Isaac Lora v. Board of Education of the City of New York

OAKES, Circuit Judge

(concurring in part):

I concur in the result and in Judge Pollack’s opinion except as it relates to the *252 necessity of finding intent as a prerequisite to a showing of a Title VI violation.

Because of Justice Stewart’s views, expressed in his dissent in Board of Education v. Harris, 444 U.S. 130, 158 , 100 S.Ct. 363, 375, 379 , 62 L.Ed.2d 275 (1979), concerning what Justices Brennan, White, Marshall, and Blackmun held or said in Regents of University of California v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1979), and because of the dictum in the majority opinion in Board of Education v. Harris, supra, 444 U.S. at 150 , 100 S.Ct. at 373-374 , I am, of course, tempted to join my colleagues even on the intent issue. However, Lau v. Nichols, 414 U.S. 563 , 94 S.Ct. 786 , 39 L.Ed.2d 1 (1974), has not been overruled. That case, involving unequal treatment of Chinese-speaking minority students, held that “[djiscrimination is barred [by an HEW regulation] which has that effect even though no purposeful design is present.” Id. at 568 , 94 S.Ct. at 789 . Moreover, even assuming that intent is generally required for Title VI violations where a cutoff of all federal funds to an entire school system is involved, cf. Board of Education v. Harris, supra, 444 U.S. at 150 , 100 S.Ct. at 374 (Congress might wish this “drastic result” only when there is intent), Congress may have intended to give HEW more flexibility in applying less severe sanctions such as a partial cutoff of funds for a particular program. 1

Be this as it may, until we have further clarification from the Court it will probably in the long run be preferable to obtain more specific findings for purposes of review by our court or the higher one. I say this even though I am fully aware, as I am sure Judge Weinstein was as well, that requiring findings of specific intent to discriminate often puts school boards themselves on the spot, creates unnecessary friction when a given board is prepared to take reasonable steps to eliminate disparate impact or effects upon a given group, and otherwise is a subject that might best be avoided. The state of Supreme Court law on the subject is in flux; the able trial judge can probably, with the tremendous effort he has already put into this and a series of New York school cases, take up the unpleasant task of making his findings more precise with little extra effort. My joining on this issue is thus with reluctance.

. I assume that the City School Board’s contract with HEW requires it to abide by all requirements imposed by or pursuant to HEW regulations. See 45 C.F.R. § 80.4 (requiring assurances of compliance with nondiscrimination regulations). It is therefore worth remembering that 45 C.F.R. Pt. 80, specifically 45 C.F.R. 80.3(b)(2), provides for a disparate impact test.

It is also worth noting that numerous appropriations of funds for Title VI have presumably occurred since Lau v. Nichols was decided in 1974. Congress is well aware — if it does not like HEW administration of a given congressional statute, or a judicial construction of it— of its right to modify that administration or construction either by direct act or by an appropriation act rider. E. g., Departments of Labor and Health, Education and Welfare, Appropriation Act, 1977, Pub.L. No. 94^39, § 208, 90 Stat. 1434 (prohibiting use of funds to require busing under Title VI); id. § 209 (the “Hyde Amendment”) (prohibiting funding of abortions except in specified circumstances). See also McRae v. HEW, 491 F.Supp. 630 (E.D.N.Y.1980), rev’d,-U.S.--, 100 S.Ct. 2671 , 65 L.Ed.2d 784 (1980) (holding Hyde Amendment unconstitutional).