# Petition — Board of Education of the City School District v. Harris > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0033%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 130 ## Text 4 es ~ 63 4 ; %, C i ‘ 3 IN THE SUPREME COURT OF THE UNITED STATES in OCTOBER TERM, st Supreme Cowl, apy — Ss. & 44 a 2, ‘4 BOARD OF EDUCATION OF THE cry NOY SCHOOL DISTRICT OF THE CITY O NEW YORK, IRVING ANKER, Chancellor Mepis. be of the City School District of the “" ". CLERK | City of New York, Petitioners, -against- JOSEPH CALIFANO, Secretary, United States Department of Health, Education and Welfare, HERMAN R. GOLDBERG, Associate Commissioner, Equal Educational Opportunity Programs, United States Department of Health, Education and Welfare, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ALLEN G. SCHWARTZ Corporation Counsel of the City of New York Attorney for Petitioners 100 Church Street New York, N. Y. 10007 7“ eee | INDEX ii Pages Pages Robinson v. Vollert, 411 The Opinion Below...-.++eeereererrss 1 F. Supp. 461 (S.D.Tex. 1976)..-+++s:s 40,41,42,43 JULiSGICtiON ..ceeeeeeeceerererree® 2 Stribling v. United States, 419 F. 2d 1350, 1352-53 (8th Cir. 1969).. 43 Question Presented..---eeeserereerres 3 United States v. Menasche, 348 U.S. Constitutional and Statutory 528, 538-539 (1955) cee ener vee eeecens 39 ProviSiONS..cccccccceesesreseerrerer® 5 Village of Arlington Hts. v. Metro. Preliminary Statement..---eeerreres 10 Hsng. Develp. Auth.,426 U.S.252(1977). 25 Statement of the CaS€..--eeereereres 13 Washington v. Davis, 426 U.S. 229 (1976) ec cceeeererervesereesereseesers 25 Argument..cccccccceccseesossssercre® 22 Zeigler Coal Co. v. Kleppe, 536 CONCLUSION. cccececocesseoseoseeere® 49 | 2a 398 (D.C. a. 1976) ~ecccvvcees 39 CITATIONS STATUTES Emergency School Aid Act Cases: ’ (20 U.S.C. 61601, et Seg.) .----eeeees ae ef Bradley v. Milliken, 432 F. Supp. ‘ : B85 (B.D. Mich. 1977) .+eeeeeeereees 40 Section lL601l.. cece cere ee eerveees 5 Lau V. Nichols, 414 BR 563 Section 1602 (a) a@eee sie e@ueseseeoeaserve 6, 23 1974 aw eee e666 68 OO COSTES EROS Sania 12,25,32,34 eS EEE 7,23,29,31 Keyes vV- School District No. l Denver, Colorado, 413 U.S. 189 QS. SCr.PiBs BLES 46. ccc vicsccccccoccs 15 (1973) wccececceeseereres ho ee ee 25 45 C.F.R. 8185.43(b) (2) -- eee eevee 16 Overstree v. North Shore Corp., 318 U.S. 125 131-132 (1943) .eeeeees 43 Regents of the University of California v. Bakke, U.S. ° 46 U.S.L.W. 4896 (June 28, 1978)... 3,11,25,26, 31,32,35,36, 37,38,39,48 P iii Pages Title VI of the 1964 Civil Rights Act (42 U.S.C. 82000d et SEg.)}.-6-- ll Section 20008 c6 0s ee CU 0606 0648 eEe 3,8 Section poi ee eee oe ae 8,27,29 Section 2000d~-6....-eee20. 5 ,28,29 Title VII of the 1964 Civil Rights Act (42 U.S.C. §2000e, et SOG-) +e 36 Elementary and Secondary Education Act of LIES eeeeeeeeeeeeeerersecece 27,28,30 1966 AmendmentS.cccccccccsceccsese 27,29 1970 AmendmentsS...cecccccccccvees 28 Appendices I. United States Court of Appeals for the Second Circuit, Decision, dated August 21, cL | Fer i ee 1 II. United States Court of Appeals for the Second Circuit, Orders denying P_tition for Rehearing with Suggestion for Rehearing en banc, dated Cotaber. 6, Abies ivciccscsses 28,29 iv Pages III. United States District Iv. Court, Eastern Dist rict pebgn Batya Memorandum rder, dated Nov 18, “s) | olitermnypbery tices ed 30 United States Court of Appeals for the Second Circuit, Decision, Dated September 5, Pesebétecbeccs 208 Vv. United States Di strict Eastern District eet of New York, Transcript of Proceedi n Dated September ave 1978... 128 Vi P P IN THE SUPREME COURT OF THE UNITED STATES iewed has not been officially re- OCTOBER TERM, 1978 ported. It is attached hereto as Appendix I. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, IRVING ANKER, Chan- cellor of the City School District of the City of New York, Jurisdiction The decree sought to be re- ti : Petitioners, viewed was dated and entered on -against- - August 21, 1978. JOSEPH CALIFANO, Secretary, United States Department of Health, Educa- tion and Welfare, HERMAN R. GOLDBERG, By orders dated October 6, 1978 Associate Commissioner, Equal Educational Opportunity Programs, United States Department of Health, Education and Welfare, (attached hereto as Appendix II ), petitioners' petition for a rehear- Respondents. ing with a suggestion for a rehear- ee x ing en banc was denied by the Court of Appeals. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS ; exe FOR THE SECOND CIRCUIT This Court has jurisdiction to The Opinion Below review the decree in question by writ of certiorari pursuant to 28 U.S.C. §1254(1). The opinion delivered by the Court of ' Appeals for the Second Circuit upon the rendering of the decree sought to be re~ Questions Presented 1. Whether this Court's con- clusion in Regents of the University of California v. Bakke, U.S. , 46 U.S.L.W. 4896 (1978), that Title VI of the 1964 Civil Rights Act, 42 U.S.C. $2000d et seg. requires a finding of Cteoktabnattion to be based upon evidence of conduct violating the constitutional intent standard applies to the Emergency School Aid Act ("“ESAA"), 20 U.S.C. 1601 et seg.? 2. Did the Court of Appeals for the Second Circuit err in holding in this case that the Department of Health, Education and Welfare ("HEW") may reject a school district's application for ESAA funding solely upon the basis of a finding of disparate racial impact and without a fiiiding under the constitutional intent standard that the school district has purpose- fully and intentionally discriminated against any group on the basis of race? 3. Has HEW overstepped the limits of its administrative power by imposing a standard of review which is so burdensome as to be virtually unchangeable in the courts? funds to which local educa- tional agencies do not have access. (b) The purpose of this Relevant Constitutional chapter is to provide finan- and Statutory Provisions cial assistance - (1) to meet the The Fourteenth Amendment to special needs incident to the elimination of minority the Constitution: group segregation and discrimination among students ; and faculty in elementary and Section l. All persons secondary schools; born or naturalized in the United States, and subject (2) to encourage the to the jurisdiction there- voluntary elimination, re- of, are citizens of the duction, or prevention of United States and of the minority group isolation State wherein they reside. in elementary and secondary No State shall make or en- schools with substantial force any law which shall proportions of minority abridge the privileges or group students; and immunities of citizens of ; the United States; nor (3) to aid school child- shall any State deprive ren in overcoming the educa- any person of life, tional disadvantages of liberty, or property, minority group isolation. without due process of law; nor dene oa ped per- Emergency Schoool Aid Act, 20 U.S.C. son within its jurisdic- §1602: tion the equal protection ; of the laws. (a) It is the policy of the United States that guide- Emergency School Aid Act, 42 U.S.C. § 1601: (a) The Congress finds that the process of elimin- ating or preventing minority group isolation and improving ro the quality of education for all children often involves the expenditure of additional a Title VI of the 1964 Civil lines and criteria estab- Rights Act, 42 U.S.C. §2000d: lished pursuant to this chapter shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race in the schools of the local educational agen- cies of any State without regard to the origin or cause of such segregation. No person in the United United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimina- tion under any program or activity receiving Federal financial assistance. Elementary and Secondary Educa- (b) It is the policy tion Amendments of 1966, §182, of the United States that guidelines and criteria 42 U.S.C. §2000d-5: established pursuant to title VI of the Civil Rights Act of 1964 and section 182 of the Ele- mentary and Secondary Education Amendments of 1966 shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race whether de jure or de facto in the schools of the local educational agencies of any State without regard to the origin or cause of such segregation. The Commissioner of Education shall not defer action or order action de- ferred on any application by a local educativunal agency for funds authorized to be approrriated by this Act, by the Elementary and Secondary Education Act of 1965, by the Act of Septem- ber 30, 1950 (Public Law 815, Eighty-first Congress), or by the Cooperative Re- search Act, on the basis of alleged noncompliance with the provisions of this subchapter for more than sixty days after notice is given to such local agency of such deferral unless such local agency is given aie the opportunity for a hearing as provided in section 2000d-1 of this title, such hearing to be held within sixty days of such notice, unless the time for such hearing is extended by mutual consent of such local agency and the Commissioner, and such defer- ral shall not continue for more than thirty days after the close of any such hearing unless there has been an express finding on the record of such hearing that such local educational agency has failed to comply with the provisions of this subchapter: Provided, That, for the purpose of determining whether a local educational agency is in com- pliance with this subchapter, compliance by such agency with a final order or judgment of a Federal court for the desegrega- tion of the school or school system operated by such agency shall be deemed to be compliance with this subchapter, insofar as the matters covered in the order or judgment are concerned. Elementary and Secondary Education Amendments of 1970, 42 U.S.C. §2000d-6 (a) It is the policy of the United States that guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 and section 182 of the Elementary and Secondary Education Amendments of 1966 dealing with conditions of segregation by race, whether de jure or de facto, in the wien schools of the local educational agencies of any State shall be applied uniformly in all regions of the United States whatever the origin or cause of such segregation. (b) Such uniformity refers to one policy as may be provided pur- suant to law applied uniformly to de facto segregation wherever found. (c) Nothing in this section shall be construed to diminish the obligation of responsible officials to enforce or comply with such guidelines and criteria in order to eliminate discrimination in federally-assisted programs and activi- ties as required by title VI of the Civil Rights Act of 1964. (qd) It is the sense of the Con- gress that the Department of Justice and the Department of Health, Education, and Welfare should request such addi- tional funds as may be necessary to apply the policy set forth in this section throughout the United States. Preliminary Statement This Court is presented with the opportunity to consider the application of «=16@ its decision in Regents of the University of California v. Bakke, supra, with respect to the test of discrimination to be used under Title VI of t.ie 1964 Civil Rights Act, 42 U.S.C. §2000d et seq. in a controversy in- volving local eligibility for a federally funded program. In Bakke, a majority of this Court concluded that a violation of Title VI must be established by evidence of constitutionally proscribed conduct, i.e., intentional or purposeful discrim- ination. The Court of Appeals in uphold- ing HEW's denial of funding to petitioners under the Emergency School Aid Act ("ESAA"), 20 U.S.C. §1601 et seg., ignored the effect of Bakke on Title VI's eligibility standards for federally funded programs such as ESAA. Instead, the Court of Appeals cited, inter alia, pre-Bakke interpretations of Title VI eligibility standrads as set forth in allie oo] Lau v. Nichols, 414 U.S. 563 (1974), which are of doubtful validity, in concluding that the disparate racial impact test rather than the constitutionally mandated standard of intentional and purposeful discrimination suffices to establish a violation of Title VI and consequently ESAA. Also presented is the issue of Title VI's role as the means for guarding against racial discrimination in federally funded programs and the under- lying issue of excessive or unfettered overreaching and interference by HEW with a local educational agency in a manner which effectively precludes any review of these administrative decisions by the judiciary. Title VI of the 1964 Civil Rights Act, is intended to provide the enforcement power to insure that no discrimination exists in Programs which receive federal financial assistance. atta The Emergency School Aid Act authorizes a federal grant system to school districts throughout the country to aid these dis- tricts in developing programs to meet the special needs incident to the elimination of minority group segregation and dis- crimination among students and faculty in elementary and secondary schools. Petitioners contend that ESAA is one of the federal financial assistance statutes which Title VI was designed to enforce. This interpretation is based upon a fair reading of the statutory language of ESAA, upon the available case law and upon logic. Statement of the Case In April, 1977, the Board of Education of the City of New York ("the Board") on behalf of itself and several local community school districts submitted an application to HEW for 1977-78 ESAA funding to adminster -13- programs designed to foster integration and reduce minority student isolation for approximately 40,000 students in elementary and secondary schools in the New York City School District. Prior to July 1, 1977 the Board was advised by HEW that its application met the minimum qualifications for ESAA funding and that $3.5* million had been earmarked as its share of the 1977-78 appropriation. However, on July 1, 1977, Defendant Goldberg of HEW notified the Board that its application was denied. Statistics developed * The total amount of funds earmarked was $17.5 million. This included the alloca- tion for the local community school boards ("CSB's") in New York City. Approximately $14.0 million was released to the CSB's and thus they are not parties to this action. Only the applications of the Central Board and CSB 1l remained outstand- ing. After the Court of Appeals' decision in this case, CSB 1l resolved its dispute with HEW thus leaving the Board as the only plaintiff. -14- by the Office of Civil Rights of HEW ina Givil rights compliance investigation of the New York City School District, con- ducted pursuant to Title VI of the 1964 Civil Rights Act, allegedly demonstrated that teacher assignments in some element- ary and junior high schools operated by local community school boards and in some high schools operated by the City Board resulted in their racial identifiability. Upon notification of ineligibility ,the Board and individual community school board applicants participated in "show cause proceedings" pursuant to 45 C.F.R. §185.46. At these proceedings defendant Goldberg ruled that he would limit the agency's inquiry to the accuracy of the statistics upon which HEW made its deter- minination to deny ESAA funding to the various school boards. Thereafter, defend- -15- ant Goldberg issued an opinion adhering to the July 1, 1977 decision. The underlying action was commenced in September, 1977 in the District Court for the Eastern District of New York (WEINSTEIN, J.). The Board sought to permanently en- join defendants from enforcing their deter- mination of July 1, 1977 that it was in- eligible for asco eae because of alleged discrimination in teacher assignments re- sulting in racially identifiable schools in violation of 20 U.S.C. §1605 and 45 C.F.R. §185.43(b) (2). On November 18, 1977 the District Court granted plaintiffs' application for a stay preserving the $3.5 million ESAA fund.