Petition — Caulfield v. Board of Education

” Q= 11 Q y — Coat v S.

aEG 17 1980

October Term, 1980

No.

WILLIAM CAULFIELD, et al.,

Petitioners,

Vv.

THE BOARD OF EDUCATION OF THE CITY OF

NEW YORK, IRVING ANKER, JOSEPH CALIFANO,

JR., DAVID TATEL, RONALD ROSS, THE COALI-

TION OF CONCERNED BLACK EDUCATORS, and

GORDON AMBACH,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MORRIS WEISSBERG

Attorney for Petitioners

15 Park Row

New York, N.Y. 10038

(212) 964-0492

HAROLD F. HAY,

Of Counsel

Printinghouse Press — Bar Ass'n Steno Svc. ( Appeals Section) 212-840-1891

-a-

QUESTIONS PRESENTED

1. Did the federal Department of

Health, Education and Welfare ("HEW"') ,

and its Office for Civil Rights ("OCR"),

have jurisdiction to require the Board of

Education of the City of New York ("'the

Board"), to agree in a Memorandum of Un-

derstanding to hire and to assign teachers

on the basis of their race to conform to

racial quotas prescribed in such Memoran-

dum of Understanding, where the primary

objective of federal financial assistance

to the Board was to provide aid to educa-

tion, and not to provide employment?

2. In the absence of a finding that

the Board intentionally discriminated

racially against black and Hispanic

teachers and applicants for employment

as teachers, did the Memorandum of Under-

standing between OCR and the Board, and

the Board's actions in carrying out its

@b-

provisions, unconstitutionally deny to

the plaintiffs the equal protection of

the laws, and deprive them of liberty and

| property without due process of law, by

reverse racial discrimination?

3. Did the Board's annual racial

census of teachers unconstitutionally in-

vade the privacy of teachers, and deprive

them of liberty and property without due

process of law?

The aforesaid constitutional ques-

tions of law were presented in the con-

plaint, at pages A199 to A202 of the

_ Joint Appendix in the plaintiffs' appeal

in this case to the United States Court

of Appeals for the Second Circuit,

-i-

INDEX

Opinions Below ..ccciccccveccccces

Jurisdiction .cccccccccccesrocesee

Constitutional Provisions Involved

Questions Presented .ecsccccereses

Statement of the Case ...cseeeeees

Memorandum of Understanding,

September Fs 1977 @eeeoce@ev 0202028088080

Racial Census ...cccecececcoces

Prior Proceedings ....escrcceces

The Decisions Below ....-eesereece

Reasons for Granting the Writ:

1. OCR had no Jurisdiction to

Require the Board of Edu-

cation to Agree to Hire

and to Assi Teachers on

the Basis of their Race,

to Conform to Racial

Quotas Prescribed in the

Memorandum of Understand-

ing @eeeaeeseeen vee eee eee eoeeee 286

2. In the Absence of a Find-

ing that the Board Inten-

tionally Discriminated

Racially against Black

and Hispanic Teachers and

Applicants for Employment

as Teachers, the Memorandum

24

-ii-

of Understanding Between

OCR and the Board, and the

Board's Actions in Carry-

ing Out its Provisions,

Unconstitutionally Denied

to the Plaintiffs the

Equal Protection of the

Laws, and Deprived Them

of Liberty without Due

Process of Law, by Re-

verse Racial Discrimina-

tion COC CC CC CC OSC OSCE COE eC ECeS

.3. The Board's Annual Racial

Census of Teachers Uncon-

stitutionally Invaded

Their Privacy, and De-

prived them of Liberty

and Property Without

Due Process of Law beetiona

Conc lusion COCHCCECHC CO CC OC CE OC CEOS ECCS

Appendix:

Opinion and Judgment dated

September 22, 1980 of the

United States Court of Appeals

for the Second Circuit .........

Opinion and Judgment dated

September 5, 1980 of the

United States Court of Appeals

for the Second Circuit .........

31

47

51

la

l6a

-iii-

TABLE OF AUTHORITIES

Cases

Aspira v. Board of Education

(72 Civil 1002; S.D.N.Y.) ......

Baker v. Carr, 369 U.S. 186 (1962)

Bertot v. School Dist. #1, Albany

County, Wyoming, 522 F. 2d 1171

(10th Cir. 1975) eereeeveeveoeeeee¢8@

Board of Education v. Allen, 392

U.S. 236 (1968) eeeeeeeeocee ee eee

California Bankers Assn. v.

Shultz, 416 U.S. 21 (1973) .....

Fullilove v. Klutznick, 100 S.Ct.

2758 (1980) @eeeoeeoeeev ee eeeeeseseneenee

Gibson v. Florida Legislative

Committee, 372 U.S. 539 (1962)..

Golden v. Zwickler, 394 U.S. 103,

(1969) @eeeseeoeesea*# eae eee eeneneaeeseee1esees

Griswold v. Connecticut, 381 U.S.

479 (1964) @eeeeee*e*e7ee7e#*e7nreee#*eseese83e#es#e

Isleboro School Committee v.

Califano, 593 F, 2d 424 (lst

Cir. 1979), cert. den. sub. nom.

Harris v. Isleboro School Com-

mittee, 100 S.Ct. 467 (1979)

Junior College v. Califano, 597

F. 2d 119 (8th Cir. 1979),

cert. den. 100 S.Ct. 467 (1979)

40,48

49

25

26

-iv-

Page

Metropolitan Life Insurance Co.

v. Usery, 426 F, Supp. 150

(D.C.D.C. 1976) eoeeereeeseresneese 50

O'Shea vy, Littleton, 414 U.S. 488

(1973) we POSTOOCOPOCE CHESS SSOC OCC OSCE 33,43

Personnel Administrator of Massa-

chusetts vy, Feeney, 442 U.S.

256 (1979) POSS SOSSC CHOCO SEO LOSES 37

Regents of University of Cali-

fornia vy, Bakke, 438 U.S,

265 (1979) ereeeeeeereeeseeees 23,37,39

Rodriguez v, Board of Education,

620 F. 2d 362 (2d Cir, B9GO) cocce 38

Roe v, Wade, 410 U.S. 113 (1972) .., 50

Romeo Community Schools v. HEW, 600

F, 2d 581 (6th Cir, 1979), affg.

438 F. Supp. 1021 (D.C. Mich,

1977) wT ee PSO FOS 6660668660 0b 666 26

Rubinos v. Board of Examiners

(74 Civil 2240, Griesa, J.,

S.D.N.Y.) COCHCHC COS HESCEODS OO RCELSESCS 4

Scheuer vy, Rhodes, 416 U.S, 232

(1973) thea hehe te oe oe? ee 47

Simineo v. School Dist. #16, Park

County, Wyo., 594 F, 2d 1353

(10th Cir. 1979) iit a ee ee i i | 47

Stanley y, Georgia, 394 U.S. 557

(1968) MP POCOSOTCASCECCOCOSOESOCCLESe 50

-Vvy=

United States v. Jefferson County

Board of Education, 372 F. 2d

836 (Sth Cir. 1966), affd. en

banc, 380 F. 2d 385 (5th Cir.

1967}, cert. denied, 389 U.S.

840 (1967) e@eeeveeeeseeeeeeeeese2

United States v. Scrap, 412 U.S.

669 (1972) @eeeeeoeeeoeeceeeeee ee eeeee

United Steelworkers v. Weber,

30

44

443 U.S. 193 (1979) ......626 21,39,40

Village of Arlington Heights

v. Metropolitan Housing De-

velopment Corp., 429 U.S.

252 (1977) @eeeaeeoeeveaea ea eee eaeeaeaea2eenees

Washington v. Davis, 426 U.S. 229

GUUED 605664054 0666600060060008

Whalen v. Roe, 429 U.S. 589 (1976)

Wood v. Strickland, 420 U.S. 308

(1975) eeeeeeeeeeeeeeeeeeeeeeee8

Stat C tut

Fourteenth Amendment .......cce.

Article III @eeeeeeeoea een een e282 eecd0e0860

Unit Stat Code

Se UsbsG. COREE LIS cccccccee

28 U.8.G. section 1254 @eeereveene0ce

29 U.S.C. section 1292(b) ......

42 U.8.G. section 2000d-=3 @eeceen

37

37

30

46

-vi-

Civil Rights Act of 1964

Title VI 797989868 6006068 000606860

Title VII POCSCHOCC COOOL CECE EEOES

Section 604 eeeeeereceecerceoeococeceos

Education Amendments Act of 1972

Title IX SCCOSCHCHCH COC CCC COSCE OSE SES

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

WILLIAM CAULFIELD, et al.,

Petitioners,

Ve

THE BOARD OF EDUCATION OF THE CITY OF

NEW YORK, IRVING ANKER, JOSEPH CALIFANO,

JR., DAV ID TATEL, RONALD ROSS, THE

COALITION OF CONCERNED BLACK EDUCATORS,

and GORDON AMBACH,

Respondents,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

The petitioners pray that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Second Circuit, filed September 22,

1980, which affirmed the judgment of the

United States District Court for the

Eastern District of New York, dated

a2e

July 17, 1979, which dismissed the com-

plaint after a trial before the Court

(Weinstein, J.) without a jury.

OPINIONS BELOW

The opinion and judgment of the

United States Court of Appeals for the

Second Circuit were filed in that Court

on September 22, 1980, and are not yet

officially reported. A copy of such

opinion is printed beginning at page

la of the Appendix herein.

A prior decision and opinion by

the Court of Appeals, dated September 5,

1978, reported in 583 F.2d 605 (2d Cir.

1978), printed beginning at page l6a of

the Appendix herein, affirmed the denial

of plaintiffs' motion for a preliminary

injunction against the collection of

racial and ethnic data by the defendant

Board of Education ("the Board"); and it

reversed an order of the District Court

-3-

which remanded this case to the federal

Department of Health, Education and Wel-

fare ("HEW"), for further proceedings in

which plaintiffs would be permitted to

participate; and it remanded the case to

the District Court for hearing on the

merits of plaintiffs' allegations that a

Memorandum of Understanding between HEW's

Office of Civil Rights ("OCR") and the

Board, dated September 7, 1977, and the

Board's actions in carrying out its pro-

visions, unconstitutionally denied to the

plaintiffs the equal protection of the

laws, and deprived them of liberty and

property without due process of law.

JURISDICTION

This petition for certiorari to re-

view the judgment of the United States

Court of Appeals for the Second Circuit,

filed September 22, 1980, is timely made

within 90 days of the filing of such

judgment.

The jurisdiction of this Court to re-

view such judgment is invoked pursuant to

28 U.S.C. section 1254,

CONSTITUTIONAL PROVISIONS INVOLVED

Section 1 of the 14th Amendment to

the Constitution of the United States, in

part, provides:

"* * * nor shall any State deprive

any person of life, liberty or

property, without due process of

law; nor deny to any person within

its jurisdiction the equal protec-

tion of the laws."

QUESTIONS PRESENTED

1. Did the federal Department of

Health, Education and Welfare ("HEW"),

and its Office for Civil Rights ("OCR"),

have jurisdiction to require the Board of

Education of the City of New York ("the

Board''), to agree in a Memorandum of Un-

derstanding to hire and to assign teachers

on the basis of their race to conform to

o§e

racial quotas prescribed in such Memoran-

dum of Understanding, where the primary

objective of federal financial assistance

to the Board was to provide aid to educa-

tion, and not to provide employment?

2. In the absence of a finding that

the Board intentionally discriminated

racially against black and Hispanic

teachers and applicants fcr employment

as teachers, did the Memorandum of Under-

standing between OCR and the Board, and

the Board's actions in carrying out its

provisions, unconstitutionally deny to

the plaintiffs the equal protection of

the laws, and deprive them of liberty and

property without due process of law, by

reverse racial discrimination?

3. Did the Board's annual racial

census of teachers unconstitutionally in-

vade the privacy of teachers, and deprive

them of liberty and property without due

process of law?

The aforesaid constitutional ques-

tions of law were presented in the com-

plaint, at pages A199 to A202 of the

Joint Appendix in the plaintiffs' appeal

in this case to the United States Court

of Appeals for the Second Circuit.

STATEMENT OF THE CASE

On November 4, 1976, OCR wrote to

the Board that the Board "is in non com-

pliance" with Title VI of the Civil

Rights Act of 1964, and with Title IX of

the Education Amendments Act of 1972, be-

cause the Board had "denied minority

teachers full access to employment op-

portunity" by using racially discrimina-

tory procedures for testing, selecting

and appointing teachers; by using racially

identifiable employment pools which re-

stricted the selection and appointment of

blacks and Hispanics as teachers; by

oFe

assigning teachers to its 900 elementary

schools, junior high schools and high

schools by procedures and policies which

placed mostly black teachers in public

schools which had a majority of black

students, Hispanic teachers in public

schools which had a majority of Hispanic

students, and white teachers in public

schools which had a majority of white

students (A263-300).

The Board investigated OCR's allega-

tions, and on April 22, 1977, the Board

wrote a "Response" to OCR, in which the

Board denied non compliance with the 1964

Civil Rights Act, and with other federal

statutes (A301-360).

The Board wrote in its "Response"

that its procedures for hiring new teach-

ers were prescribed by State statutes,

which prescribed two different hiring

methods, namely: Open competitive civil

service examinations for license and ap-

pointment of teachers from eligible lists

oo

of those candidates who passed such exam-

inations, and who were placed on such

eligible lists in the order of their

grades or marks in such examinations, the

candidate receiving the highest grade be-

ing ranked first on the eligible list, and

the remaining candidates being ranked be-

hind him in the order of their grades or

marks in such examination.

Such eligible lists are dated on the

date on which they are established. They

remain in effect for up to four years, un-

less sooner exhausted by appointment of

eligibles therefrom, or unless superseded

by establishment of an eligible list from

a subsequent examination.

An “alternative hiring method" con-

sisted of hiring persons as teachers

either by taking them "out of rank order"

from existing dated, rank order eligible

lists, or by establishing the appointee's

-9-

qualifications as a teacher if he or she

eabeed a non competitive National Teachers

Examination ("NTE") (A306-313).

In Rubinos v. Board of Examiners,

(74 Civil 2240, GRIESA, J., S.D.N.Y.),

the District Court denied a preliminary

injunction to restrain the Board from

hiring new teachers from dated, rank or-

der eligible lists established as a re-

sult of open competitive civil service

examinations (A312-313).

In Aspira v. Board of Education (72

Civil 1002; S.D.N.Y.), a consent decree

provided that the Board shall give bi-

lingual education in the Spanish language

to Hispanic students who are not able to

understand the English language. For

this purpose, the Board hired, without

competitive examination, persons whose

native language was Spanish; and the Board

assigned such bi-lingual teachers to pub-

-10-

lic schools attended by large numbers of

Hispanic students (A313-314).

The alternative hiring method may

only be used to appoint teachers to those

elementary and junior high schools in

which students scored in the lower 45th

percentile on comprehensive annual read-

ing tests given by the Board to all elemen-

tary and junior high school students in

New York City (A306-310).

New York statutes provide that no

appointment of teachers may be made from

a dated, rank order eligible list until

all prior eligible lists have been ex-

hausted, or have expired (A312-313).

The Board wrote that in 1970-1971,

3,625 teachers were from minority groups.

By 1974-1975, their number had increased

to 7,316, an increase of 40% (A-309-310).

At the trial, the intervenor-

plaintiffs, Albert Shanker, et al.,

elle

(United Federation of Teachers, "UFT"),

presented evidence that by 1979, the num-

ber of minority teachers in New York City's

public schools had increased to more than

16% of all teachers; and that such per-

centage closely corresponded to the num-

ber of young minority college graduates

in the metropolitan area seeking employ-

ment as teachers in New York City's pub-

lic schools (A780-A939).

UFT also presented evidence at the

trial that the Board expended more money

per student, and gave more teaching time,

effort and facilities to teaching black

and Hispanic students than to teaching

white students, by giving to such minor-

ity students smaller numbers of students

per class, tutors, paraprofessionals,

visual aids and other special equipment

and facilities (A780-A-939).

The Board's Special Circular No.

o]2e

30-R, dated December 8, 1977, repeated pro-

visions in its 1972-1973 circular, reading:

"All persons interested in filling

supervisory vacancies shall be

iven equal and fair consideration

c the screening and interviewing

committees. There shall be no

discrimination because of age,

race, creed, color, national

origin, sex, handicap, union or

non-union affiliation. All ac-

tion shall conform to public law."

The Board also wrote in its "Response"

that the alternative hiring method "has

contributed to the concentration of minor-

ity staff in predominantly minority

schools" (A313); and it disputed OCR's

allegations that the Board assigned

"teachers with less experience, lower

average salaries and fewer advanced de-

grees to schools which have higher per-

centages of minority students" (A263),

saying that OCR's own statistics, and

independent analysis, do not support such

allegations (A270-271).

-13-

Memorandum of Understanding,

September 7, 1977

On September 7, 1977, the Board and

OCR signed a "Memorandum of Understand-

ing", which provided, in part (A361-A364):.

"lL, Not later than September of 1979,

the teacher corps of each District

in the system will reflect within

a range of five percent, the racial-

ethnic composition of the system's

teacher corps as a whole for each

educational level and category, sub-

ject only to educationally based

program exceptions.

2. Not later than September of 1980,

each individual school in the system

will reflect, within a range of

five percent, the racial-ethnic com-

position of the system's teacher

corps as a whole for each educa-

tional level and category, subject

only to educationally based pro-

gram exceptions.

* * *

6. The Board agrees, as soon as prac-

4icable to have performed a study

of the relevant qualified labor pool

by race, ethnicity and sex by an in-

dependent expert acceptable to the

parties and pursuant to methodology

and standards agreed to by the par-

ties. Through the adoption and im-

plementation of the affirmative ac-

tion procedures and legislation

provided in paragraph 4 of this

Memorandum and other efforts taken

or to be taken by the Board, the

-14<

Board commits that by September of

1980, the levels of minority par-

ticipation in the teaching and

supervisory service will be within

' @ range representative of the ra-

cial and ethnic composition of the

relevant qualified labor pool."

In September, 1977, the Board imple-

mented and carried out the above-quoted

provisions of the Memorandum of Under-

standing by rehiring teachers whom it had

laid off for reasons of economy, and as-

signing rehired white teachers to schools

which had a majority of black students,

and assigning rehired black teachers to

schools which had a majority of white

students (A939-1058).

Rehired black and Hispanic teachers

were given a choice to pick teaching as-

signments from a box containing the names

of schools which had a majority of white

students (A939-1058).

Rehired white teachers were given a

choice to pick teaching assignments from

-15-

a box containing the names of schools

which had a majority of black students

(A939-1058).

More than 4,000 white teachers de-

clined to be rehired and assigned to

black schools; and 800 rehired white

teachers who accepted assignment to black

schools later resigned. The Board also

offered employment to 10,000 persons on

open competitive eligible lists, most of

whom declined to accept employment as

teachers assigned to black and Hispanic

schools (A939-1058).

In making such assignments of re-

hired teachers, the Board carried out a

policy which it said in its "Response" it

would carry out, as follows (A324):

"2. Teachers and supervisors on pre-

ferred lists who are recalled are

Personnel to foster the integra:

tion of minority and non-minority

personnel and to correct any dis-

parities of experience, salary and

educational level in the distribu-

-16-

tion of personnel. There are now

thousands of teachers on preferred

lists. As vacancies occur and

teachers are recalled, they are

assigned by the Division of Per-

sonnel. In making these assign-

ments, integration of staff and

equalization of experience, salary

and education will be determining

factors."

Racial Census

On October 17, 1977, the Board dis-

tributed to Community School Boards, and

to public schools, its Special Circular

No. 18, 1977-1978, relating to "Annual

School Census", with forms for entering

thereon information about race and ethni-

city of teachers and school supervisors.

That circular stated, in part:

"This form will collect ethnic com-

position summarized by grade from

the 'C' form. In addition, this

form will also collect i

summarized

position title as of October 31,

1977."" (Emphasis supplied.)

In October, 1978, the Board directed

Community School Boards to collect and to

-l7-

enter on similar forms similar racial cen-

sus information about teachers; and the

Board suspended the plaintiff, Community

School Board 26, for refusing to collect

such information,

Prior Proceedings

The complaint in this action was

filed in the District Court on October

31, 1977. Thereafter, UFT, by Albert

Shanker, its president, and CSA (Council

of Supervisors and Administrators, a labor

union), by Theodore Elsberg, its presi-

dent, intervened as intervenor-plaintiffs,

and served complaints. Maria Banks and

four others intervened as "CONCERNED

BLACK EDUCATORS", intervenor-defendants,

and served answers to the complaints, as

did Ronald Ross, an intervenor-defendant,

who served answers to the complaints,

Plaintiffs made a motion for summary

judgment, or for a preliminary injunction.

-18-

The District Court (WEINSTEIN, J.) denied

both motions, Plaintiffs appealed from

the denial of a preliminary injunction.

By judgment dated March 15, 1978, the

District Court, sua sponte, annulled the

Memorandum of Understanding, and remanded

this case to HEW and OCR for an adminis-

trative hearing; and the District Court

certified under 29 U.S.C. section 1292(b)

that there is a controlling question of

law as to which there are substantial

grounds for difference of opinion, and

that an immediate appeal will materially

advance the ultimate termination of the

litigation.

By leave of the Court of Appeals,

plaintiffs, intervenor-plaintiff Elsberg,

the Federal defendants, and Ronald Ross,

intervenor-defendant, appealed from the

judgment annulling the Memorandum of

Understanding.

219

On September 5, 1978, the Court of Appeals

affirmed the order of the District Court

which denied plaintiffs’ motion for a pre-

liminary injunction; and it reversed the

judgment which annulled the Memorandum of

Understanding, and remanded the case to

the District Court for further proceedings

(583 F. 2d 605).

The trial of this case began on

March 30, 1979. Evidence was presented

on several dates until July 3, 1979, when

the trial concluded. Final judgment dis-

missing the complaint was entered on

July 17, 1979, and a written opinion was

filed on August 27, 1979,

Plaintiffs, UFT, CSA and Ronald Ross,

appealed from the judgment.

Thereafter, CSA withdrew its appeal

by stipulation.

On September 22, 1980, the Court of

Appeals affirmed the judgment dismissing

the Complaint.

-20-

THE DECISIONS BELOW

Le

The District Court (WEINSTEIN, J.)

said that OCR had jurisdiction over the

employment practices of the Board, because

OCR's regulations empower it to take ac-

tion against employment practices of re-

cipients of Federal grants of money, un-

der the "infection" theory of jurisdic-

tion, where the recipient's employment

practices have a discriminatory effect

upon direct beneficiaries of Federal

grants of money, such as the students in

this case (A57).

The Court also said that the prior

decision of the Court of Appeals (583

F, 2d 605), was that the Memorandum of

Understanding between the Board and OCR

was voluntary; that there was an analogy

between the agreement between the Board

and OCR in this case, and the agreement

=Pl«

between employer and labor union in United

Steelworkers v. Weber, 443 U.S. 193 (1979)

(A57-58); and that the issue is whether

the Board and OCR had a reasonable basis

for believing that the Board's employment

practices may be racially discriminatory,

and whether the remedial measures agreed

to in the Memorandum of Understanding were

reasonable in view of the perceived lia-

bility (A58-59).

The Trial Court said (A83-84):

"{I]t is both unnecessary and inap-

propriate to decide whether or not

the Board practices in question

would dictate a finding of discrim-

ination--either under an ‘intent’

standard or an ‘effects' standard,

in violation of the constitution

or the statute. Rather, the sole

purpose of the presentation here is

in connection with the issues of

fact and law presented by this par-

ticular case; whether, given all the

evidence (1) the parties (and par-

ticularly the Board) could have

reasonably believed a violation of

the constitution could be shown;

and (2) the measures adopted by

the agreement represent a fair and

reasonable eflort to resolve any

such reasonably perceived viola-

tions of law.

o22@

"The record supports the following

findings of fact and law: (1) there

was a reasonable belief on the part

of the Board and OCR that the

Board's hiring and assignment prac-

tices were in violation of Title VI,

Title IX, and the constitution; (2)

the remedial measures embodied in

the agreement represent a reason-

able means for attempting to cure

what the parties reasonably be-

lieved were inequities in the sys-

tem; and (3) those measures do not

violate the plaintiffs' statutory

or constitutional rights." (A184).

ak.

In its second decision in this case,

dated September 22, 1980, the Court of

Appeals decided that OCR had jurisdiction

over the employment practices of the

Board, and that it had jurisdiction to

require the Board to agree in the Memoran-

dum of Understanding to hire and to assign

teachers on the basis of their race to

achieve and to maintain the racial quotas

prescribed in the Memorandum of Under-

standing.

The Court of Appeals discussed the

o24<

merits of the appeal under the headings of

"Teacher Assignment" and "Hiring Goals".

Under "Teacher Assignment", two of

the Judges of the Court of Appeals

(MANSFIELD, MESKILL, JJ.), said that there

is no reason to think that transfers of

teachers pursuant to the Memorandum of

Understanding will constitute a "serious

professional setback"; and that until such

harm is alleged, the requirement in the

Bakke case (438 U.S. 265) of prior find-

ings of intentional racial discrimination

are not required.

Under "Hiring Goals" the same two

Judges said that any claim that the Board

will use race as a factor in its hiring

decisions is, on this record, purely con-

jectural, and does not amount to a "case

or controversy" under Article III of the

Constitution. No teacher has alleged that

the Memorandum has affected consideration

Pie

of his job application. Appellants have

not demonstrated a "real and immediate"

injury.

REASONS FOR GRANTING THE WRIT

1. OCR HAD NO JURISDICTION TO REQUIRE

THE BOARD OF EDUCATION TO AGREE TO

HIRE AND TO ASSIGN TEACHERS ON THE

BASIS OF THEIR RACE, TO CONFORM TO

RACIAL QUOTAS PRESCRIBED IN THE

MEMORANDUM OF UNDERSTANDING.

Section 604 of the 1964 Civil Rights

Act (42 U.S.C. section 2000d-3) expressly

withheld from Federal agencies jurisdic-

tion over employment practices of recip-

ients of federal grants of money:

"except where a primary objective

of the federal financial assistance

is to provide employment,"

In this case, only one federal grant

of money to the Board, amounting to

$17,197,533, was for the primary objective

of providing employment (A494). This

grant was made under the Comprehensive

Employment and Training Act ("CETA")

=25<

(A494). All other federal grants of money

to the Board in 1976, amounting to about

$280,000,000, were for the purpose of pro-

viding aid to education (A494).

Upon the above-stated undisputed

facts, the statute prohibited OCR from

exercising jurisdiction over the Board's

employment practices, and from requiring

the Board to agree in the Memorandum of

Understanding that it will hire and as-

sign teachers on the basis of their race

to conform to racial quotas prescribed in

such Memorandum of Understanding.

In analogous cases, Federal courts

have decided that OCR has no power under

Title IX to regulate employment practices

of recipients of federal grants of money.

Isleboro Sch C ttee v. Califano,

593 F. 2d 424 (lst Cir. 1979), cert. den.

sub, nom, Harris v. Isleboro School Com-

mittee, 100 S.Ct. 467 (1979);Romeo Com-

- 26-

unity S v. HEW, 600 F. 2d 581 (6th

Cir. 1979), affg. 438 F. Supp. 1021 (D.C.

Mich. 1977); Junior College v. Califano,

597 F. 2d 119 (8th Cir. 1979), cert. den.

100 S.Ct. 467 (1979).

The Court of Appeals quoted its prior

decision that "the objective of OCR's in-

vestigation was to alleviate discrimina-

tion against minority schoolchildren and

not against minority teachers", meaning

that the Board's employment practices

discriminated against and affected un-

favorably the education of minority

students.

We submit that the statutory prohi-

bition of agency action relating to em-

ployment practices of recipients of

federal financial assistance given for

purposes other than employment, cannot be

disregarded, and thus nullified in prac-

tice, by giving no effect to such prohi-

=27~

bition on the ground that racial discrimin-

ation in hiring or assigning teachers has

a damaging effect upon the education of

black and Hispanic students taught by

teachers subjected to racial discrimina-

tion in hiring or assignment to particular

schools.

Alleged racial discrimination against

beneficiaries of federal financial assis-

tance is not a valid reason for giving no

effect to the statute prohibiting federal

agencies from taking any action about ra-

cially discriminatory employment practices

of recipients of federal financial assis-

tance where the primary objective of such

financial assistance was to provide aid to

education, and not to provide employment.

Title VII of the 1964 Civil Rights

Act gives to the Equal Employment Oppor-

tunity Commission ("'EEOC') the power to

investigate allegations of racially dis-

2

criminatory employment practices, and to

require elimination or correction of any

such employment practices,

Congress intended to give EEOC the

function of regulating racially discrim-

inatory employment practices, and assigned

to federal agencies which give financial

assistance the function of regulating

racially discriminatory employment prac-

tices only in those cases in which the

primary objective of federal financial

assistance is to provide employment, be-

cause in such a case racially discrimina-

tory employment practices defeat the pri-

mary purpose of such financial assistance,

Moreover, the Trial Court made a

finding that the plaintiffs submitted

evidence that each of the local community

school districts had a non-discriminatory

number of teachers with five or more

years of teaching experience (A21), so

-29-

that there was no factual basis for the al-

legation that racial discrimination in hir-

ing or assigning teachers had a damaging

effect upon the education of black and

Hispanic students,

The United Federation of Teachers

("UFT"), and the Board, both presented ex-

tensive evidence that the quality and

| quantity of education given to black and

Hispanic students is not inferior to that

given to white Students; and that measured

by the pupil/teacher ratio; average class

size; percent teachers with five or more

years of experience; city tax levy funds

expended; and reimbursable funds expended,

there were no important differences between

predominantly minority and non-minority

community school districts and the public

schools therein (A780-938).

UFT also presented evidence that the

Board expended more money per student, and

-30-

gave more teaching time, effort and facil-

ities to teaching black and Hispanic stu-

dents than to teaching white students, by

giving to such black and Hispanic students

smaller numbers of students per class,

tutors, paraprofessionals, visual aids

and other special equipment and facil-

ities (A780-939).

The Court of Appeals cited United

States v. Count u-

cation, 372 F. 2d 836, 882-86 (5th Cir.

1966), affd. en banc, 380 F. 2d 385

(Sth Cir., 1967), cert. denied, 389 U.S.

840 (1967). The Court of Appeals said:

"section 2000d-3 does not bar an

action requiring desegregation of

school faculty and that faculty

integration is essential to stu-

dent integration."

This is not a case of de jure racial

Segregation of students or teachers, We

submit that the above-quoted statement

has limited application only to cases of

-3l-

de jure racial segregation of public

schools.

2. IN THE ABSENCE OF A FINDING THAT THE

BOARD INTENTIONALLY DISCRIMINATED

RACIALLY AGAINST BLACK AND HISPANIC

TEACHERS AND APPLICANTS FOR EMPLOY-

MENT AS TEACHERS, THE MEMORANDUM OF

UNDERSTANDING BETWEEN OCR AND THE

BOARD, AND THE BOARD'S ACTIONS IN

CARRYING OUT ITS PROVISIONS, UNCON-

STITUTIONALLY DENIED TO THE PLAIN-

TIFFS THE EQUAL PROTECTION OF THE

LAWS, AND DEPRIVED THEM OF LIBERTY

WITHOUT DUE PROCESS OF LAW, BY RE-

VERSE RACIAL DISCRIMINATION.

The decision of the Trial Court

stated (A83-84):

"* %* * it is both unnecessary and

inappropriate to decide whether or

not the Board practices in question

would dictate a finding of discrim-

ination -- either under an ‘intent’

standard or an ‘effects' standard,

in violation of the constitution or

statutes. Rather, the sole purpose

of the presentation here is in con-

nection with the issues of fact and

law presented by this particular

case: whether, given all the evi-

dence, (1) the parties (and par-

ticularly the Board) could have

reasonably believed a violation of

the constitution or the statutes

could be shown; and (2) the measures

adopted by the agreement represent a

fair and reasonable effort to resolve

-32-

any such reasonably perceived viola-

tions of law." :

The judgment of the Trial Court stated

(A27-28) :

"The court does not decide if, in

fact, there was such discrimination,

This issue should not be decided on

the merits because such a decision,

in the context and posture of this

case, would me ypennnt voluntary

efforts toward compliance with

statutory and constitutional re-

quirements, It determined that,

under the circumstances, the com-

pliance agreement was a reasonable

and sensible way of voluntarily

settling the dispute between OCR

' amd the Board. Evidence presented

by the Board and the plaintiffs

rebutted, in several respects,

that presented by the federal de-

fendants and intervenors-defendants.

The evidence does support a reason-

able belief by the Board that be-

cause of the arguable violations

of Titles VI and IX and the four-

teenth amendment, it was desirable

and provident to enter into a re-

medial agreement eliminating these

violations. The Board reasonably

believed that a failure to enter

into an agreement with OCR would

involve substantial possibility of

a cut-off of millions of dollars

of federal aid, with attendant

serious disruption of the City's

educational system. However, the

Board reasonably believed that were

the federal government to seek in-

@33<

junctive relief from the federal

‘ ¢ourts against the challenged prac-

tices, the Board could have been

found to have discriminated in vio-

lation of Titles VI and IX and the

fourteenth amendment, with a re-

sulting decree far more drastic

than that agreed to."

Two judges in the Court of Appeals

(MANSFIELD, MESKILL, JJ.), decided the

appeal on a different ground from the

Trial Court, as follows:

"Caulfield argues that paragraph 6

[of the Memorandum of Gadexstand-

ing] requires the Board to hire

on the basis of a racial quota.

He contends that this is improper

when there has been no finding of

an intention to discriminate.

However, any claim that the Board

will use race as a factor in its

hiring decisions is, on this

record, purely conjectural and

therefore does not amount to a

‘case or controversy' under ar-

ticle III of the Constitution.

No teacher has alleged that the

Memorandum has affected the con-

sideration of his job application.

Appellant has not demonstrated,

as he must, that the threatened

injury of which he complains is

‘real and immediate', rather, it

is 'conjectural' and 'hypotheti-

cal.’ See O'Shea v. Littleton,

414 U.S. 488, 494 (1974); Golden

v. Zwickler, 394 U.S. 103, 108-10

(1969)."

-34-

At the trial, Dr. Theodore Lang, As-

sociate Superintendent of Schools in

charge of Personnel, his successor, Frank

Arricale, the Board's Director of Person-

nel, Marie De Canio, Assistant Director

of Personnel, and Gerald Brooks, a Per-

sonnel Officer, testified that immediately

after the Board signed the Memorandum of

Understanding on September 7, 1977, it

carried out its provisions for appoint-

ment and assignment of teachers on the

basis of their race to correct racial im-

balance in the employment and assignment

of teachers, by rehiring teachers whom it

had laid off for reasons of economy, and

assigning rehired white teachers to pub-

lic schools which had a majority of black

students, and assigning rehired black tea-

chers to schools which had a majority of

white students, by directing rehired

white teachers to select a school assign-

-35-

ment from a box which contained assign-

ments to public schools which had a major-

ity of black or Hispanic students; and by

directing rehired black and Hispanic tea-

chers to select a school assignment from

a box which contained assignments to pub-

lic schools which had a majority of white

students (A939-1058).

More than 4,000 white teachers de-

clined to be rehired and assigned to black

or Hispanic schools; and 800 rehired

white teachers who accepted assignment to

black schools later resigned. The Board

also offered employment to 10,000 persons

on open competitive eligible lists, most

of whom declined to accept employment as

teachers assigned to black and Hispanic

schools (A939-1058).

In making such assignments of rehired

teachers, the Board carried out a policy

which it said in its "Response" it would

°36-

carry out, as follows (A324):

"2, Teachers and supervisors on pre-

ferred lists who are recalled are to

be assigned by the Division of Per-

sonnel to foster the integration of

minority and non-minority personnel

and to correct any disparities of

experience, salary and educational

level in the distribution of person-

nel. There are now thousands of

teachers on preferred lists. As

vacancies occur and teachers are re-

called, they are assigned by the

Division of Personnel. In —

these assignments, integration o

staff and equalization of experience,

salary and education will be deter-

mining factors,"

Since 1977, the Board has continued

to assign rehired teachers, and newly hired

teachers, on the basis of their race, to

achieve and to maintain the racial quotas

prescribed in the Memorandum of Under-

standing.

We submit that since the Trial Court

expressly declined to find that the Board

intentionally discriminated racially

against black and Hispanic teachers and

applicants for employment as teachers, OCR

-37-

and the Board could not constitutionally

agree in the Memorandum of Understanding

on race conscious remedies to correct ra-

cial imbalance by hiring new teachers on

the basis of their race, and by assigning

to particular schools all teachers on the

basis of their race, in order to achieve

and to maintain the racial quotas pre-

scribed in the Memorandum of Understand-

ing. Regents of University of California

v. Bakke, 438 U.S. 265, 287 (1979); Vil-

dage of Arlington Heights v. Metropolitan

Housing Development Corp,, 429 U.S. 252,

265 (1977); Washington v. Davis, 426 U.S.

229, 245-246 (1976); Personne] Adminis-

trator of Massachusetts v. Feeney, 442

U.S. 256 (1979).

Under the heading "Teacher Assignment",

the decision of the Court of Appeals stated,

in part:

"Although teachers do have a cogniz-

able interest in avoiding transfer

-38-

within the system from one school to

another, Rodriguez v. Board of Educa-

tion, 620 F. 2d 362 (2d Cir. 1980),

the teachers' interest is a limited

one. Under Rodriguez, the teachers

have an interest, under title VII,

in being free from transfers that

‘constitute a serious professional

setback’ and that are made for im-

* proper reasons such as sex discrim-

ination."

In the absence of a finding of in-

tentional racial discrimination, Congress

expressly prohibited federal agencies

from requiring transfers of teachers to

overcome racial imbalance, by providing

in 20 U.S.C. section 1751:

"No provision of this Act shall be

construed to require the assignment

or transportation of students or

teachers in order to overcome racial

imbalance,"

In the absence of a finding of in-

tentional racial discrimination, the pro-

visions in the Memorandum of Understand-

ing for hiring and assigning teachers on

the basis of their race to achieve and to

maintain the racial quotas prescribed in

-39-

such Memorandum constitute unconstitutional

racial preference.

In Regents of University of California

v. Bakke, 438 U.S. 265, 307 (1979), the

Court said:

"Preferring members of any one group

for no reason other than race or

for its own sake. This the Con-

stitution forbids."

The collective bargaining agreement

between Kaiser Steel Company and the

Steelworkers Union, approved in United

Steelworkers v. Weber, 443 U.S. 193 (1979)

is not a precedent in this case, because

that case involved title VII of the 1964

Civil Rights Act, which does not require

a finding of intentional racial discrim-

ination, whereas this case involves title

VI of the 1964 Civil Rights Act, which

does require a finding of intentional

racial discrimination.

Moreover, in the Weber case, the

-40-

Court said:

"Since the Kaiser-USWA plan does not

involve state action, this case does

not present an alleged violation of

the Equal Protection Clause of the

Constitution."

In this case, unlike the Weber case,

the racial preferences provided in the

Memorandum of Understanding, and the

Board's actions in granting such prefer-

ences, constitute State action by the

Board, a State agency, and Federal action

by OCR, a Federal agency.

The constitutionality of the statu-

tory 10% set aside for minority contrac-

tors involved in Fullilove v. Klutznick,

100 S.Ct. 2758 (1980), was sustained on

the ground that in enacting the statute

the Congress made a legislative finding

that minority contractors had been sub-

jected to racial discrimination in the

awarding of governmental contracts, so

that the statute was based on a finding

-41l-

of racial discrimination. ;

Although OCR called the allegations

in its letter of November 9, 1976 "find-

ings" based on its investigation, the

Board disputed such "findings" in its

"Response"; and after trial of factual

issues presented by OCR's allegations, the

Trial Court declined to find that the

Board intentionally discriminated racially

in its hiring and assignment of teachers.

In these circumstances, the Weber and

Fullilove cases do not support the con-

stitutionality of the racial preferences

in the hiring and assignment of teachers

provided in the Memorandum of Understand-

ing; and they do not support the consti-

tutional power of OCR and the Board to

agree to such racial preferences in the

Memorandum of Understanding.

Although teachers do not have a con-

stitutional right to be assigned to work

42

in a particular school, or to be free from

transfer and reassignment to other schools

from time to time, they do have a consti-

tutional right to be free from transfer

and reassignment solely on the basis of

their race, just as they have a constitu-

tional right to be free from transfer and

reassignment solely on the basis of their

sex.

Race and sex do not provide any rel-

evant factual basis for transfer and as-

signment of teachers.

Those plaintiffs who are teachers are

personally affected by the provisions of

the Memorandum of Understanding for as-

signment of teachers to particular public

schools on the basis of their race, be-

cause they are subject to such assignment

at any time. Therefore, such plaintiffs

face a "real and immediate" injury from

reassignment on the basis of their race

-43-

under the Memorandum of Understanding.

In O'Shea v. Littleton, 414 U.S. 488,

496 (1973), the Court said that "past

wrongs are evidence bearing on whether

there is a real and immediate threat of

repeated injury",

The provisions of the Memorandum of

Understanding that teachers shall be hired

and assigned on the basis of their race to

achieve and to maintain employment of

black and Hispanic persons as teachers

“within a range representative of the

racial and ethnic composition of the

relevant qualified labor pocl" have been

in effect continuously since September 7,

1977. Plaintiffs, as members of local

community school boards, superintendents

of community school districts, principals

of public schools, and teachers in public

schools, have been subject to the provi-

sions of the Memorandum of Understanding

-44-

for hiring and assignment of teachers on

the basis of their race continuously since

September 7, 1977.

OCR pressed the Board to agree to the

Memorandum of Understanding by threatening

to cut off federal funds if the Board did

not agree to correct alleged racial dis-

crimination in its employment of black |

aud Hispanic teachers, and alleged sexual

discrimination in its employment of women.

In these circumstances, the plain- |

tiffs "will in fact be perceptibly harmed

by the challenged agency action". United

States v. Scrap, 412 U.S. 669, 688 (1972).

Joyce Lewis Shapiro, an intervenor-

plaintiff, made an affidavit that she was

subjected to racial discrimination by the

Board in its performance of its contractual

obligations under the Memorandum of Under-

standing, as follows (A366):

"4, At the commencement of the 1977-

78 school year, I was called to the

-45<

Board of Education hiring hall where

I selected a teaching assignment to

Community School District 22, Brook-

lyn, by drawing such assignment from

a box.

3. I reported to Community School

District 22 for assignment to a

specific elementary school within

that District but was told to re-

turn to the Central Board of Educa-

tion for reassi nt. I was told

that District 22 was rejecting my

assignment because I was white and

that District needed black teachers."

Those plaintiffs who are members of

community school boards or superintenderts

of community school districts have a direct

personal stake in the constitutionality of

the provisions of the Memorandum of Under-

standing for hiring and assignment of

teachers on the basis of their race, be-

cause they may be subject to personal

liability for damages for such unconsti-

cutional racially discriminatory actions.

In Board of Education v. Allen, 392

U.S. 236, 241 (1968), it was decided that

members of a school board had standing to

-46-

sue for judgment declaring unconstitutional

a statute directing school districts to

lend textbooks free of charge to students

in parochial schools. See, also: Baker

v. Carr, 369 U.S. 186, 204 (1962).

Those plaintiffs who are members of

community school boards, or superintendents

of community school districts, may be sub-

ject to personal liability for damages

for their personal participation in ac-

tions, in obedience to directives of the

Board, carrying out the provisions of the

Memorandum of Understanding that teachers

shall be hired and assigned to public

schools on the basis of their race to

achieve racial quotas or "goals" pre-

scribed in such Memorandum, if they knew,

or should have known, that their actions

would violate the constitutional rights

of persons affected thereby. Wood v.

Strickland, 420 U.S. 308, 322 (1975);

-47-

Scheuer v. Rhodes, 416 U.S. 232 (1973);

Bertot v. Sch t A Count

Wyoming, 522 F, 2d 1171 (10th Cir. 1975);

Simineo v. School Dist, #16, Park County,

Wyo., 594 F, 2d 1353 (10th Cir. 1979).

3. THE BOARD'S ANNUAL RACIAL CENSUS

OF TEACHERS UNCONSTITUT IONALLY

INVADED THEIR PRIVACY, AND DE-

PRIVED THEM OF LIBERTY AND PROP-

ERTY WITHOUT DUE PROCESS OF LAW.

The second decision of the Court of

Appeals in this case, dated September 22,

1980, did not discuss the constitutional-

ity of the racial census of teachers,

which was challenged in the complaint,

and by motion for preliminary injunction,

denial whereof was affirmed in the 1978

decision of the Court of Appeals.

In its first decision in this case,

583 F. 2d 605, the Court of Appeals af-

firmed the denial of plaintiffs' motion

for a preliminary injunction against a

racial census,

-48-

The Board required those plaintiffs

who are members of community school boards,

and superintendents of community school

districts, to make an annual racial census

" of teachers and to report to the Board the

race of each teacher employed in the com-

munity school district,

In F ove v. Klutznick, 100 S.Ct.

2758 (1980), the dissenting opinion of

Justice Stewart speaks of "the odious

practice of delineating the qualities that

make one person a Negro and make another

white",

Questions about the race of teachers

unconstitutionally invade the privacy of

teachers who are required to answer them,

and they unconstitutionally deny to them

the equal protection of the laws.

They also deprive members of commun-

ity school boards and superintendents of

community school districts of liberty and

-49-

property without due process of law, by

requiring them to compel teachers whom

they supervise to answer such unconstitu-

tional questions.

In Gibson v. Florida islative

Committee, 372 U.S. 539, 546 (1962), it

was decided that a legislative committee's

subpoena of records of membership in

N.A.A.C.P. unconstitutionally invaded the

privacy of persons named in membership

lists, and, also, caused harm to them

and to N.A.A.C.P.; and that the legis-

lative committee had shown no compelling

governmental reason for disclosure to it

of the membership lists of N.A.A.C.P.

A racial census of teachers violates

their most intimate personal privacy --

their right to be let alone -- without

being compelled to disclose their race.

Compare: Griswold v. Connecticut, 381

U.S. 479, 485-486 (1964); Roe v. Wade,

-50-

410 U.S. 113, 152-153 (1972); Whalen v.

Roe, 429 U.S. 589, 599 (1976); Stanley

v. Georgia, 394 U.S. 557 (1968); Cali-

fornia Bankers Assn, v. Shultz, 416 U.S.

21 (1973).

The Freedom of Information Act (5

U.S.C. section 522) excepts from dis-

closure:

(6) personnel and medical files

and similar files the disclosure

of which would constitute a

clearly unwarranted invasion of

personal privacy."

See: Metropolitan Life Insurance Co,

v. Usery, 426 F. Supp. 150, 168 (D.C.D.C.

1976).

Asking a teacher to disclose her

race, with her answer entered in a govern-

mental record, unconstitutionally invades

her privacy.

No substantial governmental interest

justifies the asking of the question, or

the compelling of the answer,

-51<

CONCLUS ION

THE PETITION FOR A WRIT OF CER-

TIORARI SHOULD BE GRANTED.

December 15, 1980

Respectfully submitted,

MORRIS WEISSBERG

Attorney for Petitioners

HAROLD F. HAY

of counsel

Footnote re Parties:

In addition to the parties named in the

caption of this Petition the United

Federation of Teachers (Albert Shanker,

et al.) was an Intervenor-Plaintiff who

participated in the appeal to the Court

of Appeals; and the Council of Super-

visors and Administrators, a labor

union of School Supervisors, was an

Intervenor-Plaintiff which withdrew

its appeal to the Court of Appeals

from the judgment dismissing its com-

plaint,

APPENDIX

la

QPINION AND JUDGMENT DATED SEPTEMBER 22, 1980

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SS ee

Nos. 733, 734, 1000—September Term, 1979

(Argued May 21, 1980 Decided September 22, 1980)

Docket Nos. 79-6191, -6193, -6201

> =

—_—

WILLIAM CAULFIELD, et ail.,

Plaintiffs-Appellants,

and

ALBERT SHANKER, et al.,

’ Intervendrs-Plaintiffs-Appellants,

and

THEODORE ELSBERG, et al,,

vA

be saat Intervenors-Plaintiffs,

v.

BOARD OF EDUCATION OF THE CITY OF

New YorK, IRVING ANKER,

Defendants-Appellees,

and

JOSEPH CALIFANO, JR., et ai.,

Defendants-Appellees,

5751

2a

ARTHun N. Eistymrec, Mew York Civil

Liberties Unicn, New York, New York

(Z. Richard Larson, American Civil

Liberties Unien, New York, New York.

Jeanne Silver Franti, Public Education

Appellees Coaliticn of Concerned Black

Educators.

= —_—

a

CAKES, Circuit Judge:

This appeal, yet another chapter in the litigation»

concerning hiring, assignment and promotion practices

in the New York City schcol system,' is from a fina!

judgment entered on July 17, 1979, in the United

States District Court for the Eastern District of New

York, Jack B. Weinstein, Judge, dismissing a complaint

raising constitutional and statutory objections to a

“Memorandum of Understanding” (Memorandum) be-

tween the Board of Educatien of the City of New York

(Board) and the Cffice for Civil Rights (OCR) of the

Department cf Health, Education and Welfare (HEW),.

The challenged Memorandum, executed on September

7, 1977, obligated the Board to change its teacher

employment and assignment policies in order to remedy

the discrimination found by an OCR investigation

1 See Board of Educ. v. Harris, 444 U.S. 130 (1978), affg 584 F.2d

576 (2d Cir. 1978); Board of Educ. v. Harris, 622 F.2d 599 (2d Cir.

1979), aff'g No. 78 C 2135 (E.D.N.Y. Dec. 22, 1978); Caulfield v.

Board of Educ., 583 F.2d 605 (2d Cir. 1978), aff'g in part and revg

in part 449 F. Supp. 1203 (E.D.N.Y. 1978); Board of Educ. v. Harris,

No. 79 C 3233 (E.D.N.Y. Feb. 21, 1980), appeal docketed, No. 80-

6050 (2d Cir. Apr. 29, 1980).

5754

3a

conducted pursuant to Tite VI of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000d to 2000d-6, and Title LS of

the Education Amendments of 1972, 20 U.S.C.

§§ 1681-1686. Shortly after the Memcrandum wes

signed, plaintiffs-appeilants, including a local school

board and teacizers allegedly affected by the agreement,

filed suit against the Beard, the State Commissioner cf

Education, and CCR, seelting declaratory and injunctive

relief against certain provisions of the Memorandum as

violative of the fifth and fourteenth amendments and

Titles VI and VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 200Cd, 200Ce-2. The district court permitted

the United Federation of Teachers, the Council of

Supervisors and Administrators, and others to inter-

vene as plaintiffs arfd permitted the Coalition of

Concerned Black Educators, Ronald Ross, the Public

Education Association, and the American Civil Liber-

ties Union to intervene as defendants.

In a previous chapter in the history of this litigation,

this court affirmed a denial of injunctive relief against

the enforcement of a provision of the Memorandum

requiring the collection of racial and ethnic data by the

Board. At the same time this court reversed the district

court's order remanding the case to HEW for further

proceedings in which plaintiffs-appellants would be

permitted to participate. Caulfield v. Board of Educa-

tion (Caulfield I), 583 F.2d 605 (2d Cir. 1978). We

found in that case that the Memorandum was

“voluntary” and that HEW, in seeking voluntary

compliance with Title VI before resorting to fund

termination, was not required to allow the plaintiffs-

appellants to participate in formulating the Memoran-

dum. Jd. at 612-15; see 42 U.S.C. § 2000d-1. We then

remanded for a hearing on the merits of the plaintiffs’

59755

4a

constitutional and statutory challenges to the Memo-

randum. The present appeal is from the district court’s

dismissal of plaintiffs’ complaints and the court’s

determinaticn that the Memcrendum is valid.

FACTS

As a recipient of federal funds, the Board must

comply with the nondiscrimination provisions of Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,’

Title IX of the Education Amendments cf 1972, 20

U.S.C. § 1681.° and their implementing reculaticns:* it

may not discriminate on the basis of race, color.

national origin or sex in education programs that

receive federal funds. OCR has the responsibility of

ensuring compliance through reviews, investigations

and complaint resolution. As we recounted in Caulfield

I, see 583 F.2d & n.3, the director of OCR advised the

Board by letter dated Nevember 9, 1976, that the

Board was not in compliance with Title VI because it

had (1) “denied minority teachers full access to

employment opportunity” by using racially discrimina-

tory selection and testing precedures and by using

2 42 U.S.C. § 200Cd provides:

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.

3-20 U.S.C. § 1681 provides in part:

(a) No person in the United States shail, on the basis of sex. he

excluded from participation in, be denied the benefits of. or be

subjected to discrimination under any education program or

activity receiving Federal financial assistance. . .

‘ _ The Title VI regulations are in 45 C.F.R. §§ 80.1-.13 (1979); the

Title IX regulations are in 45 C.F.R. §§ 86.1-.71 (1979).

5756

5a

racially identifiable employment pools in a way that

restricted placement, (2) assigned teachers and princi-

pals in a manner that created, confirmed and reinforced

racial identifiability of the system’s schools, and (3)

“assigned teachers with less experience, lower average

salaries and fewer advanced degrees to schools with

higher percentages of minority students.” OCR also

found the Board in violation of Title IX because it had

denied females equal access to supervisory positions,

provided less financial support for female athletic

programs, and deprived female teachers of seniority

rights and other compensation by failing to eliminate

the effects of past discriminatory leave policies. ~

Ten months of negotiation ensued. During this time

the Board’s Deputy Chancellor Bernard Gifford chaired

an internal committee reviewing and evaluating OCR’s

allegations. What is known as “the Gifford Report”

substantiated and confirmed many of OCR’s findings,

although it denied any discriminatory intent on the

part of the Board. See Caulfield I, 583 F.2d at 609 n.5.

The Board itself on April 22, 1977, suggested

affirmative efforts to equalize employment opportuni-

ties. See id. at 608. OCR rejected this propcsed

compliance plan but further negotiations resulted in the

promulgation of the September Memorandum of

Understanding challenged in this lawsuit. The Memo-

randum establishes a three-year plan to comply with

Title VI and Title [IX throygh affirmative action. We

have set out in the margin key provisions of the

agreement as they are reported in Judge Weinstein’s

memorandum opinion.°

5 1. Not later than September of 1979. the teacher corps of each

District in the system will reflect, within a range of five percent,

the racial-ethnic composition of the system's teacher corps as a

5757

6a

THE PROCEEDINGS BELOW

In appellants’ complaint they alleged that HEW

lacked Title VI jurisdiction to investigate the Board’s

whole for each educational level and categery, subiect only to

educaticn-based program exceptions.

2. Not later than September of 1980, each individual school in

the system will reflect. within a range of five percent, the racial-

ethnic composition of the system's teacher corps as a whole for

each educaticna! level and category. subject only to educationally-

based program exceptions.

3. The Beard of Educaticn will demonstrate to the Cffice for

Civil Rights, subject to prescribed review. that any failure to meet

the commitments set forth in paragraphs one and two herecf

results from genuine requirements of a valid educational

program. In addition, the Board will demonstrate that it has -..

made and ‘is continuing to make special efforts to overcome the

effects of educationally-based program exceptions through effec-

tive use of such mechanisms as recertification, recruitment and

special assignment of teachers.

4. The Board... . will adopt and implement the following

affirmative action procedures, and will sponsor and actively

support state legislation at the next session of the Legislature

where necessary to accomplish these ends.

(a) Any test used henceforth to determine whether a person is

qualified for a teaching position in the system shall be validated

prior to its being administered: except that in cases of

demonstrable educational necessity . . . a test may be used prior

to its validation for temporary assignments, provided that

validation shail be accomplished as soon as practicable... .

(b) All existing eligibility lists by license shall be combined, and

the names of all persons contained thereon shall be merged with

the names of any persons who have passed any new tests, without

regerd to the dates of examinations.

(c) Rank ordering of persons who have passed examinations for

the system shall be abolished.

(d) In employing and assigning teachers pursuant to these

modified standards and procedures, the Board ... will

implement affirmative action mechanisms found to be appropri-

ate, such as, for example, giving hiring preferences to all eligible

persons with prior experience in the system.

(footnote continued on next puge) .

5758

7a

employment practices because under 42 U.S.C.

§ 2000d-3* HEW can take such action only with reszect

to programs in which providing employment is a

“primary objective of the Federal financial assistance.”

They further alleged that the agreement’s remedial

measures are impermissible absent a formal administra-

tive or judicial finding of intentional discrimination and

that the evidence does not support a finding of

intentional discrimination. Cf. Lora, v. Board of

Education, No. 79-7521, slip op. 3253 (2d Cir. June 2,

5. The Board . . . agrees that, in the event that the above-

described legislation is not adopted so as to govern employment

decisions for the 1978-79 school year, the Board will seek

appropriate litigation in support of the agreed objectives.

pursuant to methodology and standards agreed to by the parties.

Through the adoption and implementation of the affirmative

action proced and legislation provided in paragraph 4... .

and other efforts . . . the Board commits that by September of

1980, the levels of minority participation in the teaching and

supervisory service will be within a range representative of the

racial and ethnic composition of the relevant qualified labor pool.

implemented the provisions of this agreement in a good faith

effort to meet the commitment made herein.

\

6 42 US.C..§ 2000d-3 provides:

Nothing contained in this subchapter shall be construed to

authorize action under this subchapter by any department or

agency with respect to any employment practice of any employer,

employment agency, or labor organization except where a primary

objective of the Federal financial assistance is to provide

employment.

5759

8a

1980) (intenticral discriminaticn required to make out

a violation cf Title VI). Appellants also contended that

the Memorandum, by requiring teacher assignments on

the basis cf race, established a “quota system” in

violation of a number of statutes, including Titles VI

and VII of the Civil Rights Act of 1964, and the fifth

and fourteenth amendments.

The district court held that HEW had jurisdiction to

investigate and seek compliance under the authority of

45 C.F.R. § 80.3(cX(3) (1979),” a Title VI regulation

7 45 C.F.R. § 80.3(c) provides in part:

Empiovment practices. (1) Where a primary objective of the

Federai financial assistance to a program to which this regulation

applies is to provide employment, a recipient may not (directly or

through contractual or other arrangements) subject an individual

to discrimination on the ground of race, cclor. or national origin

in its employment practices under such program (including

recruitment or recruitment advertising, employment. layoff or

termination, upgrading, demotion, or transfer. rates of pay or

other forms of compensation, and use of facilities), including

programs where a primary objective of the Federal financial

assistance is (i) to reduce the employment of such individuals or

to help them through employment to meet subsistence needs, (ii)

to assist such individuals through employment to meet expenses

incident to the commencement or continuation of their education

or training, (iii) to provide work experience which contributes to

the education or training of such individuals, or (iv) to provide

remunerative activity to such individuals who because of

handicaps c2nnot be readily absorbed in the compe{tijtive labor

(3) Where a primary objective of the Federal financial

assistance is not to provide employment, but discrimination on

the ground of race, color, or national origin in the employment

practices of the recipient or other perscns subject to the

regulation tends, on the ground of race, color, or national origin.

to exclude individuals from participation in. to deny them the

benefits of, or to subject them to discrimination under any

program to which this regulation applies, the foregoing provisions

of this paragraph (c) shail apply to the employment practices of

the recipient or other persons subject to the regulation. to the

extent necessary to assure equality of opportunity to. and

nondiscriminatory treatment of, beneficiaries.

5760

9a

authorizing oversight of the employment practices of a

recipient of federal funds when such practices have a

discriminatory impact upon direct beneficiaries of the

federal funds, in this case, the students themselves.

Here, HEW had alleged that the Beard’s employment

practices have such an effect because discrimination in

teacher hiring and assignment has deprived students of

equal educational opportunity both by reinforcing the

racial identifiability of schools ard, in some cases, by

resulting in the assignment of less qualified or

experienced teachers to ~redcminantly minority

schools. The district court-found that discrimination by

race in the hiring and assignment of teachers or

supervisors constitutes discrimination against students.

In addition, the court rejected the argument that the

Memorandum must be invalidated in the absence of a

finding of intentional discrimination. Instead, it upheld

the agreement, stating that the issue was really

whether the parties entering into a Title VI or Title IX

remedial plan had a reasonable belief that the practices

at issue might result in liability, whether the remedial

measures adopted are reasonable in view of the

perceived liability, and whether the measures violate

statutory or constitutional rights.

DISCUSSION

Jurisdiction

\

We agree with the court below that Title VI

enforcement procedures apply to the Board’s teacher

hiring and assignment practices and that HEW

therefore had jurisdiction to investigate and seek

compliance. Appellants rely upon section 604 of the

Civil Rights Act of 1964, 42 U.S.C. § 2000d-3, the

5761

10a

section which authorizes edministrative action under

Title VI with respect to employment practices only

when a primary cbjective of federal funding is to

provide employment.’ Their argument is similar to the

one advanced in 1978 by appellants in Caulfield I, 583

F.2d at 610-11. There the argument was made to

oppose the collecting of statistics regarding the ethnic

and racial composition of the teaching staff. We found,

however, that CCR’s charging letter to the Board of

Nevember 9, 1976, “specifically noted that its concern

with discriminatcry employment practices was mcti-

vated by the unfortunate effect that these practices

exercise on minority schoolchildren.” Jd. at 611.

Accordingly, we held that OCR’s investigation was ~

within the bounds of 42 U.S.C. § 2000d, which outlaws

discriminaticn in federally funded programs, and not

42 U.S.C. § 200Cd-3, because “the objective of OCR’s

investigation was to alleviate discrimination against

minority schoolchildren and not against minority

teachers as such.” 583 F.2d at 611. We see no reason to

depart from our holding in that case. Indeed, we are

bound by it, but even if we were not, we would agree

with the Fifth Circuit decisicn in United States uv.

Jefferson County Board of Education, 372 F.2d 836,

882-86 (5th Cir. 1966) (Wisdom, J.), aff'd en banc, 380

F.2d 385 (5th Cir.) (per curiam), cert. denied, 389 U.S.

840 (1967), that section 2000d-3 does not bar an action

requiring desegregation of school faculty and that

faculty integration is essential to student integration.

See also Marable v. Alabama Mental Health Board, 297

F.Supp. 291, 297-98 (M.D. Ala. 1969) (three-judge

court}-(Johnson, J.).

8 See note 6 supra.

5762

lla

Appellants aiso argue that HEW lacked jurisdiction

under Title [IX to investigate the school system’s

employment practices. Again, we agree with the lower

court that the government could reasonably proceed cn

the theory that a schcol system’s discrimination against

women in access to supervisory positions would have a

discriminatory effect on students, the direct henefi-

claries of the federal aid. See Islesboro School

Committee v. Califano, 593 F.2d 424, 430 (1st Cir.

1979), cert. denied, 100 S. Ct. 467 (1980).

Teacher Assignment

The author of this opinion would be content to affirm

the holding concerning the validity of the Memorandum

on the same ground relied on by Judge Weinstein

below, viz., that the affirmative remedies required

under the Memorandum of Understanding were reason-

able in light of the parties’ reasonable belief that the

practices at issue might result in liability under Titles

VI and [X and under the Constitution. As early as 1958

a New York state court found that teacher assignment

practices were racially discriminatory and that such

practices had a discriminatory effect on students. Jn re

Skipwith, 14 Misc. 2d 325, 180 N.Y.S.2d 852 (Dom.

Rel. Ct. 1958). As the district court in the present case

noted, since 1951 virtually every commission, agency

and consulting firm reviewing the Board of Examiners’

system of competitive examinations for teachers has

called for its “substantial reform or abolition... .A

chief reason for this criticism has been that the system

tended to discourage minority teachers from applying

and to screen them out.” In Caulfield I we discussed

OCR’s and the Board’s own findings concerning the

denial of full access to employment opportunity to

5763

12a

minorit; teachers, the creaticn and reinfercement of

racial identifiability of schools by the placement of

teachers, and the assignment of minority teachers with

less experience, !cwer salaries and fewer advanced

degrees to predominantly minority scheols. See 583

F.2d at 6C8-C9 & nn. 3 & 5.

In upholding the validity cf the Memorandum, the

district court compared this voluntary agreement to

remedy pessible Title VI and Title IX violations to the

voluntary agreement tc remedy pessible Title VI

violations upheld in United Steelworkers of America v.

Weber, 443 U.S. 193 (1979).. The argument for

upholding a voluntary affirmative action plan is even

stronger in this case than it was in the Weber case, for

here HIW itself initiated the investigation and notified

the Board of alleged Title VI and Title IX viclations. Cf.

Weber, 443 U.S. at 204 (Title VII does not prohibit

private parties from ‘voluntarily taking steps to comply

with Title VII); Regents of the University of California

v. Bakke, 438 U.S. 265, 301-02 & n.41 (1978) (Powell,

J.} (racial preferences may be upheld against constitu-

tional attack when based on findings by administrative

body charged with monitoring compliance with antidis-

crimination statutes). In fact, both Title VI and Title IX

require the government to seek voluntary compliance

before terminating funds or taking other steps to

enforce compliance. See 42 U.S.C. § 2000d-1; 20 U.S.C.

§ 1682. Under the circumstances of this case, we agree

with the district court that the voluntary agreement

between OCR and the Board, though possibly affecting

the interests of teachers and others who did not

participate in its formulation, is 4 reasonable and valid

effort by the Board to comply with Titles VI and IX.

5764

13a

My colleagues, however, rest their decision cn a

different ground and do not reach the questicn that the

court below and I consider. Their view is that the cere

in its present posture does not contain an allecaticn

that any individual’s “liberty or privacy interests” have

been invaded by state action. They recognize that Mr.

Justice Powell’s determinative opinion in Regents of

the University of California v. Bakke, 438 U.S. 265

(1978), requires that every person has a right to

treatment as an individual, free from the adverse

consequences of race- cr sex-conscious remedies unless

there has been a pricr administrative, legislative or

judicial determination of intentional discrimination

against the particular group to be benefitted by the

affirmative action plan. Of course, no such finding has

been made in the present case.

The absence of such a finding, however, does not

invalidate the Memorandum. Although teachers do

have cognizable interest in avoiding transfer within the

system from one school to another, Rodriguez v. Board

of Education, 620 F.2d 362 (2d Cir. 1980), the teachers’

interest is a limited one. Under Rodriguez, the teachers

have an interest, under Title VII, in being free from

transfers that “constitute a serious professional set-

back” and that are made for improper reasons such as

sex discrimination. See Id. at 365-66. To be sure, the

Rodriguez court identified the right involved as a

statutory one, Bakke requires a finding of discrimina-

tion before any state action invading a “liberty or

privacy interest” of an individual, from whatever source

derived.

There is no reason to think, my colleagues’ position

continues, that transfers traceable to the OCR-Board

Memorandum of Understanding will in any particular

5765

l4a

case constitute a “serious professional setback.” Until

an individual teacher alleces such harm, there is

nothing, in their view, to trigger Bakke’s requirement

of prior findings of discrimination. The simple expecta-

tion of being assigned to a particular scheo! within the

System is net, then, a right pretected under Title VI,

Title CX cr the Cozstitution.

Hiring Goals

Appellant Caulfield alone challenges paragraph 6 of

the Memcrandum. That paregrarh has two compo-

nents, the first requiring the Beard to perform “a study

of the relevant qualified labor pool by race, ethnicity

and sex,” and the second requiring the Board, through*

the adoption and implementation of affirmative action

procedures, the support and sponsorship of legislation

described in paragraph 4 of the Memorandum and other

efforts, to achieve levels of minority participation in

the teaching and supervisory service “within a range

representative of the racial and ethnic composition of

the relevant qualified labor pool.” :

We agree with the district court that HEW did have

authority to require a census of the labor pool for the

same reascn, discussed above, that it had authority to

investigate and seek compliance. Caulfield argues that

paragraph 6 requires the Board to hire on the basis of a

racial quota. He contends that this is improper when

there has been no finding of an intention to

discriminate. However, any claim that the Board will

use race as a factor in its hiring decisions is, on this

record, purely conjectural and therefore does not

amount to a “case or controversy” under article III of

the Constitution. No teacher has alleged that the

5766

1l5a

Memorandum has affected the consideraticn of his job

application. Appellant has not demonstrated, as he

must, that the threatened injury of which he complains

is “real and immediate;” rather, it is “conjectural” and

_ “hypothetical.” See O'Shea v. Littleton, 414 US. 488,

494 (1974); Golden v. Zwickier, 394 U.S. 102, 108-10

(1969). Indeed, until the Beard completes a labor pool

study that is acceptable to CCR, the extent of the

Board’s obligations will not begin to be determined.

Appeilants themselves have argued that the Board’s

teaching corps is already within a range representative

of the qualified labor pool. If this is true, the Board wil]

not be required to take any action under paragraph 6,

much less the kind of race-conscious hiring that

Caulfield challenges. Because the court may not

entertain purely hypothetical cases, Caulfield’s chal:

lenge must be dismissed.

Judgment affirmed.

5767

l6a

S

@

DATED SEPT. 5, 1978

William CAULFIELD et al., Appellants,

Vv.

The BOARD OF EDUCATION OF the

CITY OF NEW YORK et

al., Appellees.

Nos. 1144 to 1149, Dockets 78-6035,

78-6044, 78-6058, 78-6066, 78-0080

78-6081 and 6141.

United States Court of Appeals,

Second Circuit.

Argued June 19, 1978.

Decided Sept. 5, 1978.

Morris Weisber_, New York City (Harold

F. Hay, New York City, of counsel), for

appellant-cross-appellee.

Leonard Greenwald, New York City

(Gretchen White Oberman, Lewis, Green-

wald & Oberman, New York City, of coun-

sel), for intervenor-appellant-cross-appellee.

Jessica D. Silver, Washington, D. C.

(Drew S. Days, III, Asst. Atty. Gen. of the

United States, Brian K. Landsberg, Cynthia

L. Attwood, Dept. of Justice, Washington,

D. C., David G. Trager, U. S. Atty. for the

Eastern District of New York,’ Richard P.

Caro, Asst. U. S. Atty., Brooklyn, N. Y., of

counsel), for appellee-cross-appellant.

Arthur Eisenberg, New York City (E.

Richard Larson, Carol L. Ziegler, New York

Civil Liberties Union, Robert H. Hermann,

M. L. Taracido, Puerto Rican Legal Defense

and Education Fund, Inc., New York City,

of counsel), for appellee-cross-appellant.

17a

Doron Gopstein, Asst. Corp. Counsel (Al-

len G. Schwartz, Corp. Counsel! of the City

of New York, New York City, of counsel),

for appellee New York City.

Nathaniel R. Jones, James I. Meyerson,

New York City, Coalition of Concerned

Black Educators, for intervenor-appellees-

cross-appellants.

Before OAKES and VAN GRAAFEI-

LAND, Circuit Judges, and PIERCE, Dis-

trict Judge.*

OAKES, Circuit Judge:

On this consolidated appeal, the parties

challenge two separate orders of the United

States District Court for the Eastern Dis-

trict of New York, Jack B. Weinstein,

Judge. The firs: is an order of February

24, 1978, denying the motion of plaintiffs-

appellants (appellants) who are New York

City teachers, principals, community school

board officials and parent-teacher associa-

tion officials, for a preliminary injunction

to prevent city, state and federal officials,

defendants-appellees (appellees), from col-

lecting data on the ethnic identification of

teachers and supervisors. Appellants ap-

peal the denial of the preliminary injunc-

tion against data collection. In the second

order, dated March 15, 1978, Judge Wein-

stein sua sponte remanded the case to the

Department of Health, Education & Wei-

fare (HEW) for further administrative [2

ceedings to afford appellants and other .n-

terested persons the opportunity to partici-

pate in the administrative proceeding. The

federal appellees have cross-appealed from

the order remanding the proceedings to

HEW. ;

-,

18a

. With respect to the order denying the

- injunction against data collection, we hold

- that the district court did not abuse its

-. diseretion in refusing to halt the collection

- of ethnic data on teachers and supervisors.

We further hold that in its second order the

district court erroneously remanded the

case to HEW for further proceedings. Ac-

cordingly, we affirm the district court’s or-

_ der of February 24, 1978, but reverse its

* order of March 15, 1978.!

vi. I. Background

At this stage of the proceedings, no facts

; have been found, no stipulation of undisput-

32 ed facts agreed upon, no evidentiary record

developed. For purposes of the appeal,

however, we will rely, as the district court

did, on documents appended to various

pleadings. These’ documents reveal that

the principal subject of this lawsuit is a,

September 7, 1977, Memorandum of Under.’

standing (Memorandum) between the Of-

fice for Civil Rights (OCR) at HEW on the

one hand and the Board of Education ofthe

City of New York (City Board) on the oth-

er. The Memorandum obligated the City

Board to alter certain teacher and supervi-

sor employment and /Assignment practices

and to remedy the « pocriminatory effect of

those practices on £ phased basis by 1980.

For its part, OC agreed that the City

Board’s promised de‘ions would constitute

compliance with Title VI of the Civil Rights

Act of 1964, 42 U.S.C. § 2000d et seq., and

Title IX of the Education Amendments of

1972, 20 U.S.C. §§ 1681-86,2

The process leading up to negotiation of

the Memorandum was set in motion on

(Footnotes follow at end of judgment.)

19a

March 18, 1976, when the acting dircetor of

OCR wrote to the Chancellor of the City

Board to notify him that OCR had received

several complaints of discrimination by the

City Board against minority teachers. The

letter further informed the Chancellor that

OCR would conduct a review of employ-

ment practices in the New York City school

system to evaluate compliance with laws

barring discrimination in federally financed

programs. Following investigation, OCR

informed Chancellor Anker by letter of No-

vember 9, 1976, that the City Board was in

violation of Section 601 of the Civil Rights

Act of 1964, 42 U.S.C. § 2000d, and Section

901 of the Education Amendments of 1972,

20 U.S.C. § 1681.2 That letter discussed the

City Board's employment practices, includ.

ing its discriminatory methods of selection

and assignment of teachers, called for sub-

mission of a remedial plan, and concluded

by offering assistance in preparing the

plan. Affidavits on file indicate that, at or

about the same time, the OCR director ut-

tended a well publicized Public briefing at

which he explained OCR’s findings and in-

vited comments from those in attendance

and from the community at large.

OCR’s letter of November 9 prompted the

establishment of an internal City Board

committee to examine OCR’s allegations.

As part of its study, this committee consult-

ed a number of organizations, including

some of those participating in this lawsuit

as intervenors or amici curiae. On April

22, 1977, before the internal committee had

completed its study, the @ity Board for-

warded to OCR its response to the Novem-

ber 9 letter. Without admitting any viola-

tion of law, the City Board expressed its

determination to rectify “disparate employ-

ment opportunities” and proposed an equal

20a

employment opportunity plan to “insure

equality of opportunity and avoidance of

discrimination.”, The City Board's plan

suggested affirmative efforts to increase

the number of minority teachers, to im-

prove integration of the teaching staff, and

o correct, disparities of experience, salary

and educational level in the distribution of

personnel. The plan also advocated goals

for integration of faculty based upon a nu-

merical index, logislative replacement of

rank order lists with qualifying lists for

wwacher selection, and a new system of

teacher certification and selection. How-

ever, OCR found the plan insufficient and .

notified the City Board on July 6, 11/77, that

it was principally concerned with the lack

of specificity in the City Board’s response,

Just prior to OCR’s rejection of the City

Board's plan, the report of the internal City

Board committee (the “Gifford Report”)

was published. The Gifford Report fur-

nished documentary confirmation of the

discriminatory and segregative nature of

the City Board's employment practices.$

This report may well have exerted some

considerable influence in the City Board’s

ultimate decision to conclude the Memoran-

dum with OCR.

In negotiating the Memorandum, the City

Board requested that the United Federation

of Teachers (UFT), though not the other

parties, be consulted on the terms of the

agreement. The UFT was consulted and it

agreed to support the adoption of legisla-

tion necessary to effectuate the Memoran-

dum. In a press release the City Board

hailed the agreement for having been

reached “without resort to the courts or

other confrontations that might have polar-

ized our city.” The release further describ-

ed the Memorandum as an agreement

which carries forward the existing affirma-

tive action program and accepts a “commit-

2la

ment based on applicable standards of law.”

After the Memorandum was signed but pri-

or to ratification, the City Board held a

public meeting on October 19, 1977, with

two weeks’ advance notice. Thereafter, the

City Board ratified the Memorandum by

resolution,

On October 31, 1977, the appellants * filed

this action seeking a declarationthat cer-

tain provisions of the Memorandum were

unconstitutional, illegal and invalid. They

also sought an injunction against the en-

forcement of those provisions and against

requiring the appellants to provide data on

the ethnic background of teachers and su-

pervisors. Appellants sought summary

judgment or a preliminary injunction. Af-

ter a hearing, the district court by order of

February 24, 1978, ruled only on that part

of the motion for a preliminary injunction

which sought to enjoin the collection of

ethnic data and denied relief.’ A notice of

appeal was filed. This court denied an in-

junction pending appeal but expedited the

appeal.

By the same order, the district court sua

sponte directed that the pleadings of all

plaintiffs be amended to include a claim

that their constitutional and statutory

rights were abridged by OCR’s fuilu~: “to

afford them and other interested persons

the opportunity . . . to participate in

the administrative proceedings.” The dis-

trict court then ordered all parties to ap-

pear‘on March 7, 1978, to show cause why

the action should not be remanded for

OCR'’s failure to afford such participation.

At the March 7, 1978, hearing no party

requested a remand but rather each sought

to have the proceedings continue in the

district court so that the district judge

might decide the legality of the Memoran-

dum. However, on March 15, the court

22a

ordered the agreement vacated and re-

manded the case to OCR. It also ordered

the City Board relieved of its obligations

under the Memorandum, denied all pending

motions as moot with leave to renew, and

stayed all proceedings pending completion

of the administrative hearings on remand.

This appeal followed.®

II. Discussion

A. Denial of the Preiiminary Injunction

Against Collection of Ethnic Data

Plaintiffs sought to enjoin the mandatory

answering of éthnic questionnaries. These

questionnarics were distributed to the

school system's community school districts.

All supervisors and teachers employed in

the city’s public schools were required to

answer questions’ pertuininy to their race,

color, sex and national ovigin. In denying

appellants’ motion in the February 24 order,

the district court mude no findings of fact

or conclusions of law, although it did note

that there is a clear right and obligation of

authorities to guther data in order to deter-

mine, inter alia, whether there has been

unlawful discrimination,

{1} This court hus recently clarified the

standard for issuance of preliminary in-

junction: there must be u showing of possi-

ble irreparable injury und vither (1) proba-

ble success on the merits or (2) sufficiently

serious questions going to the merits to

make them a fair ground for litigation and

a balance of hardships tipping decidedly

toward the party requesting the prelimi-

nary relief. Selchow & Righter Co. vy.

McGraw-Hill Book Co., No. 77-7569, slip op.

at 3533, 3537, 580 F.2d 25 at 27 (2d Cir.

1978); Triebwasser & Katz v. American

Telephone & Telegraph Co., 535 F.2d 1356,

1358 (2d Cir. 1976); see Mulligan, Fore-

word—Preliminary Injunction in the

23a

Second Circuit, 43 Brooklyn L.Rev. 831,

832-33 (1977). Since appellants neither

presented nor sought to present any evi-

dence in support of their motion for a pre-

liminary injunction, all that the district

court had before it was a question of law.

Absent any evidence, the district court

could not conclude that the appellants were

likely to suffer irreparable injury, much less

that the balance of hardships weighed de-

cidedly in their favor. See Gillespie & Co.

of New York v. Weyerhaeuser Co., 533 F.2d

51, 53 (2d Cir. 1976) (per curiam).

Moreover, appellants have failed to show

that they are likely to succeed on the mer-

its. See id. They argue, first, that because

the agreement between OCR and the Board

was vacated by the district court, any ra-

cial/ethnic survey to be conducted in con-

jurction with the Memorandum is invalid.

However, they have. made no showing that

the survey of the ethnic composition of the

existing staff of the school system would

only be conducted hecause the Memoran-

dum provided for it. Indeed, for all that

appears in the record, this survey is one

routinely conducted by the City Board as

part of its annual school census.

(2) Appellants ulso argue that because

Title VI does not prohibit racial/ethnic dis-

crimination in employmen. where providing

employment is not a primary objective of

federal aid, 42 U.S.C. § 2000d-3,9 OCR cun-

not lawfully seek statistics regurding the

ethnic and racial composition of the teach-

ing staff. However, appellants have mis-

characterized the nature of the OCR inves-

tigation. The charging letter of November

9, 1976, specifically noted that its concern

with discriminatory employment practices

was motivated by the unfortunate effect

that these practices exercise on minority

7"

24a

schoolchildren: “{B]y assigning teachers to

schools in such a manner... .. [; mi-

nority children are generally taught by

teachers with less experience, lower salary

and fewer advanced degrees.” According-

ly, OCR’s investigation falls within the pa-

rameters of 42 U.S.C. § 2000d,'® and not 42

U.S.C. § 2000d-3, see note 9 supra, since the

objective of OCR’s investigation was to al-

leviate discrimination against minority

schoolchildren and not against minority

teachers as such." In the context of this

OCR investigation, then, the collection of

racial and ethnic data is authorized by Title

VI."2 See United States v. Jefferson Coun-

ty Board of Education, 372 F.2d 836, 882-84

(5th Cir. 1966), aff'd, 380 F.2d 385 (5th Cir.)

(en banc), cert. denied, 389 U.S. 840, 38

S.Ct. 67, 19 L.Ed.2d 103 (1967).

[3] Appellant’s additional arguments

that the proposed census would violate oth-

er federal statutes and the Constitution are /

unpersuasive. The Privacy Act of 1974, 5

U.S.C. § 552a, is invoked but it does not

prohibit the collection or retention of such

data in this context. Title VI and its regu-

lations authorize the collection of staff data

which in turn is permitted to be maintained

under 5 U.S.C. § 552a(e)(1)."3 Nor does the

Equal Education Opportunities Act, 20

U.S.C. § 1751, prohibit the collection of

racial and ethnic staff data. At this stage

of the record, where it does not appear

whether or not teacher and supervisor as-

signments in the New York public schools

violate Title VI, plaintiffs’ assertion that

these practices are not violative cannot be

taken as fact. Thus any suggestion that

OCR’s actions are directed at overcoming

simple racial imbalance is premature.

[4] Finally, the Constitution itself does

not condemn the collection of this data. Cf.

United States v. State of New Hampshire,

25a

939 F.2d 277, 280-82 (1st Cir.) (.izholding as

constitutional a requirement pursuant to

§ 70%c) of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-8c), that the

State provide racial and ethnic employee

data to the federal government on an

EEO-4 form), cert. denied, 429 U.S. 1023

(1976). The one-sentence argument that

the census produces a Fourth Amendment

violation is frivolous; there is no search or

seizure here involved. Nor is there a viola-

tion of the constitutional right of privacy of

teachers and principals within Griswold v.

Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14

L.Ed.2d 510 (1965), or Roe v. Wade, 410

U.S. 118, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

See Note, On Privacy: Constitutional Pro-

tection for Personal Liberty, 48 N.Y.U.L.

Rev. 670, 673-78, 697-701, 770-72 ( 1973);

cf. Whalen v. Roe, 429 U.S. 589, 97 S.Ct.

869, 51 L.Ed.2d 64 (1977) (statute requiring

submission of form with patient’s name to

State Vepartment of Heaitn in’ case of cer-

tain prescription drugs not unconstitution-

al); Schachter v. Whalen, 581 F.2d 35 (2d

Cir. 1978) (statute granting power to sub-

poena medical records from doctor under

investigation by State not unconstitutiona)).

B. District Court Remand to HEW

[5] The federal appellees, as cross-appel-

lants, argue strenuously that the district

court erred in sua sponte remanding the

case to HEW.'5 We agree.

[6] Section 602 of Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d-1,'*

provides for three types of action to secure

compliance with the substantive provisions

of Section 601, 42 U.S.C. § 2000d:!7 (1)

refusal to grant or termination of assist-

ance, (2) other means authorized by law

such as a reference to the Department of

Justice, 45 C.F.R. § 80.8(a); * and (3) volun-

26a

tary means. Where the agency scers to

compel compliance through terminatien of

funds or other means, Section 602 requires

that the agency proceed by formal means

including an adr-inistrative hearing at

which a record is made. Before doing so,

however, HEW must attempt to secure

compliance by voluntary means. 42 U.S.C.

§ 2000d-1; see note 16 supra.’

While HEW's regulations specify a varie-

ty of procedures to effectuate fund termi-

nation,” they do not provide for public par-

ticipation or a hearing when HEW cts

informally." In addition, pursuant to ix-

ecutive Order 11764 of January 21, 1974,

granting the Attorney General authority to

prescribe standards and procedures for Title

VI enforcement, the Attorney General has

adopted regulations which provide simply

that any agreement to “take remedial ‘steps

. Shall be set forth in writing by

the recipient and the federal agency{,]. .

specify the action necessary for the corréc-

tion of Title VI deficiencies and eo

be available to the public.” 28 CFR

§ 42.411(b). No other procedures, such as a

hearing or public participation, are re-

quired. These regulations are entitled to

some weight in construing the meaning of

Title VI. See Lau v. Nichols, 414 U.S. 563,

566-69, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974);

Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct.

792, 13 L.Ed.2d 616 (1965).

Because HEW did not seek compliance by

fund termination, but rather by a voluntary

agreement, HEW was not required to af-

ford cross-appellecs an opportunity to par-

ticipate. The action taken here to effect

compliance was precisely the type of action

contemplated by Congress in using the

phrase “voluntary means.” 42 U.S.C.

§ 2000d-1; see note 16 supra.

27a

Nevertheless, the district court held that

Participation was mandatory on the basis

that the agreement was not voluntary.

The principal reason for the district court’s

finding of involuntariness was that the’ City

, along with the City as a whole, was

in the midst of a fiscal crisis and presuma-

bly could not afford a fund termination

while it litigated the issue of Title VI com-

pliance. But the only fund termination

sought by HEW related not to Title VI

funds but to Emergency School Aid Act

funds. To be sure, a threat of potential

fund termination lurked in the background

since without such leverage voluntary com-

pliance might possibly never be achieved.

And after all, if there is lack of compliance,

HEW is obligated to enforce the statute

ultimately by terminating funds. Adams v.

Richardson, 156 U.S.App.D.C. 267, 271, 480

F.2d 1159, 1163 (1973).2 Undoubtedly then

- there is a certain amount of .coercion inher-

ent in the enforcement scheme. See United

States v. Jefferson County Board of Ei.uca-

tion, supra, 372 F.2d at 856 (quoting Report

of the United States Commission on Civil

Rights, Survey of School Desegregation in

the Southern and Border States—1965~

1966,; 2).

Undercutting any actual coercion, how-

ever, are several. points. The City Board’s

own study, the Gifford Report, confirmed

the conditions cited in the November 9 let-

ter from OCR. Moreover, the City Board’s

press release indicated that the agreement

had been reached in a spirit of cooperation.

And of course, the lack of participation by

the Council of Supervisors and Administra-

tors (CSA) cannot render a voluntary

agreement involuntary. The City Board’s

commitments under the Memorandum, de-

spite its impact on teachers and supervisors,

28a

came about by the City Board’s decision to

comply with OCR’s interpretation of Title

VI, not by any fund-termination action by

OCR. Cf. Maher v. Roe, 432 U.S. 464, 475-

76 & n. 9, 97 S.Ct. 2376, 2388, 53 L.Ed.2d

484 (1977) (distinction between direct “in-

terference with a protected activity and

- + « @Mncouragement of an alternative

[permissible] activity”). In addition, there

was ample opportunity to communicate

with the City Board between the time the

terms of the agreement became publicly

known and the time of its ratification, but

no party, including CSA, sought to partici-

* pate during that hiatus, although most par-

ties were consulted in the interim.

In any event, the statutory scheme re-

quires a hearing with notice only when

HEW seeks fund termination. See, Board

of Public Instruction of Palm Beach County

v. Cohen, 413 F.2d 1201, 1202-03 (5th Cir.

1969). Where, as here, Congress has deter-

mined what procedures shall be required in

effecting compliance with Title VI, the

courts may not override that determination

simply because they believe other proce-

dures would be preferable. See Vermont

Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S.

519, 546, 98 S.Ct. 1197, 55 L.Ed.2d 460

(1978).

Order denying preliminary injunction on

collection of racial/ethnic data affirmed;

order remanding to HEW for administra-

tive proceedings reversed; cause remanded

to the district court for hearing on the

merits.

/

,

29a

Footnotes.

l. In view of the posture of the case below and

the questions certified in the order for appeal

under 28' U.S.C. § 1292(b), see note 8 infra, we

do not reach three questions which were not

decided on the merits below but are here raised

by the appellants. Appellants argue that (1)

HEW and the Office for Civil Rights (OCR) do

not have power to take action upon allegations

that the employment practices of the appellee.

Board of Education of the City of New York

(City Board) discnminated illegally and uncon-

stitutionally against minoritics, (2) the City

Board’s employment practices complained

: about in a letter of OCR to the City Board

dated November 9, 1976, see note 3 infra, do

not constitute illegal and unconstitutional ra-

cial discrimination against minorities and (3)

the Memorandum of Understanding between

the City Board and OCR, see note 2 intra, and

the City Board's actions Carrying out its provn-

sions uNnconstitutionally denied appellants

equal protection of the laws by resulting in

“reverse discrimination” and deprived them of

liberty and property without due process of

law.

2 The Memorandum committed the City Board

to undertake a number of actions, some of

which include:

1. Not later than September of 1979. the

teacher corps of each District in the system

will reflect, within a range of five percent,

the racial-ethnic composition of the system's

teacher corps as a whole for each educational

level and category, subject only to education-

ally-based program exceptions.

2. Not later than September of 1980, each

individual school in the system will reflect,

within a range of five percent, the racial-eth-

nic composition of the system's teacher corps

as a whole for each educational level and

Category, subject only to educationally-based

program exceptions.

3. The Board of Education will demon-

Strate to the Office for Civil Rights. subject

to prescnbed review ‘nat any failure to meet

the commitments set forth in paracrapns one

and two hereof results from genuine require-

ments of a valid educational program. in

addition, the Board will demonstrate that it

30a

has made and is continuing to make special

efforts to overcome the effects of education-

ally-based program exceptions through effec-

tive use of such mechanisms as recertifica-

tion, recruitment and special assignment of

teachers.

6. The Board agrees, as soon as practica-

ble to have performed a study of the relevant

qualified labor pool by race, ethnicity. and

sex by an independent expert acceptuble to

the parties and pursuant to methodology and

standards ayreed to by the parties.

It is understood that this commitment shal!

not require the Board to lay off any teacher

currently employed by the Board or to hire

any teacher who has not met appropriate

requirements for employment, not inconsist-

ent with this agreement. It is further under-

stood that the commutment made herein does

not establish quotas. Failure to meet this

commitment shall not be considered a viola-

tuon of this agreement if the Board demon-

strates that it has implemented the prov-

sions of this agreement in a good faith effort

to meet the commitment made herein.

The Board has advised the Office tor Civil

Rights that the [urd expects to consult with

the United Federation of Teachers and others

regarding the selection of the independent

expert and the standards and methodoloyy to

be used in the ahove study.

3. The letter stated in pertinent part:

With respect to employment practices |

have concluded that the New York City

school system, in violation of section 601 ot

the Civil Rights Act of 1964 (42 U.S.C. [8]

2000d), has. on the basis of race and national

oriyin:

(1) demed minority teachers tull acess to

employment opportunity through the use ot

racially discriminatory selection and testing

procedures and through the use of racially

identifiable employment pouls in ua manner

that discriminatorily restricts the placement

of minority teachers;

(2) assigned teachers, assistant principals

and principais in a manner that has created.

contirined and reinforced the racial and/or

ethnic identifiability of the system's schools;

and

3la

(3) assigned teachers with less experience,

lower average salaries and fewer advanced

degrees to schools which have hiyher per-

centages of minonity students.

I have also concluded that the New York

City school system, in violation of section

901 of the Educauon Amendments of 1972

(20 U.S.C. [§$] 1681), has, on the basis of sex:

(1) denied females equal access to Pposi-

uuons as principals and assistant principals

throughout the system;

(2) provided a lower level of financial sup-

port for female athletic coaching programs;

and

(3) deprived female teachers of senionty

rights and other compensition through fail-

ure to eliminate the effects of past discrimi-

natory leave policies.

4. These organizations included the American

Jewish Congress, the United Federation of

Teachers (UFT), the Council of Supervisors and

Admunistrators (CSA), the NAACP and the

New York Civil Liberties Union.

5. In part, the Gifford Report summarized its

conclusions as fo!!ows:

(1) There is an inexplicable, non-rational

disparity between the percentage of minority

teachers if the New York City school system

and the percentage of minority teachers in 46

other non-southern, urban school svstems.

In order to dismiss or affirm the possibility

that the recruitment, selection, and place-

ment practices of the New York public

schools contributed to this disparity, we de-

veloped a sophisticated econometric model of

the social and economic relationships affect-

ing the size of the minority teacher popula-

tion in New York City and 46 other non-

southern, urban cities. The results of the

analysis show, in rather stark terms, that the

percentage of minority teachers in the New

York City public schools is less than one-half

of what one would expect to find, if New

York City were to “behave” like other cities.

This result, in and of itself, does not consti-

tute proof of discrimination. It does indicate,

however, that the percent of minonty teach-

ers in the public school system of New York

City is far lower than it should be. given the

available pool of minonty college graduates

32a

in New York City and the characteristics of

the New York City labor market.

(2) Minonty teachers are vAanneled into

elementary and junior high schools in a man-

ner that corresponds to the racial composi-

tion of the schools.

This finding comes as no surprise since

these results were anticipated by the state

legisiature when it mandated that teachers

hired through the alternative method (NTE

and “out of rank order” teachers) be restnict-

ed to elementary and junior high schools

having high concentrations of educationally

disadvantaged pupils.

(Emphasis in original.)

6. The district court granted numerous motions

to intervene, including those of the UFT, the

CSA, several community school boards, the

Coalition of Concerned Black Educators, sever-

al black teachers represented by the NAACP,

Ronald Ross (a black teacher represented by

the New York Civil Li‘ erties Union ), the Public

Education Association, and the Amencan Civil

Liberties Union.

7. The district judye stayed his order for 14 days

tO give appeilanis an Opportunity to appeal.

8 The March 15 order was certified in accurd-

ance with 28 U.S.C. § 1292(b). This coun

granted petitions for leave to appeal and ¢ russ-

appeal and consolidated the appeal from the

March 15 order with the appeal from the Feb-

ruary 24 order.

Nothing contained in this subchapter shall

be construed to authomze action under this

subchapter by amy department or agency

with respect to any employment practice of

any employer, employment agency. or labor

Organization except where a primary objec-

tive of the Federal financial assistance is to

provide employment.

42 U.S.C. § 2000d-3.

10. No person in the United States shail, on

the ground of race, color, or national origin.

be excluded from participation in, be denied

the benefits of, or be subjected to discrimina-

tion under any prégram or activity receiving

Federai financial assistance.

Id. § 2000d.

33a

Il. 45 C.F.R. § 80.3(¢)(3), which deals with the

relationship between 42 U.S.C. § 2000d and 42

U.S.C. § 2000d 3, provides:

Where a primary objective of the Federal

financial assistance is not to provide employ-

ment, but discrimination on the yround of

race, color, or national origin in the employ-

ment practices of the recipient or other per-

sons subject to the regulation tends, on the

ground of race, color, or national origin, to

exclude individuals from participation in, to

deny them the benefits of, or to subject them

to discrimination under any program to

which this regulation applies, the torepomy

Provisions uf this paragraph (c) shull apply to

the employment practices of the recipient or

other persons subject to the regulation, to the

extent necensury tO assure equality ol oppor:

tunity to, and non-discriminatory treatment

of, beneticunes,

12. OCR has authority to collect racial data in

school systems under the Emergency School

Aid Act as well. See 20 U.S.C. § 1605(d)\(1); 45

C.F.R. § 185.13(/); Board ot Education v. Cali-

fano, 584 F.2d 574) at 582 -585 (2d Cir. |::78).

13. Each agency that maintains a system of rec.

ords shall

(1) maintain in its records only such infor-

mation about an individual as is relevant and

necessary (Oo accomplish a purpose of the

agency required to be accomplished by stat-

ute or by executive order of the President(.)

5 U.S.C. § 552a(e)(1).

14. No provision of this Act shall be construed

to require the assignment or transportation

of students or teachers in order to overcome

racial imbalunce.

20 U.S.C. § 1751; of Darville v. Dade County

School Board, 497 F.2d 1002, 1004 05 (Sth Cir

1974) (20 U.S.C. § 1651, which is identical to 20

U.S.C. § 1751, does not foreclose schoui ussixn-

ment plans voluntarily adopted by school board

which exceed constitutional mirumums and the

means, such as transportation, to carry out the

plan).

15. Cross-appellants contend that the distrnct

court erred in raising and deciding a claim for

relief not made by any party on the wround that

there was no case or controversy. Since none

of the parties except CSA raised any procedur-

al question and since CSA itself did not specifi-

*%

34a

Caily seek the remand to HEW which the dis-

trict Court ordered, cross-appellants argue that

the propriety*of the remand has not been

presented in an adversary context. See O'Shea

v. Littleton, 414 U.S, 488, 493, 94 S.Ct. 669, 34

L.Ed.2d 674 (1974); Jenkins v. McKeithen, 395

U.S, 411, 423, 49 S.Ct. 1843, 23 L.Ed.2d 404

(1969) (Marshall, J.); Flase v. Cohen, 392 U.S.

83, 96-974 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)

We are persuaded, however, that the requisite

case or controversy vxists, Even though CSA

did not in haec verba request the district court

to remand the case to HEW, CSA did usk that

the memorandum be held illegal for not permi-

UN Its purticipation; and CSA was caretul to

pray for such relief as the court deemed proper,

See Robinson v. Lorillard Corp., 444 F.2d 791,

802 03 (4th Cir, 1971), cert. dismissed, 404 U.S.

1006, 1007, 02 S.Ct. 573, 30 L.Ed.2d 655 (1972);

10 C, Wright & A, Miller, Federal Practice and

Procedure § 2464, at 108 09 (1973); Fed. R.

Civ.P, S4(c). In addition, at this stage in the

proceedings, CSA has explicitly argued that the

remand to HEW was proper, Consequently,

the district court had und this court has yuns

diction to decide the question of the remand to

HEW,

16. Compliance with any requirement adopted

PHFSUANE CO this Section may be effected (1)

by the termination of or retusal to grantor to

continue assistance under such program or

activity to any recipient as to whom there

has been an express finding on the record,

after opportunity for hearing, of a failure to

comply with such requirement, but such ter-

mination or refusal shall be limited to the

particular political entity, or part thereof. or

other recipient as to whom such a tinding has

been made and, shail be limited in its etfect

to the particular program, or part thereof, in

which such non-compliance has been so

found, or (2) by any other means authonzed

by law: Provided. however, That no such

action shall be taken until the department or

agency concerned has advised the appropn-

ate person or persons of the failure to comp!y

with the requirement and has determined

that compliance cannot be secured by volun-

tary means.

42 U.S.C. § 2000d 1. F

17, See note 10 supra.

18.

35a

if there appears to be a failure or threat-

ened failure to comply with this regulation,

and if the noncompliance or threatened non-

compliance cannot be corrected by informal

means, compliance with this part may be

etfected by the suspension or termunation of

or refusal to grant or to continue Federal

financial assistance or by any other means

uuthonzed by law. Such other means may

include, but are not limited to, (1) a reterence

to the Department of Justice with a recom-

mendation that appropmate proceedings be

brought to enforce any mghts of the Unied

States under any iaw of the United States

(including other titles of the Act), or any

assurance or other contractual undertaking,

and (2) any applicable proceeding under

State or local law.

45 C.F.R. § 80,8(a).

19 Congress's intent that HEW use voluntary

means to secure compliance with Title VI be-

fore resorting to fund termination is clear.

Senator Humphrey stated that

(t)he first step, in all cases, will be advice to

the appropriate person or persons and a rea-

sonable effort to secure voluntary compli-

ance. Obviously no hearing is required in

connection with such efforts at voluntary

compliance.

110 Cong.Rec. 8979 (1964). And Senator Ribi-

added:

coff

The agency could not immediately cut off the

funds. As | view this matter, | hope that in

the case of every agency and every county

involved the officials of the agency would sit

down with the officials of the county and

would try to settle the problems voluntarily,

before any action would be taken, including

action to cut off funds, which would be the

last resort, ’

110 Cong.Ree, 13129 (1964).

20.

(c) No order suspending, termi-

nating or refusing to grant or continue Feder-

al financial assistance shall become effective

until (1) the responsible Department official

has advised the applicant or recipient of his

failure to comply and has determined that

compliance cannot be secured by voluntary

means, (2) there has been an express finding

on the record, after opportunity for hearing,

of a failure by the applicant or recipient to

comply with a requirement imposed by or

pursuant to this part, (3) the expiration of 30

days after the Secretary has filed with the

36a

committee of the House and the committee

of the Senate having legislative jurisdiction

over the program involved, a full written re-

port of the circumstances and the grounds

for such action. —

(qd). . . No action to effect compli-

ance by any other means authorized by law

shall be taken until (1) the responsible De-

partment official has determined that compli-

ance cannot be secured by voluntary means,

(2) the recipient or other person hus been

notified of its failure to comply and of the

action to be taken to effect compliance, and

(3) the expiration of at least 10 days from the

mailing of such notice to the recipient or

other person. During this period of at least

10 days additional efforts shall be made to

persuade the recipient or other person to

comply with the regulation and to take such

corrective action as may be appropriate.

45 C.F.R. § 30.8(c)~(d). sf

(a) Opportunity for hearing. Whenever an

opportunity for a hearing is required by

§ 80.8(c), reasonable notice shail be given by

registered or certified mail, return receipt re-

quested, to the affected applicant or recipi-

ent. This notice shall advise the applicant or

recipient of the action proposed to be taken,

the specific provision under which the pro-

posed action against it is to be taken, and the

matters of fact or law asserted as the basis

for this action, and either (1) fix a date not

less than 20 days after the date of such no-

tice within which the applicant or recipient

may request of the responsible Department

official that the matter be scheduled for hear-

ing or (2) advise the applicant or recipient

that the matter in question has been set

down for hearing at a stated place and time.

- » » Am applicant or recipient may

waive a hearing and submit written informa-

tion and argument for the record. The fail-

ure of an applicant or recipient to request a

hearing for which a date has been set shall be

deemed to be a waiver at in

(>) Time and piace of hearing .

Hearings shall be held before a heanng ex-

(c) Right to counsel. In all proceedings

under this section, the applicant or recipient

and the Department shall have the mght to be

represented by counsel.

(d) Procedures, evidence, and record. (1)

The hearing, decision, and any admunistrative

review thereof shall be conducted in con-

37a

formity with sections 5-8 of the Administra-

tive Procedure Act, and in accordance with

such rules of procedure as are proper (and

not inconsistent with this section) relating to

the conduct of the hearing, giving of notices

subsequent to those provided for in para-

graph (a) of this section, taking of testimony.

exhibits, arguments and briefs, requests for

findings, and other related matters. Both the

Department and the applicant or recipient

shall be entitled to introduce all relevant evi-

dence ;

(2) Technical rules of evidence shall not

apply to hearings conducted pursuant to this

part, but rules or principles designed to as-

sure production of the most credible evidence

available and to subject testimony to test by

cross-examination shall be applied where

reasonably necessary by the officer conduct-

ing the hearing. The hearing officer may

exclude irrelevant, immaterial, or unduly rep-

etitious evidence. All documents and other

evidence offered or taken for the record shall

be open to examunation by the parties and

opportunity shall be given to refute facts and

arguments advanced on either side of the

issues. A transcript shall be made of the oral

evidence except tp the extent the substance

thereof is stipulated for the record. All deci-

sions shall be based upon ‘he hearing record

and written findings shall be made.

45 C.F.R. § 80.9(a)-<d).

21. (d) Resolution of matters. (1) If an inves-

tigation pursuant to paragraph (c) of this

section indicates a failure to comply with this

part, the responsible Department official or

his designee will so inform the recipient and

the matter will be resolved by informal

means whenever possible. If it has been

determined that the matter cannot be re-

solved by informal means, action will be tak-

en as provided for in § 80.8.

45 C.F.R. § 80.7(d)(1).

22. See Board of Education v. Califano, supra.

23. See Stewart, The Reformation of American

Administrauve Law, 88 Harv.L.Rev. 1667,

1772-73 (1975):

38a

Same

The resource and delay costs of formal

proceedings are incurred by the agency as

well as private parties and may seriously

undermine the effective discharge of agency

responsibilities. These burdens will mount

as previously informal decisions on enforce-

ment policies are subjected to formal

Processes of resolution. Increased procedur-;

al formalities may work to the disadvantage

of public interest groups by exhausting their

limited resources and providing organized in-

terests a basis for delaying agency enforce-

ment actions. Moreover, formal trial-type

proceedings in many contexts may be inferi-

or to informal negotiations as a means of

agency dispute resolution and decision-mak-

ing. The complex scientific, technological,

social and economic issues Presented in so

much of current administration are often ill-

suited for resolution by adjudicatory proce-

dures that produce Gargantuan records

whose size “varies inversely with (tneir] use

fulness.” Judicialization of agency proce-

dures and the expansion of Participation

rights may also aggravate the tendency for

the agency to assume a Passive role, focusing

on the unique character of each controversy

in order to reach an ad hoc accommodation

of the particular consteilation of interests

presented.

(Footnotes omitted.)