officials were apparently in touch with individuals from Cincinnati’s NAACP to obtain materials regarding the case. (Box 1, Folder 5, No. 68.)
52. On June 21,1974 this Court granted plaintiffs’ motion for a preliminary injunction in this case (doc. 4), ordering defendants to set aside $1,200,000, which was a portion of the funds the Board had sought (doc. 5). HEW was ordered “to take whatever steps may be necessary to make such funds available for the purposes set forth in the plaintiffs’ application for a grant, including the reassignment, reallocation or the recall of any funds which may have been heretofore available to defendants to remit to plaintiffs.”
Id.
53. Cincinnati officials continued to try to establish their eligibility for funding. On June 27, 1974 Waldrip wrote to Barr because it had come to Waldrip’s attention that he had not further responded “to that part of [the] letter dated April 25 in which [HEW] requested written confirmation of the verbal assurance given [the] review team on April 17, 1974____” (Box 1, Folder 5, No. 72.) Waldrip’s letter went on to promise that by September 1974 “there would be no racially isolated or racially identifiable classes that are not educationally justified.” He also submitted nondiscrimination determinations for the final
*1531
nonpublic schools receiving property or services from Cincinnati.
Id.
Thus, by June 27, 1974 Cincinnati had. corrected the deficiencies which OCR had cited regarding student assignments and provision of services to nonpublic schools.
See supra
Finding 47.
(2). EVALUATION OF CINCINNATI’S PROPOSAL
The administrative record contains scant documentation regarding the Office of Education’s programmatic review of Cincinnati’s proposal because such documents were no longer in HEW files when the record was compiled in 1984. Nonetheless, it is possible to piece together a rather sketchy chronology of events.
54. On February 7, 1974 staff from OE’s Chicago office, including Beverly Coleman, State Coordinator for Ohio, met John Grate and James Jacobs in Cincinnati for a “pre-grant review.” According to Grate, at the meeting they were told “that our application set forth an excellent proposal” and that it had been “favorably approved at the Program Review Stage.” 1974 Grate Affidavit at 2. Although they were informed that it would be necessary to revise some of the items, he stated that “[n]o suggestion was made at this time that consideration was being given to any reduction of the grant which had been requested.”
Id.
at 3.
Coleman’s account of the substance of the meeting is different. She contends that the Cincinnati officials were told that during the “administrative review of the budget” they would need to justify the “vast degree of remodeling as well as the large request for personnel and equipment in relationship to the number of pupils and schools to participate in the ESAA program.” (Box 1, Folder 5, No. 44.)
55. On February 14, Grate sent the Office of Education some materials that had been requested during the site visit, and he promised to send additional material. (Box 1, Folder 5, No. 17A.)
56. On March 8, 1974 Coleman called Grate to inform him “of the administrative review of the application’s requested budget.” (Box 1, Folder 5, No. 44.) Coleman told Grate which line items in the budget were to be cut because they were found to be nonallowable, illegal or excessive in terms of the application’s components. Cincinnati was told “to submit a revised budget reflecting the recommended amount.”
Id.
According to Coleman, Grate indicated he would not do so.
Id.
57. On March 11, Coleman and ESAA Program Manager Louis Irons spoke with Grate and James Jacobs on a conference call.
Id.
The Cincinnati officials told the OE personnel that “there was absolutely no way that the program objectives ... could be achieved with the level of resources and deployment” mandated by OE. (Box 1, Folder 5, No. 39.) Apparently both sides concluded the conversation with the impression that the other party would get back in touch with them concerning resolution of the disagreement. (Box 1, Folder 5, Nos. 39, 44 and 1974 Grate Affidavit at 3.)
58. Instead of revising the budget, Cincinnati’s Superintendent of Schools wrote letters to enlist the support of Ohio Department of Education officials, as well as both United States Congressmen from Cincinnati and both Senators from Ohio. (1974 Grate Affidavit at 3.) On March 19, two Ohio Education officials wrote to HEW’s Chicago office requesting full funding for Cincinnati’s proposal. (Box 1, Folder 5, No. 32.) They noted the “severe limitations” this reduction would place “on the number of children to be served in the Cincinnati district.”
Id.
Moreover, they stressed that “[a]t a time when major inroads on behalf of school desegregation are taking place in this district, the need for additional funds to carry out the board’s commitment is urgent.”
Id.
They also noted that they had spent much time assisting Cincinnati, which was the Ohio school district with the second largest number of minority students.
Id.
Congressman Luken also contacted Coleman to determine the reasons for the reduction of funds. (Exhibit 3 to 1974 Grate Affidavit.)
*1532
59. Grate wrote to Coleman April 4, taking issue with OE’s assessment that certain items in the ESAA proposal were not direct services to children, and were consequently excessive and nonallowable. (Box 1, Folder 5, No. 39.) Grate contended that the proposal, as designed, was a “well thought out and well prepared program” whose “aim in serving children was immediately clear to readers at all levels.”
Id.