* *ESAA funds in the amount of $3.5 million were earmarked for the Board, while $300,000 was set aside for CSB ll. a26~ On cross-motions for summary judgment and re-argument, the District Court granted judgment for the Board and CSB 1l and re- manded their ESAA applications to defend- ants for de novo consideration consistent with the principles of due process dis- cussed in its opinion. The opinion rejected defendants' in- terpretation that, under ESAA, school districts experiencing statistical racial imbalance were ineligible for funding. Instead, the pistrict court held that urider ESAA "discrimination" means de jure or intentional discrimination and that defendants should have considered proof offered by the Board rebutting defendants statistical showing of ethnic disparity. (A copy of the Dis- trict Court decision is annexed hereto as Appendix III.) at to At the de novo proceeding ordered by the District Court, plaintiffs sub- mitted to defendants proof that the current minority and non-minority teacher incidence and distribution resulted from and was affected by State law; demographic changes in the student population of the City schools; neutral date-of-hire sen- iority practices emanating from collective bargaining agreements; minority representa- tion in the relevant available work force; and incidence and distribution of vacancies in specific teacher license areas. On March 22, 1978, after the de novo review, defendants again found the Board ineligible for ESAA funding. The Board then moved in the pistrict Court for a preliminary injunction against enforcement of that administrative decision. The District Court consolidated the preliminary =) injunction application with trial of the action and rendered final judgment sustain- ing defendants' denial of ESAA funding for the Board on the basis that the HEW determination was predicated on substantial evidence. Plaintiffs then applied to the Court of Appeals for the Second Circuit for a stay of the disbursement of the $3.5 million fund pending appellate review. On April 28, 1978, the motion was granted. In the Court of Appeals, the Board argued that Judge Weinstein was in error in finding that substantial evidence sup- ported HEW's determination that the Board had engaged in discrimination in violation of the constitution, i.e., intentional discrimination. The Court of Appeals (OAKES, BLUMENFELD and MEHRTENS, J.J.), held, however, that it was unneces- sary to determine "whether ~19- the evidence supports a finding of pur- poseful segregative intent." Slip Opin- ion at 4537. Instead, Judge Oakes, writ- ing for the court, affirmed the result reached by the pistrict Court on the grounds that the evidence supported a finding of discrimination under the dis- parate racial impact or effects test: Here [ESAA], Congress in- tended to permit grant disqua- lification not only for pur- poseful discrimination but also for discrimination evidenced simply by an unjustified dis- parity in staff assignments. Slip Opinion at 4539. On September 5, 1978, petitioners filed a petition for a rehearing with a suggestion for a rehearing en banc. This automatically stayed the issuance of the court's mandate thereby preserv- ing the $3.5 million fund earmarked for the Board. The petition was denied on a2O— October 6, 1978. On October 24 1978, petitioners motioned the Court of Appeals for a stay of the issuance of its mandate pending application to this Court for a writ of certiorari. The motion was granted on October 31, 1978, and thus the $3.5 million fund remains intact pending review by this Court. > Argument In finding that the disparate racial impact test rather than the constitutional intent standard is ap- plicable to determinations of ineli- gibility for ESAA funding, the Court of Appeals reasoned that constitu- tional standards need only be applied when a violation of the Fourteenth Amendment is in issue. Here, the court found the relevant inquiry coucerned only a Congressional enactment which validly incorpo- rated a stricter standard, "more protective of minority rights, than constitutional minimums required". Slip Opinion at 4537. The court reasoned that the lan- guage of ESAA itself, 20 U.S.C. 2230 Ee Bm nen § 1602(a), that “guidelines and criteria be applied uniformly... without regard to the origin of .- Giscrimination," compelled the interpretation that the stricter disparate impact stand- ard applies. Slip Opinion at 4539. The Court of Appeals then found that since a violation of Title VI will constitute a violation of ESAA, citing 20 U.S.C. § 1602(b),* and since, according *20 U.S.C. § 1602(b) provides that the "guidelines and criteria of Title VI "be applied uniformly... without regard to the origin of »++ discrimination". o33 vy Before: Oakes, Circuit Judge, and BLUMENFELD® and Meurtens,** District Judges. a = SS Appeals from orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, affirming Department of Health, Education and Welfare’s denial of grant applications for Emergency School Aid Act funds. Affirmed. v ° Of the District of Connecticut, sitting by designation. oe Of the Southern District of Florida, sitting by designation. 4515 oj st genes agency shall be eligible for assistance under the et if, after June 23, 1972, it has had or maintained in effect 4522 -8- substance, the regulation makes ineligible for assistance an educational agency which after June 22, 1972, has utilized a procedure resulting, inter alia, in the discrimina- tory “assignment of full-time classroom teachers to the schools of such agency in such a manner as to identify any of such schools as intended for students of a particular race, color, or national origin.” ™ II. Underlying Facts Teaching and supervisory appointments to public schools in New York City are now and have traditionally been made by the Chancellor of the Central Board. High school teachers are appointed by the Chancellor from a list of eligible candidates.'* The list of eligible candidates is pre- any other practice, policy, or procedure which results in discrim- ination on the basis of race, color, or national origin in the re- eruiting, hiring, promotion, payment, demotion, dismissal, or as- signment of any of its employees (or other personnel for which such agency has any administrative responsibility) .... 12 Id. Only the Secretary of HEW himself may grant waivers of the disqualifying practices. See 20 U.S.C. §1605(d)(1), (2) & (3). 13 (a) The chancellor shall appoint and assign teachers for all schools and programs under tbe jurisdiction of the city board from persons on competitive eligible lists. (b) The chancellor shall appoint and assign all supervisory per- sonnel for all schools and programs under the jurisdiction of the city board from persons on qualifying eligible lists. (ce) Each community board shall appoint teachers for all schools and programs under its jurisdiction who are assigned to the dis- trict by the chancellor from competitive eligible lists. Insofar as practicable the chancellor, when making such assignments shall give effect to the requests for assignment of specific persons by the community board. The community board shall appoint such teachers to schools within such district within thirty days if such appointment is to be effective on a date subsequent thereto and within three days if such appointment is to become effective immediately. .. . N.Y. Educ. Law §2590-j(4)(a)-(c) (McKinney 1970). 4523 af. pared by the Board of Examiners, which ranks each can- didate on the basis of a competitive examination.“ 14 3.(a)(1) The board of examiners shall prepare and administer objective examinations to determine the merit and fitness of all candidates for teaching and supervisory service positions, other than the positions of chancellor, executive deputy city superin- tendent, deputy city superintendent, assistant city superintendent and community superintendent. Examinations for teaching posi- tions may consist in part of the National Teachers Examination administered by the Educational Testing Service of Princeton, New Jersey. (b)(1) Examinations for teaching positions shall be open com- petitive. (2) Examinations for all supervisory service positions shall be open qualifying. (3) The board of examiners may establish an eligible list for any class of positions for which it finds inadequate numbers of qualified persons available for recruitment. Such examination shall, so far as practicable, be constructed and rated so as to be equiv- alent. Candidates who pass any such examination and who are otherwise qualified shall be placed on such list in the rank corre- sponding to their grade... . (e) All lists of eligibles for supervisory or administrative posi- tions which are in existence and which were placed in abeyance, and appointments from which were prohibited by a temporary re- straining order of the United States District Court on the twenty- third day of July nineteen hundred seventy-one, or the preliminary injunction of the said court dated September seventeenth, nineteen hundred seventy-one, continuing such prohibition, and of which lists those that are scheduled to expire prior to March first, nineteen hundred seventy-five shall be deemed extended to March first, nine- teen hundred seventy-five, as though such were the date on which such lists were originally scheduled to terminate or expire. Id. § 2590-j(3) (MeKinney Supp. 1977). Reference in subparagraph (c) is presumably to the litigation in Chance v. Board of Examiners, 330 F. Supp. 203 (S.D.N.Y. 1971), aff'd, 458 F.2d 1167 (2d Cir. 1972) (preliminary injunctive relief upheld). See generally Chance v. Board of Examiners, 561 F.2d 1079 (2d Cir. 1977); Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976), cert. denied, 431 U.S. 965 (1977); Chance v. Board of Educ., 496 F.2d 820 (2a Cir. 1974). New York City and Buffalo, we are informed, are the only New York school districts which administer local teacher examinations in addition to the state licensing requirements. Buffalo’s procedures have also been the subject of litigation. Arthur v. Nyquist, supra. In 1969 the New York City school system was “decentral- ized” and thirty-two separate community school districts (CSDs) were established. Each CSD was vested with pri- mary authority over the operation of the elementary and junior high schools within its district." Although the Chancellor alone appoints high school teachers, elementary and junior high school teachers may be appointed in either of two ways. One of these is the traditional method of assignment by the Chancellor. The community school boards must abide by the Chancellor’s designation.** How- ever, the Chancellor “insofar as practicable . . . shall give effect to the requests for assignment of specific persons by the community board.” An alternative method is avail- able for use only in those elementary and junior high schools whose students rank in the lower 45% on a com- prehensive reading examination which is administered an- nually to students in schools within the jurisdiction of the local community districts." The community school districts 15 Each community board shall have all the powers and duties, vested by law in, or duly delegated to, the local school board districts and the board of education of the city district on the effective date of this article, not inconsistent with the provisions of this article and the policies established by the city board, with respect to the contro! and operation of all pre-kindergarten, nur- sery, kindergarten, elementary, intermediate and junior high schools and programs in connection therewith in the community district. N.Y. Educ. Law § 2590-e (McKinney Supp. 1977). 16 See id. §2590-j(4)(e) (McKinney 1970), yuoted im note 13 supra. 17 Ta. 18 The chancellor shall cause a comprehensive reading examination to be administered to all pupils in all schools under the jurisdiction of the community districts annually. Prior to October first of every year each school shall be ranked in order of the percentage of pupils reading at or above grade level as determined by such examination, in accordance with rules to be promulgated by the chancellor. Id. § 2590-j(5)(a) (McKinney Supp. 1977). 