Petition — Adams v. Bell

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

Office -Supreme Court, US.

= FILED

t, _ 64 2

Sil @8T 17 1983

ALEXANDER L. STEVAS,

CLERC

Pee cette

IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

KENNETH ADAMS, et al.,

Petitioners,

v.

TERREL H. BELL, INDIVIDUALLY, AND AS SECRETARY

OF THE DEPARTMENT OF EDUCATION, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Joseph L. Rauh, Jr.*

Jack Greenberg John Silard

James M. Nabrit, III Elliott C. Lichtman

Mary M. Levy

10 Columbus Circle

New York, New York. Rauh, Silard and Lichtman, P.C.

10019 1001 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 331-1795

Counsel for Petitioners

* Counsel of Record

QUESTIONS PRESENTED

1. Whether the right granted injured

individuals by 42 U.S.C. §2000d-2 to sue a

federal agency for violation of their Title

VI rights terminates upon the agency's com-

Mencement of an enforcement proceeding, even

though the agency has halted that proceeding

by approving a desegregation plan that does

not comply with Title VI and the agency's

implementing desegregation Criteria.

2. Whether the fundamental remedial pur-

poses and civil rights protections of Title VI

are undermined by the lower Court's statutory

construction precluding suit against a federal

agency which has approved a federal fund re-

Cipient's desegregation plan that does not

comply with Title VI and the agency's desegre-

gation Criteria.

wo 2 «

PARTIES

Parties to the proceeding in the court

below are:

As plaintiffs (petitioners): Kenneth

Adams, Keith Buckhalter Adams, Linda Adams,

Garry Quincy Adams, Lorie Ann Adams, Tony Ray

Adams, John Quincy Adams, Henry Ayers, Gwen-

doline Ayers, Jake Ayers, Jack R. Gautreaux,

Mary Fullenkamp, Waddia Ann Brown, Sandra Lee

Wright, Cassandra Thurmon, Ethel Mae Thurmon,

Terry Minnifield Thurmon, Bessie R.Thurmon,

Elizabeth Ray, Belinda Ray, Bernice Ray,

Robert F. Jordan, Wanda L. Brown, Euretha Lynn

West, Myra West, Stephanie Halliburton, Iris

Halliburton, Gerald Wayne Rainey, Carl Rainey,

Helen Ruth Moore, James Edward, Moore, Solomon

V. Thompson, Dr. V.F. Thompson, Charlotte

McDaniel, Ernest McDaniel, Dianne Young,’ Ora

Lee Young, Linda Ford, Georgia Lee Ford, Sheila

Faye Thomas, Edmonia Norris, Chester Fairley,

Jr., Vera Fairley, Alice Moore, Madelyn Moore,

>

- iii =

Linda Lee Cody, A.B. Cody, Maurice Finkel-

Stein, Virginia DeC. Frank, Barry McManus,

Charles Collier, Craigory O. Allen, Johnalynn

Holland, Amy Lillian Garland, David L. Rob-

inson, Darrian L. Bell, Armon Coleman, Keysha

Porter, Stephanie A. Moss, Dolphanie D. Rich-

ard, Joseph Anthony Mitchell II, Michelle T.

Battle, Michael Hargrove, Debra Hughes, Lew-

venia Parks, Betty L. Johnson, Sharon D. Bos-

tic, Tracey L.Davis, Ginger Caprice Howington.

As defendants (respondents): Terrel H.

Bell, Secretary of the Department of Educa-

tion and Harry M. Singleton, Assistant Secre-

tary for Civil Rights of the Department of

Education.

- iv -

TABLE OF CONTENTS

BUSSCISONS PeSOnEGE 6c cc uceccecs a Pee

Parties RA ETE IS yf Fe PREG) SN

Tene OF BOCHOPTELED cv ceecwcecnewveadses ‘ea

Opinions Below S 4 €6@Caae £8 6c @B2 eo 2&6 ere = 6 a 6 Ri. a.e

pe ne Ee eeerrrrer TS a be hee we heehe

Statutory Provisions Involved ......ese0.

Peet GE the GCAO ise caccvcwvccscteces

Reason for Granting the Writ:

IMPORTANT CIVIL RIGHTS PROTECTION

IS IMPAIRED BY THE LOWER COURT'S

CURTAILMENT OF THE STATUTORY

RIGHT TO SUE A FEDERAL AGENCY

VIOLATING TITLE VI OF THE CIVIL

RIGHTS ACT OF 1964 oe 2 OO @ 06.6 @ ee © .62 6 Ss @ &..62 2 6.6 e

1. Emasculation of the Statutory

Right to Sue 8s ¢ 6.080 @ ee 2 Ce 8 eee ee @.e¢.

2. Undermining the Basic Purpose

of Title VI ee ereeeeeneeeneeneeeneeeeee

Conclusion eS 60 @ € Cee @ 6 C.88 684262 2 68a ee 2a

23

23

36

46

APPENDIX

Opinion of the United States Court of

Appeals for the District of Columbia

Circuit, June 10, 1983 ...ceceeeeeees

Ruling of the United States District

Court for the District of Columbia,

June 25, 1983 eqgqageeaee ee oe ee ened 8 ee 8 2.6 & 2 ¢

Orders of the United States District

Court for the District of Columbia,

Ss ee I a wdeeee wits

Judgment of the United States Court

of Appeals for the District of

Columbia Circuit, May 19, 1983 ......

Title VI of the Civil Rights Act of

1964, 42 U.8.C. §§ 29004a et seq: “eee

la

109a

118a

120a

123a

- vi -

TABLE OF AUTHORITIES

Cases: Page

Adams v. Richardson [and successors],

351 F.Supp. 636 (D.D.C. 1972) ...... 7,12

, 480 F.2d 1159

(D.C. Cir. 1973) ON DANC ..-eececeee 6,8

, 356 F.Supp. 92

ey Teh si ened La eat sk oe me ds ee.e~ 7

, 430 F.Supp. 118

Osos L977) scececce eee eeeee 9,10,13,15,21

Blonder-Tongue Laboratories, Inc.

v. University of Illinois

Foundation, 402 U.S. 313 (1971) .... 31

Brown v. Board of Education,

347 U.S. 483 (1954) wccecce bes eanueun 48

Cannon v. University of Chicago,

441 U.S. 677 (1979) wcccccccccee oe 24,25,28

Chase National Bank v. City of

Norwalk, 291 U.S. 431 (1934) ....... 31

Cooper v. Aarogh 358 U.S. 1 (1958).... 38,47

Gratiot County State Bank v. Johnson

249 U.S. 246 (1919) “ese eee eee “fee ee © 31

Hansberry v. Lee, 311 U.S. 32 (1940).. 31,32

North Carolina v. Dep't of HEW,

480 F.Supp. 929 (E.D.N.C. 1979) .... 13,14

Parklane Hosiery Co., Inc. v. Shore,

439 U.S. 322 (1979) *enereeneveeneeeeeeeenee 32.

- vii -

Page

School District of Saginaw v.

U.S. Dep't of HEW, 431 F.Supp.

147 (E.D. Mich. 1977) ee. ae A ee Oe me me 34

Service v. Dulles, 354 U.S. 363 (1957) 45

Simkins v. Moses H. Cone Memorial

Hospital, 323 F.2d 959 (4th

Cir. 1963), cert. denied,

Beer Dalia) SOO -CIDSG? oc cawwwd eas ciate wel 38,39

Taylor v. Cohen, 405 F.2d 277 (4th

Cir. 1968) en banc ..... oe ee er 34

United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260 (1954) ... 45

Vitarelli v. Seaton, 359 U.S. 535 (1959) 45

Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100 (1969). 31

Statutes and Regulations:

Administrative Procedure Act

5 U.S.C. §§701-704 eee eee wee nene 7,24,25,27

Amended Criteria Specifying Ingredients

of Acceptable Plans to Desegregate

State Systems of Public Higher

Education, 42 Fed. Reg. 40780

C1977) wccccccccccccccccccccccccccss «passin

Civil Rights Act of 1964, Title VI,

42 U.S.C. §§2000d et seq. .......-. passim

Section 601, 42 U.S.C. §2000d ..... 24

- viii -

Page

Section 602, 42 U.S.C. §2000d-1 .... 24,26

Section 603, 42 U.S.C. §2000d-2

ccocccceccccccceceeses 20,23,24,26,27,28,45

2B U.B.C. $1331 arccccccccdsvescssssess 7,38

26 U.S.C. §$1343(4) wccccccees re ee ° 7

2B U.S.C. FlFGL wccccvcscccccccsesecass 7

28 U.S.C. $2201 wccccccee occcccscocese 7

2B U-B.Ce $2202 cccccccsccccccccccsccs 7

Legislative History:

110 Cong. Rec. 1519 (1964) ........ «+» 40,41

110 Cong. Rec. 6543 (1964) ...eeeeeees 40

110 Cong. Rec. 6544 (1964) .....eeeees 39,41

110 Cong. Rec. 6546 (1964) eer eneeneeeee 40,41

110 Cong. Rec. 6562 (1964) ....... ela we 40

110 Cong. Rec. 7065 (1964) ...seeeeees 39

110 Cong. Rec. 13130 (1964) .....eeee. 27

110 Cong. Rec. 13333 (1964) ...eeeeees 40

H.R. Rep. No. 914,

88th Cong. lst Sess. (1964) ...... 24,40,42

President Kennedy's Special

Message to Congress, June 19,

1963 eevee eeeoeeeeeeveeeeeeeeeeeeeeeee 29,39

- ix -

Miscellaneous:

B. Schwartz, Statutory History of the

United States: Civil Rights .......

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

KENNETH ADAMS, et al.,

Petitioners,

Vv.

TERREL H. BELL, INDIVIDUALLY, AND AS

SECRETARY OF THE DEPARTMENT OF EDUCATION,

et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, black students seeking to

desegregate public education, hereby petition

for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for

the District of Columbia Circuit in this case.

OPINIONS BELOW

The decision of the Court of Appeals up-

on rehearing en banc is reported at 71l F.2d

161, and is set forth at pp. la-107a of the

Appendix hereto. The ruling of the District

Court, from the bench, is set forth at pp.

109a - 117a of the Appendix. The District

Court's Orders appear at pp. 118a - 119a, and

the Judgment of the Court of Appeals at pp.

120a - 122a.

JURISDICTION

, en

The judgment of the Court of Appeals for

the District of Columbia Circuit was entered

on May 19, 1983 (pp. 120a - 122a infra). Onor

about July 21, 1983, this Court granted pe-i-

tioners an extension of time within which to

file a petition for writ of certiorari, of

approximately sixty days, to and including

October 17, 1983. This petition for certiorari

is being timely filed on October 17, 1983.

Jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent statutory provisions are

Sections 601-603 of Title VI of the Civil

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

which are set forth at pp. 123a - 125a of the

Appendix hereto.

STATEMENT OF THE CASE

Important questions of federal jurisdic-

tion and civil rights enforcement are presen-

ted by the ruling of the six to four majority

of the en banc Court of Appeals. That ruling

recognizes that petitioners--black students

in Southern and Border state higher education

Systems--had the right to challenge the Depart-

ment of Education's grant of funds to a segre-

gated state higher education system as a vio-

lation of Title VI of the Civil Rights Act of

1964. But the majority rules that petitioners’

right to obtain relief against the federal

agency terminated once the agency started an

administrative enforcement proceeding against

the offending state, even though the federal

agency subsequently abandoned that proceed-

ing, entering a settlement that violates the

agency's cwn desegregation Criteria and that

permits continued racial discrimination in a

public education system long segregated by law.

a

Following our statement of the facts,

the “reason for granting the petition" demon-

strates the soundness of the conclusion by the

four dissenting judges below that, no less

after than before commencement of agency en-

forcement proceedings, the statute clearly

affords petitioners their judicial forum to

Challenge the Department of Education's accep-

tance of the North Carolina “desegregation”

Plan on terms that violate Title VI and the

agency's own implementing guidelines. In free-

ing defaulting federal agencies from having

to answer for their Title VI violations, the

ruling below undermines the statute's central

purpose to vest primary enforcement respons-

ibility in federal agencies as assurance a-

gainst federal aid to segregated institutions.

There is need for this Court's corrective re-

view of a ruling which has created from whole

cloth a limitation on the federal statute's

unqualified right of suit by minority citizens

to ensure federal agency protection of their

Civil rights.

Although desegregation became the "law

of the land" in 1954, the federal effort to

desegregate state systems of higher education

Commenced only after the enactment of Title

VI of the Civil Rights Act of 1964. In

January 1969 the Department of Health, Educa-

tion and Welfare (HEW) found that, in viola-

tion of Title VI, Louisiana was receiving

federal aid for a higher education system

which continued to reflect its past history

of state-imposed racial segregation. During

the ensuing year similar HEW findings were

transmitted to nine other Southern and Border

states, including North Carolina, requiring

them promptly to submit higher education de-

segregation plans, Adams v. Richardson, 480

F.2d 1159, 1164 (1973). Although five of the

States ignored HEW's request for corrective

plans and five others submitted completely

inadequate plans, HEW failed to commence en-

forcement proceedings against any state, id.,

351 F.Supp. 636, 637-38 (1972).

After HEW's abdication of its Title VI

enforcement duties became manifest, petition-

ers filed the instant case.! The result was

a February 1973 Order by District Judge John

Pratt which, inter alia, directed HEW promptly

to commence enforcement proceedings against

any of the ten states refusing to submit an

acceptable higher education desegregation plan,

356 F.Supp. 92. Because of the importance of

the issue, defendants’ appeal led to en banc

consideration by the Court of Appeals and a

1 Federal jurisdiction was based upon

5 U.S.C. §§701-704 (review of agency action

under the Administrative Procedure Act); 28

U.S.C. §1331 (general federal question juris-

diction); id. $1343(4) (jurisdiction over

actions to protect civil rights); id. §1361

(jurisdiction over action to compel officer

of the United States to perform his duty);

id. §2201 (declaratory judgment authority);

Id. §2202 (granting of further necessary re-

Tief), 351 F.Supp. at 640.

ruling in June 1973 essentially affirming the

District Court's Order, 480 F.2d 1159. The

Court of Appeals rejected HEW's “broad discre-

tion" defense, affirmed the District Court's

exercise of jurisdiction, and emphasized that

Title VI mandates statewide action to elimin-

ate the vestiges of segregation in pé@blic

higher education. In that respect the court

found it "regrettable," 480 F.2d at 1164, that

HEW had not yet "formulated guidelines for

desegregating state-wide systems of higher

learning."

In 1974 the judicial mandate was nominal-

ly honored by HEW's acceptance of desegrega-

tion plans from North Carolina and several

other states. But when it became clear that

those plans would not desegregate the higher

education systems, petitioners filed a motion

for further relief in 1975 seeking new and

much improved desegregation commitments from

the states. In depositions taken thereafter,

HEW officials agreed that no real desegrega-

tion was being achieved under the 1974 plans,

which lacked "standards of clarity and speci-

ficity," and conceded “the need to obtain

specific commitments necessary for a workable

higher education desegregation plan" from each

of the states, see 430 F. Supp. 118, 120

(1977). In 1977 the District Court granted

petitioners’ motion for further relief, find-

ing that the plans of North Carolina and the

other states failed to meet “important deseg-

regation requirements and... . failed to

achieve significant progress toward higher

education desegregation,” id. at 119. The

Court directed HEW promptly to notify the

states, including North Carolina, that their

existing plans "are not adequate to comply

with Title VI of the 1964 Civil Rights Act,"

id. at 121.

The District Court also proceeded to im-

plement the Court of Appeals' earlier call

# 10 «

for “guidelines for desegregating state-wide

Systems of higher learning." At the 1977

hearing on plaintiffs' motion for further

relief, the Court stated its intent to put

defendants “under the compulsion of a Court

Order to submit to the states certain specific

requirements which the states must respond to”

(Tr. 54). In its subsequent 1977 Order the

Court directed HEW within 90 days to transmit

to the states "final guidelines or criteria

specifying the ingredients of an acceptable

higher education desegregation plan,” 430 F.

Supp. at 121. