# Petition — Hufstedler v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0638%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1124 ## Text - st RD ORNS I teal Gu the Suprene Court of the Wuited States OCTOBER TERM, 1980 SHIRLEY M. HUFSTEDLER, SECRETARY OF THE DEPARTMENT OF EDUCATION, ET AL., PETITIONERS Uv. BOARD OF EDUCATION OF THE Ciry SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT WADE H. MCCREE, JR. Solicitor General Drew S. Days, III Assistant Attorney General Louis F. CLAIBORNE Deputy Solicitor General BARRY SULLIVAN Assistant to the Solicitor General BRIAN K. LANDSBERG JESSICA DUNSAY SILVER MARIE EVELYN KLIMESZ Attorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 In the Supreme Court of the United States OCTOBER TERM, 1980 No. SHIRLEY M. HUFSTEDLER. SECRETARY OF THE DEPARTMENT OF EDUCATION, ET AL., PETITIONERS * Vv. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT QUESTION PRESENTED Whether the Emergency School Aid Act of 1972, which permits the granting of waivers of ineligibility when a ais- qualifying “practice, policy, or procedure, or other activity ** * has ceased to exist or occur,” precludes grants to school districts that have not yet eliminated the racial identifiability of their faculties, but have agreed to do so in the future. * Additional petitioners are Herman R. Goldberg, Acting Deputy Assistant Secretary for the Office of Educational Support, Department of Education, and Cynthia G. Brown, Assistant Secretary for Civil Rights, Department of Education. Secretary Hufstedler was substi- tuted for former Secretary of Health, Education and Welfare Patricia R. Harris, and Ms. Brown was substituted for David S. Tatel, formerly Director of the Office for Civil Rights, Department of Health, Educ a- tion and Welfare. In addition to the Board of Education of the City School District of the City of New York, Frank Macchiarola, its chancellor, is a re- spondent. I II TABLE OF CONTENTS Page Opinions below .........eeeeeereeeeccceseeeecees 1 cL. ase Cwaw tk enh ee ce ve saceavees 1 Statute and regulations involved .............+++. 1 to se ee res cde ceases eS seaee tes 3 Reasons for granting the petition ................ 7 Ca, , vg ay sce baie'e-0 © 006 002 esp te eke 17 PEL Gage be bwae se cceuseveseveecscaasureeess la DEES int ead ve ce Secs te ccsevecesevsnsnbeee 39a REG WG ES c G8 oH 655 boo sos esivccccscovesccesrvesne 40a SEGUE Tas hogshvsetessecdparcreveceveesceves 43a EUS evo Ker de ccepecsicsesices cecctescece's 44a TABLE OF AUTHORITIES Cases: Board of Education v. Califano, 584 F.2d 576, EE ME savcoscetdvuctosvendneus 13 Board of Education of the City School District of the City of New York v. Harris, 444 U.S. eee a sewsk ke kendee ne ees 24, 7,3, 9, 13, 14, 16 Caulfield v. Board of Education of the City of New York, 449 F. Supp. 1203, rev’d, 583 F.2d 605, complaint dismissed, 486 F. Supp. ne se EGR ECKTO Oa ce S RC SES ORDO RE 5 Ivan Allen Co. v. United States, 422 U.S. 617 15 Kelly v. Guinn, 456 F.2d 100 .............-- 13-14 Kelsey v. Weinberger, 498 F.2d 701..... 8, 12, 14-15 Statutes and regulations: Department of Education Organization Act, Pub. L. No. 96-88, Section 301(a)(2), 93 cia ks sabia ge nkS a vhw ed hek oes 3 Education Amendments of 1978, Pub. L. No. 95-561 92 Stat. 2143, 20 U.S.C. 3191 et seq. 2 III Statutes and regulations— Continued: Page Emergency School Aid Act of 1972, 20 U.S.C. 1601 et seq.: Section 706(d)(1), 20 U.S.C. 1605(d)(1) . 1, 4, 5, 8 Section 706(d)(2), 20 U.S.C. 1605(d)(2)... Section 706(d)(3), 20 U.S.C. 1605(d)(8) ... Section 706(d)(4), 20 U.S.C. 1605(d)(4)... 11 co Section 706(d)(6), 20 U.S.C. 1605(d)(6) ... ) Section 706(d)(1)(B), 20 U.S.C. | MEE Goi donee cckvtkireane jens oe , Section 706(d)(1)(C), 20 U.S.C. SEED! cv nda i kavecesktheaueaie kee 4 Section 706(d)(1)(D), 20 U.S.C. So ayss vb vnades chackenincees 4 BU SEL UPOEED osc cv coentdtavecsecs 12 ie op re ar eee 12 fie 8 ee er rrr re errr re 12 Pie oe SR rere er 12 Re Be 6 rere rE ere 12 Emergency School Assistance Program, Pub. L. No. 91-380, 84 Stat. 800, 803-804....... 10 45 C.F.R. 181.6(a)(4)(vi) (1971) .............. 10 45 C.F.R. 181,6(a)(4)(vi) (1972) «0... ccc eee 10 a le PET os bbe v ended de is beste eewe 12 IE ini d osc bain Ks i Maite sa 3 eR Rees er ee 12 | Oe ae ie Ng hisk Sees A Cada rreacisacus 4 ke PEC PP UT VOT VET TCT ETT 4,9 BE C.F hy, FO hh enc estvevncncscssees a ek ee | eer er reer errr re 4 eg Ss) ee er re ee Pee 9 45 C.F.R. 185.44(d)(3) (1973) ......... eee ee 15 Re me eee eee Pere 2 Miscellaneous: TET Comm: Gee. TG ram CARVE) sce isd csvcccncs 11 38 Fed. Reg. 3463 (Feb. 6, 1973) ............ 15 ~ IV Miscellaneous—Continued: Page 38 Fed. Reg. 18899 (July 12, 1973) ........... 16 38 Fed. Reg. 21646-21647 (Aug. 10, 1973) .... 15-16 Emergency School Aid 1971: Hearings on S. 195, S.683 Before the Subcomm. on Education of the Senate Comm. on Labor and Public Welfare, 92d Cong., lst Sess. (1971) ........ 11 H.R. Conf. Rep. No. 95-1758, 95th Cong., 2d ET BALSA) CORA ee UL Sap dnl 9 14 H.R. Rep. No. 95-1137, 95th Cong., 2d Sess. DRE ET PCLT OP a eee 14 The Emergency School Assistance Program: An Evaluation (Nov. 1970) ...........008. 10 The Solicitor General, on behalf of the Secretary of the Department of Education and other federal parties, peti- tions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A, infra) is reported at 622 F.2d 599. The order of the court of appeals on denial of the petition for rehearing (App. C, infra) is reported at 622 F.2d 619. The opinion of the district court (App. E, infra) is reported at 464 F. Supp. 1114. JURISDICTION The judgment of the court of appeals was entered on November 19, 1979 (App. B, infra). A timely petition for rehearing was denied on May 19, 1980 (App. D, infra). On August 12, 1980, Mr. Justice Marshall extended the time for filing a petition for a writ of certiorari to and including October 16, 1980. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE AND REGULATIONS INVOLVED 1. Section 706(d)(1) of the Emergency School Aid Act of 1972, 20 U.S.C. 1605(d)(1), provides in relevant part: No educational agency shall be eligible for assist- ance under this chapter if it has, after June 23, 1972— * * * * * (B) had in effect any practice, policy, or procedure which results in the disproportionate demotion or dismissal of instructional or other personnel from minority groups in conjunction with desegregation or the implementation of any plan or the conduct of any activity described in this section, or otherwise en- gaged in discrim nation based upon race, color, or na- tional origin in the hiring, promotion, or assignment of employees of the agency (or other personnel for 1 In November 1978, Congress technically repealed and reenacted the Emergency School Aid Act of 1972 (ESAA), with amendments that 1 2 whom the agency has any administrative responsibil- ity); * * * * * except that, in the case of any local educational agency which is ineligible for assistance by reason of clause * * * (B) * * *, such agency may make applica- tion for a waiver of ineligibility, which application shall specify the reason for its ineligibility, contain such information and assurances as the Secretary shall require by regulation in order to insure that any practice, policy, or procedure, or other activity re- sulting in the ineligibility has ceased to exist or occur and include such provisions as are necessary to insure that such activities do not reoccur after the submis- sion of the application. 2. The regulations of the Department of Health, Educa- tion, and Welfare? provide in pertinent part: 45 C.F.R. 185.44(d)(3): In the case of ineligibility resulting from dis- criminatory assignment of teachers as prohibited by § 185.43(b)(2), such applications for waiver shal! con- tain evidence that such agency has assigned its full- time classroom teachers to its schools so that no school is identified as intended for students of a par- ticular race, color, or national origin. Such nondis- criminatory assignments shall, in the case of a local educational agency implementing a plan described in § 185.11(a), conform to the requirements of such plan with respect to the assignment of faculty. In the case of local educational agencies not implementing such a plan, or implementing such a plan which contains no provision as to assignment of faculty, such assign- are not relevant here, by enacting the Education Amendments of 1978, - Pub. L. No. 95-561, 92 Stat. 2143. The 1972 Act was also recodified at 20 U.S.C. 3191 et seg. Because this case was brought before the re- codification, and the decisions below refer to the Act as previously codified, we also refer to the sections of the Act as they were codified prior to November 1978. 2 All relevant administrative actions were taken by the Department of Health, Education, and Welfare prior to the organization of the De- partment of Education, to which responsibility for administration of 3 ments shall be made so that the proportion of minor- ity group full-time classroom teachers at each school is between 75 per centum and 125 per centum of the proportion of such minority group teachers which exists on the faculty as a whole. 45 C.F.R. 185.) 1(a): Plans pursuant to court or agency order. (1) A local educational agency may apply for assistance under this subpart if it is implementing a plan which has been undertaken pursuant to a final order issued by a court of the United States, or a court of any State, or any other State agency or official of competent juris- diction, and which requires the desegregation of minority group segregated children or faculty in the elementary and secondary schools of such agency, or otherwise requires the elimination or reduction of minority group isolation in such schools. For purposes of this subparagraph, a State agency or official of competent jurisdiction means any State agency or of- ficial authorized pursuant to State law to issue such an order. (2) A local educational agency may apply for assist- ance under this subpart if it is implementing a plan which has been approved by the Secretary as adequate under title VI of the Civil Rights Act of 1964 for the desegregation of minority group segre- gated children or faculty in the schools of such agency. STATEMENT In Board of Education of the City School District of the City of New York v. Harris, 444 U.S. 180 (1979), this Court considered the eligibility of the New York City Board of Education for a grant under the Emergency School Aid Act of 1972 for the 1977-1978 school year. The present case involves a like application for the 1978-1979 ESAA was transferred by Section 301(a)(2) of the Department of Edu- cation Organization Act, Pub. L. No. 96-88, 93 Stat. 677. Con- sequently, we will refer both to the Department of Education and to the Department of Health, Education, and Welfare. d school year. The significant difference, however, is that, while in Harris the question was whether the Board met the initial statutory eligibility requirements for ESAA grants, the issue here is whether the Board is entitled to a waiver that would permit it to receive ESAA funds not- withstanding its conceded initial ineligibility. See Board of Education v. Harris, supra, 444 U.S. at 133 n.2. 1. The Board applied for ESAA grants totalling ap- proximately $2.36 million for the 1978-1979 school year. On June 20, 1978, the Secretary advised the Board that it was ineligible for those grants, under 20 U.S.C. 1605(d)(1)(B) and 45 C.F.R. 185.48(b)(2), because of dis- crimination in the hiring and assignment of teachers and administrators.* Thereafter, on July 7, 1978, the Board applied for a waiver of ineligibility. That was, however, a protective measure, pending the Board’s appeal from a district court order upholding the Secretary’s determina- tion of ineligibility for the previous school year. See Board of Education v. Harris, supra, 444 U.S. at 137. The Sec- retary denied the Board’s application on September 26, 1978, and the Board instituted this action on the following day. Although the district court had upheld the Secretary’s determination with respect to the Board’s 1977-1978 ap- plication, the court declined to dismiss this action, which was based upon the same facts and legal theories. Instead, the district court took the unusual step of ordering the Board to amend its complaint to allege that it was entitled to a waiver of ineligibility under Section 706(d)(1), 20 U.S.C. 1605(d)(1), by virtue of a Memorandum of Under- standing between HEW and the Board, concerning the lat- 3 The Secretary determined that the school district was ineligible on two other grounds: (a) the existence of racially identifiable classes within schools, 20 U.S.C. 1605(d)(1)(C), 45 C.F.R. 185.43(d)(5); and (b) the imposition of disciplinary sanctions in a discriminatory manner, 20 U.S.C. 1605(d)(1)(D), 45 C.F.R. 185.43(d)(4). HEW subsequently withdrew its determination as to racially identifiable classes at the high school level, and the parties entered into a Letter of Agreement concerning disciplinary sanctions and racially identifiable classes at the elementary and junior high school levels. < 5 ter’s compliance with Title VI of the Civil Rights Act of 1964. In the Memorandum of Understanding, which was signed on September 7, 1977, the Board agreed to rectify the racial identifiability of its faculties over a three-year period, ending in September 1980.4 The district court granted the Board’s motion for a temporary restraining order on September 27, 1978, and a preliminary injunction was entered on October 10, 1978.5 The Secretary contended in the district court that the Board, merely by agreeing to take future action to rectify the racial identifiability of its faculties, did not thereby be- come entitled to a waiver because, under the statute, a waiver may be issued only if the “practice, policy, or pro- cedure, or other activity resulting in the ineligibility has ceased to exist or occur” (20 U.S.C. 1605(d)(1)). The dis- trict court concluded, however, that the Secretary’s in- terpretation of her statutory power to grant a waiver was “unduly limited” (App. E, infra, 45a). The court stated (App. E, infra, 66a): HEW may, but need not, grant a waiver where a plan like the New York 1977 Memorandum of Under- standing has been adopted terminating all active dis- crimination and beginning prompt elimination of the results of past discrimination, but where the effects of past discriminatory teacher assignment [sic] have not been fully eliminated. * A group of teachers, principals, community school board officials, and parent-teachers association officials challenged the validity of the Memorandum of Understanding in Caulfield v. Board of Education of the City of New York, 449 F. Supp. 1203 (E.D.N.Y.), rev’d, 583 F.2d 605 (2d Cir. 1978). The district court set aside the agreement on March 15, 1978, and the Board thereafter discontinued its implementation. Implementation was resumed after the court of appeals reversed the judgment of the district court. On October 10, 1978, the district court vacated its prior order setting aside the agreement. The district court subsequently upheld the agreement following trial (complaint dis- missed 486 F. Supp. 862 (E.D.N.Y. 1979)), and the Second Circuit af- firmed, No. 79-6191 (Sept. 22, 1980). ®* The court also set down the case for trial. The parties subsequently agreed, however, to submit the matter upon the pleadings, the admin- istrative record, and certain stipulated facts. °% 6 On cross-motions for summary judgment, the court in- validated the applicable HEW regulation to the extent that the regulation conflicted with the court’s construction of the statute. 2. The court of appeals affirmed by divided vote, con- struing the statutory language to mean that all that “must cease to exist or occur in order for an applicant to qualify for a waiver of ineligibility is its current acceptance of the status quo” (App. A, infra, 17a). The court reasoned that (ibid. ): if the Central Board has adopted a policy of eliminat- ing discrimination in a manner approved by HEW, as demonstrated by its commitment to the Memorandum of Understanding, then “practices,” “procedures” and “other activities,” undertaken in furtherance of that policy cannot logically be described as having resulted in the ineligibility. Simply put, they are not part of the problem, but part of the cure. The fact that the Central Board must tolerate segregative teacher as- signments until the plan is fully implemented does not, under the language of the statute, preclude it from participation in ESAA. The court of appeals found support for its holding in its understanding of the congressional purpose underlying the statute. The court rejected the Secretary’s interpretation of the legislative history, noting that the statute con- templated the award of grants only to applicants that were implementing some plan for desegregation or the elimina- tion of minority group isolation. The court reasoned that Congress must have intended that school districts which are initially ineligible for funding under the statute— because they have engaged in disqualifying discrimination since June 23, 1972—may qualify for a waiver despite their failure to eliminate the “effects” of discrimination. In the court’s view, the existence of such a plan !ogically presup- poses the continued existence of some effects of prior dis- crimination (App. A, infra, 22a-23a). Likewise, the court noted, an applicant which had eliminated the effects of dis- crimination would be unable to demonstrate its need for a grant under the competitive criteria of the statute 7 (App. A, infra, 22a). Finally, the court expressed concern with the inherently subjective nature of a determination whether the effects of past discrimination have been eliminated (App. A, infra, 21a). Judge Oakes dissented, emphasizing that the majority had misread the Secretary’s regulation, which he found to be rationally related to the objectives that Congress sought to achieve when it created the ESAA program (App. A, infra, 33a-36a). He also noted that the major- ity’s discussion of the “effects” of past discrimination was wholly gratuitous in that the present “effects” of past dis- crimination were not disputed here (App. A, infra, 3la- 32a). The issue presented, according to Judge Oakes, was whether the Board was entitled to a waiver simply be- cause it had agreed to discontinue discriminatory assign- ments in the future, when the governing statute required that waivers be granted only when the “practice, policy, or procedure or other activity resulting in the ineligibility has ceased to exist or occur” and provisions have been made “to insure that such activities do not reoccur” (App. A, infra, 33a). In Judge Oakes’ view, the Secretary had properly denied the Board’s application. By divided vote, the court of appeals denied the Secre- tary’s petition for rehearing and suggestion for rehearing en banc. The court concluded that its decision was not in- consistent with this Court’s holding in Board of Education v. Harris, supra, 444 U.S. at 151, that “discriminatory impact is the standard by which ineligibility under ESAA is to be measured.” The court further stated (App. C, infra, 41a; emphasis in original) that its decision “did not distinguish between intentional and nonintentional dis- crimination, but rather, between the maintenance of either form of discrimination and a policy of elimination of either form of discrimination.” REASONS FOR GRANTING THE PETITION In enacting the Emergency School Aid Act of 1972, Congress committed the federal government to a carefully 8 structured scheme of financial assistance that would en- courage the elimination of segregation and minority group isolation in our nation’s elementary and secondary schools. Since 1972, the ESAA program has proved to be one of the most effective means to that end. The importance of the program is amply demonstrated by the appropriation of approximately $270 million for 1980-1981 school year grants to school districts meeting the eligibility require- ments set forth in the statute. In our view, the court of appeals has substantially blunted the instrument that Congress precisely fashioned to forward its goals in this vital area. Moreover, the decision below conflicts in prin- ciple with the decision of the District of Columbia Circuit in Kelsey v. Weinberger, 498 F.2d 701 (1974), and the De- partment of Education’s administration of the program will be severely hampered unless this Court resolves that conflict. 1. For present purposes, it is undisputed that the New York City Board of Education does not satisfy the initial eligibility standards of the Emergency School Aid Act be- cause, after mid-1972, it continued to “engage[ ] in dis- crimination based upon race * * * in the hiring, promotion, or assignment of employees * * *.’’ 20 U.S.C. 1605(d)(1)(B). That obstacle is no different with respect to the 1978-1979 school year than it was for the previous year, at issue in Board of Education v. Harris, 444 U.S. 130 (1979). But, now as then, the hurdle can be overcome if the Board qualifies for a “waiver” under the statute. /d. at 133 n.2. ihe issue here is whether the Secretary rightly denied such a waiver on the ground that the Board had not yet eliminated a system of racially identifiable schools based on faculty assignments. Congress has carefully prescribed the grounds and con- ditions upon which waivers of ineligibility may be granted. An applicant must first provide “such information and as- surances as the Secretary shall require by regulation in order to insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur.” 20 U.S.C. 1605(d)(1). Moreover, waivers may be granted only by the Secretary, whose authority 9 may not be delegated (20 U.S.C. 1605(d)(2)), and the Sec- retary may grant a waiver only “upon determination that any practice, policy, procedure or other activity resulting in ineligibility has ceased to exist, and that the applicant has given satisfactory assurance that the activities pro- hibited in [section 1605(d)(1)] will not reoccur” (20 U.S.C. 1605(d)(3)). The Secretary’s determination must be made in writing, and he must notify the appropriate committees of the House and Senate before granting a waiver (20 U.S.C. 1605(d)(6)). When ineligibility is based on racial identifiability of the school district’s faculties (20 U.S.C. 1605(d)(1)(B); 45 C.F.R. 185.48(b)(2)), the Secretary’s regulations provide that the applicant must provide evi- dence that it “has assigned its full-time classroom teachers to its schools so that no school is identified as intended for students of a particular race, color, or national origin” (45 C.F.R. 185.44(d)(8)).® The question presented is straightforward: what must “cease[ | to exist or occur” before the Secretary may issue a waiver of ineligibility. The court of appeals determined that all that “must cease to exist or occur in order for an applicant to qualify for a waiver of ineligibility is its cur- rent acceptance of the status quo” (App. A, infra, 17a). We submit that that holding is inconsistent with the over- all scheme and purpose of the statute, the legislative his- tory, and this Court’s reasoning in Board of Education v. Harris, supra, all of which support the Secretary’s view that actual assignments of faculty must be altered in a way that completely eliminates racial identifiability before a waiver may be granted. 6 The regulation further provides that: {such] nondiscriminatory assignments shall, in the case of a local educational agency implementing a plan described in § 185.11(a), conform to the requirements of such plan with respect to the as- signment of faculty. In the case of local educational agencies not implementing such a plan, or implementing such a plan which contains no provision as to assignment of faculty, such assign- ments shall be made so that the proportion of minority group full-time classroom teachers at each school is between 75 per cen- tum and 125 per centum of the proportion of such minority group teachers which exists on the faculty as a whole. 10 a. Although the ESAA statute was not enacted until 1972, Congress first created a temporary program with similar purposes, which was enacted as part of an appro- priation measure on August 18, 1970. That act, the Emer- gency School Assistance Program (“ESAP”), Pub. L. No. 91-380, 84 Stat. 800, 803-804, provided immediate financial assistance to desegregating school districts dur- ing the two years that Congress was debating various proposals for a more permanent and comprehensive pro- gram. HEW was charged with the administration of ESAP and promulgated implementing regulations. Among other things, HEW’s initial regulations required that school dis- tricts provide assurances “[t)hat [they] will take effective action to ensure the assignment of staff members who work directly with children at a school so that the ratio of minority to nonminority group teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, re- spectively, in the entire school system” (45 C.F.R. 181.6 (a)(4)(vi)(1971)). The regulations relating to the 1971-1972 ESAP grant program likewise required an assurance “(t]hat the local educational agency has assigned its full- time classroom teachers for the 1971-72 academic year so that the ratio of minority to non-minority group classroom teachers in each school is substantially the same as the ratio that exists in the faculty of the system as a whole” (45 C.F.R. 181.6(a)(4)(vi) (1972)). During the legislative process preceding the enactment of ESAA, Congress received substantial evidence of non- compliance by ESAP grant recipients with the non- discrimination requirements established by the regula- tions.” In addition, the Staff Director of the United States 7 Both the General Accounting Office and a coalition of public inter- est groups issued detailed reports on the ESAP program. The coali- tion’s report, The Emergency School Assistance Program: An Evalu- ation (Nov. 1970) stated (at 2-3): Large numbers of grants have gone to districts engaging in seri- ous and widespread racial discrimination. Of the 295 ESAP- assisted districts which we visited, 179 were engaged in practices that rendered them ineligible for grants under the statute and 11 Commission on Civil Rights testified in Senate hearings, where he criticized the “meaninglessness of paper assur- ances” of compliance and emphasized the need for a pre- grant mechanism for insuring that the applicant is not in- eligible. Emergency School Aid 1971: Hearings on S.195, S.683 Before the Subcomm. on Education of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess. 431-432 (1971) (testimony of Hc-vard A. Glickstein, Staff Director, United States Commission on Civil Rights). In enacting ESAA, Congress therefore sought to in- clude safeguards to assure that the deficiencies and abuses in the administration of ESAP would not reoccur. 117 Cong. Rec. 10758 (1971) (remarks of Senator Mondale). The most important of these safeguards was the addition of Section 165(d), which established specific eligibility re- quirements and barred the Secretary from approving any application for assistance without first determining that the applicant was “not ineligible for reason of” its failure to meet those requirements. 20 U.S.C. 1605(d)(4). As part of the eligibility requirements contained in Section 1605(d), Congress specifically provided that the Secretary could not grant a waiver unless the factor causing ineligi- bility had ceased to exist or occur. Good intentions and bald assurances concerning future conduct were no longer to be deemed sufficient. Henceforth, applicants would be required to supply evidence that they had actually cor- rected the disqualifying condition. The court of appeals noted that “to require that a waiver candidate have already remedied ‘the effects of past dis- crimination], which is the objective uf the integration plan [it] is required to be presently effectuating, is contradic- the Regulations. In 87 others, we found sufficient evidence to consider the districts’ eligibility questionable. In only 29—less than 10 percent —did we find no evidence of illegal practices. Specifically, we found: * * a * * —62 clear and 4 questionable cases in which faculties and staff had not been desegregated in accordance with applicable re- quirements [.] 12 tory and does not comport with the statutory scheme con- sidered as a whole” (App. A, infra, 23a). If the purpose of the statute were to assist local officials in shouldering the costs of the physicai process of desegregation, the court’s observation would be well-taken. In fact, however, the ESAA grant program was established not to finance con- stitutionally required desegregation, but to assist local of- ficials in meeting “the special needs incident to the elimi- nation of minority group segregation and discrimination” (20 U.S.C. 1601(b)(1)). Grants are awarded not to sub- sidize the immediate costs of desegregation, but to assist local schools in maintaining sound educational programs in newly desegregated schools. Grants are authorized under the statute, therefore, for programs such as curriculum development, inservice teacher training, counseling, re- medial services, bilingual education and educational tele- vision. See 20 U.S.C. 1606, 1607, 1610. In Kelsey v. Weinberger, supra, 498 F.2d at 711 (footnote omitted), the District of Columbia Circuit clearly stated the distinction overlooked by the courts below: [T]he Act makes moneys available, not for the basic desegregation activities themselves, but for auxiliary programs designed to enhance the success of the de- segregation effort and ameliorate the inroads of past educational segregation. We find no provision in the Act licensing expenditures simply for the purpose of reassigning teachers * * *. Under the Secretary’s regulations, grant applicants compete with one another on the basis of “points,” which measure the relative need of the applicants, as indicated by the number and percentage of their minority group en- rollments, and the proposed projects’ “effective net reduc- tion in minority group isolation (in terms of the number and percentage of children affected)” (45 C.F.R. 185.14(a)(2)). Significantly, the key statutory concept of minority group isolation is defined in terms of student en- rollments; the racial profile o1 faculty assignments is not relevant. See 20 U.S.C. 1619(10); 45 C.F.R. 185.02(g). Thus, a school district that had eliminated all racially iden- tifiable school faculties would not be disadvantaged in the 13 ranking process; it would compete for a grant based upon the extent to which its plan proposed to reduce minority student isolation. Indeed, several component school dis- tricts within the decentralized New York City system re- ceived waivers and grants for the 1977-1978 school year, after they had eliminated the racial identifiability of their faculties. See Board of Education v. Califano, 584 F.2d 576, 585-586 n.32 (2d Cir. 1978), aff'd, 444 U.S. 130 (1979). That fact illustrates the faulty premises upon which the judgment of the court of appeals is based. b. While the Secretary’s interpretation of the waiver provision was not at issue in Board of Education v. Har- ris, supra, the Court’s general analysis of the statute there supports the Secretary’s interpretation. In Harris, the Court noted that Congress intended that the ESAA program should aid in the elimination of both de jure and de facto segregation, and therefore held that the existence of racially identifiable faculties should preclude assistance under the program, regardless of whether that condition resulted from purposeful discrimination. The Court stated that “it would make no sense to allow a grant to a school district that, although not violating the Constitution, was maintaining a de facto segregated system” (444 U.S. at 142; emphasis in original). Likewise, we submit that it would be exceedingly formalistic to declare that a school district is ineligible because it maintains de facto segre- gated faculties, but then to grant a waiver permitting the award of a grant during the continued maintenance of such segregation. If, as this Court has held, the existence of segregation is the dispositive factor under ESAA, the dis- qualifying discrimination cannot “cease to exist or occur” until the condition—racially identifiable faculty assign- ments—ceases to exist or occur. That New York may have adopted a policy of eliminating such assignments for the future is therefore immaterial because the “practice * * * resulting in the ineligibility” has not ceased to exist.® *The insufficiency of promised future compliance is particularly ob- vious when ineligibility stems from racially identifiable faculty assign- ments. As the Ninth Circuit correctly observed in Kelly v. Guinn, 456 14 The legislative history of the 1978 ESAA reenactment, which the Court found relevant in Board of Education v. Harris, supra, 444 U.S. at 148-149, also supports the Sec- retary’s construction. During the legislative process, Con- gress considered and rejected a proposal to amend the statute so as to overrule the Secretary’s construction on this point. As this Court noted, “(t]he House version in- cluded a waiver-of-ineligibility provision to respond to complaints [related to HEW’s] application of the regula- tion to Los Angeles and New York City” (ibid.). The House Committee report stated (H.R. Rep. No. 95-1137, 95th Cong., 2d Sess. 95-96 (1978)): In an attempt to deal with [the problem of denial of waivers for failure to fully integrate faculty], the Committee bill adopts an amendment making clear that school districts which are undertaking efforts to integrate their faculty but which have not yet fully achieved that goal may nonetheless obtain a waiver of ineligibility. Presently, the Department of Health, Education and Welfare is interpreting the law as re- quiring school districts to complete faculty integra- tion before they can apply for funds. The purpose of this amendment is to assist those school districts while they are trying to achieve that goal. The House provision was deleted by the Conference Com- mittee (H.R. Conf. Rep. No. 95-1753, 95th Cong., 2d Sess. 286 (1978)), and the waiver provision remained un- changed, which “strongly suggests that Congress ac- quiesced in HEW’s interpretation of the statute” (Board of Education v. Harris, supra, 444 U.S. at 149). What Congress declined to do, the court of appeals has done. 2. While we concede that the facts of this case are somewhat distinguishable® from those in Kelsey v. Wein- F.2d 100, 107 (1972), “teacher assignment is * * * subject to the com- plete control of school authorities, unfettered by such extrinsic factors as neighborhood residential composition or transportation problems *** ' Moreover, the record here is devoid of any suggestion that teacher reassignments involve any financial expenditure. *The court below distinguished the two cases on the ground that here HEW had, for purposes of Title VI of the Civil Rights Act of 15 berger, 498 F.2d 701 (D.C. Cir. 1974), the two decisions clearly present a “conflict in principle” on a narrow, but important, question of federal law that should be resolved by this Court. See Jvan Allen Co. v. United States, 422 U.S. 617, 623-624 (1975). In Kelsey, parents of public school children in several cities challenged an amendment to the waiver regulation that the Secretary had promulgated in August 1973, appli- cable to 1973-1974 school year ESAA grants. Under the amendment, school districts that were ineligible for assist- ance because of racially identifiable faculties were given a maximum of two additional years (until the beginning of the 1975-1976 school year) to desegregate their facul- ties.!° The Secretary’s action was based upon his view that 1964, accepted the school district’s plan to eliminate racially identifi- able faculties over a three-year period, ending September 1980, whereas the school districts in Kelsey planned “to remedy the practice only through a gradual and virtually open-ended process of attrition” (App. A, infra, 23a n.11). The court’s distinction is not entirely sound, however, because the portion of the regulation that was invalidated in Kelsey required school districts to eliminate all racial identifiability of faculties not later than the beginning of the 1975-1976 school year, which actually provided those school districts with two years in which to eliminate racial identifiability, rather than the three years provided for in the Title VI plan here (see 45 C.F.R. 185.44(d) (3) (iv) (1973), quoted infra, note 10, page 15). While it is true that Kelsey did not involve a plan that HEW had formally accepted for purposes of Title VI compliance, there would appear, for present purposes, no practical or legal difference between such a plan and one accepted in exchange for a waiver under ESAA. 1°Prior to the 1973 amendment, the regulation was virtually identical to that which currently exists. See 38 Fed. Reg. 3463 (Feb. 6, 1973). The third sentence of the regulation was amended to require, in the case of school districts not implementing a court ordered plan or a Title VlI-approved plan (88 Fed. Reg. 21646-21647 (Aug. 10, 1973); 45 C.F.R. 185.44(d) (3) (1973)): (i) Adoption by such agency of a policy of nondiscriminatory as- signment of faculty and staf” members; (ii) Determination of all facvity and staff assignments made after the date of application for waiver in a manner which does not contribute to or reinforce the racial or ethnic identifiability of any school operated by such agency; 16 he could, consistent with the statute, grant “a longer period in which to complete corrective action” to school districts which “had demonstrated a commitment to the elimination of discrimination in faculty assignment,” but ifatebeen “unable to alter the faculty assignment patterns within the existing time constraints.” 38 Fed. Reg. 18899 (July 12, 1978). The Kelsey court found possible constitutional questions raised by the Secretary’s construction (498 F.2d at 709- 710), and it held that waivers may not be granted until all racial identifiability of faculties has been eliminated. Al- though the court’s constitutional fears may now appear in- substantial where ineligibility is based upon the effect of a school district’s practice rather than its intent,1! we sub- mit that the Kelsey court’s construction is nonetheless more consistent with the purpose of the ESAA program than is the construction adopted by the court below. At all events, the courts’ differing views as to what the statute requires before a waiver can be granted has created un- certainty in the administration of the statute. If tle Secre- tary receives a waiver application from a school district that agrees to alter its assignment policy for the future, (iii) Adoption of a plan to eliminate all fulltime teaching faculties composed exclusively of members of a single racial or ethnic group no later than the end of the period for which assistance is to be awarded; and (iv) Adoption of a plan for assignment of faculty and staff mem- bers which will eliminate all racially or ethnically identifiable faculties at schools operated by such agency within a reasonable period of time but in no event later than the commencement of the 1975-76 academic year. * * * ‘1The court based its holding in part upon the premise that constitu- tional problems might result from the government’s grant of ESAA funds to school districts that had not fully corrected the condition re- sulting in ineligibility. The court assumed that the school districts’ in- eligibility was necessarily based upon continuing constitutional viola- tions (id. at 706 n.31), and that the federal government must not par- ticipate in such violations. The judgment in Kelsey was rendered prior to this Court’s decision in Board of Education v. Harris, supra, in which the Court held that ineligibility under ESAA may be based upon something less than a constitutional violation. 17 but proposes to remedy past assignments on a phased basis, the Secretary will be placed in a position where her decision will violate either the holding in Kelsey or the decision below. The proper enforcement of the statute, which is essential to this nation’s commitment to equal educational opportunity, requires this Court’s resolution of the question presented. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. OCTOBER 1980 WADE H. MCCREE, JR. Solicitor General Drew S. Days, III Assistant Attorney General LouISs F. CLAIBORNE Deputy Solicitor General BARRY SULLIVAN Assistant to the Solicitor General BRIAN K. LANDSBERG JESSICA DUNSAY SILVER MARIE EVELYN KLIMESZ Attorneys APPENDIX A In the Wnited States Court of Appeals for the Second Circuit No. 79-6006 AUGUST TERM, 1978 No. 1079 (Argued June 5, 1979 Decided November 19, 1979) Docket No. 79-6006 BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND FRANK MACCHIAROLA, CHANCELLOR OF THE CITY SCHOOL DISTRICT OF THE C1ITy OF NEW YORK, PLAINTIFFS/APPELLEES, v. PATRICIA R. HARRIS, SECRETARY, UNITED STATES DE- PARTMENT OF HEALTH, EDUCATION AND WELFARE, HERMAN R. GOLDBERG, ASSOCIATE COMMISSIONER, EQUAL EDUCATION OPPORTUNITY PROGRAMS, UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, AND DAVID S. TATEL, OFFICE FOR CIVIL RIGHTS, UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, DEFENDANTS/ APPELLANTS. Before: OAKES and MESKILL, Circuit Judges, and STEWART, District Judge.* *Honorable Charles E. Stewart, Jr., United States District Judge for the Southern District of New York, sitting by designation. la 2a Appeal from an order entered in the United States Dis- trict Court for the Eastern District of New York (Wein- stein, District Judge) remanding for appellants’ further administrative review appellees’ application for a waiver of ineligibility under the Emergency School Appropria- tions Act, 20 U.S.C. § 1605(d)(1). Affirmed. RICHARD P. CARO, Assistant United States Attorney, Eastern District of New York, Brooklyn, New York (Ed- ward R. Korman, United States Attor- ney, Harvey M. Stone, Assistant United States Attorney, Eastern District of New York, Brooklyn, New York, Lois Hochhauser, Department of Health, Education and Welfare, Washing- ton, D.C., of counsel), for Defendants- Appellants. JOSEPH F. BRUNO, Office of the Corpo- ration Counsel, New York, New York (Allen G. Schwartz, Corporation Counsel for the City of New York, Gregg M. Mashberg, Ellen B. Fishman, Office of the Corporation Counsel, New York, New York, of counsel), for Plaintiffs- Appellees. MESKILL, Circuit Judge: Three officials of the Department of Health, Education and Welfare (collectively “HEW,” the “agency,” or “ap- pellant”) including the Secretary’ appeal from an order of 1At the time this case was argued, Joseph A. Califano, Jr. was the Secretary of the Department of Health, Education and Welfare. Prior to the filing of this opinion, however, he had been replaced by Patricia Harris, who has been substituted us an appellant herein pursuant to Rule 43(c)(1), Fed. R. App. P. 3a the United States District Court for the Eastern District of New York remanding for further administrative review the application of the Board of Education of the City School District of the City of New York (the “Central Board”) for a waiver of ineligibility under the Emergency School Aid Act, 20 U.S.C. §§ 1601, et seq. ,? and enjoining the appellant from expending funds originally designated for appellees’ benefit pending such reconsideration. Pre- viously, the Central Board had been denied funding under the program on the ground that the Central Board’s as- signment of black teachers to predominently black high schools disqualified it from receiving such benefits, see 20 U.S.C. § 1605(d)(1)(B). An application for a waiver of in- eligibility was summarily denied on the ground that the agency lacked discretion to grant such relief in situations where although the segregative assignment policy had been repudiated, its “effects” still lingered. In reviewing the agency’s action, the district judge found that HEW had been entirely too modest in its view of its prerogatives under the waiver provisions of the Act and ordered the matter remanded for administrative reconsideration of the merits of the Central Board’s application. Board of Edu- cation of the City School District of the City of New York v. Califano, 464 F.Supp. 1114 (E.D.N.Y. 1979) (“Califano II”). We affirm. I, BACKGROUND The instant appeal poses a very circumscribed issue. In substance, we are called upon to decide whether HEW’s 2The version of the Emergency School Aid Act (“ESAA”) governing this case was repealed, effective September 30, 1979, through passage of the Education Amendments Act of 1978, Pub. L. 95-561, Title VI, 92 Stat. 2252, et. seg. ESAA has been substantially re-enacted there- under, with some modifications not relevant to the matters presented on this appeal, and has been codified at 20 U.S.C. §§3191-3207. Section 1605(d) of the old act, which is at issue herein, corresponds to newly adopted section 3196(c). 7% 4a summary rejection of the Central Board’s waiver applica- tion on the ground that the “effects” of the now-repudiated discriminatory practice had not. yet been entirely abated was proper under the program’s statutes and regulations. Before formulating a response, it is necessary to place this appeal in its proper setting which, owing to the volume of litigation which has preceeded it, is panoramic. a. The ESAA Waiver Provision and Its Implementing Regulation. Recognizing that the cost of desegregating public school systems or of maintaining adequate educational standards in those schools which had achieved integration was be- yond the means of many local boards, Congress in 1972, after considerable debate, passed Title VII of the Educa- tion Amendments of 1972, the Emergency School Aid Act (““ESAA”), Pub. L. 92-318, Title VII, §§ 701-820, 86 Stat. 354 (1972), 20 U.S.C. §§ 1601, et seg. The announced pur- poses of the legislation are “(1) to meet the special needs incident to the elimination of minority group segregation . . . (2) to encourage voluntary elimination . . . of minority group isolation . . . and (3) to aid school children in over- coming the educational disadvantages of minority group isolation.” 20 U.S.C. § 1601(b). This Court has previously characterized ESAA as “a program purposefully designed to ‘aid in desegregating schools and support quality inte- grated schools.’” Board of Education of the City School District of the City of New York v. Califano, 584 F.2d 576, 578 (2d Cir. 1978), cert. granted, 47 U.S.L.W. 3554 (U.S. Feb. 21, 1979) (“Califano I’). of New York v. Califano, 584 F.2d 576, 578 n.3 (2d Cir. 1978), cert. granted, 47 U.S.L.W. 3554 (U.S. Feb. 21, 1979) (“Califano I"), quoting Conf. Rep. No. 798, 92d Cong., 2d Sess. (1972): “The House amend- ment stated the purpose of the title as providing financial assistance to meet the special needs incident to desegration [sic] and to encourage voluntary integration.... The conference substitute retains the House provision. .. .” And see, H. Rep. No. 92-576 at 4, 92d Cong., Ist Sess. (1971) (“Most school districts, however, are pressed to meet ordinary expenses. They are in no position to incur the added expense 5a Funding under ESAA is available on a competitive basis. Applicants must submit timely proposals which are reviewed and ranked by the Assistant Secretary in ac- cordance with the criteria set forth in agency regulations, 45 C.F.R. § 185.14, the most important of which is “the effective net reduction in minority group isolation.” /d. § 185.14(a)(2)(i). See also Califano I, supra, 584 F.2d at 579 n.4. A local board whose proposal is deemed meritori- ous must be in the active process of desegregation, whether by mandatory court order, HEW-approved plan or voluntarily adopted procedure, 20 U.S.C. § 1605(a), and in addition, must demonstrate that subsequent to the date of ESAA’s passage, June 23, 1972, it has not engaged in any of the acts, practices, policies or procedures pro- scribed under 20 U.S.C. § 1605(d)(1). Specifically included as a category of disqualifying conduct is discrimination in the “hiring, promotion, or assignment of employees . . .” Id. § 1605(d)(1)(B). See generally Swann v. Charlotte- Mecklenburg Board of Education, 402 U.S. 1 (1971). This statutory prohibition is amplified in the regulation prom- ulgated thereunder, 45 C.F.R. § 185.43(b)(2), which pro- vides in pertinent part: No educational agency shall be eligible for assistance under the Act if, after June 23, 1972, it has had or maintained in effect any other practice, policy, or procedure which results in discrimination . . . includ- ing the 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. Even though an applicant has been disqualified from the program by virtue of the commission of proscribed activity of achieving successful integration.”); 118 Cong. Rec. 18438-9, 92d Cong., 2d Sess. (1972) (remarks of Sen. Pell). To similar effect were the remarks of Senator Javits, describing the mission of the bill as pro- viding federal funding to offset the “added costs of special programs and staff required for effective desegregation and for meaningful ef- forts to reduce, eliminate or prevent the isolation of minority group children” and “to bring about better quality education,” 116 Cong. Rec. 44410, 91st Cong., 2d Sess. (1970). 6a postdating June 23, 1972, it may nonetheless receive ESAA funds if it can obtain a waiver of ineligibility under 20 U.S.C. § 1605(d)(1). That provision requires the appli- cant to specify the reason for its exclusion from the pro- gram, and set forth such assurances as the Secretary may require to demonstrate that the disqualifying “practice, policy, procedure or other activity . . . has ceased to exist or occur,” and that such activities will not reoccur after submission of the application. Although the legislative his- tory is scant, Section 1605(d)(1) appears to have been adopted as a safeguard against the channeling of ESAA funds to any school district whose desegregation plan was a sham or was in danger of being abandoned or flouted. See Califano I1, supra, 464 F.Supp. at 1121 and legislative history cited therein. In aid of this purpose the statute further provides that the Secretary may not delegate the duty of determining the adequacy of waiver applications, 20 U.S.C. § 1605(d)(2), that such applications must con- form to the regulations promulgated thereunder, 20 U.S.C. § 1605(d)(5), that relevant committees in both houses of Congress shall be notified of the Secretary’s favorable review of such applications, and that final ap- provals thereof will not formally be granted until 15 days after Congress receives this notification, 20 U.S.C. § 1605(d)(6). With regard to the waiver of ineligibility stemming from discrimination in teacher assignments, the regulations provide, 45 C.F.R. § 185.44(d)(3): applications for waiver shall contain evidence that such agency has assigned its full-time classroom teachers to its schools so that no school is identified as intended for students of a particular race, color, or national origin. b. The Central Board’s Attempts to Obtain ESAA Funding. In November, 1976, HEW’s Office of Civil Rights notified the Central Board that its employment practices were in violation of laws barring discrimination in feder- ally funded programs, 42 U.S.C. § 2000d and 20 U.S.C. Ta § 1681, in that the agency’s statistical data indicated that a pattern existed whereby teachers of minority group back- grounds were consistently assigned to schools whose stu- dent populations were predominently of similar racial or ethnic origin.4 When the Central Board applied for a 1977-78 ESAA grant, HEW, although finding one pro- posal worthy of funding, denied the appropriation since its figures demonstrated that some schools were identifiable on the basis of segregative teacher assignments. The Cen- tral Board attributed the pattern to (1) provisions of the collective bargaining agreement between the Central Board and the teachers’ union restricting the inter-school transfer of some teachers; (2) the preference of senior teachers for assignment to nonminority schools, together with their unwillingness to teach elsewhere; and (3) the unequal distribution of teaching licenses in specific areas. In the ensuing litigation, this Court held that ESAA funds could be properly withheld upon a simple showing that the assignment method had a disparate impact upon different groups, despite the absence of proof that the discrimina- tory deployment was willful or intentional—which would be required to support a finding that the Central Board’s teacher assignment practices violated the Constitution. Califano I, supra. On September 7, 1977, the Central Board and HEW en- tered into a detailed plan, entitled the “Memorandum of 4Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) pro- vides that: “No person in the 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 discrimination under any program or activity receiving Federal financial assistance.” Title IX of the Education Amendments of 1972 similarly prohibits discrimination in federally assisted programs on the basis of sex..20 U.S.C. § 1681. Only the racially discriminatory system of teacher assignments is currently before this Court. As to this violation, HEW’s November, 1976, letter stated that “The New York City school system . . . has, on the basis of race and national origin . . . 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... .” 8a Understanding,” see Caulfield v. Board of Education of the City of New York, 449 F.Supp. 1208, 1227 (E.D.N.Y.) (“Caulfield I”), rev’d, 583 F.2d 605, 607 n.2 (24 Cir. 1978), aimed inter alia at rectifying the objectionable mode of teacher assignments. Pursuant to this agreement, the Central Board undertook to phase out the practice over a three year period, in exchange for which, HEW’s Office of Civil Rights warranted that the Central Board would be in compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., and Title 1X of the Education Amendments of 1972, 20 U.S.C. §§ 1681-86. Implementation of the plan was hampered from the out- set by individual teachers and principals and their unions. It appears that while teacher and principal assignments are, as a technical matter, made on an annual basis, cer- tain collective bargaining agreements guarantee personnel with some degree of seniority placement in the schools where they have previously served. Claiming that the Memorandum of Understanding mandated the assignment of teachers to particular schools solely on the basis of race, several teachers and principals commenced legal action. On March 15, 1978, the district court, while not reaching plaintiffs’ substantive claim, nonetheless found an abuse of plaintiffs’ procedural due process rights to participate in the negotiations which had led up to the drafting of the desegregation plan, and vacated the Memorandum of Un- derstanding, thereby halting its implementation, Caul- field I, supra. Approximately six weeks thereafter, the Central Board informed HEW that it would, for the pres- ent, be unable to fulfill its objective of correcting the prior pattern of discriminatory teacher assignments. For this reason, the Central Board’s request for ESAA funding for 1978-79 was denied on June 20, 1978. An application for a waiver of ineligibility, which has become the subject of this appeal, was filed on July 7, 1978. On September 5, 1978, this Court reversed Caulfield J, supra, reinstating the Memorandum of Understanding, and permitting the Central Board to renew immediately 9a its corrective measures.® Despite the revival of the de- segregation plan, HEW on September 26, 1978, informed the Central Board that its waiver application had been de- nied for the reason that the agency lacked evidence that the prior mode of teacher assignment had ceased and would not reoccur. c. The Proceedings Below. Claiming that the summary rejection of its waiver appli- cation was an abuse of discretion, and seeking to enjoin the expenditure of $2.36 million in ESAA grants ear- marked for it for the 1978-79 school year, the Central Board once again sought the intervention of the district court. A temporary restraining order, issued on Sep- tember 27, 1978, was converted into a preliminary injunc- tion on October 10 of that year. An expedited trial on the merits was scheduled for November 8 but both parties de- clined the opportunity to present oral testimony, prefer- ring to submit the matter upon the pleadings, the adminis- trative record and certain stipulated facts. HEW took the stance that although no further impedi- ment to the full implementation of the Memorandum of Understanding existed, it had properly denied the waiver application because both the statute, 20 U.S.C. § 1605(d)(1), and its implementing regulation, 45 C.F.R. § 185.44(d)(3), require that the waiver applicant alleviate both the cause and the remaining “effects” of prior dis- criminatory teacher assignments in order to qualify for ESAA funds. The district court upheld the agency’s de- termination that the Central Board was ineligible for di- rect ESAA funding by virtue of discriminatory behavior postdating June 23, 1972. However, the court rejected HEW’s contention that its option to grant a waiver was foreclosed because, in the agency’s view, the waiver stat- ute and relevant regulation require not only that the ap- 5Other claims advanced by the Caulfield plaintiffs were recently rejected by the district court in Caulfield v. New York City Board of Education, 77-C-2155 (E.D.N.Y. August 27, 1979) (Weinstein, J.) 10a plicant have desisted from the proscribed activity, but also, in the case of segregative teacher assignments, that the applicant have fully eliminated the effects of the prior misconduct. After a canvass of the legislative history and a close analysis of congressional purpose, Judge Weinstein found that such was not the intent of the waiver statute. While he agreed that the regulation demanded that the waiver applicant cure both the cause and effect of past ac- tions, he found the provision invalid as contrary to the legislation’s objectives. Accordingly, he remanded the waiver application to the agency for reassessment on its merits, clearly indicating that evidence of the Central Board’s backsliding, bad faith, or simple failure to imple- ment the teacher assignment reforms on schedule could be considered as bearing upon the likelihood that the dis- criminatory practice might reoccur, and explicitly leaving the ultimate resolution of the application to the sound dis- cretion of the Secretary. Califano II, supra, 464 F.Supp. at 1127. This appeal followed. IT, JURISDICTION AND THE PROPRIETY OF ITS EXERCISE a. Waiver of Objection and Primary Agency Jurisdic- tion. As a preliminary matter, we must determine whether the district court properly entertained this action. Appel- lants claim that by failing to advocate the position while the matter was still under administrative study, the Cen- tral Board “waived” its right to challenge, under the theory ultimately adopted by the court below, HEW’s de- nial of their waiver application. It is true that as a general rule subject only to certain narrowly drawn exceptions, courts will not review objec- tions to an agency’s procedures not raised at the adminis- trative level, United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952); NLRB v. Newton-New Haven Co., 506 F.2d 1035, 1038 (2d Cir. 1974); KFC National lla Management Corp. v. NLRB, 497 F.2d 298,. 300 n.1 (2d Cir. 1974), cert. denied, 423 U.S. 1087 (1976). However, the theory that the implementation of the Memorandum of Understanding absolved the Central Board of its current discriminatory teacher assignments could not have been raised prior to September 5, 1978, the date on which this Court resurrected the plan, by which time the waiver of ineligibility application had already been pending before HEW for two months. Moreover, there is some evidence to suggest that the agency did in fact weigh the prospect of the Memorandum’s revival before finally denying the application. In its letter of September 28, 1978, formally notifying the Central Board of its action, HEW indicated that its unfavorable action might in some degree be attrib- uted to its belief that the desegregation plan, even if im- plemented, was insufficient compliance with the nondis- crimination requirements of the ESAA program. Thus, it seems that the theory was not in fact “waived” in any meaningful sense. Apart from the factual infirmities of the contention, the notion of “waiver of objection” is inappropriate to the cir- cumstances of this case. That concept is applicable where a petitioner before an agency belatedly seeks to challenge a procedure employed by the administrative tribunal, e, e.g., KFC National Management Corp. v. NLRB, supra; NLRB v. Newton-New Haven Co., supra (Court of Ap- peals refuses to allow unsuccessful petitioner to challenge, for the first time, the composition of the agency’s review- ing panel). What is involved here, however, is not an ob- jection to the manner in which the agency has proceeded, or a claim which has been unjustifiably withheld from its review, but a question of the interpretation of the statute which regulates the appellees’ access to the administrative review process itself. The essential issue is not one of waiver of objection or deliberate by-pass of a claim or theory before the agency tribunal. The essential issue is whether the courts or HEW should be given the first op- portunity to construe the statute. Thus the controversy actually centers on whether, under the doctrine of primary b 12a agency jurisdiction, the district court should have stayed its hand in deference to HEW.® Primary agency jurisdiction is a flexible concept, con- cerned with “promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties,” Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303 (1976), quoting United States v. West- ern Pacific R. Co., 352 U.S. 59, 63 (1956). It is called into play when a court, having unquestioned jurisdiction over a case involving matters governed by an administrative agency, determines which tribunal should make the initial adjudication, United States v. Philadelphia National Bank, 374 U.S. 321, 358 (1963) (Court’s jurisdiction not ousted, but only postponed). The exercise of the court’s discretion is guided in this situation by a desire for uni- formity of regulation and the need for initial consideration by a body possessing special expertise in the issue pre- sented. U.S. Tour Operators Ass’n v. Trans World Air- lines, Inc., 556 F.2d 126, 180 (2d Cir. 1977); Danna v. Air France, 463 F.2d 407, 412 (2d Cir. 1972). Although we do not in any sense disparage this salutary doctrine, its underlying policies would not be served by its application in the instant case. Both parties, perceiving the issue presented as a purely legal one, abjured the dis- trict judge’s invitation to present oral testimony and sub- mitted the matter upon a stipulated set of facts and upon their respective briefs. It is well established that the courts need not defer to an agency where the issue in-™ volved is a strictly legal one, involving neither the agency’s particular expertise nor its fact findings prowess. FTC v. Feldman, 532 F.2d 1092, 1096 (7th Cir. 1976); ef. McKart v. United States, 395 U.S. 185, 198 (1969). Moreover, it has been recognized that where resort to the agency would plainly be unavailing in light of its man- ifest opposition or because it has already evinced its “spe- ®For the same reason, the related notion of exhaustion of adminis- trative remedies is not appropriate to these circumstances. See Touche Ross & Co. v. SEC, slip op. 2561, 2567-74 (2d Cir. May 10, 1979); ef. McKart v. United States, 395 U.S. 185, 193 (1969). 13a cial competence” in a manner hostile to petitioner, courts need not bow to the primary jurisdiction of the administra- tive body. See, e.g., ICC v. Maine Central R. Co., 505 F.2d 590, 594 (2d Cir. 1974); CAB v. Aeromatic Travel Corp., 489 F.2d 251, 254 (2d Cir. 1974); see also Porter County Chapter of the Izaak Walton League of America, Inc. v. Costle, 571 F.2d 359, 363-64 (7th Cir. 1978), cert. denied, 47 U.S.L.W. 3222 (U.S. Oct. 2, 1978). Such is the ease here, for at no time prior to appeal has HEW given the slightest inkling that, if asked to review the waiver application in light of the reinstatement of the Memoran- dum of Understanding, it would consider the matter afresh. On the contrary, without itself having raised the issue of “waiver of objection” below, HEW fully briefed and hotly contested the issue on appeal. Elsewhere in the brief it submitted to this Court HEW has challenged the “mpropriety of the district court’s issuance of injunctive re- lief on the ground that there was no likelihood that the Central Board would persuade HEW to alter its determi- nation to deny the waiver of ineligibility. It ill behooves appellant under these circumstances and at this stage of the proceedings to claim that the court below erred in ad- judicating the merits of the case. b. “Effects” and Estoppet. Having determined that the district court properly exercised jurisdiction over this matter, we are neverthe- less reluctant to adjudicate on the merits the contested questions of statutory interpretation. Our apprehension stems from an uneasy sense that the principal issue framed by the facts of this case has been artfully avoided. This issue is whether HEW, having induced and ac- quiesced in the Memorandum of Understanding, may now assert that its effectuation constitutes insufficient com- pliance with federal non-discrimination requirements to permit the Central Board to participate in the ESAA pro- gram. HEW urges that 20 U.S.C. § 1605(d)(1) requires con- vincing proof that a waiver applicant has alleviated the 14a “effects” of its prior conduct. Yet nowhere in its briefs or argument has HEW defined the term “effects.” Upon examination the term appears to refer simply to the con- tinued discriminatory deployment of teachers, specifically contemplated by the Memorandum of Understanding as a temporary but necessary stage in the gradual phase-out of improper methods of teacher assignment. Thus, when all is said and done, HEW’s view is quite simply that not- withstanding its approval of the Memorandum of Under- standing, its warranty that the adoption and effectuation of the agreement would constitute compliance with Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972, and the Central Board’s partial performance thereof, the Central Board is not enti- tled to a waiver of ineligibility during the interim period. While the estoppel issue looms shadowlike over these proceedings, we choose to rest our decision upon other grounds for several reasons. First, although the historic barriers to the imposition of an estoppel against the United States, see United States v. San Francisco, 310 U.S. 16, 32 (1940), quoting Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226-27 (1940), have recently been breached in at least one jurisdiction, see, e.g., United States v. Lazy FC Franch, 481 F.2d 985 (9th Cir. 1973); Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970), the law in this Circuit is unsettled, compare Corniel-Rodriguez v. INS, 582 F.2d 301, 306-7 (2d Cir. 1976) (government estopped in deportation proceeding due to its employee’s noncompliance with affirmatively re- quired duty) with Goldberg v. Weinberger, 546 F.2d 477, 480-81 (2d Cir. 1976), cert. denied, 431 U.S. 937 (1977) (estoppel will not lie against government due to unau- thorized misrepresentation made by agency employee). See also REA Express, Inc. v. United States, 568 F.2d 940, 948-49 n.10 (2d Cir. 1977), cert. denied, 46 U.S.L.W. 3586 (U.S. Mar. 20, 1978) (“highly dubious” that govern- ment agency can be equitably estopped). Second, the par- ties have not addressed this issue, and on the basis of the record before us we are unable to determine with cer- 15a tainty that the requisite elements of an estoppel have been satisfied.?7 Lastly, we are in accord with the result reached by the court below. Therefore, rather than striking out on this inviting though uncharted course, we proceed to the merits of the case as articulated by the parties. III. INTERPRETATION OF THE ESAA WAIVER PROVISION Putting these reservations to one side and proceeding on the assumption that appellant may complain of the Central Board’s system of teacher assignments during the three year phase-in period, or alternatively, that there continue to exist unspecified, detrimental “effects” of the prior practice, we must next consider the validity of HEW’s contention that such failings disqualify the Central Board from obtaining a waiver of ineligibility under 20 U.S.C. § 1605(d)(1). a. Statutory Text. “(T]he starting point in every case involving construc- tion of a statute is the language itself.” Greyhound Corp. v. Mt. Hood Stages, Inc., 487 U.S. 322, 330 (1978), quot- ing Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 7 An estoppel in this circumstance would require a misrepresentation by an agent of the federal government made within the scope of his authority, which was justifiably relied upon by the appellee to its de- triment thereby making the denial of equitable relief unconscionable, see generally New York Athletic Supply Co., Inc. v. United States, 450 F. Supp. 469, 471 (S.D.N.Y. 1978); Tonkonogy v. United States, 417 F. Supp. 78, 79 (S.D.N.Y. 1976). We cannot say with complete certainty that the expressed quid pro quo for implementing the agreement was the Central Board’s im- mediate acceptance into the ESAA program, although such was the apparent expectation. Moreover, we would not eagerly hold that the Central Board suffered a detriment by reforming a practice which, al- though not necessarily unconstitutional, was sufficiently improper as to disqualify it from federal assistance under the Civil Rights Act of 1964, 42 U.S.C. § 2000d. l6a 723, 756 (1975) (Powell, /., concurring). Section 1605(d)(1) in pertinent part provides: in the case of any local educational agency which is ineligible for assistance by reason of [the commission of certain discriminatory acts], such agency may make application for a waiver of ineligibility, which applica- tion shall specify the reason for its ineligibility, con- tain such information and assurances as the Secretary shall require by regulation in order to insure that any practice, policy, or procedure, or other activity re- sulting in the ineligibility has ceased to exist or occur and include such provisions as are necessary to insure that such activities do not reoccur after the submis- sion of the application. Appellant interprets this language to require that a waiver applicant not only demonstrate that it has desisted from its discriminatory activity, but also show that it has fully eradicated the vestiges of its past misconduct. HEW reasons that if the effects are still present, the cause must be extant, and if the cause is still operative, the applicant is perforce in violation of the statute’s ban on current seg- regative activity. However, the statute clearly states that what must cease to exist or occur is the practice, policy, procedure or other activity which has resulted in the applicant’s ineligi- bility. There is simply no indication in the text that the residue of past misconduct must also be eliminated, al- though Congress could certainly have made that an ex- press condition, had such been its intent. “[W]hen words are free from doubt they must be taken as the final ex- pression of the legislative intent, and are not to be added to or subtracted from by considerations drawn ... from any extraneous source.” Caminetti v. United States, 242 U.S. 470, 490 (1917); see also Tennessee Valley Authority v. Hill, 487 U.S. 158, 173 n.18 (1978); New York State Commission on Cable Television v. FCC, 571 F.2d 95, 100 (2d Cir.), cert. denied, 47 U.S.L.W. 3221 (U.S. Oct. 2, 1978) (Friendly, J., dissenting) (‘‘we have not quite reached the Humpty Dumpty era where a word ‘means just what I choose it to mean, neither more nor less.’”’) 17a Moreover, the listing of the operative words, “policy,” “practice,” “procedure” and “other activity,” may provide some insight into Congress’ intent. While the latter three are ambiguous the term “policy” connotes conscious, in- stitutional decision-making, or adoption of a future goal and the intention to achieve it through deliberate steps. It is opposed to mere drift or acquiescence in the present state of affairs. This meaning reflects upon the other terms, for words grouped together derive meaning from one another, Jarecki v. G.D. Searle & Co., 367 U.S. 308, 307 (1961). What must cease to exist or occur in order for an applicant to qualify for a waiver of ineligibility is its current acceptance of the status quo. It would seem therefore, that if the Central Board has adopted a policy of eliminating discrimination in a manner approved by HEW, as demonstrated by its commitment to the Memorandum of Understanding, then “practices,” “procedures” and “other activities,” undertaken in furtherance of that policy cannot logically be described as having resulted in the in- eligibility. Simply put, they are not part of the problem, but part of the cure. The fact that the Central Board must tolerate segregative teacher assignments until the plan is fully implemented does not, under the language of the statute, preclude it from participation in ESAA. There is nothing in the statute’s language which supports a con- trary reading. Where the literal meaning of the statute is clear in its context, and where such a plain reading is not inconsistent with the scheme’s objectives, that interpreta- tion must prevail, and further inquiry may be unneces- sary. Ex Parte Collett, 337 U.S. 55, 61 (1949); In re Trans-Alaska Pipeline Rate Cases, 436 U.S. 631, 643 (1978), quoting CIR v. Brown, 380 U.S. 563, 571 (1965); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201 (1976). Although this alone would be sufficient ground on which to reject appellant’s construction there are other reasons supporting the same result. b. Legislative History. Two other courts have reviewed the legislative history of 20 U.S.C. § 1605(d)(1), and their research has yielded 18a no clues as to Congress’ views on the question now before us, see Kelsey v. Weinberger, 498 F.2d 701, 707, 708 (D.C. Cir. 1974); Califano I], supra, 464 F. Supp. at 1121-22. From what is available, it can be deduced only that Con- gress wished to ensure that ESAA grants not be distrib- uted to school districts which had reverted to or continued to engage in proscribed segregative activity, and that this resolve was embodied in section 1605(d)’s explicit re- quirements that waiver candidates (1) demonstrably have ceased their disqualifying activity, (2) provide acceptable assurances that such conduct will not reoccur, and (3) have their applications reviewed at the highest administrative level and, if acted upon favorably, subjected to congres- sional oversight. We have scanned the legislative history ® relevant to the waiver statute and have found nothing to indicate that its drafters intended to establish additional safeguards such as the remedy of the effects of past mal- feasance. To support its contrary interpretation, HEW cites cer- tain circumstances surrounding ESAA’s enactment. In particular, it is noted that the operation of a forerunner program to ESAA® was marred by its distribution of funds to school districts later found to have been engaging in discriminatory practices. Noting that Congress’ ire had been aroused by this failing, see, e.g., 117 Cong. Ree. 10759, 92nd Cong., Ist Sess. (1971) (remarks of Sen. Mon- dale), appellant argues that ESAA’s drafters intended to place an additional burden on those who, in disregard of the law, discriminated after the date of ESAA’s enact- ment. HEW asserts that Congress meant for these defiant applicants to be banned from the program unless they did ®See 117 Cong. Rec. 511-12, 92d Cong., 1st Sess. (1971) (remarks of Rep. Bell); Hearings on H.R. 17846 before the General Subcommittee on Education of the House Committee on Education and Labor, p. 570, Yist Cong., 2d Sess. (1970); Hearings on S. 3883 before the Subcom- mittee on Education of the Senate Committee on Labor and Public Welfare, pp. 94-97, 91st Cong., 2d Sess. (1970). ®The Emergency School Assistance Program, Pub. L. 91-380, 84 Stat. 800 (1970). 19a an additional penance, namely, the eradication of the ef- fects of their recent misconduct. This scenario seems improbable, for several reasons. First, it is unsubstantiated by the legislative history. The passages cited by appellant simply do not evince an intent on the part of the Congress to be especially punitive to- wards post-enactment discriminators. While the state- ments alluded to by HEW convey Congress’ concern over the wrongful appropriation of funds to school districts which had either resumed discriminatory activities or which hae never departed from them, they do not indicate that in order to solve the problem, Congress meant to bar from waiver eligibility those applicants who had not eradi- cated the effects of this recent malfeasance. Rather, the approach seems to have been to add the administrative and congressional safeguards noted above. Second, we agree with the court below that HEW’s in- terpretation is belied by the prominence it gives to June 23, 1972—the date of the Act’s passage—in determining the widely different requirements which candidates must satisfy in order to obtain ESAA funds. Under appellant’s construction, this date serves as a River Acheron, separating those who by virtue of post-1972 discrimination are almost certainly condemned to perpetual rejection, and those who may enjoy ESAA’s benefits because they cease their disqualifying conduct prior to that fateful day. Yet for all the significance HEW attaches to the precise time of the Act’s passage, that date was in reality entirely fortuitous. Had Congress truly intended to warn school districts that segregative practices beyond a certain date would result in virtually incurable ineligibility for ESAA benefits, they would have set that date for some time in the future, giving school boards time in which to reform themselves. As Judge Weinstein aptly noted: No one could have predicted that date as a cut off of the power to grant a waiver. Had the date been fixed some years prospectively, the argument might make some sense since Congress might have set it as a warning that corrective action must be taken before that date or funds under ESAA would be forever 20a barred. But no school board could have responded to the Act by shutting off discriminatory acts on less than 24 hours notice; institutions cannot be turned on and off by the flick of a switch. Califano II, supra, 464 F. Supp. at 1121. c. Legislative Objectives. Indisputably, today’s choice between conflicting statut- ory interpretations will have broad consequences for the administration of an important federal program. Mindful that our function is to construe, not rewrite legislation, United Steelworkers of America v. Weber, 47 U.S.L.W. 4851, 4859 (U.S. June 27, 1979) (Rehnquist, J., dissent- ing), we seek to discover Congress’ intent and to decide which of the two proferred interpretations is most likely to further the announced objectives of the legislation. We conclude that the Central Board’s understanding will more probably fulfill the goals of ESAA. Congress clearly intended that school districts which had discriminated after June 23, 1972, not be irrevocably barred from participation in the ESAA program. Other- wise, the list of eligible applicants, as a practical matter, would have been forever frozen on the date of ESAA’s enactment. School districts which had truly ceased seg- regative activity that had been practiced subsequent to the program’s passage would have been permanently de- nied federal funding despite their good intentions and de- spite their potential benefit. Indeed, thus interpreted, the program would fail to provide any incentive to integrate in the case of school districts found to have been engaged in proscribed segregative activity after 1972. Additionally, the drafters might have recognized that the concept of discrimination itself is constantly undergo- ing revision. If such was their perception, it has been vali- dated. Some parties considered by a lower court to be dis- criminators have later been exonerated by the Supreme Court. See, e.g., Village of Arlington Heights v. Met- ropolitan Housing Development Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976). Con- 2la versely, some who might have been considered within the law as it stood on the date of ESAA’s passage have now been deemed violators. Cf. Regents of the University of California v. Bakke, 46 U.S.L.W. 4896 (U.S. June 28, 1978). The evolving contours of the concept of discrimina- tion plainly warranted the adoption in the ESAA program of a provision giving its administrators the flexibility to deal with these developments. Were we to read into the statute the requirement that a waiver applicant eradicate the “effects” of prior segrega- tion, we would render that necessary section, in operation, a nullity. First, the notion of “effects” is simply too elusive and subjective; in a real sense, a complete cure may not be possible, for the consequences of past segregation may be viewed by the agency as lingering for a generation, or longer. Cf. Debra P. v. Turlington, 78-892—Civ-T-C (M.D. Fla. July 12, 1979) (functional literacy test, made prerequisite to granting of high school diploma enjoined for four year period since many black students had at- tended segregated schools and were therefore disadvan- taged). No school district, however genuine its reforming zeal, could be certain that it had satisfied that condition, and the Secretary might find such a determination far more difficult than predicting whether an applicant was apt to revert to prior prohibited practices or policies. Sec- ond, HEW’s interpretation does not indicate whether the effects which must be eradicated are only those which flow from the proscribed post-1972 activity, or all effects from whatever cause. If appellants opt for the former, such an interpretation would kindle irresolvable debate over which effect to attribute to which activity; if the latter, it may place at a severe disadvantage those school districts with a long history of de jure segregation, contrary to ESAA’s insistence on a single national standard for the distribution of these federal funds. 20 U.S.C. § 1602.1° 10Section 1602(b) of 20 U.S.C. provides: 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 22a More importantly, an applicant who could satisfy that burden would thereby dramatically demonstrate its lack of need for an ESAA grant under the program’s own com- petitive criteria. As previously noted, in judging which of the numerous proposals are the most meritorious, the key factor, to put it succinctly, is desegregation per dollar: the rating system puts a premium on those plans which will achieve the most “effective net reduction in minority group isolation,” 45 C.F.R. § 185.14. An applicant which has ceased its active segregation and has alleviated the effects of its prior misconduct could not, under these guidelines, hope to be awarded an ESAA grant, since the net effective reduction would be zero. Realistically, HEW’s contention would abolish the waiver provision from the program. An applicant ineligible for participation by virtue of discriminatory activity an- tecedent to 1972 could only obtain ESAA funding through a waiver of ineligibility; such a waiver would be granted only if the applicant had already been so successful in ameliorating minority group isolation that it could no longer competitively qualify for ESAA benefits. We would not attribute such an absurd intention to the drafters of ESAA. See Bird v. United States, 187 U.S. 118, 224 (1902); Platt v. Union Pacific R.R. Co., 99 U.S. 48, 58 (1878); United States v. Blasius, 397 F.2d 203, 207 n.9 (2d Cir. 1968). Finally, we think that HEW’s understanding of the re- quirements of the waiver statute is in conflict with other significant features of the legislation, specifically the qualification that local boards seeking ESAA funding be currently undergoing desegregation pursuant to either a mandatory or voluntary plan. 20 U.S.C. § 1605(a)(1). The existence of such a plan, which is a condition of eligibility for waiver applicants as well as others, surely implies that 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 educa- tional agencies of any State without regard to the origin or cause of such segregation. 23a the effects of prior discrimination or minority group isola- tion still persist. Thus, to require that a waiver candidate have already remedied these effects, which is the objec- tive of the integration plan is required to be presently ef- fectuating, is contradictory and does not comport with the statutory scheme considered as a whole. United States v. Menasche, 348 U.S. 528, 5388-39 (1955); McDonald v. Thompson, 305 U.S. 263, 266 (1938). Thus, the language of the statute, its legislative history, and its internal logic lead us to conclude that section 1605(d)(1) does not demand, as a prerequisite, that a waiver applicant have previously eradicated the effects of prior discrimination. !! IV. THE IMPLEMENTING REGULATION Alternatively, appellants argue that wholly apart from the dictates of the statute, the pertinent regulation prom- ulgated thereunder, 45 C.F.R. § 185.44(d)(3), sets forth a legal duty on the part of waiver applicants to rectify the effects of prior discrmination in teacher assignments. 11The result reached today is not necessarily incompatible with the holding in Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974). There, the predecessor regulation to the current 45 C.F.R. § 185.44(d)(3) was held to be invalid insofar as it permitted a waiver to be granted to school districts which had suffered from racially motivated teacher as- signments, and which warranted to remedy the practice only through a gradual and virtually open-ended process of attrition. Fearing that this offended constitutional prohibitions against the federal funding of dis- criminatory activities, the Court deemed the regulation to be contrary to the statute. In our view, the requirement in the present regulation that the waiver candidate be proceeding in accordance with an HEW-approved plan which will achieve its goal in .. reasonable period of time is suffi- cient to allay the concerns, both statutory and constitutional, ex- pressed by the court in Kelsey, supra. To the extent that the cases are not distinguishable on their facts, we are in substantial agreement with the position taken by Judge Weinstein in declining to adopt the con- stitutional analysis of the District of Columbia Circuit Court. Califano II, supra, 464 F. Supp. at 1125-26. ° 24a HEW contends that the regulation is “legislative” rather than merely interpretive, and as such, is binding upon the courts. It is presumed that the provision must be read in the manner suggested by the appellant. We disagree on all points. Recent opinions of the Supreme Court, see, e.g., Chrysler Corp. v. Brown, 47 U.S.L.W. 4434, 4440-44 (U.S. April 18, 1979); Batterton v. Francis, 432 U.S. 416, 424-26 (1977); General Electric Co. v. Gilbert, 429 U.S. 125, 140-45 (1976), and the enactment of Section 4 of The Administrative Procedure Act, 5 U.S.C. § 553, have rein- forced the distinction first enunciated in Skidmore v. Swift & Co., 323 U.S. 184 (1944), between legislative and interpretive regulations. The former are issued pursuant to a lawful, express delegation of authority from Congress to the administrative agency to formulate rules having the force or effect of law. As the primary source of legal obli- gation, they are entitled “to more than mere deference or weight,” Batterton v. Francis, supra, 432 U.S. at 426; they are subject to judicial revision only if they are prom- ulgated in excess of the granted power or in contravention of proper procedure, or are utterly capricious and arbi- trary. Interpretative rules are administrative regulations issued pursuant to a lesser degree of delegated authority, and in such cases the statute remains the basis for the im- position of liability. The deference which interpretive reg- ulations are accorded depends on such factors as the cir- cumstances of their promulgation, the consistency with which the agency has adhered to the position announced, the evident consideration which has gone into its formula- tion and the nature of the agency’s expertise. Batterton v. Francis, supra, 432 U.S. at 425 n.9; Skidmore v. Swift & Co., supra, 323 U.S. at 140. Thus, legislative rules are reviewed only in terms of validity, while interpretive rules are considered in the more expansive light of their reasonableness, or their ra- tional relationship to their statute’s objective. The divid- ing line is found in the nature of the delegation: always, the question is whether Congress intended to confer upon the agency the power to issue rules having the force and 25a effect of law. See, e.g., National Nutritional Foods As- sociation v. Weinberger, 512 F.2d 688, 696-97 (2d Cir.), cert. denied, 423 U.S. 827 (1975); see also Joseph v. In- terstates Civil Service Commission, 554 F.2d 1140, 1152-54 (D.C. Cir. 1977). The grant of rulemaking authority involved herein is set forth in 20 U.S.C. § 1605(d)(1), which empowers the Sec- retary to require in the waiver application such informa- tion as may be deemed necessary to the decision, and in section 1605(d)(5) which provides: All determinations pursuant to this subsection shall be carried out in accordance with criteria and inves- tigative procedures established by regulations of the Secretary for the purpose of compliance with this subsection. This delegation of authority is hardly of the same order as that found in Batterton v. Francis, supra (definition of “unemployed” in 42 U.S.C. § 607(a) to be determined “in accordance with standards prescribed by the Secretary”). The grant here is simply a procedural assurance that deci- sions will be made on the basis of standards publicly elabo- rated by the Secretary: it does not expressly indicate that those standards themselves shall have the force and effect of law. Furthermore, the regulation in issue lacks the hallmarks of a legislative rule. Applicants do not assert that it was promulgated in compliance with 5 U.S.C. § 553, requiring notice and opportunity for written comments. Also, HE W has never before asserted that the regulation is of the legislative variety, and the District of Columbia Circuit, in its review of a forerunner provision, proceeded on the im- plicit assumption, apparently without the agency’s objec- tion, that it was an interpretive rule only. Kelsey v. Weinberger, supra. Having reached this conclusion, we need say little more about 45 C.F.R. § 185.44(d)(3). Insofar as it has been in- terpreted to require a waiver applicant to prove that the effects of past discriminatory teacher assignments have been remedied, it is invalid as not being rationally related 26a to the objectives of the ESAA program. Moreover, to the extent that its administrative construction reflects upon Congress’ intent, it tends to discredit appellant’s position, since the Secretary previously understood a predecessor provision not to require the eradication of discriminatory effects, and the present regulation and its interpretation have only recently been adopted,' see Califano II, supra, 464 F. Supp. at 1122-24. In light of the foregoing conclusion, we need not reach the question of whether HEW’s interpretation of the reg- ulation is requiring immediate and complete remedy of the effects of past misconduct is correct. Although an adminis- trative agency’s construction of its own regulation is nor- mally binding upon a reviewing court, United States v. Larionoff, 431 U.S. 864, 872 (1977), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945), we note that the interpretation espoused by the Secretary is 12The district court has aptly set forth the chronology as follows: The original text of the regulation was identical to its present language... . On July 16, 1973, the Secretary of HEW in a notice of proposed rulemaking announced a modification of the regulation to permit waivers of ineligibility for school districts which had not yet fully rectified the effects of the past dis- criminatory practices in teacher assignments. 39 Fed. Reg. 18894 (1973) Responding to criticism that the modified regulation conflicted with the statutory standards, the Secretary cogently argued that section 1605 (d)(1) did not require as a condition for granting a waiver the elimination of all effects of past discriminatory prac- tices. He pointed out that the elimination of the actice practice and the adoption of a plan to eliminate the effects satisfied the statutory standard... . The present language of the regulation—conflicting with the Secretary’s interpretation—was adopted by HEW only after the Court of Appeals for the District of Columbia, in Kelsey v. Weinberger, [498] F. 2d 701 (1974), held the then existing regula- tion invalid. Califano II, supra, 464 F. Supp. at 1122-24. See also 38 Fed. Reg. 18899, 21646 (1973); 40 Fed. Reg. 14167 (1975). 27a in.no way compelled by the plain language of the regula- tion.'* Our reservations are further heightened by the fact that companion provisions explicitly require the ameliora- tion of the effects of prior discrimination, see, e.g., 45 C.F.R. § 185.44(f), and consequently, it is at least argu- able that the Secretary deliberately omitted such a condi- tion from the regulation at issue in recognition of the fact that teachers’ rights are often established by contract and are not amen.ble to overnight change. V. OTHER CLAIMS Finally, appellants contend that the district court abused its discretion in issuing a “preliminary injunction.” In particular, HEW complains that Judge Weinstein failed to elaborate the requisite findings of fact, and alleges that he reached erroneous conclusions with respect to the ir- reparable injury and probable success on the merits re- quirements of the preliminary injunction test. Selchow & Righter Co. v. McGraw Hill Books Co., 580 F.2d 25, 27 (2d Cir. 1978); Treibwasser & Katz v. American Tele- '3Tn full text, the regulation provides: In the case of ineligibility resulting from discriminatory as- signment of teachers as pronibited by § 185.43(b)(2), such appli- cations for waiver shall contain evidence that such agency has assigned its full-time classroom teachers to its schools so that no school is identified as intended for students of a particular race, color, or national origin. Such nondiscriminatory assignments shall, in the case of a local educational agency implementing a plan described in § 185.11(a), conform to the requirements of such plan with respect to the assignment of faculty. In the case of local educational agencies not implementing such a plan, or im- plementing such a plan which contains no provision as to assign- ment of faculty, such assignments shall be made so that the pro- portion of minority group full-time classroom teachers at each school is between 75 per centum and 125 per centum of the pro- portion of such minority group teachers which exists on the fac- ulty as a whole. 45 C.F.R. § 185.44(d)(3). 28a phone & Telegraph Co., 5385 F.2d 1356, 1858 (2d Cir. 1976). A cursory review of the record below plainly reveals that what is before this Court is an appeal from the grant of a permanent injunction following an expedited trial on the merits held in accordance with Rule 65(a)(2), Fed. R. Civ. P. The relief ordered following that proceeding has not yet been entered as a final judgment since the court below is awaiting the results of the administrative re- mand. Nonetheless, there is no doubt that Judge Weins- tein has gone beyond the issuance of a provisional remedy, and has, following a plenary proceeding concerning which appellant had notice and full opportunity to adduce evi- dence, found in favor of the Central Board and granted the appropriate equitable relief. Under these circumstances, procedural and substantive standards relating to the is- suance of preliminary injunctions simply have no applica- tion. The order of the district court is, in all respects, af- firmed. The matter is remanded to the Secretary for fur- ther proceedings not inconsistent with this opinion. 29a #79-6006 Bb. oF EDUC. U~. Patricia R. Harris I dissent with opinion JAMES L. OAKES OAKES, Circuit Judge (dissenting): The majority has gone out of its way to invalidate a reg- ulation of an administrative agency as contrary to con- gressional mandate. But when one looks at the regulation itself, 45 C.F.R. § 185.44(d)(3), one finds that it does not say what the majority says it says, or what the majority says the agency says it says, but something else. And if the regulation is compared to the underlying statute, it becomes clear that Congress quite expressly authorized, as it so often does, the agency to use its discretion in de- vising regulations to implement the congressional man- date. I accordingly dissent. I think it serious business and a serious matter of judicial interference with the executive branch of the federal government—so lightly to overturn an administrative regulation. What this case involves is a city school system which has been found ineligible for Emergency School Aid Act (ESAA) funds for the school year 1978-79 because of dis- crimination inter alia in the hiring and in the assignment of full-time teachers, principals, and assistant principals to schools in sich a manner as to identify certain schools as intended for a particular race or ethnic group.! The school system sought a waiver of ineligibility pursuant to 20 ‘This ineligibility was mandated by 20 U.S.C. § 1605(d)(1)(B) and 45 C.F.R. § 185.43(b)(2). See Board of Educ. v. Califano, 584 F.2d 576, 588 (2d Cir. 1978), cert. granted, 99 S. Ct. 1211 (1979) (Califano J). Califano I dealt with ESAA funds for the-school year 1977-78. 30a U.S.C. § 1605(d)? and 45 C.F.R. § 185.44(d)(3).° The rea- sons given for the denial of the waiver by then HEW Sec- retary Califano to Chancellor Macchiarola are in pertinent part set forth in the margin. The accompanying report of Mr. Tatel of the Office for Civil Rights is also in pertinent 2The statute provides that [njo educational agency shall be eligible for assistance under this chapter if it has, after June 23, 1972 [engaged in certain dis- criminatory practices] except that, in the case of any local educa- tional agency which is ineligible for assistance [for this reason], such agency may make application for a waiver of ineligibility, which application shall specify the reason for its ineligibility, con- tain such information and assurances as the Secretary shall re- quire by regulation in order to insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur and include such provisions as are neces- sary to insure that such activities do not reoccur after the sub- mission of the application. 20 U.S.C. § 1605(d)(1). 3This regulation is quoted in full in note 13 of the majority opinion. 4The Secretary stated: On June 20, 1978, Dr. Herman R. Goldberg, Associate Commis- sioner, Equal Educational Opportunity Programs, Office of Edu- cation, notified you that your district was ineligible for assist- ance. This notification was a consequence of your district’s failure to meet the requirements for eligibility established by section 706(d) of the Act and sections 185.43(b)(2), 185.43(d)(4), and 185.43(d)(5) of the implementing regulations. Your school district has provided acceptable plans to remedy the discrimination in the assignment of students to racially identifiable or isolated regular classes and in imposing disciplinary sanctions. Nevertheless, your district has failed to remedy the discrimination in the hiring and assignment of minority administrators and teachers. Your district applied for a waiver of ineligibility of July 7, 1978. However, it failed to provide evidence that the discrimina- tion in the hiring and assignment of minority administrators and teachers had ceased to exist and would not reoccur. The grounds for my decision to deny your application are set forth in the enclosed report from Mr. David S. Tatel, Director of this Department’s Office for Civil Rights. From this report I have determined that your school district has not corrected the violation of section 185.43(b)(2) of the ESAA.... Letter from Secretary Califano to Chancellor Macchiarola (Sept. 28, 1978). 3la part set forth.5 Neither the letter denying the waiver, the report accompanying it, nor the regulation under which the denial is made and which the report mentions refer in any place whatsoever to the “effects” of past discrimina- 5The report stated: On September 7, 1977, the Central Board and OCR entered into a Memorandum of Understanding that would have remedied the discrimination in hiring and assignment of minority adminis- trators and teachers by 1980. Because the Memorandum of Un- derstanding provided for a phased remedial plan that would not have eliminated the discrimination in hiring and assigning minority administrators and teachers by September 1977, the Department denied the Central Board’s request for an ESAA waiver of ineligibility for the 1977-78 funding cycle. Fur- thermore, the Central Board subsequently abandoned the terms of the Memorandum of Understanding after Judge Weinstein in- validated the agreement on procedural grounds in Caulfield v. Board of Education, No. 77-C-2155 (E.D.N.Y. Mar. 15, 1978), appeal pending, No. 78-6035 (2d Cir. filed Feb. 28, 1978). On July 7, 1978, the Central Board applied for a waiver of in- eligibility based on its pending appeal of Judge Weinstein’s deci- sion in Board of Education v. Califano, No. 77-C-1928 (E.D.N.Y. April 18, 1978), upholding the Department’s denial of ESAA funds to the Central Board for 1977-78. The Central Board offered no explanation why the pending of the appeal would justify granting an ESAA waiver of ineligibility. More sig- nificantly, on August 21, 1978, the United States Court of Ap- peals for the Second Circuit affirmed Judge Weinstein’s decision. Board of Education v. Califano, No. 78-6083, 78-6088, 78-8180 (2d Cir. Aug. 21, 1978). The Central Board has submitted no information or evidence to demonstrate that the discrimination in hiring and assigning minority administrators and teachers has been or will be cor- rected prior to the commencement of the school year in Sep- tember 1978. Therefore, the Central Board is not eligible for an ESAA waiver of ineligibility on this issue. Report by David S. Tatel, Office for Civil Rights. ®See 45 C.F.R. § 185.44(d)(3), quoted in majority opinion, note 13 supra; 45 C.F.R. § 185.44(b) (“An application for waiver . . . shall con- tain such information and assurances as will insure that any practice, policy, procedure, or other activity resulting in ineligibility has ceased to exist or occur, and shall include such provisions as are necessary to insure that such practice, policy, procedure, or activity will not reoccur after the submission of such application.”). 32a tion, a straw man set up in the majority opinion and the opinion below, aided to some extent however by the fed- eral government’s arguments in this litigation. In fact, the denial of the waiver was based on a failure “to remedy the discrimination in the hiring and assign- ment of minority administrators and teachers.” Letter from Secretary Califano, supra note 4. This omission was accompanied by a failure to submit “information or evi- dence to demonstrate that the discrimination in hiring and assigning minority administrators and teachers has been or will be corrected prior to the commencement of the school year in September 1978.” Report of David S. Tatel, Office for Civil Rights, supra note 5. The Central Board evidently thinks and the majority implicitly holds that the entry by the Central Board into the Memorandum of Understanding of September 7, 1977, with its phased remedial plan, see Caulfield v. Board of Education, 583 F.2d 605 (2d Cir. 1978), may be enough in and of itself to restore its eligibility for ESAA funds and permit the granting of a waiver. To my mind, the Secre- tary’s determination to the contrary was within his own Department’s regulations and the regulations, thus applied, conform to the statute.? Rather than deciding these issues as they are presented here, the majority deals exclusively with the hypothetical questions of whether a waiver must, under the regulations, be preceded by the elimination of all the effects of past discrimination and whether, if so, the regulations are valid under the statute. The determinations arrived at are therefore unwarranted in the present context. Let me be more precise. There are several ways in which a school district may, under 20 U.S.C. § 1605(d), discriminate and render itself ineligible for ESAA funds. It may aid segregated private schools, discriminate in its dealings with staff, segregate children within a school for a significant portion of the day, or take other actions, “such as limiting curricular or extracurricular activities,” 720 U.S.C. § 1605(d). 33a that discriminate among children on the basis of race or ethnic origin. Jd. § 1605(d)(1). Before a waiver is granted, the Secretary must ensure that any such “practice, policy, or procedure, or other activity resulting in the ineligibil- ity” has ceased to exist or occur and will not reoccur. Jd. The New York City Central Board had engaged in sev- eral of the disqualifying violations enumerated in the stat- ute and regulations. They were violating § 1605(d)(1)(B) (demotion or dismissal of minority group personnel) and § 1605(d)(1)(D) (imposing disciplinary sanctions against children in a discriminatory way), as well as teacher and administrator assignment provisions of § 1605(d)(1)(B). But the ESAA funds were denied only because of a failure to correct the discriminatory assignment of teachers and administrators. HEW took this action because its regula- tion requires that, prior to any waiver, “the proportion of minority group full-time classroom teachers at each school [be] between 75 per centum and 125 per centum of the proportion of such minority group teachers which exists on the faculty as a whole.” 45 C.F.R. § 185.44(d)(3). This provision is similar to the other waiver regulations, which generally require that the disqualifying violation be cor- rected prior to a waiver, although there is provision for a gradual remedy when the violation is disproportionate dismissal or demotion of personnel. Jd. § 185.44(d)(1)(i). Clearly, HEW correctly applied its regulation, because the district had failed to alter its teacher assignments in any way. The Memorandum of Understanding that was entered into on September 7, 1977, which was to provide a phased remedial plan, did not, in itself, effect any change at all. It was not even aimed at obtaining ESAA funds. As the opinion in Caulfield v. Board of Education, 583 F.2d 605, 607-10 (2d Cir. 1978), discussing that Memorandum makes very clear, it was aimed at securing compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d to 2000d-6, and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686.® Because ®Title IX deals with practices discriminatory against females. The Title VI violations involved discriminatory teacher selection and test- 34a the City Board had to come to terms with the teachers’ union, perhaps for other reasons, all of which are immate- rial here, the compliance by it was to be phased in so as “to remedy the discriminatory effect of those practices on a phased basis by 1980.” Caulfield, supra, 583 F.2d at 607. Thus, what the majority does now is to deny HEW’s power to implement the statute by the present reguia- tions. It does so by imagining an entirely different regulation—one requiring the prior eradication of all the lingering, indirect effects of past discrimination—and con- cluding that such a rule is undesirable because effects of discrimination may last “for a generation, or longer.” Majority opinion at 20. The majority also makes one more fundamental error in its reading of the statute. it suggests, majority opinion at 21-22, that segregation of children within a district as a whole is a violation that may disqualify a district. It goes on to conclude that, under its existing regulations, HEW would grant a waiver only to districts that have already fully desegregated—i.e., dis- tricts that no longer really need the money. /d. This result would indeed be somewhat absurd, but the structure of the Act as a whole makes it clear that funds may be granted to districts that are still implementing plans for desegregating student bodies, see 20 U.S.C. § 1605(a)(1), and that existing school segregation itself was not in- tended as a violation that would cause ineligibility, see id. § 1605(d)(1) (listing violations). Referring to the list of disqualifying violations, then Senator Mondale stated: “The application of these safeguards is crucial. The value of integrated education to the children involved in the programs under this act will be lost if discrimination con- tinues to be practiced within schools which are desegre- gated.” 117 Cong. Rec. 10758 (1971) (emphasis added). The ing procedures and racially identifiable employment pools as well as teacher and administrator assignments reinforcing racial/ethnic iden- tifiability (also, concededly, involved in the instant case) and assign- ment of less experienced, lower salaried, less qualified teachers to minority-preponderant schools. Caulfield v. Board of Educ., 583 F.2d 605, 608 n.3 (2d Cir. 1978). 35a violations are thus discrete actions, other than segregation of students itself, that may take place in the context of an overall process of school desegregation. This conclusion fits well with the overall statutory scheme. ESAA, as Califano I attempted to point out, 584 F.2d at 578-81, is a special funding act, supplementing an eligible nondiscriminatory school district’s funds “to aid in desegregating schools and support quality integrated schools.” S. Rep. No. 604, 92d Cong., 2d Sess. (1972), re- printed in [1972] U.S. Code Cong. & Ad. News 2595, 2600. These funds, which are limited in amount in any given school year in accordance with congressionally set national priorities, are in effect awarded on a competitive, “merit,” point-award basis to those school districts that have dem- onstrated eligibility by “objective criteria,” Califano J, supra, 584 F.2d at 579 n.4. Funds are awarded “to qual- ified applicants in the order in which their applications are ranked.” Jd. at 579. Congress was extremely careful to make sure that the requirements were uniform nationwide irrespective of the type of discrimination practiced, de facto or de jure. Jd. at 578 n.8. The Act was thus both a carrot and a stick, to North and South alike, affirmatively promoting the policies of Brown v. Board of Education, 347 U.S. 483 (1954). The Act specifically set forth strict criteria for the award of funds, in the words of Senator Mondale, “strong safeguards,” “administrative guidelines,” and “mandatory directions”? to try to assure proper administration of the Act. And Congress was very specific in its waiver provi- sions to provide nondelegable approval only by the Secre- ®117 Cong. Rec. 10758 (1971). The Senator stated: It is because of the history of the emergency school assistance program that the Labor Committee has included in the bill strong safeguards modeled upon those added in the Senate to the emer- gency school assistance program appropriation. The committee has also, both in the bill and the report set forth mandatory di- rections to the Commissioner to try to assure proper administra- tion of this program. 36a tary himself, 20 U.S.C. § 1605(d)(2),'° with a grant to be made only “upon determination that any practice, policy, procedure or other activity resulting in ineligibility has ceased to exist... .,” id. at § 1605(d)(3), and with his de- termination to be “carried out in accordance with criteria and investigative procedures established by regulations of the Secretary for the purpose of compliance with this sub- section.” Jd. at § 1605(d)(5). To suggest, as the majority opinion does, that the grant of power here is “simply a procedural assurance,” majority opinion at 24, and that the regulation here in question, 25 C.F.R. § 185.44 (d)(3), is not “rationally related to the objectives of the ESAA program,” majority opinion at 24, is to usurp the agency’s functions. To give the majority their due, I do not believe that a regulation adopting their view would necessarily be in- valid, but see Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974), despite the apparently clear statutory re- quirement that the practice of assigning teachers to ra- cially identifiable schools cease to exist or occur prior to a waiver. See 20 U.S.C. § 1605(d)(1). HEW should have, and I believe was given by Congress, certain flexibility in this area. In addition, there is a certain ambiguity in the statute created by the fact that faculty segregation is in- cluded both in § 1605(a), which discusses the kinds of on- going desegregation that the Act seeks to encourage through funding, and in § 1605(d)(1), which, as I have noted, lists various practices that, until corrected, dis- qualify a district from receiving funds to aid its overall de- segregation effort. Faced with this apparent contradiction, the administering agency might reasonably conclude that faculties need not be desegregated before a waiver is granted. But it might also conclude that the process of faculty desegregation, unlike that of student desegrega- tion, is, because of § 1605(d)(1), only intended to be funded 10 All waivers must also be in writing, with prior notice given to spe- cific congressional committees, 20 U.S.C. § 1605(d)(6). These extraor- dinary requirements to me demonstrate that Congress was extremely fearful that waivers would be granted too quickly or easily. 37a after the remedy has been substantially effected. A situa- tion of such apparent ambiguity is, it seems to me, clearly one where deference to the HEW interpretation is war- ranted, indeed required, regardless of whether the regula- tions are deemed “interpretive” or “legislative.” See gen- erally Batterton v. Francis, 482 U.S. 416, 424-26 (1977). When two interpretations are possible, and neither would frustrate the legislative scheme, we should follow the reg- ulation. The majority opinion ultimately fails to state what HEW may now do. It may be that their invalidation of the stat- ute means that HEW must now grant the waiver, because the Memorandum is a sufficient indication that the district will no longer discriminate. If so, I am concerned about how today’s decision will affect future school desegrega- tion. Presumably the Department will be reluctant to enter into memoranda of understanding similar to the one en- tered into here, providing for phased-in compliance, lest agreement thereto immediately render eligible for ESAA funds, on the basis of its “good intentions,” a district that has highly segregated faculty assignments. This would be a sorry combination of events since there is a statutory admonition to all federal agencies under the Civil Rights act of 1964, 42 U.S.C. § 2000d-1, to secure voluntary com- pliance with that Act’s provisions. And, while I agree with the majority in that I do not believe Congress necessarily meant defiant applicants to do “an additional penance,” majority opinion at 17, I do believe that Congress knows as well as any other branch of government with what the road to Hell is paved. I think Congress was perfectly pre- pared to permit the Department under Department regu- lations to insist upon a little more from its ESAA appli- cants than the paving stones the majority relies on here. If, on the other hand, under the majority opinion and “remand” HEW still has some power to deny the waiver sought by appellee—a power based on the statutory re- quirement that the Secretary ensure that the discrimina- tion has ceased—it is unclear how the majority decision 38a has altered the status quo under the regulations. Such a power is no more and no less than what the regulations have embodied all along—the power to make sure that teachers are no longer assigned to schools on the basis of race or ethnic origin. But perhaps the majority has yet a third view. Maybe it feels that HEW can require more than a Memorandum of Understanding, but less than a real change in teacher as- signments. If so, that view is nowhere spelled out or ex- plained. The opinion, where light is needed, creates only fog or, if under the first alternative suggested it requires the agency to treat the mere entering into the Memoran- dum of Understanding as sufficient to constitute com- pliance, darkness. I therefore dissent. 39a APPENDIX B United States Court of Appeals for the Second Circuit 19-6006 At a stated term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Courthouse in the City of New York, on the nineteenth day of November, one thousand nine hundred [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_IA40385007_0638%3A1. Public record. Not legal advice.