4525 -ll- may directly appoint teachers to such “45% schools” if the individual has passed either a qualifying examination pre- pared by the Board of Examiners or the National Teachers Examination." Irrespective of how the teachers are appointed, ultimate control still remains with the Chancellor. He retains the power to rescind illegal teacher assignments and to compel a local board’s compliance with all applicable provisions of law.” In addition, he is vested with all powers and duties 19 The board of each eligible school may . . . appoint any person a teacher in such school . . . without regard to any competitive pr lists . . . provided that such person, will ... have the ucation and experience qualifications for certificati amy sa cation as a teacher (i) passed a qualifying examination to be prepared and admuin- istered by the board of examiners, . . . or be on an existing com- petitive eligible list for such position; or (ii) passed the National Teachers Examination within the past four years at a pass mark equivalent to the average pass mark required of teachers during the prior year by the five largest cities in the United States which use the National Teachers Examination as @ qualification, as determined by the chancellor. Id. § 2590-j(5)(e) (McKinney 1970). 20 1. If, in the judgment of the chancellor any community board fails to comply with any applicable provisions of law, by-laws, rules or regulations, directives and agreements, and after efforts at conciliation with such community board have failed, he may issue an order requiring the community board to cease its improper conduct or to take required action and consistent with the provi- aed of obs and the educational and operational policies 0 city d, may enforce that order by the use of i . ee : y of appropriate (a) supersession of the community board b , y the chancellor or ~— wg cme by him with respect to those powers and duties of such community board deemed necessary to ensure with the order; and ae (b) suspension or removal of the community boar mem ber or members thereof. say dita Id. $ 2590-3. 4526 =12- of the superintendent of schools of the city district** which include “the power to transfer teachers from one school to another.” * The ESAA applications here at issue were for grants in the 1977-78 school year. See note 34 infra. To analyze whether there was compliance with the statute and regula- tions, HEW used 1975-76 data. Racial and ethnic statis- tics**? demonstrated that in school year 1975-76 62.6% of high school students were minority students whereas 8.2% of high school teachers were minority teachers.** Seventy per cent of minority high school teachers were assigned to high schools in which minority student enrollment exceeded 21 Id. § 2590-h (McKinney Supp. 1970). 22 The superintendent of schools of a city shall possess, subject to the by-laws of the board of education, the following powers « be charged with the following duties: 6. To have supervision and direction of associate, assistant, dis- triet and other su rintendents, directors, supervisors, principals, teachers, lecturers, medical inspectors, nurses, auditors, attendance officers, janitors and other persons employed in the management of the schools or the other educational activities of the city au- thorized by this chapter and under the direction and management of the board of education; to transfer teachers from one school to another, or from one grade of the course of study to another grade in such course, and to report immediately such transfers to said board for its consideration and action; to report to said board of education violations of regulations and cases of insubordination, and to suspend an associate, assistant, district or other superin- tendent, director, supervisor, expert, principal, teacher or other em- ployee until the next reguler meeting of the board, when all facts relating to the case shall be submitted to the board for its con- sideration and action. Id. § 2566-6 (McKinney 1970). 23 An injunction against the collection of such racial data has been sought in a related action. Caulfield v. Board of Educ., No. 78-6035 (2d Cir. filed Feb. 28, 1978). 24 In the case of District 11 in 1975-76, 11.2% of its elementary school teachers and 63.9% of its elementary school students were members of minority groups. 4527 -13- 70%, even though these high schools employed only 48% of the system’s high school teachers. Conversely, in high schools in which there were proportionately a low number of minority teachers, minority student enrollments were below 40%.** 25 The high schools with proportionately a high or low number of minority teachers are as follows: High Schools With Minority Student Enrollments Over 90% % Minority Teachers Harlem 100% 70.0% Ben Franklin 98.3 27.9 Park East 93.8 40.0 Harlem Prep 98.4 69.2 Lower East Side 100 63.2 M. L. King, Jr. 96.0 25.0 Satellite Acad. 92.7 25.0 Jane Addams 98.7 34.3 Boys & Girls 99.9 20.9 Eastern District 97.0 18.0 Bushwick 94.2 20.4 Pacific 99.8 37.5 Redirection 97.7 47.6 August Martin 97.6 16.7 High Schools With Minority Student Enrollments Under 40% % Minority Teachers Stuyvesant 31.0% 2.8% Bronx H.S. of Science 31.3 2.8 Lafayette 29.2 0.6 Midwood 32.6 1.7 Abraham Lincoln 37.0 0.7 James Madison 35.6 0.9 New Utrecht 22.5 0.0 Fort Hamilton 30.0 3.7 Sheepshead Bay 32.5 3.7 F.D. Roosevelt 29.4 1.8 South Shore 36.9 2.4 William Grady 22.2 0.0 Benjamin Cardoza 38.5 3.2 Francis Lewis 36.9 1,7 Forest Hills 38.8 0.8 Long Island City 30.2 2.8 Richmond Hill 28.5 3.4 (Table continued on next page) 4528 «2 4= Similar correlations between the racial/ethnic composi- tion of the faculty of community school districts and the racial/ethnic composition of the student bodies within those school districts exist. For the same school year, 14.3% of the teachers and 69.7% of the students in elementary schools were minority, and 16.7% of the teachers and 70.1% of the junior high school students were minority. Quite clearly, the schools with minority student enrollments over 90% identifiably had the highest percentage of minor- ity faculty by a substantial margin.** Similarly, community school districts with minority student enrollments under 50% contained a disproportionately low percentage of minority factulty.”’ (continued from preceding page) High Schools With Minority Student Enrollments Under 40% % Minority Teachers Bayside 30.4 13 New Dorp 4.3 0.0 Curtis 32.1 3.0 Tottenville 3.7 1.9 Susan E. Wagner 13.0 2.5 Ralph McKee 19.1 3.1 26 CSDs With Minority Student Enrollments Over 90% % Minority Teachers cSD # 1 93.6% 10.4% 4 98.8 24.6 5 99.2 56.7 7 99.0 27.9 9 97.7 26.9 12 98.3 26.7 13 97.0 34.7 14 90.3 14.6 16 99.6 39.0 17 96.1 16.8 19 91.5 12.2 23 99.6 30.0 27 CS8Ds With Minority Student Enroliments Under 50% % Minority Faculty csD- 20 31.5% 0.4% 21 34.9 2.5 (Table continued on next page) Upon the “remand” to HEW,; HEW found that the racial assignment of faculty in the central school district was, as HEW put it, “strikingly illustrated by the absence of minority teachers” at certain academic, i.e., nonvocational high schools. Ten of these were demonstrated to have a disproportionately low number of full-time minority teach- ers in the 1975-76 school year. All ten of these schools were among the thirteen academic high schools* with full-time faculties having a percentage of black teachers at or below two standard deviations,?* which was 1.2%; the mean of (continued from preceding page) CSDs With Minority Student Enroliments Under 50% % Minority Faculty 22 29.1 1.7 24 44.0 5.9 25 29.5 2.6 26 25.8 2.7 27 48.4 7.3 30 48.8 6.2 31 16.3 3.1 Other information indicates that ten of the 32 CSDs in New York City employ minority faculty members in excess of 20%. Those CSDs have minority student enrollments varying from 86.7 to 99.6 percent. 28 Academic High Schools o% black Total teachers CP TEST Cae ck LAPP IEE ET 9 109 END Gee Te DD) ba 6 166 I mv N OM ARI) REFERS Wb RN CLL 9 115 Adrabam Limeobn ono... sac. cccccscscics 7 137 PE IPN aero 9 117 ON PUI ident seas Loe Oe 0.0 163 RO I a 6 163 rhs I te a 1.2 169 Ren oe Were er Ses 4 137 ANE Oe 121 RRA TER aE, Sar aes 0.0 125 RE ECRES, SEAS DOE Se PERRY OE Pf 150 New Dorp 0.0 105 29 In Castaneda v. Partida, 430 U.S. 482, 496-97 & n.17 (1977), a grand jury discrimination case, the Court adopted a statistical methodology used in the social sciences for the prediction of fluctuations from an expected value, known as the standard deviation, defined for the bi- nomial distribution as the square root of the product of the total num- 4530 =16= full-time black teachers in academic high schools system- wide was then 5.2%. To take another example for the same school year, 8.2% of academic high school teachers in the Central Board’s employ were members of minority groups, black or His- panic. Lafayette High School, for one, with a total of 166 teachers had only one minority teacher, even though it could have been expected based on systemwide statistics ber in the sample (n) times the probability of selecting a minority (p) times the probability of selecting a non-minority (q), thus Y npq. To express the standard deviation in proportionate terms, the formula is VOX The statistical approach was also utilized by the Court in a school segregation case, Hazelwood School Dist. v. United States, 433 U.S. 299, 308-09 & n.14 (1977): A precise method of measuring the significance of such statistical disparities was explained in Castaneda v. Partida, 430 U.S. 482, 496-497, n.17. It involves calculation of the “standard deviation” as a measure of predicted fluctuations from the expected value of a sample. Using the 5.7% figure as the basis for calculating the expected value, the expected number of Negroes on the Hazelwood teaching staff would be roughly 63 in 1972-1973 and 70 in 1973- 1974. The observed number in those years was 16 and 22, respec- tively. The difference between the observed and expected values was more than six standard deviations in 1972-1973 and more than five standard deviations in 1973-1974. The Court in Castaneda noted that “[a]s a general rule for such large samples, if the dif- ference between the expected value and the observed number is greater than two or three standard deviations,” then the bhypoth- esis that teachers were hired without regard to race would be sus- pect. 430 U.S., at 497 n. 17. See id. at 311-12 n.17. In this case the standard deviation is 1.94% above or below 5.1%, or p, since the average size of academic high school faculties is 128 teachers, and 94.9% is the non-black force of teachers at those schools. The square root of ce is 1.94%. Thus, in reference to the schools listed in note 28 supra, all have a standard deviation of two or more: 5.1% (minority teachers in all academic high schools) minus 1.94% (one deviation), 1.94% (a second devi- ation) — 1.2%. If the same calculations are made for the schools referred to in note 28 supra with respect to minorities in the teaching population systemwide (8.2%), the difference between the expected per- centage of minority teachers to the actual percentage is of course higher. In the case of Lafayette, it would exceed three standard deviations. 4531 a3 F~ to have had fourteen minority teachers. Lafayette’s pro- portion of minority students was 29.2%." In contrast, for the same year Boys High School in Brooklyn had more than two and one-half times the number of full-time minor- ity teachers than the expected rate; its student body was 99.9% minority.” These substantial disproportions are not contested by the appellants, nor do they deny that the schools were statis- tically “racially identifiable” as a result of the significant disparities in staff assignments. The claim pressed below and on this appeal has been limited to the argument that the statute and reguiation must be construed to require HEW to establish that the disparities resulted from pur- 30 HIGH SCHOOL LAFAYETTE (BROOKLYN) = = Extent of 3 Deviation xz 5 > 3 eS © é = Se Se ue [= = 3s = = 3 eS ES See eR TS : OP 8 $F 33 83 SBS Gee & Se Se, 8 Sta *~na sat Cia Be z 2 =3 «33 z S mPoupe =P RS SES = » $ = § 3§ fag 2° = “TS |S 1 Pell School Year & 37 2* * BES FF OA Osig? ine . r |; WKINSTEIN, D.J. ———m we oe oe Br Rae SER ES CT AT OT SSS TOO SS Se oe ee . ‘ Go ee ee ee Sgr SOT eta a. s m8 - FP ica” “ee” I. il. IIt . Iv. a ti ° -_ «3° oo - —— ++ -- Sith : “ TABLE OF CONTENTS = se a Procedure in this Court 7 x Administrative Proceedings E E 3 pe A. Chronology ! B. Pailure to Consider Evidence of Plaintiffs- be ° Evidence Before H.E.W. : A. The Central Board | 16 l. Citywide Statistics Showing Racial Disparity te 2. Plaintiffs' Evidence Explaining Disparities On = Grounds Negativing Discrimination a. The High Schools ” b. Justification of Disparities as Beyond & Boards Control 1) State Law on Teacher Assionment a ¢ 2) Demographic Changes e 2) Contractual Provisions and Court Orders Me i 33 B. Community School District ll i Law f ; ' £2 A. Burden of Proof g . 44 }- B. Intent to Discriminate | : 49 Cc. ESAA Standards l _ 3 |: D. Scope of Review by District Court : 54 Conclusion | f é i ' : -3l1- ‘ - i el Ee ele elie ie ee 2 te oe 1) te et de ES : 20 U.S.C. § 1605 (da) (1) (B) (Supp. ; i gl 4 “? ter . Plaintiffs, the Board of Education of the City of f New York, its Chancellor and nineteen local City school Boards, allege that the denial by the United States Department of Health, tions for $17.5 million under the Act (ESAA). 20 U.S.c. § 1601 i Emergency School Aid et seq., violates that Act ana s arbitrary, capricious and illeaal in violation of The Administrative Procedure Act. 5 U.S.C. § 702 et seq. Thev seek injunctive relief. - H.E.W. defends on the around that there was ample basis to find a violation of ESAA since teachers in New York City are assianed upon the basis of race, color and national oriain. for funds for any school @istrict which after June 23, 1972, a utilized any prohibited practice, including “discrimination . based upon race, color, or national origin in the hiring, ; promotion, “ or assignment of employees of the agency." II 1972) (emphasis supplied). A compromise at the administrative level resulted in ESAA funds being allocated to all the t local districts but District ll. fhe local districts agreed to reassign their teachers to eliminate racial disparity in teacher census in the schools within each district. Defendants agreed that some 14 million ESAA specifically requires a finding of ineliqibility as fats shnn | Bit ease ak ‘be tape 7 . Education and Welfare of their applica-: | | -32-- Cen eate pat r te enn een on 0g santa . . 3 children attending New York City's public schools. Accord- ; ingly, a temporary restraining order issued requiring the defendants to preserve and set aside $3.8 million, the appropriation originally earmarked for the Central Board and Local Board 11. On consent, the restraining order — has been extended until today. The court ordered the defendants to show cause why an order should not issue (a) rescinding defendants’ denial of plaintiffs’ application for funding under the Emergency School Aid Act, 20 U.S.C. §§ 1601-1619, and declaring the denial to be violative of that act and of applicable regulations, 45 C.P.R. § 185.01 et seq.; and (b) arbitrary and capricious and violative of 5 U.S.C. § 702 et seg.; (c) restraining defendants, as authorized by 5 U.S.C. § 705, from disbursing funds in the amount of $3,858,023.00 million now earmarked tor the ESAA application of piaintitts' Board of Education of the City of New York and District 1l and ordering defend- ants to retain funds in escrow for the use and credit of the Board of Education and District 11, pending the determination of this action; (a) granting plaintiffs’ judgmert awarding such funds to plaintiffs pursuant to its sevidentions and (e) awarding plaintiffs’ costs. : = Lg An evidentiary hearing was held on October 31, 1977. Additional time to supplement the record was -34-. 7 , : granted and there were supplementary oral arguments. The hearing, documents submitted by the parties and judicia} notice establish the following facts and law. : It. : A. Chronology ° In January of this year, plaintiffs ADMINISTRATIVE PROCEEDINGS t submitted applications tor ESAA tunding to the Secretary of My H.E.W., through the Regional Office of the Office of { ' Education, H.5.W. . * pilot and bilingual programs in the public schools of the i ’ City of New York for the 1977-78 school year in Districts l, The applications sought money for basic, “9, 9, 1i, 12, 13, 16, 17, 18, 20, 21, 22, 25, 26, 28, 30 : and 32 and in the high schools and special educational programs administered by the Central Board. The funds were : to provide services for an estimated 40,000 students. On ’ genes 14, 1977, the Board, as instructed by the H.E.W. staff, : submitted a revised application to defendant Califano. H.E.W. officials then informed plaintiffs that the educational programs described in the April, 1977 ESAA applications met all H.E.W. programzatic and fiscal re- quirements and ti.at the applications were approved as to content and amount, subject only to a determination that no cther legal impediments to funding existed. At this time -35- —— ee fF omee oe ee ee eee © ee me ee ee em me + —- —- ° £ the Plain tiffs , er, id pb 1977-7 © denieg 5 : s ° i Choo] term 3 © &.w g . based 1 inay . ' OW’ ser a, 1976 - ” oc { Civid yy Port w _ — EO ES EE LR RN ES ene ee ge en IN Defendant Goldberg's July 1, 1977 letter cited ' o.aee= a ze ! | ‘ ' ‘ several grounds for the denial of the plaintiffs’ ESAA cpp Subsequently, H.E.W. advised plaintiffs f that ESAA funds would be denied to plaintiffs solely on the sya. ground of discrimination in assignment of teachers in the } public schools. This is confirmed in Mr. Goldberg's letter of September 19, 1977. The litigation in this court has , focused only on this issue. H.E.W.'s findings were based on OCR statistics ec tort rs ee 7 that allegedly reflected a low system-wide minority f hiring rate in New York City public schools. The statistics reflected a strong correlation between minority teachers and minority students in sone schools. oes: Defendant Goldberg's July 1, 1977 letter of s=ct denial also advised plaintiffs that, pursuant to section 185.46 of title 45 of the Code of Federal Regulations, - they had an opportunity to show cause before him why the determinations of ineligibility should be revoked. -eee. ——-_ ee — ——— ee ee ees Oe ere _— = a AAR a{ woe —_—_ eee ee ee ee ee ee a ee - . -——— ee ee oe wat, oe ere LN een ee re. Plaintiffs requested and were granted such an Opportunity. On July 20, 1977, a show cause hearing was held for Local » “Board 11. The Central Board's hearing was held on suty 22, ° 1977. On July 26, 1977, Local Board 11 submitted supple- f mentary materials as did the Central Board on August 10, 1977. . In a letter datea September 15, 1977, defendant a : Goldberg informed Local Board 1ll's Superintendent Nicholas t ciccnetti that the information _Presentea py tne sboara at the {guay show cause hearings and supplementary materials did ‘fnot constitute a sufficient basis for H.E.W. to revoke its ‘determination of ineligibility. Chancellor Irving Anker | vas Similarly informed by a letter dated rae 16, 1977. } Plaintiffs submitted evidence to H.E.W . i , Of requests for waivers of ineligibility pursuant to . | 20 U.S.C. § 1605(1) (5) and 45 C.F.R. § 185.43(d). However, | Chancellor Anxer, in his October 26, 1977 affidavit, i ' (p. 15), stated that the Board had already been “advised | ! i informally by defendants Goldberg and Tatel that waivers | of ineligibility will not be granted to plaintiffs unless the remedy for eligibility is effectuateda immediately, ; that is, a quota of teacher assignments is adopted and implemented by plaintiffs." Plaintiffs also maintain that although they have the right to seek a eligibility," "Waiver of Ia- such a waiver does not constitute an appeal of the final determination of ineligibility. Rather, ee ; .-38- - BS tr rt re. et. 21 rer mere arm sees et mt . in support ' Fre SPU +o ; t . 9 el ee pee ee Ce “me er re ee ee ee ee ere Pie ee os te ee ‘Se oe. oe ee eee es ee re TS Pe ee Carroll, Assistant in the Office of the Corporation Counsel of the City of New York, p. 4. The plaintiffs have exhausted all available administrative remedies. ‘ eee Seem Keen AE Sey ee eg ed LOE Semaine, cin evs wnels A ! 5 t ' : B. Failure to Consider Evidence of Plaintiffs ; ‘ There are no transcripts of the show cause hearings ' ; 3 F J f held on January 20, 1977 and July 22, 1977 by H.E.W. The : Re SEI EAS Sear AE ewok Ned mn Om : affidavits and the legal memorandum submitted by the parties t j it is a procedure for securing a waiver of that final | , Present conflicting accounts of what transpired at these ‘ ,- deter tion by showing compliance with a remedy ordered | _— hearings. .Defendants contend that at both hearings ‘ . ! by H-E.W. See October 28, 1977 affidavit of Rosemary | on September 7, 1977, a number of parties, including the Central Board, independently entered into a Memorandum of Understanding with H.E.W. affecting teacher assignment. The Memorandum reportedly calls for the implementation of a three year pian for a more equal City-wide ethnic teacher distribution in the public schools. H.E.W. has indicated that it regards the Memorandum as compliance with Titl+ VI of the Civil Rights Act. Compliance is apparently required if the City is to receive substantial funds other than those allocated under ESAA. The validity of this understanding is not ised in the instant action ana the court makes no a of teacher assignments in 39 high schools cited in a list ra n the hg - : . e attached to defendant Goldberg's July 1, 1977 letter as finding with respect to it. a o having student teacher ethnicity levels which “possibly” : 4 | ; : 4 ; Ha ee Lee - . i ee ee eee lt oe i et ie ee. eee 2 i oe 'ESAA applications. defendant Goldberg made an independent finding of fact, considering but rejecting plaintiffs’ evidence rebutting the prima facie case of discrimination made out by the statistics. Plaintiffs allege that they offered such evidence but that defendant Goldberg expressly refused to consider it, relying on statistics alone. Plaintiffs explain in their supporting legal memorandum that because there was no transcript of the show cause proceedings, they have submitted the affidavits of Chancellor Anker and Superintendent Cicchetti. These affidavits, they maintain, represent the gist of the vicot, presentation made in support of the plaintiffs’ 1977-78 Plaintiffs' Memorandum of October 28, 1977, at p. 3. Chancellor Anker's affidavit of October 24, 1977, reviews in considerable Getail the status - es a ea ee be i alin ein De ee tee, than, da ann “A ein ao, eae 4, a, ee -40- ae ee ee ee eee ee ee eee TTY, 1 eZ) Tv “ot, Lew a ess , — or - ' ° ‘ : ' ' cel — iL 10 i Ne en ee ake ' ‘ ' . ' esece 2 Cee oocese Ge @-0 eammm@or i i F ' that at the July 22, 1977 show cause hearing “(T)he Central ; » _s- - - eae oape-eo @-1:G (Ca Coermoes a> * _ -« oom oo .* The defendants assert in their supporting legal memorandum ~~ 4. indicate that these high schools are of a particular race, coles or national origin. See -vacet? affidavit at par. 21. | intenced for students | Board offered no explanation as to why the indentifiability \ "A school by school analysis of in the high schools existed.” pefendant's memorandum this list, ! " Chancellor Anker states, "such as was aa : t i of October 28, 1977 at P- 13- attempted to be made to defendant Goldberg at the show The parties present equally conflicting accounts cause proceeding proves \ that such inference was entirely unfounded.” Id. i The rest of the affidavit reviews the | Defendant Goldberg's affidavit of October 18, 1977 ‘on alf of District ll, I submitted data on ag om factors which bear on the charge -. nA discrimination i) student population ethnicity patterns and integration strategics and ii) the teacher seniority ane transfer ve on In particular, I submitted specific da i all factors cumulatively affecting — student and teacher distribution at the question of exactly what he did or H did not consider in ruling on the eligibility of the Central Board. In paragraph 19, he states: Ads : ; ' \ in paragraph 18 of his affidavit that: i 5 On the basis of the informat . . ee ee ee ants ara eS “ bad s ton and recommendations | schools cited by H.E.W. as possible {sites) submitted to me by the Director, ‘ ; 5 ; of discrimination. office for Civil i Rights, I determined that the Central Board did H not meet the eligibility requirements for under the Emergency Schoo ! ’ ! \ ee \ ; \ of the Community school pistrict ll show cause hearing t i i : H : | | i «a not ist In paragraph 21, Mr- Cicchetti states that the agency é assistance ! ; : | \, ‘ 1 Aid Act for the reasons : 4 f : 11's evidence: ' I set “_o~ in tage of July Rada to Chancellor | i consider pistrict es See ~ Anker (Ey ibit attached hereto). | , eat GuULGvELY aduuantiy re-us : : i : t Delennsider any evidence offered by Oil \ \ 11 to demonstrate eligibility for fun an oun , In paragraph 22, he states: 7 fact defendant Goldberg stated at e \ patra proceeding that he would only consider : ' i . pa I determined that the information presented at the | ‘ . evidence controvert 09 the seity collected F show cause meeting and materials provided by the ; ‘ : statistics and Porcivil Rights 4 Central Board under a cover letter to me from py the office . 7 Chancellor Anker dated August 10, 1977 (Exhibit 6, | : attached hereto), did not cons titute a sufficient | ' ghe defendants Gispute this. Defendant Goldberg § basis to revoke the finding of {neligibility. ffidavit of october 18, 1977 goes not address the question a —_——~ f exactly what he did oF did not consider in ruling on ° | = ‘ ‘ m+ eeere | ‘ ; | 1 te - LL ater : a gmetad PE . gen fee IOI LOE dase Spot _ 5 permccneapnnnate a noes 0 OSD : pre SN PORN eT ena ap ti 0 fi antighy iglts an eam ee nt heme ee ers amie or See ee a — -41- #r —— t. ee ee “Frat SITES Male or — ss oo Geer S93 CEPR . - . S4UsangsS 40k sorai Buard il and the Central Board. A recess was granted so that the government could contact Mr. Goldberg. Following the recess the government advised the court: : ae : (W]e were advised by the Office of Education, that Dr. Goldberg considered the statements i and evidence presented to him by the Board, that he determined it was irrelevant and therefore he didn't have to decide whether ity _—— ee ee ee ee eee { it was true or not. 4 ' Transcript, October 31, 1977, at.p. 27. > ° +O es ~44- i i ae ee eo ee ee eel aed - . .eeres o-o — sT4erss armas op tree cw 6. ey ee ee : this agreement was ' 4977, with H.E.W.. - assignments have been made illegally in the past. ’ consent am as Geee © cece om At the informal hearing, statements and reasons were presented. Dr. Goldberg considered those but determined they were irrelevant, even 1 4 assuming they may be true. Transcript, October 31, i977, at p- 33- ; Plaintiffs were, it thus appears, granted a hearing The position of defendants is that this evidence is irrelevant-—._ where the evidence they submitted was not considered. that is to say, even if it were true it could not change In short, the result. the defendants relied solely on the statistical disparities referred to in the November 9, 1976 letter of OCR. ; , III. EVIDENCE BEFORE H.E.W. Denial of the funds involved in this litiaation _ is based on findinas by H.E.W. that teachers in New York City are assiqned by the Board of Education in a raciallv discriminatory manner. In support of this finding defendants : arqued in this court that the City's aqreement of September, -- desianed to reduce racial disparities in teacher school assianments. is a concession that teacher -_—_————e . But - reported to be in the nature of a judgment without any confession by the City of illegality. It was said to have been entered into to avoid owe ow aor ore the possibility of withholding hundreds of millions of dollars. =45- 6 GEE STO OOO = ~ me ee ees ow in federal funds. Compare Letter of Director of Office of Civil Rights of H.E.W. of November 9, 1976 with his letter of September 9, 1977 and enclosure. To use this agreement SaoFe ST STTE oe 2 funds would be quite unfair. This purported just:.fication for finding plaintiffs guilty of racial discrimination in 3S So PWS ITSM teacher assignment is without merit. Equally without merit is the City's contention that the approv PP al by H.E.W. of grants to the individual community r~ , , | chool districts prevents its denial of a grant to the Central oF * Board of Educati i tion. Within each of the school districts — has apparently been an a .assignment of teacher ! s so that no school will have a dis- . : r [P oOportionate number of minority teachers. This may insure ee ee ee —- —--e —- es greement to equalize the whole there will be no such practice er ee eee ee SO ED CEs GSS EE SU SD 0 oS SEs 1S Oh omy epee -- -46- as the evidentiary basis for withholding separate educacicnal ~is o : discriminati i , tion. But it does not insure that in the City as a ; 16 “t ae ! ; ie —— ° ° oo¢e @ e e eS wee im poe Ghat 1% “. c ; ese = i , etl “% os N a «= : A.