He set forth eight examples of “poorly thought out cuts” which he claimed were made “in an arbitrary manner with little attention to how these cuts would directly affect” services to children.
Id.
Finally, Grate expressed his disenchantment with ESAA and doubt about Cincinnati’s participation “unless more thoughtful consideration is given to our proposal.”
Id.
at 2.
60. Coleman’s April 9 response set forth her account of the events that had transpired and informed Grate that the ESAA grants were “funded on a discretionary basis, not by entitlement.” (Box 1, Folder 5, No. 44.) Coleman reminded Grate that during the March 11 conference call he had been asked to inform them when Cincinnati had decided “whether to accept or reject the recommended funding
level.” Id.
at 3 (emphasis in original). She noted that they still had not heard whether Cincinnati decided “to accept the recommended funding level with appropriate programmatic adjustments or not accept the recommended funding level declining to participate in ESAA.”
Id.
Finally, she indicated her awareness of OCR’s request for additional information concerning Cincinnati’s civil rights eligibility, and cautioned that “this letter
only
refers to programmatic aspects of Cincinnati’s proposal not to eligibility compliance aspects.”
Id.
61. Some ESAA grants were announced in April 1974. By early May, HEW began preparing to reallocate funds by transferring “uncommitted balances from the States where no fundable projects remain to other states where the initial apportionment was not sufficient to support all fund-able projects.”
38
(Box 1, Folder 5, No. 54.) The reallocation was scheduled to take place May 17. Districts were eligible to receive reallocated funds only if they were fundable in all respects, including OCR certification. On May 24,1974 HEW indicated that any school districts cleared by OCR after that date stood “virtually no chance of being funded this fiscal year.” (Box 1, Folder 5, No. 63.) On May 30 HEW completed the reallocation calculations which exhausted the 1974 state apportionment funds. (Box 1, Folder 5, No. 65.)
62. According to the uncontroverted affidavit of John Grate, Cincinnati Board officials were never told that these funds were no longer available.
39
Therefore, Cincinnati officials continued to submit materials in an attempt to qualify for ESAA funds. On June 20, Grate wrote to the Office of Education, (apparently in response to Coleman’s April 9 letter)
40
requesting assistance in making the program adjustments required by OE’s recommended funding level of $911,000. (Box 1, Folder 5, No. 70.) He specifically asked for an itemized budget statement of the approved projects. Grate also noted, “It is our hope that the Office of Civil Rights’ decision on compliance can be resolved quickly so that we may get on with the implementation of the ESAA activity.”
Id.
63. The Office of Education responded on June 28 that because they considered Cincinnati to be ineligible for ESAA funds “it would appear inappropriate” for them “to take the time and effort required to provide the item-by-item budgetary statement which two months later you have requested.” (Box 1, Folder 5, No. 73 at 1.) The letter went on to state that they would be glad to provide an itemized budget “[i]f the Federal District Court in Cincinnati
*1533
were to decide, contrary to our view, that the School District is eligible for funding.”
Id.
at 2.
64. Despite these disputes regarding the proper level of funding, it appears that Cincinnati’s proposal was well received by the nonfederal panel that evaluated it. Although the evaluation is not part of the record, because it was no longer in HEW files when the administrative record was compiled, some handwritten notes from June 21, 1974 indicate that Cincinnati’s ratings were well above the minimum necessary for funding. (Box 1, Folder 5, Nos. 69.) Cincinnati’s composite score was 61.5, more than 16 points above the minimum of 45. On quality, Cincinnati scored 37.5, while the minimum was 28. On “need” the score was 24, significantly above the average 7-10.
Id.
Thus it appears that Cincinnati would have been funded if they had achieved OCR clearance.
D. THE AFTERMATH OF THE INELIGIBILITY DECISION
65. On July 5, 1974 the Office of Civil Rights cited Cincinnati for violating Title VI of the Civil Rights Act of 1964 by virtue of its rescission of the December plan and failure to adopt any equally effective plan. (Box 1, Folder 6, No. 1.)
66. On July 12 HEW filed a motion to dismiss or, in the alternative, for summary judgment in this case (doc. 7). Consequently, when Superintendent Waldrip responded to the OCR’s notification of Title VI proceedings, he suggested that administrative action against Cincinnati be deferred in view of the ESAA litigation in which it might be resolved. (Box 1, Folder 6, No. 2.)
67. During the summer of 1975, at the request of U.S. Representative Donald Clancy, the Board’s attorneys attempted to negotiate a settlement in this action.
68. During late summer and early autumn, the Office of Civil Rights continued to gather information about Cincinnati’s civil rights eligibility. In particular, Ortha Barr sought the assistance of Marian Spencer of the Cincinnati NAACP “to furnish any further details and documents regarding the past actions and inactions of the Cincinnati School System.” (Box 1, Folder 6, No. 5; see also Nos. 6-10.) The purpose of this data gathering was to ascertain the factual basis for the examples of the Board’s deliberate segregative acts which were enumerated in the Board’s December 1973 integration resolution.
(See
Box 1, Folder 6, No. 6.) In addition, Barr secured additional information from Board member Robert Brown. (Box 1, Folder 6, Nos. 12, 14, 15 and 23.) Based upon this information, Barr prepared a fourteen-page summary of those facts that supported the Board’s 1973 resolution. (Box 1, Folder 6, No. 17.)
69. In preparation for an October 11, 1974 visit to Cincinnati by Secretary of HEW Weinberger, the OCR prepared a memorandum summarizing both the NAACP suit and this suit. (Box 1, Folder 6, No. 11.) The memo said that “[t]he NAACP suit presents essentially the same issues that are present in the potential Title VI proceedings and in the Cincinnati Board’s suit against HEW.”
41
Id.
at 3. Moreover, the memo’s “suggested response” to questions about HEW’s position on the NAACP suit was as follows: “In the event a decision is rendered in the NAACP case, under the provisions of the Title VI Regulations compliance with a final order creates a presumption of compliance with Title VI of the Civil Rights Act of 1964.”
Id.
70. On October 24, 1974 the Director of the Office of Civil Rights wrote to the Board President to clarify OCR’s position about Cincinnati’s ineligibility determination. (Box 1, Folder 6, No. 16.) The Director said that Cincinnati had been found ineligible under section 706(d)(1)(D) of ESAA, 20 U.S.C. § 1605 (d)(1)(D).
42
It
*1534
would not be necessary, however, for the Board to reinstate the December 10th plan in order to achieve eligibility. The Board could take alternative approaches which would be acceptable if they would “provide for the total dismantlement of the present discriminatory system.”
The letter went on to say that the OCR had examined the rescission decision in the context of other Board actions which had been officially characterized as being racially discriminatory by the December 1973 Board resolution. Moreover, the OCR had confirmed this pattern of racially discriminatory actions through other information.
43
Cincinnati’s “segregatory teacher assignment practices” were part of this pattern, and constituted an independent basis for ineligibility. For these reasons the Director concluded that the ineligibility determination had been correct, as was the determination of noncompliance with Title VI.
71. On November 13, 1974 Kenneth Mines responded to the Board President’s July 30 letter indicating that he intended to refer Cincinnati’s Title VI file to Washington for “appropriate legal action” unless Cincinnati agreed “to voluntarily undertake adequate corrective action.” (Box 1, Folder 6, No. 20.) Consistent with the view expressed by the OCR Director, Mines noted that the Board need not reinstate the December plan as long as their alternate plan would dismantle the “present discriminatory system.”
Id.
Lacking any such response, Mines forwarded Cincinnati’s file to Washington on December 10, 1974. (Box 1, Folder 6, No. 24.) The initiation of legal proceedings was deferred “until such time as the U.S. District Court in Cincinnati has reached a decision in the pending suits involving” HEW. (Box 1, Folder 6, No. 27.)
72. On December 19, 1974 Waldrip sent Mines information on the implementation of the January 14, 1974 resolution. (Box 1, Folder 6, No. 26, and Box 5, Folder 4B.) This was supplemented on January 13, 1975 by a three-page letter from Jacobs and Grate. (Box 1, Folder 6, No. 28.)
73. OCR and Board officials continued to discuss the degree to which the Board had achieved any reduction in racial isolation pursuant to the January 14, 1974 resolution. In a fourteen-page letter of February 4, Mines concluded that “the information disclosed by the [OCR Civil Rights] Survey Forms does not indicate much progress, if any, toward the reduction or elimination of minority group isolation or segregation.”
44
(Box 1, Folder 6, No. 30 at 14.)
On April 14 Waldrip responded to that conclusion by pointing out that “[m]any aspects of a program such as is set forth in the resolutions will be achieved only over a period of time.” (Box 1, Folder 6, No. 35.) Nonetheless, some tangible progress had already been made. Waldrip sent Mines materials illustrating that progress, stating:
In summary, the enclosed reports on alternative schools and open enrollment show that 860 pupils are attending racially balanced alternative school programs in 10 schools, and 547 pupils are attending schools selected voluntarily under open enrollment. All of the pupils in the open enrollment program are either improving the racial balance of the school
*1535
attended or are attending a balanced school. In addition, nearly 6,000 high school students are attending Walnut Hills High School and three vocational centers at Aiken, Western Hills, and Withrow High Schools in student bodies that are in no sense racially isolated. The total number of pupils in these programs alone comprises about 11 percent of the system’s enrollment; next year it is expected that this will be increased to approximately 20 percent under the programs described in enclosures.
Since it is not at all clear what criteria, if any, are required to be met in this field, and the application process could not be presumed to require any specific degree of success in advance of approval, it does not appear to us to be a very profitable approach to criticize efforts such as those described above or our staff assignment plan which has resulted in perhaps one of the most nearly balanced staffs in the nation.
Id.
74. Cincinnati did not apply for ESAA funds in 1975 because the “deadline dates established in the guidelines were simply too stringent” for them to meet. (Box 1, Folder 6, No. 36.)
75. This Court granted HEW’s motion for summary judgment in this case on April 18, 1975.
E. CINCINNATI’S 1976 ESAA APPLICATION
76. On June 16, 1975 Jacobs wrote to Stromberg indicating Cincinnati’s interest in applying for ESAA funds in 1976-77. To ensure they were complying with ESAA regulations he requested specific information regarding “what constitutes a valid educational justification for the existence of racially isolated or racially identifiable classes.” (Box 1, Folder 6, No. 38.) Among other things he requested a specific listing of the classes which HEW concluded were unjustifiably imbalanced” in HEW’s 1973-74 survey of the Cincinnati schools.
Although a detailed draft of a response to Jacobs’ letter was completed by June 26, 1975 (Box 1, Folder 6, No. 41), it was not actually sent until November 20, almost five months later. (Box 1, Folder 6, No. 44). That letter indicated that HEW was not able to provide a specific listing of the classes found to be imbalanced in 1973-74. This was, in part, because the “analyses of the building reports were curtailed when your district gave the review team a verbal assurance on April 17, 1974 that the procedure used in assigning students to classes would be modified.”
Id.
at 2-3 .
77. In December 1975, John Grate attended a meeting in Columbus, Ohio with Louis Irons, Beverly Coleman, and O.O. Barr, all of whom had been involved in reviewing Cincinnati’s 1974 application. 1976 Grate Affidavit at 1. According to Grate, he was encouraged to apply for ESAA funds. In discussing Cincinnati's eligibility in light of the December 1973 and January 1974 resolutions, Grate contends that O.O. Barr
agreed with the assumption that this would be disposed of in the Bronson litigation and would render the school district eligible either by virtue of exonerating the district of any discriminatory action or result in a court ordered plan for desegregation. Mr. Barr did not indicate that any legal impediments stood in the way of our 1976 application.
Id.
at 2 .
78. On January 28, 1976, Grate, Wal-drip, and Jacobs met with Irons and Coleman in Chicago. The agenda indicates that the meeting focused on programmatic aspects of Cincinnati’s projects. 1976 Grate Affidavit, Exhibit 2.
79. On February 11, 1976, Barr wrote to Waldrip requesting basic data which would be needed if Cincinnati intended to apply for an ESAA grant in 1976. (Box 1, Folder 6, No. 46.)
80. On February 12, 1976, the Cincinnati School District submitted applications for two grants under the ESAA program, one for a basic grant and the other for a pilot grant.
81. As in 1974, processing was simultaneously conducted by two separate units within HEW: OCR began the civil rights
*1536
eligibility review; OE began a review of the educational merit of the application to ascertain the competitive ranking of Cincinnati for funding. We will summarize the chronology of the two reviews separately.
(1) CINCINNATI’S ELIGIBILITY FOR FUNDING
82. On February 18, 1976, OCR completed Part I of an OCR “Clearance Form” indicating that Cincinnati was eligible within the meaning of 45 C.F.R. § 185.11 because they had a voluntary plan to reduce racial isolation in one or more schools.
45
(Box 1, Folder 6, No. 48.)
83. Part II of the OCR Clearance Form was completed on February 23, 1976 to determine Cincinnati’s compliance with 45 C.F.R. §§ 185.41 , 185.42, 185.43. (Box 1, Folder 6, No. 49.) The form indicated that Cincinnati “must apply for waiver” because of some noncompliance. It is unclear from the form what the basis for this conclusion was, but it appears that there was some doubt about Cincinnati’s compliance with parts of sections 185.42,185.43(c), and 185.-43(d)(5), due to apparent lack of information.
46
84. On March 4, a proposed ineligibility letter was drafted. (Box 1, Folder 6, No. 51.) The letter indicated that Cincinnati was ineligible because it had had “discriminatory practices, policies or procedures in effect prior to the date of [their] current application.”
Id.
at 6 . This conclusion was based upon the fact that this Court had granted HEW’s motion for summary judgment, thus “upholding” HEW’s 1974 ineligibility determination regarding teacher assignments, student assignments, and transfers' to nonpublic schools.
Id.
at 307 . Moreover, HEW asserted that the nonim-plementation of the December 1973 resolution remained a bar to eligibility even though it had not been ruled on by this. Court.
Id.
at 8 .
85. On March 26 the proposed ineligibility letter was circulated by Barr to other HEW officials. (Box 1, Folder 6, No. 55.)
86. On March 31, 1976 the Sixth Circuit reversed and remanded this Court’s order granting summary judgment to HEW in this case.
87. On June 3, 1976 Cincinnati was officially notified that it was ineligible for ESAA funding. (Box 1, Folder 6, No. 60.) The only significant change in the draft as finally sent was that it included reference to the Sixth Circuit’s decision to remand this case. According to the letter, “Nothing in the opinion ... to remand that case on procedural grounds, indicates that the [HEW] determination was incorrect. Therefore,
unless the courts resolve this issue to the contrary,
the determination stands.”
Id.
at 2, 3 , 5 & 6 (emphasis added.)
88. When Cincinnati was notified of its civil rights ineligibility, it was told that it could have an informal “show cause” hearing and had the right to seek a waiver of ineligibility. (Box 1, Folder 6, No. 60.)
89. The show cause hearing was held on June 22, 1976 before Herman Goldberg, Assistant Commissioner of OE. There are no notes in the administrative record reflecting what occurred at the meeting, but John Grate’s affidavit contains the following account of the meeting:
At this meeting Dr. Goldberg stated that HEW would not provide ESAA funds to the Cincinnati Public Schools until the district implemented the mandatory pupil assignment plan adopted on December 10, 1973. Dr. Goldberg further indicated that HEW has regarded the school district ineligible for ESAA funds since the
*1537
time of the decision not to implement that plan. In view of this decision the presentation of data by the Cincinnati School District and discussion of the merit of OCR’s allegations of ineligibility was entirely foreclosed.
1976 Grate Affidavit at 3.
Goldberg’s account of this meeting indicates that Cincinnati’s representatives “chose not to present additional information regarding any of the four reasons for ineligibility” but instead stated that they would file a supplementary complaint in this case. Affidavit of Herman Goldberg, attached to HEW’s Motion for Reconsideration of Preliminary Injunction, doc. 44.
(2) EVALUATION OF CINCINNATI’S PROPOSAL
90. The Office of Education’s review panel completed and submitted technical review forms for Cincinnati’s basic and pilot grant application on March 2-3, 1976. (Box 1, Folder 7, File 7B, Nos. 2A, 2B, 2C, 2D, 3A, 3B, 3C, 3D.) Three of the four panelists indicated that they would recommend funding the basic grant if specified necessary improvements were made. The scores of the individual panelists were below the required minimum,
47
however, so the review summary was marked “Resubmit.”
91. For the pilot grant proposal, three reviewers favored approval, while the one other favored approval only if it were rewritten to address identified deficiencies. (Box 1, Folder 7, File 7B, Nos. 3A, 3B, 3C, 3D.) The scores received, however, were below the required minimum for funding,
48
and the project was consequently marked “Resubmit.”
92. Six weeks later, on April 16, the Board was notified that both of its applications had been rated below the minimum scores required for funding. (Box 1, Folder 6, No. 56.) The letter of notification set forth in general terms the deficiencies, and invited the Board to modify its proposal and resubmit its application by May 7, 1976.
Id.
That letter went on to state:
We would like to emphasize that the above comments relate solely to the quality of your ESAA Application and the activities proposed therein and are
not
to be taken as a judgment regarding eligibility for ESAA funds. Considerations of administrative efficiency sometimes dictate that the quality of an application be reviewed before eligibility to receive ESAA funds is established.
Id.
at p. 2 .
93. With technical assistance from HEW, the Board revised its application and resubmitted it on May 7, 1976. (Box 1, Folder 3.)
94. The resubmitted applications were reviewed by a panel that had three of the original four panelists. (Box 1, Folder 6, No. 63.) The revised basic grant received scores similar to the first ones despite the fact that the Board had attempted to make changes as recommended. The scores of 25, 29, 27 and 23 averaged 26, still below the minimum of 28, and it was therefore marked “Low Quality” on May 12, 1976. (Box 1, Folder 7, File 7B, No. 11.)
95. Three of the four panelists recommended funding of the resubmitted pilot program, but noted some reservations about specific components of it. The proposal received scores of 28, 39, 31 and 29,
*1538
for an average of 31.75, which was below the minimum of 33. It was marked “Low Quality.” (Box 1, Folder 7, File 7B, No. 12.)
96. The following chart summarizes the ratings given Cincinnati’s basic and pilot grant proposals during their initial and resubmit reviews.
[[Image here]]
97. The reviewers’ comments on their review sheets indicate that they were aware of and considered factors which were not among those set out in the regulations. For example, one reviewer said, “If the former Superintendent were placed in charge of this project with ‘no strings attached’ this panelist would feel safe in the recommendation.” Another stated, “There are too many problems with this proposal. Funding should clearly not occur unless these problems as well as the local problems of the district are resolved.” Finally, another reviewer wrote, “The proposal has the distinction of being the only one that made me angry enough to spit! The area of human relations is not going to help much if the writer only recognizes 2 races.”
49
98. At the conclusion of the civil rights show cause conference discussed in Finding 89 above, the hearing officer informally advised the Cincinnati officials that their revised applications did not meet HEW’s minimum scores.
Id.
and doc. 79 at 34.
99. On June 24, 1974 plaintiffs filed a supplemental complaint and motion for preliminary injunction in this case (docs. 41,
42). On that same day this Court ordered HEW to create and obligate a fund of $1,884,401 (doc. 43).
100. On June 25, 1976 the Board received formal notification that it would not receive ESAA funding because its second application lacked educational merit. (Box 1, Folder 6, No. 61.) The letter set forth no specific reasons for this conclusion, noting only that the applications had not achieved the minimum scores required.
IV. CONCLUSIONS OF LAW In 1975, when this Court considered the validity of HEW’s 1974 determination of ineligibility, our inquiry was “bounded by the procedural confines of cross-motions for summary judgment.” 396 F.Supp. at 226 . We examined each of HEW’s asserted grounds for ineligibility because it was “apparent” to us that if any one of HEW’s determinations was correct, HEW was entitled to summary judgment as a matter of law.
Id.
Our inquiry now is much different and much broader because we are no longer bound by the strict limits of a summary
*1539
judgment motion. Instead, as we have already discussed in Part II of this Opinion, we are now deciding this case on the merits and on a greatly expanded record, seeking to determine whether the facts set forth above show that HEW’s decisions denying ESAA funding to the Board were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706 (2)(A).
We have catalogued the events surrounding these decisions with care to enable us to make the “searching and careful” examination which is necessary. We are now able to determine not only what facts were considered by HEW, but also how those facts were construed. Under the standards for review contained in the Administrative Procedure Act, 38 U.S.C. § 706 , this Court finds that HEW’s decisions denying ESAA funding to Cincinnati in 1974 and 1976 must be set aside for the reasons set forth below.
A. HEW’S INELIGIBILITY DETERMINATIONS WERE CONTRARY TO LAW
HEW found that the Board’s failure to implement the December 10, 1973 resolution made the Cincinnati School District ineligible to receive ESAA funding because it constituted other discrimination against children within the meaning of 20 U.S.C. § 1605 (d)(1)(D), as defined in 45 C.F.R. § 185.43 (d). This is demonstrated by the April 25, 1974 ineligibility letter as well as by Stromberg’s March 29, 1974 “action memorandum” to Mines (Finding 40
supra
), and the Office the General Counsel’s April 1 letter concurring with Stromberg’s analysis. (Finding 33.) The OGC’s April 1 letter is particularly revealing in that it acknowledged that Cincinnati “appears to meet the basic eligibility requirements set forth at 45 C.F.R. § 185.11 (b).” Therefore “the specific question” remaining was whether the January 14, 1974 resolution not to implement the December 10, 1973 plan resulted in discrimination under § 185.43(d).
To answer that question, HEW examined contemporary judicial decisions involving instances in which state legislatures or school boards had rescinded previously enacted integration plans. In particular, they relied on a line of cases following
Bradley v. Milliken,
433 F.2d 897 (6th Cir.1970).
50
In
Bradley ,
the Sixth Circuit held that a Michigan statute which suspended the Detroit Board of Education’s integration plan was unconstitutional because it violated the fourteenth amendment.
Id.
at 904 . In reaching this conclusion, the Court distinguished
Deal ,
saying:
In
Deal
this Court held that the school board of a long-established unitary nonracial school system had no constitutional obligation to bus white and Negro children away from districts of their residences in order that racial complexion be balanced in each of the many public schools in the City. In the present case the Detroit Board of Education in the exercise of its discretion took affirmative steps on its own initiative to effect an improved racial balance in twelve senior high schools. This action was thwarted, or at least delayed, by an act of the State Legislature. No comparable situation was presented in
Deal .
Id.
Based on the line of cases following
Bradley ,
HEW concluded that “there is no question” that “an action by a newly elected school iboard delaying, impeding, or frustrating the lawful implementation of a discrimination plan is an act which results in discrimination against children on the basis of race which not only violates the Equal Protection Clause of the Fourteenth Amendment, but also violates 45 C.F.R. § 185.43 (d).” (Box 1, Folder 4, No. Exhibit 6.) Since HEW found that the January nonimplementing resolution delayed or impeded implementation of the December
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plan, Cincinnati was found to be ineligible under § 185.43(d).
We now know, however, that HEW was incorrect in concluding that rescission of a school board’s integration plan necessarily constitutes unconstitutional discrimination. In
Dayton Board of Education v. Brinkman,
433 U.S. 406 , 97 S.Ct. 2766 , 53 L.Ed.2d 851 (1977), the Supreme Court agreed with the Sixth Circuit’s statement in
Brinkman v. Gilligan,
503 F.2d 684, 697 (1974) which was as follows:
The question of whether a rescission of previous Board action is in and of itself a violation of appellants’ constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took.
If the Board was not under such a duty, then the rescission of the intial action in and of itself cannot be a constitutional violation.
If the Board was under such a duty, then the rescission becomes a part of the cumulative violation, and it is not necessary to ascertain whether the rescission
ipso facto
is an independent violation of the Constitution.
433 U.S. at 414 , 97 S.Ct. at 2772 (emphasis added; citations omitted). Thus, the non-implementation of a previously passed desegregation plan does not constitute a seg-regative act unless there was a preexisting constitutional duty to implement the plan.
The facts adduced above indicate that HEW made no attempt to ascertain whether, in fact, the Board was under a constitutional duty to implement the December plan.
51
Moreover, our examination of the administrative record leads us to conclude that Cincinnati had no constitutional obligation to implement that particular plan. This conclusion is dictated in part by the
Deal
holding that the Cincinnati School Board had no constitutional duty to correct the racial imbalance in their school system because that imbalance had not been caused by the Board.
Deal I,
369 F.2d at 61, 63-65 . Admittedly, the vitality of the
Deal
holding was in question at the time HEW made the 1974 ineligibility decision, and it continued to be questioned long after.
52
Nonetheless, it is now clear that
Deal
was not dead then,
53
and that its holding continues to be res judicata to this day.
Bronson v. Board of Education,
687 F.2d 836, 843 (6th Cir.1982)
The fact that
Deal
was found to preclude relitigation of the Board’s conduct prior to July 1965 significantly limited the plaintiffs’ likelihood of success on the merits in
Bronson .
54
Likewise, it limits us in this
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case. We may only conclude that Cincinnati had a constitutional duty to implement the December 10,1973 resolution if we find that, subsequent to July 26, 1965, the Board engaged in a course of conduct that caused it to incur the obligation to eradicate racial imbalance in the Cincinnati public schools. In other words, we must find that, subsequent to July 26, 1965, the Board engaged in segregative acts which the December 10,1973 resolution sought to correct.
Our review of Board policy from 1965 to 1973 as reflected in the administrative record before us discloses no such acts.
55
Although it cannot be said that the Board was making significant progress in reducing the segregation in its school system during this period, there is ample evidence of the Board’s resolve to undertake programs aimed at achieving desegregation. (Findings 2-9.) While these measures did not produce the dramatic changes that would have resulted from implementation of a program such as that embodied in the December 1973 resolution, they were nonetheless programs aimed at achieving integration, which eventually bore fruit. Moreover, we do not find that the lack of such far-reaching programs, or any other acts of the Board during this period, rise to the level of being acts of
de jure
segregation which imposed a constitutional duty on the Board to implement the December resolution.
Based on the record before us, therefore, we find that the Board was not under a duty to eliminate racial imbalance when it adopted the December resolution; we also conclude that it had no constitutional duty to implement that resolution once it was passed. The Board’s failure to implement the December resolution was therefore not a violation of the Constitution. To the extent that HEW relied on this rationale in rejecting the Board’s applications for ESAA funding, we now hold that its determinations were erroneous as a matter of law.
56
Moreover, we agree with plaintiffs that HEW’s actions were contrary to law because they violated one section of ESAA. Specifically, we conclude that HEW violated 20 U.S.C. § 1651 which prohibited ESAA from being construed as requiring “the assignment or transportation of students or teachers in order to overcome racial imbalance.” The facts recited above, particularly (Findings 34, 41, 43, 47, 70, 71, and 89), clearly illustrate that HEW decided to withhold ESAA funds from Cincinnati unless the Board agreed to implement the Decem
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ber resolution by requiring mandatory busing. Although several of the documents in the record say that it was not necessary for the Board to bus in order to remove this basis for ineligibility, the Board was told that it must implement some “equally effective” plan (Finding 47), or that they must “provide for the total dismantlement of the present discriminatory system.” (Finding 70; see also Finding 71.) To tell the Board they need not bus to become eligible is thus disingenuous in light of the impossibility of devising any equally effective plan without mandatory busing. We find that HEW thus conditioned the receipt of ESAA funding on the implementation of some form of busing, which was contrary to law. HEW’s determinations are therefore unsupportable as a matter of law for an additional reason.
B. HEW’S INELIGIBILITY DETERMINATIONS WERE ARBITRARY, CAPRICIOUS OR OTHERWISE AN ABUSE OF DISCRETION
HEW contends that there were three other grounds on which it based its ineligibility decision, any one of which would support its determination. We disagree. Our findings of fact lead us inescapably to the conclusion that the sole reason for HEW’s determination that the Board was ineligible for ESAA funding was the Board’s failure to implement the December resolution. There can be no doubt on this record that if Cincinnati had abandoned neighborhood schools and bused to achieve racial balance that its ESAA application would have sailed through with flying colors. The other three bases for denying Cincinnati’s eligibility were mere “window dressing,” without substantial basis. As such, HEW’s reliance on them as grounds for ineligibility was arbitrary, capricious or otherwise an abuse of discretion. To demonstrate the factual basis for our conclusion, we will show that HEW’s only concern was the implementation of the busing resolution, and that the other three proffered reasons for finding Cincinnati ineligible were unsupportable afterthoughts.
The facts chronicled above make it apparent that HEW would have found Cincinnati ineligible even if they had found the Board to be in technical compliance on the other three factors cited in their April 25, 1974 letter. The documents generated within HEW and their correspondence with the Board and others during the entire period reviewed above reveals that the non-implementation issue was of paramount importance, absolutely overshadowing all other aspects of the eligibility determination.
Immediately after the Board’s adoption of the January 1974 plan as a replacement for the December plan, HEW began its single-minded focus on nonimplementation. Findings 30 through 48 detail these events. The evidence of this preoccupation is abundant and includes HEW’s January 18, 1974 letter saying that it was “quite urgent” that they receive information about, implementing the December resolution, the February 1 letter indicating the “absolute necessity” of receiving the information in order to conduct any further review, the March 7 meeting during which Cincinnati officials were told to keep HEW “fully informed regarding any and all steps taken to implement any desegregation plan,” the internal March 13 letter asserting that the “turnaround” approval of Cincinnati’s plan was based on the December plan, the March 29 memorandum finding Cincinnati ineligible exclusively for nonimplementation, the April 1 letter concurring with that opinion, the April 19 memo finding Cincinnati ineligible solely because of nonimple-mentation, and the April 25 letter of ineligibility itself which gave prominence to this basis for ineligibility. Nonimplementation also continued to be a central theme of HEW throughout 1975 and 1976. (See Findings 70, 71 and 89).
Moreover, beginning on January 11,1974 nonimplementation was the subject of considerable discussion between HEW officials and persons not connected with either HEW or the Board. HEW was in close contact with Cincinnati NAACP officials throughout this period, soliciting their opinions and information about their intention of filing suit against the Board. (See Findings 30, 33, 36, 40.) Moreover, on March 14, 1974 HEW also went so far as to in
*1543
form one person who had no connection with the School Board that Cincinnati would not be eligible for ESAA funding if the Board rescinded the December plan. (Finding 34 and accompanying footnote.)
Although HEW officials assured the Board that their contacts with the NAACP would not affect their eligibility determination (Finding 42), this was clearly not the case. Internal HEW documents make it clear that a chief reason for HEW’s preoccupation with nonimplementation was their fear of being named as a codefendant in the desegregation case that they knew the NAACP intended to file. From their earliest contacts with the NAACP, this was an apparent concern. (See Finding 30.) This continued to be a key preoccupation, as indicated by the March 29 HEW memo that focused on the NAACP’s position. (Finding 40; see also note accompanying Finding 33.) Thus it becomes clear that the ineligibility decision was also designed to prevent HEW from being named as a codefendant in the imminent desegregation litigation. While this motivation was understandable, it was also improper, casting further doubt on the defensibility of the ineligibility determination.
For all these reasons, we are certain that the nonimplementation of the December 1973 plan was the real reason for HEW’s decision to declare the Board ineligible for ESAA funding. Moreover, it is apparent that HEW was so convinced that nonimple-mentation would preclude the Board’s eligibility, that their review of other aspects of the Board’s eligibility was curtailed. The record shows that HEW denied the Board the same opportunity to achieve eligibility as it gave to other districts. The most telling evidence of this is the April 19,1974 memo finding Cincinnati ineligible due to nonimplementation, but deferring an eligibility decision on two other districts pending receipt of further materials to establish their eligibility. (Finding 45.) HEW has in fact acknowledged this with respect to their analysis of racially identifiable classes which was stopped after they received verbal assurances that the method of assigning students to classes would be modified. (Finding 76.)
Finally, it is clear that nonimplementation was in fact the sole ground for denial of eligibility because HEW’s conclusions of ineligibility on the other grounds were incorrect. Admittedly we held otherwise in our 1975 decision to grant summary judgment to HEW on each of these grounds. 396 F.Supp. at 230-42 . The Sixth Circuit determined, however, that we were wrong in our decision because they found that there were disputed material facts regarding each of these grounds. 532 F.2d at 1071 . On reexamination, especially in the context of the overall eligibility determination, we now find that HEW’s decision to declare the Board ineligible on these remaining grounds was incorrect.
First, with regard to the issue of student assignments, it is now clear that Cincinnati had in fact achieved eligibility as early as April 17, 1974 when they promised to use a different method to assign students to classes. HEW curtailed its investigation on the basis of these assurances, thereby suggesting that they were satisfied on this ground. Moreover, even the letter of ineligibility acknowledges this, stating, “assuming that such written confirmation is received, this area will not raise any question regarding eligibility.” (Finding 47.) Cincinnati did send the necessary written assurances on June 27,. 1974. (Finding 53.)
Second, concerning the nondiscrimination determinations for nonpublic schools receiving services, we find that the Board also was ultimately in compliance when they supplied the requested information on June 27. (Finding 53.) Although they were admittedly tardy in completing the required information, we attribute that to the Board’s preoccupation with the nonim-plementation issue and this case.
Finally concerning teacher assignments, we find that the minor degree of deviation from HEW’s preferred racial balance quotas did not constitute the disparate impact in teacher assignments found necessary by the Supreme Court to justify a finding of ineligibility.
Board of Education, New York City v. Harris,
444 U.S.
*1544
130, 100 S.Ct. 363 , 62 L.Ed.2d 275 (1979). In
Harris
the Court indicated that the key consideration was whether a teacher assignment policy had discriminatory impact. That is, this ineligibility rule “focuses on actualities, not on history, on consequences, not on, intent.”
Id.
at 146-47, 100 S.Ct. at 373 . The Cou

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1423307. Public record. Not legal advice.