- The Central Roard : bs oD inn : - 8 SS SN = 3 = : . ‘ . = ad NS oO te : l. Citywide Statistics Showing Racial Disparity “e: ° s 5 nee Se ly oO a ee ae z —ae ‘ The statistical data does lend support ' tee ~,! SAY Sr ee Ow : o Po oe BEERS Os “to H.E.W.'s finding that subsequent to 1972 there was a 4 Sh ee, ge : 22% OK 2 rat) a pecttors of assigning teachers by the Central Board in a way ne : “4 = rai . ; i i a . ‘that would tend to correlate the race of the teacher with - ee . J . ° i ; wn ; ithe predominant race of the students in the school. There . ba - ‘ \N 2 : ; ix — ‘is a direct correlation between the numbers of minority = fh S SG ss . ; = 2 = E S 4 i teachers and the percentage of minority students in the City's = 5 ws ioe. ; am 2 4 : 7 u . 2 4 — O ‘schools when the schools are broken down into groups of low — f = 3 ' : a wo . , . te. I . ‘medium and high minority school population. + A xd : ord 5 h~ : ‘ Yon? — Set out below is a graph illustrating this correla- : a va oO P : . * ition at the high school level for the school year 1975-1976. * bon wo . : 3 : Cc Yo =| ’ . : : oO oO . Information on the high schools is particularly damaging to = x 2 R ; \ te ‘the Central Board's case since it, and not the Local Boards, | x: © S EX aa a ; ’ : 4+ wo controls high schools. = = _ 2 a er = uJ o -~ i —. = ad = n - 4 . uJ o = : , cE : — i. pf e cr ow xe —_ WN = . a - aor ©. . — 4 ke . a —_ ow - k ; wo wo =z F 7 ba —J om “ | - ion ee “i rl ¥ : oe ee Ss. po a | 3 ome Sy ; SS won ie = jc r o al SD 2 ae Ps s . -— ce % . Bi 3 te Hon - ty : : aN ee * i . * ss ° a & & on ; i : sf T T af ‘ee 7 ; oO Oo oO . & Oo oO oe = w : ae iat) ; Nn *JSBLS ALIYONIW LN3IU3d ' -47- ~ig~ ee . 78 T ST. oes S85. SOOT. , a LO | mtetitnittn { * a anew wt we ~- a oo. °OL tol*2 o°oL 29 6°92 - 05 a 9 til “O'SL- beet oc zes‘t 9°9L cot 6°6> = $2" ol ot 0°21 ise'2 $*ol £eL"2 Cl ce 6°92 - Of 2°00 sO 55°9 ous"t a) ses*t 26°L &y 66-0 CEPTS? EsSane lisstsé 86° Esbaee Tisoee4 Ele “Medese Est OIDs Bae Silene : ; ALGOMA ANSEF . Siiwat Ligok Sésnovei ALTEINIK-MOM Stsroval Wri0L SWS ; + -f \ 4 s SL6I-TZ61 “SIOOHIS AL V1IN2IV313 TV NOMSYOTINI TOOHIS 20 334530 ONY siHSUDENTIIY 2€NOUD ALIVOKNT NON ONY ALIEONIN AL NOUV W6Od USHSV21 ZO NOILNGILLSIO - . @+ee +s - ee ee ee ee ee ae Te e «o t i - y eieeR rer P| xo | cinihantilinenn dele 5 dia BE 4 \ ° i 3 : i ) 7) i | @ iS) ' x ° : » «A ‘ eI i wv a ? 9g “ g E 3 j 0 : » & Te te a & 3 a ° i . 4 aw H vv , an ‘ “A =] ' + °o ® Ls} ; i a wv 2 : a .o : o : a ; ' ? wie °o (o > : o @ 5 re ad ; Qa . a ce Se s ; ia ee. \ * . ev F -} ~ . 5 VY toa) § 7) a ! rey 7 ~ 6 a a da - c ks : Fs u | ; ne a “ : . oO nm” ee ll ot eee te wee a ———— ~-_- —— ee -49- -50- wil i 7 ' —— - (ors. wo te The disparity in ratios in the last and the current Ny —— : : — ee —- + . _- _— _— me eee eee - * + ° ‘ school years has _apparently not changed appreciably despite a. perturbations of major teacher layoffs as a oinarn of the high schools. The students in these schools have all t ee York city high sclwene because the unique ° \ yelies solely upon voluntary applications for staffing these x ‘ historical development of these schools, the exceptional ‘Palkc fay i ; alternative schools. There is, thus, arguably, no _ methods of teacher selection, and their special educational . Bias Y __ comparability between these schools or their teachi ' programs and curriculum all preclude comparison with other : i ms 4s staffs and other high schools. ee - ee bs o o~en ees oes = @ © Cem e~ ee seniority practices; low minority incidence in the relevant 1 available teacher work force; and incidence and distribution ee oe OO mee rem (mms ee te Oe oem as -56- =. . 1. State Law on Teacher Appointment All teacher appointments and assignments in New York City public schools until 1970 were made pursuant to the provisions of Education Law sections 2569 and 2573. Under that statutory scheme, the Boacd of Examiners conducted competitive examinations for pedagogical licenses and promulgated lists of candidates ranked in order of performance. on the examinations; eligible lists were then certified to the, plaintiffs for appointment and assignment of teachers in: rank order. The Education Law also permitted assignment of persons with substitute license where there were an insufficient SO EE SE I number of regularly licensed teachers to fill vacancies. Eligible lists have never described or identified the national. origin or race of candidates for pedagogical assignment. While this statutory pattern continues to be applicable in the City's high schools, a new method for teacher appointment and assignment for the City's elementary, es) ie ed ee intermediate and junior high schools was created by the 1969 *. amendments to the Education Law. This change was designed, -* in part, to achieve affirmative action goals in minority : teacher hiring. Effective September, 1969, the New York City ’ school system was restructured into 32 decentralized ———_——— ee ee ee ee ee ee ‘ -§7= °F. et ae ' with the stated purposes of (1) equalizing reading FSR. SOL SE ISS ee te eee eee ee 3s... . TS kf =” a ————- * - + sere O° :emm cms. «0 + oem Community School Districts. Subject to some powers retained by the Central Board and the Chancellor, the Districts were authorized to appoint and assign teachers. Educ. L. § 2590-e(2). , As part of the decentralization law, three alternative methods of teacher appointment and assignment were provided for schools within community school districts where the reading level is below the 45th percentile of reading scores for the local school district. Education Law § 2590-j(5). Appointments in such schools may be made from (1) eligible lists regardless of candidate ranking, (2) the National Teachers Examination, a qualifying (i.e., non-ranked) rather than a competitive examinavcion, administered nationally by the Education Testing Service, or (3) lists resulting from qualifying examinations prepared and administered by the Board of Examiners. The last of these lists had the meen ee wee + ew ee ve lowest ratios of minority teachers. Appointments to the top 55 percentile reading score districts were to be made from ranked lists containing relatively small numbers of minority teachers. These amendments to the Education Law were enacted achievement levels; (2) increasing the number of minority teachers employed in the New York public school system; (3) eliminating overutilization of substitute licensed teachers; ‘ me eee we -58- Stata! FoR Tee. Re ea Te eee Sea ee SS Sie FS SS es a OT Pt le ’ experimentally, in schools where low reading levels warrant. ‘ new educational approaches. fostered a developing educational consensus that minority and. (4) encouraging local community solutions to educational problems. The technique used was in the nature of a political’ compromise that sat‘sfied minority groups, which obtained more minority jobs in minority districts, without offending Whites, who could continue to choose teachers from predomin- i antly White teacher lists purportedly chosen on a merit selection basis. : Revisions of the New York Education Law were based | om a number of racial factors which could no longer be ; . 2 i ignored. City public school student population had dramatically changed from predominantly non-minority to predominantly minority. The percentage of minority teachers--" 7% in 1969--though consonant with the percentage of minority individuals in the relevant available work force--5% of iene graduates in the United States and the New York Metropolitan | area--was relatively static and disproportionate to the eiisins ually,increasing minority student population. Low reading achievement, particularly among minority students, i teacher role-model theories should be explored, at least | | Minority teacher hire rates haa increased in school districts where the National Teachers Examination and qualifying, rather than competitive | examinations for teacher selection, had been utilized = eee ere ore we tual _ ma mon ' ; ' ' t wes Ss SS SS eee Se st eS eS x = 4 “Lass” $55 S33 SSS = ee ee eee —_—— ag nee oem eee ee eee es -—- * @ _—- + . . es ==_ewre eo ame experimentally. An overdependence on substitute licenses was developing in various school districts, particularly those with high concentrations of minority students; this development was due in part to reluctance of some older teachers with tenure to teach in schools in areas | with high minority populations where crime rates and violence | 4 was greater than in some other areas of the City. White teachers tended to live closer to schools with White student bodies while Black and Hispanic teachers tended to live closer to schools with high minority ratios; to the extent that convenience of teachers and their social and professional friendships entered into assignments, there was a tendency towards ethnic concentrations. Teacher hiring during the period 1970-71 through me + me es 1974-75 indicated that the purpose of the amendments to | : ' the Education Law--increasing minority teachers--was | substantially realized. For Slacks the percentage change was + 15.2%; for Hispanics it was + 112.6%. The overall percentage of minority teachers in the school system more than doubled from 7% in 1969 to 15% in 1976. In view of the tenure of older teachers, the contraction of the public school system under fiscal pressures, reductions in students due to a drop in birth rates, increases in private school enrollment, and loss of central city population, this change is reflective of a strong policy | ee ee meee ee ee: &gO- em = eee ere ——— -— — to increase the percentage of minority school teachers. One predictable result of these statutory changes was that a disproportionate percentage of the new minority teachers were assigned to schools with disproportionately high minority school populations. The districts in the lowest: 45 percentiles of reading scores were the districts with the highest minority populations. to ignore the ranked lists in these } Local pressures of the | minority populations districts meant that Black teachers found it easier to . obtain jobs in these districts than in the White-controlled, . White student districts. An irony of this litigation is that among the I: circumstances that now serve to block ESAA funding is the more than twofold increase in minority teachers in the school system between 1969 and 1976. During this lawsuit, . the federal government has acknowledged that it has no desire to challenge the constitutionality of the 1969 amendments \ to New York's Education Law. [It approves the resultant j growth in the proportion of minority teachers but not their 4 : assignment to predominantly minority schools. -6l- | | | | | | | I ale ; w oO —_———— — se or —_——" . ———— ” ee ee ee ie SO See ser ct ter ero ree ee tae ee a i 9 oil Sin . eg 2. ‘Demographic Changes In 1957, the student population of the New York , City School District was 68.3% non-minority; in 1975, . 32.1% non-minority. During the same period the non-minority { population of New York City decreased by 702,699, while » the minority population increased by 815,566. Non-minorities ' | i | ' continued to leave the City in larger, and enter the City | in smaller, percentages than minorities. The birth rate | of the minority population has been substantially higher than - that of others. Moreover, the ratio of minority students to others in non-public schools remains relatively low and | private school enrollment has continued to increase. | Housing patterns in virtually all boroughs of the City of New York reflected such large concentrations ° minority and non-minority groups that zoning of school feeder patterns to achieve racial balance became increas- ingly difficult during the 1960's and 1970's. To improve racial balance, the Board devised various zoning strategies, such as choice of admissions, paired schools, and scrutiny of school site selection. It is apparent, nevertheless, that the schools have become more, rather than less, desegregated and that this trend continues virtually unabated, 3./ Contractual Provisions and Court Orders Teacher assignments reflect date-of-hire seniority — under provisions of the collective bargaining agreement en ee eS _—_—_—— ow - ~6§62- els ee ee —— s Wher Ase erp! ee eS 27°73" Pe gk tau Fae wae oe eee =r between the Board of Education and the United Federation of Teachers which provide that vacancies as they arise must be offered in the first instance to teachers with the | greatest length of service. provisions, on May 15 of each school year, teachers have been able to request transfers to system-wide vacancies based upon system-wide seniority. selection, teachers choose schools near their homes or ‘schools they find more congenial. Under these contractual As a matter of self- Ethnic concentrations result. Vacancies in specific licenses must, where possible, be filled by licensed persons. Thus, the number of minority and non-minority persons possessing specific licenses and the number of vacancies in a particular license area determine the incidence and distribution of teachers in the school system--these are ethnic concentrations based upon historical ethnic favoring of some fields more than otiers. Implementation of the consent decree in Aspira of New York, Inc. v. Board of Education, 72 Civ. 2004 S.D.N.¥. August 29, 1974), requiring the provision of Lilingual instruction to Spanish-dominant children resulted in the concentration of Hispanic teachers in .chools with high Hispanic student populations. woe | eremamwrese + 8 CCE Sases ccee COO ee ee ome eee ——— eT . Ps 8 CA ee = —_— er ~63- —=— = = =o coro wee er ee ie eee % "=" 99° © sea -s PSEB oo ee ee Oe ee Some reversal of the tendency to minority concentration is now expected. Under a newly developed teacher recall plan for fall 1977, assignments of teachers will be made so as to further racial balance of teaching staffs in all schools, not inconsistent with the Aspira consent decree. B:' Community School District ll Only two schools in District ll, P.s. 111 and P.S. 112, out of 31, have both a disproportion of minority students and minority teachers. The staffs of these | schools were apparently assembled prior to 1960, before they were minority schools. Transfer of the experienced minority teachers from these schools to others to achieve a statistical racial balance would, according to Local Board 11, disrupt current teaching programs to the dis- advantage ot both students and teachers. In District 11, the practice since 1972 has been, plaintiffs assert, to attempt to reduce the correlation between minority students and minority teachers by making all new assignments of minority teachers to non-minority schools. It remains to be determined whether any fluctuation in the minority teacher population in these schools was de minimis or Statistically significant. See Hazelwood School Dist. v. United States, 97 S.Ct. 2736, 2743-44 (1977). © For the year 1972-73, a teacher went on leave and was from teacher leaves and substitute assignments. November 9, 4 ; | sm , ; of i | L | ut ' ' 34 i —=} : Ph . no educational agency shall be eligible ae of teacher incidence and distribution constitute dis- 3 t Hq a ae = Oi eer fete Ss crimination in teacher assignment violative of ESAA. j based upon race, color or national origin ’ j in the hiring, Promotion, or assigninent of employees in the agency. .. i . (Emphasis added.) Promulgated under section 1605 (a) (1) (B) ‘i ‘ : ood ‘ Of title 20 is 45 c.F.R. section 185.43 (b) (2) upon which | i aw SO rere en, scene = -7l- «F2 : It i 4 ’ ; ‘ “ 44 i ae 5 eh Voanet eve ‘ie ete hse = Vr yer wee i. ; ; Id. at 209, 93 S.Ct. at 2698. It then noted that in dis- -@° d Some aspect of mala fides, no matter how remote : { | 3: 2 | 3 if charging their burden of proof that segregated schooling XS “or indirect, must be attributable to the defendants before : ? ) : pas : its aay t is not also the result of intentionally segregative acts, Hae S30 {they can be found to have illegally racially discriminated. : } “ | ise : z y “it is not enough, of course, that the school authorities ‘ " , ‘ s ; , ° yh a q Mather an unacceptable state of mind be reflected by acting j xely upon some allegedly logical, racially neutral explanation - ag nee cee yh b: ee ; ‘ cea intent to discriminate, Keyes v. ‘School Dis. No. l, for their actions." Rather, “(T)heir burden is to adduce |e ‘ ‘a i . J “ P ui 4 act ha is- : 5 one to act with intent that the failure have a dis ; j ieee whe apt ng the factors that motivated their 3 i ffect, or b Lful or hi ; L Regge yal effect, y willful or even negligent disregard 2 actions." Id. at 210, 93 S.ct. at 2698. 3 e racial effect of an act or failure to act, tart , ‘ . jot = 7 — More recent discussions of discriminatory intent : $ ; ' Sv. Community School Bd. Ed., N.¥. Sch. Dist. 21, 512 F.2d ' ' : ’ : : ‘ =y = : °- ; are found in Village of Arlington Heights v. Metropolitan | ~37, Sl (2c Cir. 1975), some delict, some illeorl purrose, } : ; x ‘ 7 : 2 — ' Housing Development Corporation, --U.S.--, 97 S.Ct. 555 (1977) ® some blamewor*hy failure on the part of a d:fsondant as a ; I, ; ‘ ; i and Dayton v. Brinkman, 45 U.S.L.W. 4910 (June 27, 1977). * reason for accountability is required. oe . ae ; i ’ » Arlington involved a petition to rezone from single to 4 8. Intent to Discriminate i , j % i . Multiple family classification, designed to increase minority . ‘ In Keyes v. School Dis. No. 1, Denver, Colorado, : ? | P : « housing facilities. The petition was denied hy the Village; } 413 U.S. 129, 93 S.Ct. 2606 (1973), the Court addressed i | ' i i Of Arlington, an almost entirely White community. The . i the questicn of how intent is to be established in school i * i | ‘iq t Court of Appeals held that the “ultimate effect" of the b ¢ cesegregation causes. The Couct first observed: $ ‘ - S . ; Village's denial was racially discriminatory. The Supreme oe z : 1 -- a : Tnere are no a ea ae ee ae t- i Court reversed. 4 ni : location of c c - = : Sy : aaa pa Pe voRgprenrosine 4 the issue, rather, i ' ; SH ’ “is merely a question of policy and fair- ; ss : Respandents simply failed to carry their burden ; ness bused on evnerience jn the different | ; of proving that discriminatory purpose was a. a situations." 9 J. Wigrere, Evidence: § 2485, ; } | motivating factor in the Village's decision: = at 275 (a cad. 3940). In the context of ae This conclusion ends the constitutional inquiry. racial seyreg:tion in public education, the H | The Court of Appeals' further finding that the courts, incluuiny this Court, have recognized | } Village's decision carried a discriminatory a varicty of vitnstions in whieh “fairness” ' ; | este eacinttae 7 without independent | and “policy,” resjuite state authoritics co | i constitutional significance. ' bear the burd-n of expluininy ections OF condi- | : : : 5 ejons8 which wre ¢ te be raciully mokivatet | | “*illaye of Arlington Heights, supra at 566. In note 21 t * . . ° + soca: : oe +s os ae és « . eee sense se | =7S— -76- SOP a ae Ve CS SU a a PO aT. oe ae ti Se wer. tae the Court explained that: Id. at 565. - + ome 6 +e mmeree | Proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been con- sidered. If this were established, the complain- ing party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. In such circumstances, there would be no justification for judicial interference with the challenged decision. But in this case respondents failed to make the required thres- hold showing. In reaching its holding, the court identified, “without purporting to be exhaustive, subjects of proper inquiry in determining whether racially ciscriminatory intent existed.” It declared: Determining whether invidious discriminatory purpose was a motivating factor, demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action--whether it “bears more heavily on one race than another,” Washington v. Davis, 426 U.S., at 242, 96 S.CE. at 2049--may provide an important starting point. Some- times a clear pattern, unexplainable on . grounds other than race, emerges from the : effect of the state action even when the governing legislation appears neutral on its face. . . .The evidentiary inguiry is then relatively easy. But such cases are rare. Absent a pattern as stark ‘as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence. -77- ad ik ae ' Pin IPS STOO Bae me se SA ee SS ST 8 TE ET ES SEE Oe! VERTS “ies Se ke De " District Court. Brinkman, supra. “4 a The historical background of the decision is one evidentiary source, particularly if it reveals a series’ of official actions taken for invidious purposes. . . .The specific sequence of events leading up the challenged decision also may shed some light on the decision-maker's purposes. . . .For example, if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC's plans to erect integrated housing, we would have a far different case. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the ‘factors usually considered important by t the decisionmaker strongly favor a decision contrary to the one reached. The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, Or reports. In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred hy privilege. Id. at 564-565 (footnotes and citations omitted). The Court reiterated its position in Dayton v. remedy imposed by the Court of Appeals was out of pro- portion to the constitutional violations found by the It noted: -78- In that case, the Court concluded that the ae “N ee cee wre ees ee oe OS 8 Oe e OREO SFE © reese CO ORS OMe oF --- . a — ——_ -- -— — -- 8°. PRB eke & °P:2 SF. %S reo tee. Vouk: = eae! | a - +eTrX oy ; w \ | 3 .* ' . 1 . t t i . & . | iz ; 7 The finding that the Pupil population in : , We conclude that enough has be *: = ' en sh 2 the various Dayton schodls is not homogeneous | i : intentional state action through the on " standing by itself, is not a violation of | t community school ‘board and i \ rs Y ard and its predecessor i the Fourteenth Amendment in the absence of H ; os local schocl board to support a findin a showing that this condition resulted ee 4 : of segregative intent from the iemennenbie i oe ap ay ee gh, pater actions wal i b= é consequences of action taken, coupled with ary 229, 339 (1976) ee v. Davis, 426 | [= inaction in the face of tendered choices. j | : i The Court also endorsed the language of the Sixth , Id. at 4912. The Court further observed: Circuit in Oliver v. Michigan State Bd. of Ed.: We realize, of course, that the task of fact- ; finding in a case such as this is a good deal : : ‘more difficult than is typically the case in j : A pres : 4 : Fy umption of segregative purpose : amore orthodox lawsuit. Findings as to the : ) arises when plaintiffs establish that the motivations of multimembered public bodies f natural, probable and foreseeable result are of necessity difficult, cf. Village of i of public officials’ action or inaction was Arlington Heights v. vetropoasen fousing | f an increase or perpetuation of public school ROVeLOpment COED: + 3 peg hnaongh 3 ; segregation. The presumption becomes proof (1977), and the question of whether demo- t unless defendants affirmatively establish graphic changes resulting in racial con- i . that their action or inection was a con- centration occurred from purely neutral ~ | : sistent and resolute application of raciall : public actions or were instead the intended neutral policies 508 F 2d 178 1 ip r Pa result of actions which appeared neutral on i ; (6th Cix 374); 6s ABA Br My P ft their face but were in fact invidiously dis- i ‘ Education, 508 F 3d-775 Ser ae pa LS it criminatory is not an easy one to resolve. | : ——_=—_—" . ( ir. 197%). i, " (Emphasis added.) Id. 7 : Page way kde : ‘ 5 ° n " In detining the concept of discriminalusy inieni, i \ 5 The cases interpreting ESAA indicace that wnile a \ the Second Circuit has made it clear that so long as cnere , b ; Statistical case will suffice to support a finding of | is “foreseeable effect,” there need not be a finding of . J : " illegality, rebutting evidence may establish legality. '. yacial motivation. Hart v. Community School Bd. Ed., N.Y. TE : ; os & _ “A prima facie case of unconstitutional discrimination exists * Sch. Dist. 21, 512 F.2d 37, 51 (2a Cir. 1975). Affirming ‘ : : ‘ where it is possible to identify a ‘white school' or a “ the district court, the Court of Appeals held that: ' : . S ‘ "black school’ simply by reference to the racial composition ef its teachers ana staff." Kelsey v. Weinberger, 498 F.2d 701, 706 at n. 31 (D.C. Cir. 1974). When it “is established j that black teachers are so disproportionately assigned to | ection sped weds al 5 ee pew re ee — LO ee “79 -100- ee me me rr ee ee —- oO ee ee ot ee I “ i % o : ee ee ee - RR we oe - ms ee . . . : PULP eS TPIT - OT OE ee er TE TSS Te Robinson involved 20 u.s.c. § 1605(d) (1) (D), . black schools, the responsible school authorities may fairly which provides that a school district is not Cligible for - be required to demonstrate that such assignments were not | ESAA funds if it has racially motivated.” Board of Ed., Cincinnati v. Department - » shad in effect any other practice, policy, or procedure, such as limiting curricular or extra-curricular activities (or participation therein by children) in order to avoid the participation of minority group children in such activities, which discriminates among children on the basis of race, color, or national origin. .. | of H.E.W., 396 F.Supp. 203, 232 (S.D. Ohio 1975), rev'd on : 1 : other grounds, 532 F.2d 1070 (6th Cir. 1976). See Adams v. ' ; Weinberger, 391 F.Supp. 269, 271 (D.D.C. 1975). re ee a Raw statistics are not necessarily dispositive if there is evidence showing lack of intent to discriminate. In ‘ ce This provision is closely related to section 1605 (d) (2) (B), Kelsey v- Weinberger, supra, where H.E.W. tried to grant the section at issue in the instant case. The Court's ESAA funding, it argued that racial identifiability of ' response to H.E.W. in Robinson is therefore of considerable es ees emer ee ne ne ee ee ee es ee ee ee a Robinson court flatly rejected H.E.W.'s position that non- ‘ ° : ; 4 aj above, the District of Columbia Circuit ee Ore |: ; Statistical data is/irrelevant: . isti lisparity makes out i { ; : ing that statistical ¢ j! position, hold i The Court is of the vi i ; ima facie case of discrimination. However, - i i pretation reads sbotion 70816) ioS Y ma H 4 P 3 : ' a pri a9 ¢ ~— VATKY | : ’ es gs 5 Section 74 (a) ¢ language wakes : | mettunen ©. Veiiank, 613. F.0app- 402.977 17-7. om. ee i oe Sidanantaniee aimed at specific forms : ae a eee wee co 2 we aA ; iS critmination that May occur even in | nere H-E.W. attempted to deny funding, it took the [ perfectly proportioned systems. ee cnt P ' = * nt is : of a significant wen) i Ia. } i position that "the mere existence 9g i na } — i sP | j i ad . r i i lf rendered [the Galveston vi : . statistical disproportion of itse a , The relevant statute, regulations and cases i ineligible.” i, : { Independent ones Meare " ee * indicate a failure of H.E.W. Before declaring a school at ; : ew board ineligible for ESAA funds, H.E.W. must find either that : i (1) the school board was maintaining an illegally segregated | ' | ! i i — ee ee —- oasumuee - --- ss 2 eee -— - - sd -_——— @camme: @ coer ——o—o oe we mee eee ° La sid] we a tag pe SOOM ESTE {2s ‘ pi: ow! Sarr” te RM SB SOT OT ar Re, PPR eas Ee . discretion vested in the agency, this is a case in which "had proper standards been applied and a proper hearing . ——- — is only relevant if those factors can be shown to be racially neutral. The Central Board is chargeable with ost» . _— WituiaM CavULrFIELp, et al., Appellants, — Tue Boarp or EpucaTION OF THE City or New York, et al., Appellees. rs ~ Before: Oakes and Van GRAAFEILAND, Circuit Judges, and PIERcE, District Judge.® a. a Appeals from orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, (1) denying a motion for a preliminary injunction which sought to prevent collection of racial data and (2) remanding case to Department of Health, Education & Welfare (HEW). Order denying preliminary injunction affirmed. Order remanding case to HEW reversed. >. ~~ 6 Of the Southern District of New York, sitting by designation. 4635 -108- Morris WeissBerc, New York, N.Y. (Harold Hay, New York, N.Y., of counsel), for Appellant- Cross-Appellee. Lronarp GREENWALD, New York, N.Y. (Gretchen White Oberman, Lewis, Greenwald & Ober- man, New York, N.Y., of counsel), for Intervenor-A ppellant-Cross-A ppellee. Jessica D. Sm.ver, Washington, D.C. (Drew S. Days, III, Assistant Attorney General of the United States, Brian K. Landsberg, Cynthia L. Attwood, Department of Justice, David G. Trager, United States Attorney for the Eastern District of New York, Richard P. Caro, Assistant United States Attorney, of counsel), for Appellee-Cross- Appellant. ARTHUR EIsENBERG, New York, N.Y. (E. Richard Larson, Carol Ziegler, New York Civil Liberties Union, Robert Hermann, Lita Taracido, Puerto Rican Legal Defense and Education Fund, Ine., of counsel), for Appellee-Cross-A ppellant. Doron GorsteErn, Assistant Corporation Counsel (Allen G. Schwartz, Corporation Counsel of the City of New York, of counsel), for Appellee New York City. ,.% ~ Oakes, Circuit Judge: On this consolidated appeal, the parties challenge two separate orders of the United States District Court for the Kastern District of New York, Jack B. Weinstein, Judge. The first is an order of February 24, 1978, denying the 4636 -109- motion of plaintiffs-appellants (appellants) who are New York City teachers, principals, community school board officials and parent-teacher association officials, for a pre- liminary injunction to prevent city, state and federal officials, defendants-appellees (appellees), from collecting data on the ethnic identification of teachers and super- visors. Appellants appeal the denial of the preliminary in- junction against data collection. In the second order, dated March 15, 1978, Judge Weinstein sua sponte remanded the case to the Department of Health, Education & Welfare (HEW) for further administrative proceedings to afford appellants and other interested persons the opportunity to participate in the administrative proceeding. The federal appellees have cross-appealed from the order remanding the proceedings to HEW. With respect to the order denying the injunction against data collection, we hold that the district court did not abuse its discretion in refusing to halt the collection of ethnic data on teachers and supervisors. We further hold that in its second order the district court erroneously remanded the case to HEW for further proceedings. Accordingly, we affirm the district court’s order of February 24, 1978, but reverse its order of March 15, 1978. 1 In view of the posture of the case below and the questions certified in the order for appeal under 28 U.S.C. §1292(b), see note 8 infra, we do not reach three questions which were not decided on the merits below but are here raised by the appellants. Appellants argue that (1) HEW and the Office for Civil Rights (OCR) do not have power to take action upon allegations that the employment practices of the appellee Board of Education of the City of New York (City Board) discriminated illegally and unconstitutionally against minorities, (2) the City Board’s employment practices complained about in a letter of OCR to the City Board dated November 9, 1976, see note 3 infra, do not constitute illegal and unconstitutional racial discrimination against minorities and (3) the Memorandum of Understanding be- tween the City Board and OCR, see note 2 infra, and the City Board’s actions carrying out its provisions unconstitutionally denied appellants equal protection of the laws by resulting in “reverse discrimination” and deprived them of liberty and property without due process of law. 4637 -110- I. Background At this stage of the proceedings, no facts have been found, no stipulation of undisputed facts agreed upon, no evidentiary record developed. For purposes of the appeal however, we will rely, as the district court did, on docu. ments appended to various pleadings. These ‘Aiesiite reveal that the principal subject of this lawsuit is a Sep- tember 7, 1977, Memorandum of Understanding (Memo randum) between the Office for Civil Rights (OCR) at HEW on the one hand and the Board of Education of the City of New York (City Board) on the other. The Memo- randum obligated the City Board to alter certain teacher and supervisor employment and assignment practices and to remedy the discriminatory effect of those practices on phased basis by 1980. For its part, OCR agreed that the City Board’s promised actions would constitute ‘deities with Title VI of the Civil Rights Act of 1964, 42 U.S.C § 2000d et seq., and Title IX of th Mes Uae <4 eee e Education Amendments 2 The Memorandum committed the City of actions, some of which include: Pe Peat on ny ype of 1979, the teacher corps of each em reflect, within a ran ' bi ge of fiv pa mesenger composition of the system’s teacher corps ed rigtins eac ucational level and catego j i mayan risers gory, subject only to educationally. ees ce Cee os oan of 1980, each individual school in the » wi a range of five percent, the racial- i composition of the system’s teacher corps as a whole for Nr 14 Board to undertake a number aA nd Board of Education will demonstrate to the Office for want ta ce Eager poh prepare: review, that any failure to meet 0 paragraphs one and two hereof results — genuine requirements of a valid educational program. In addi- ve ey Board will demonstrate that it has made and is continuing make special efforts to overcome the effects of educationally-based (footnote continued on next page) 4638 -1lll- The process leading up to negotiation of the Memoran- dum was set in motion on March 18, 1976, when the acting director of OCR wrote toe the Chancellor of the City Board to notify him that OCR had received several complaints of discrimination by the City Board against minority teachers. The letter further informed the Chancellor that OCR wow conduct a review of employment practices in the New York City school system to evaluate compliance with laws bar- ring discrimination in federally financed programs. = lowing investigation, OCR informed Chancellor Anker by letter of November 9, 1976, that the City Board was in vio- lation of Section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Section 901 of the Education Amend- ments of 1972, 20 U.S.C. § 1681.° That letter discussed the i f such mechanisms as re- rogram exceptions through effective use 0 pie ea recruitment and special assignment of teachers. 6. The Board agrees, as soon as practicable to have performed a study of the relevant qualified labor pool by race, ethnicity, and ge by an independent expert acceptable to the parties and pursuan methodology and standards agreed to by the parties... . nS It is understood that this commitment shall not require 9 090 to lay off any teacher currently employed by the cag or ted — any teacher who has not met appropriate requirements or : A A ment, not inconsistent with this agreement. It is further un “ — that the commitment made herein does not establish quotas. ; ed to meet this commitment shall not be considered a oe ne si agreement if the Board demonstrates that it has imp ag 8 provisions of this agreement in a good faith effort to m any sce aon the Office for Civil Rights that ee ye with the United Federation of Teachers and others percent ng alana of the independent expert and the standards and methodology to be used in the above study... . 3 The letter stated in pertinent part: i soncluded that the i espect to employment practices I have cone nas ak City school system, in violation of section 601 of the (footnote continued on next page) 4639 -112- City Board’s employment practices, including its discrim- inatory methods of selection and assignment of teachers, called for submission of a remedial plan, and concluded by offering assistance in preparing the plan. Affidavits on file indicate that, at or about the same time, the OCR direc- tor attended a well publicized public briefing at which he explained OCR’s findings and invited comments from those in attendance and from the community at large. OCR’s letter of November 9 prompted the establishment of an internal City Board committee to examine OCR’s allegations. As part of its study, this committee consulted a number of organizations including some of those partici- pating in this lawsuit as intervenors or amici curiae.t On Civil Rights Act of 1964 (42 U.S.C. [§] 2000d), has, on the basis of race and national origin: (1) denied minority teachers full access to employment oppor- tunity through the use of racially discriminatory selection and testing procedures and through the use of racially identifiable employment pools in a manner that discriminatorily restricts the placement of minority teachers; (2) assigned teachers, assistant principals and principals in a manner that has created, confirmed and reinforced the racial and/or ethnic identifiability of the system’s schools; and (3) assigned teachers with less experience, lower uverage sal- aries and fewer advanced degrees to schools which have higher percentages of minority students. I have also concluded that the New York City school system, in violation of section 901 of the Education Amendments of 1972 (20 U.S.C. [§] 1681), has, on the basis of sex: (1) denied females equal access to positions as principals and assistant principals throughout the system; (2) provided a lower level of financial support for female ath- letie coaching programs; and (3) deprived fezale teachers of seniority rights and other com- pensation through failure to eliminate the effects of past discrim- inatory leave policies. 4 These organizations included the American Jewish Congress, the United Federation of Teachers (UFT), the Council of Supervisors and Administrators (CSA), the NAACP and the New York Civil Liberties Union. 4640 -113 April 22, 1977, before the internal committee had completed its study, the City Board forwarded to OCR its response to the November 9 letter. Without admitting any viola- tion of law, the City Board expressed its determination to rectify “disparate employment opportunities” and pro- posed an equal employment opportunity plan to “insure equality of opportunity and avoidance of discrimination.” The City Board’s plan suggested affirmative efforts to in- crease the number of minority teachers, to improve inte- gration of the teaching staff, and to correct disparities of experience, salary and educational level in the distribution of personnel. The plan also advocated goals for integration of faculty based upon a numerical index, legislative replace- ment of rank order lists with qualifying lists for teacher selection, and a new system of teacher certification and selection. However, OCR found the plan insufficient and notified the City Board on July 6, 1977, that it was prin- cipally concerned with the lack of specificity in the City Board’s response. Just prior to OCR’s rejection of the City Board’s plan, the report of the internal City Board committee (the “Gifford Report”) was published. The Gifford Report furnished documentary confirmation of the discriminatory and segregative nature of the City Board’s employment practices.’ This report may well have exerted In part, the Gifford Report summarized its conclusions as follows: ~t (1) There is an inexplicable, non-rational disparity between the percentage of minority teachers in the New York City school system and the percentage of minority teachers in 46 other non-southern, urban school systems. In order to dismiss or affirm the possibility that the recruitment, selection, and placement practices of the New York public schools contributed to this disparity, we developed a sophisticated econo- metric model of the social and economic relationships affecting the size of the minority teacher population in New York City and 46 other non-sovthern, urban cities. The results of the analysis show, (footnote continucd on next page) 4641 -114- some considerable influence in the City Board’s ultimate decision to conclude the Memorandum with OCR. In negotiating the Memorandum, the City Board re- quested that the United Federation of Teachers (UFT), though not the other parties, be consulted on the terms of the agreement. The UFT was consulted and it agreed to support the adoption of legislation necessary to effectuate the Memorandum. In a press release the City Board hailed the agreement for having been reached “without resort to the courts or other confrontations that might have polar- ized our city.” The release further described the Memo- randum as an agreement which carries forward the existing affirmative action program and accepts a “commitment based on applicable standards of law.” After the Memo- randum was signed but prior to ratification, the City Board held a public meeting on October 19, 1977, with two weeks’ advance notice. Thereafter, the City Board ratified the Memorandum by resolution. in rather stark terms, that the percentage of minority teachers in the New York City public schools is less than one-half of what one would expect to find, if New York City were to “behave” like other cities. This result, in and of itself, does not constitute proof of discrim- ination. It does indicate, however, that the percent of minority teachers in the public school system of New York City is far lower than it should be, given the available pool of minority college grad- uates in New York City and the characteristics of the New York City labor market. (2) Minority teachers are channeled into elementary and junior high schools in a manner that corresponds to the racial composition of the schools. This finding comes as no surprise since these results were antici- pated by the state legislature when it mandated that teachers hired through the alternative method (NTE and “out of rank order” teachers) be restricted to elementary and junior high schools having high concentrations of educationally disadvantaged pupils. (Emphasis in original.) 4642 -1|15- On October 31, 1977, the appellants’ filed this action seek- ing a declaration that certain provisions of the Memoran- dum were unconstitutional, illegal and invalid. They also sought an injunction against the enforcement of those pro- visions and against requiring the appellants to provide data on the ethnic background of teachers and supervisors. Appellants sought summary judgment or a preliminary in- junction. After a hearing, the district court by order of February 24, 1978, ruled only on that part of the motion for a preliminary injunction which sought to enjoin the collec- tion of ethnic data and denied relief.’ A notice of appeal was filed. This court denied an injunction pending appeal but expedited the appeal. By the same order, the district court sua sponte directed that the pleadings of all plaintiffs be amended to include a claim that their constitutional and statutory rights were abridged by OCR’s failure “to afford them and other inter- ested persons the opportunity . . . to participate in the administrative proceedings.” The district court then or- dered all parties to appear on March 7, 1978, to show cause why the action should not be remanded for OCR’s failure to afford such participation. At the March 7, 1978, hear- ing no party requested a remand but rather each sought to have the proceedings continue in the district court so that the district judge might decide the legality of the Memorandum. However, on March 15, the court ordered the agreement vacated and remanded the case to OCR. It also ordered the City Board relieved of its obligations 6 The district court granted numerous motions to intervene, including those of the UFT, the CSA, several community school boards, the Coalition of Concerned Black Educators, several black teachers repre- sented by the NAACP, Ronald Ross (a black teacher represented by the New York Civil Liberties Union), the Public Education Asso- ciation, and the American Civil Liberties Union. The district judge stayed his order for 14 days to give appellants an opportunity to appeal. 4643 -116- under the Memorandum, denied all pending motions as moot with leave to renew, and stayed all proceedings pend- ing completion of the administrative hearings on remand. This appeal followed.* II. Discussion A. Denial of the Preliminary Injunction Against Collection of Ethnic Data Plaintiffs sought to enjoin the mandatory answering of ethnic questionnaires. These questionnaires were distrib- uted to the school system’s community school districts. All supervisors and teachers employed in the city’s public schools were required to answer questions pertaining to their race, color, sex and national origin. In denying ap- pellants’ motion in the February 24 order, the district court made no findings of fact or conclusions of law, although it did note that there is a clear right and obligation of au- thorities to gather data in order to determine, inter alia, whether there has been unlawful discrimination. This court has recently clarified the standard for issu- ance of a preliminary injunction: there must be a showing of possible irreparable injury and either (1) probable suc- cess on the merits or (2) sufficiently serious questions going’ to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Selchow & Righter Co. v. McGraw-Hill Book Co., No. 77-7569, slip op. at 3533, 3537 (2d Cir. June 19, 1978); Triebwasser & Katz v. Ameri- can Telephone & Telegraph Co., 535 F.2d 1356, 1358 (2d Cir. 1976); see Mulligan, Foreword—Preliminary Injunc- tion in the Second Circuit, 43 Brooklyn L. Rev. 831, 832-33 8 The March 15 order was certified in accordance with 28 U.S.C. §$1292(b). This court granted petitions for leave to appeal and cross. appeal and consolidated the appeal from the March 15 order with the appeal from the February 24 order. 4644 -117- (1977). Since appellants neither presented nor sought to present any evidence in support of their motion for a pre- liminary injunction, all that the district court had before it was a question of law. Absent any evidence, the dis- trict court could not conclude that the appellants were likely to suffer irreparable injury, much less that the bal- ance of hardships weighed decidedly in their favor. See Gillespie € Co. of New York v. Weyerhaeuser Co., 533 F.2d 51, 53 (2d Cir. 1976) (per curiam). Moreover, appellants have failed to show that they are likely to succeed on the merits. See id. They argue, first, that because the agreement between OCR and the Board was vacated by the district court, any racial/ethnic survey to be conducted in conjunction with the Memorandum is invalid. However, they have made no showing that the survey of the ethnic composition of the existing staff of the school system would only be conducted because’ the Memorandum provided for it. Indeed, for all that appears in the record, this survey is one routinely conducted by the City Board as part of its annual school census. Appellants also argue that because Title VI does not prohibit racial/ethnic discrimination in employment where providing employment is not a primary objective of federal aid, 42 U.S.C. § 2000d-3,° OCR cannot lawfully seek statis- tices regarding the ethnic and racial composition of the teaching staff. However, appellants have mischaracterized the nature of the OCR investigation. The charging letter of November 9, 1976, specifically noted that its concern with discriminatory employment practices was motivated by the unfortunate effect that these practices exercise on 9 Nothing contained in this subchapter shall be construed to au- thorize action under this subchapter by any department or agency with respect to any employment practice of any employer, employ- ment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment. 42 U.S.C. § 2000d-3. 4645 -118- minority schoolchildren: “(Bly assigning teach Schools in such a manner - ++ [,] minority oomendy mi generally taught by teachers with less experience ae salary and fewer advanced degrees.” According] 'OCR's gr eat falls within the parameters of 12. U.S C. ra “s omg i - U.S.C. § 2000d-3, see note 9 supra, —— jective 0 OCR s investigation was to alleviate Timination against minority schoolchildren and not against minority teachers as such, In the context of this ate additional arguments that the proposed cen- ould violate other federal statutes and the Constitu on are unpersuasive. The Privacy Act of 1974, 5 U S.C. 10 No person in th i e United States shall, on mt 4 the ground : nt gee — be excluded from Participation in “9 Pe Ap ef , or subjected to discriminati ' : activity receiving Federal financial “a. nate»: cid Id. § 20004. ll 45 C.F.R § 80.3(¢) ( i FR. s 3), which deals with th i i 42 U.S.C. § 20004 and 42 U.S.C. § 2000d-3, —_ ace Where a Primary objective of the Federal financial not to provide emplo “a yment, but discriminati color, or national origin in th ation on the gr. the henna Provisions of this Paragraph (c) as — Practices of the recipient or other Persons subject to th i oe irtapting extent necessary to assure equality of qupertentiy -discriminatory treatment of, beneficiaries. 12 OCR has authority to collect raci shall apply to the C.F.R. § 185 13(l); Board ¢ f i of Education v. Cali ‘ano, N 78-6088, 78-8120, slip op. at 4527-32 (2d Cir. Pace a eee ing 4646 -119- § 552a, is invoked but it does not prohibit the collection or retention of such data in this context. Title VI and its regulations authorize the collection of staff data which in turn is permitted to be maintained under 5 U.S.C. § 552a (e)(1).** Nor does the Equal Education Opportunities Act, 20 U.S.C. § 1751, prohibit the collection of racial and ethnic staff data.‘ At this stage of the record, where it does not appear whether or not teacher and supervisor assignments in the New York public schools violate Title VI, plaintiffs’ assertion that these practices are not violative cannot be taken as fact. Thus any suggestion that OCR’s actions are directed at overcoming simple racial imbalance is pre- mature. Finally, the Constitution itself does not condemn the collection of this data. Cf. United States v. State of New Hampshire, 539 F.2d 277, 280-82 (1st Cir.) (upholding as constitutional a requirement pursuant to §709(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(c), that the State provide racial and ethnic employee data to the federal government on an EEO-4 form), cert. denied, 429 U.S. 1023 (1976). The one-sentence argument that the census produces a Fourth Amendment violation is frivo- 13 Each agency that maintains a system of records shall— (1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or hy ex. ecutive order of the President[.] 5 U.S.C, § 552a(e) (1). 14 racial imbalance. 20 U.S.C. $1751; cf. Darville v.. Dade County School Board, 497 F.2d 1002, 1004-05 (5th Cir. 1974) (20 U.S.C. § 1651, which is identical to 20 U.S.C. § 1751, does not foreclose school assignment plans volun- tarily adopted by school board which exceed constitutional minimums and the means, such as transportation, to carry out the plan). 4647 -120- No provision of this Act shall be construed to require the assign. ment or transportation of students or teachers in order to overcome Lib Hg - bat L. Rev, 670, 673-78, 697-701, 770-72 © ef. valen v. Roe, 429 U.S. 589 ( 1977) (statute ee of Health in case of certain unconstitutional) ; Schachter y : . Whal ‘ slip op. at 4001 (2d Cir. July 19, 1978) jog hee power to subpoena medical records from doc vestigation by State not unconstitutional) ute granting tor under in- B. District Court Remand to HEW The federa] appellees, as cross-appellants argue stren u- ously that the district court i the case to HEW.s We ai red in sua sponte remanding onpiuscuntesineaiass 15 Cross-appellants contend that the district ¢ Piggy in an adversary context. See O’Shea y Li pg ing Jenkins y. McKeithen, 395 US “a » J.); Flast y. Cohen, 392 U.S, 83 96.97 (1968). w ‘ . e are the case to HEW, CSA did ask that for not permitting j ; & its participation: for such relief as the court poe pr and CSA was careful to 1006, 1007 (1972); 10 ¢ i a : . Wright & A i : ' - Miller, Fed } sien aes ee at 108-09 (1973); Fed. R. Civ. gf St ay 4 : oe : - Rog -~ Proceedings, CSA has explicitly ac ie was proper. Consequently, the district court had and this court has juriedies; juri ; to HEW. Sdiction to decide the question of the remand 4648 -121- Section 602 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-1,"* provides for three types of action to secure compliance with the substantive provisions of Section 601, 42 U.S.C. § 2000d:'" (1) refusal to grant or termination of assistance, (2) other means authorized by law such as a reference to the Department of Justice, 45 C.F.R. § 80.8(a),"* and (3) voluntary means. Where the agency seeks to compel compliance through termination of funds or other means, Section 602 requires that the agency proceed by formal means including an administrative hear- ing at which a record is made. Before doing so, however, 16 17 18 Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such require- ment, but such termination or refusal shall be limited to the par- ticular political entity, or part thereof, co: other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such non-compliance has been se found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot he secured by voluntary means... . 42 U.S.C. § 2000d-1. See note 10 supra. If there appears to be a failure or threatened failure to comply with this regulation, and if the noncompliance or threatened non- compliance cannot be corrected by informal means, compliance with this part may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assisiance or by any other means authorized by law. Such other means may include, but are not limited to, (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law. 45 C.F.R. § 80.8(a). 4649 HEW must attempt to secure compliance by voluntary means. 42 U.S.C. § 2000d-1; see note 16 supra.” While HEW’s regulations specify a variety of procedures to effectuate fund termination,” they do not provide for 19 20 Congress’s intent that HEW use voluntary means to secure com- pliance with Title VI before resorting to fund termination is clear. Senator Humphrey stated that [t]he first step, in all cases, will be advice to the appropriate person or persons and a reasonable effort to secure voluntary compliance. Obviously no hearing is required in connection with such efforts at voluntary compliance. 110 Cong. Rec. 8979 (1964). And Senator Ribicoff added: The agency could not immediately cut off the funds. As I view this matter, I hope that in the case of every agency and every county involved the officials of the agency would sit down with the officials of the county and would try to settle the problems voluntarily, before any action would be taken, including action to cut off funds, which would be the last resort. 110 Cong. Ree. 13129 (1964). (c) ... No order suspending, terminating or refusing to grant or continue Federal financial assistance shall become effective until (1) the responsible Department official has advised the applicant or recipient of his failure to comply and has determined that com- pliance cannot be secured by voluntary means, (2) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part, (3) the expiration of 30 days after the Secretary has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action... . (d) ... No action to effect compliance by any other means auv- thorized by law shall be taken until (1) the responsible Department official has determined that compliance cannot be secured by volun- tary means, (2) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect com. pliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate. 45 C.F.R. § 80.8(c)-(d). (footnote continued on next page) 4650 public participation or a hearing when HEW acts infor- (a) Opportunity for hearing. Whenever an opportunity for a hear- ing is required by §80.8(c), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the ¢ tion proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the metters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the respon- sible Department official that the matter be scheduled for hearing or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time.... An applicant or recipient may waive a hearing and submit written in- formation and argument for the record. The failure of an applicant or recipient to request a hearing for which a date has been eet shall be deemed to be a waiver.... (b) Time and place of hearing. .. . Hearings shall be held before a hearing examiner... . (ce) Bight to counsel. In all proceedings under this section, the applicant or recipient and the Department shall have the right to be represented by counsel. (d) Procedures, evidence, and record, (1) The hearing, decision, and any administrative review thereof shall be conducted in con- formity with sections 5-8 of the Administrative Procedure Act, and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Department and the applicant or recipient shall be entitled to introduce all relevant evidence... . (2) Technical rules of evidence shall not apply to hearings con- ducted pursuant to this part, bu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0033%3A1. Public record. Not legal advice.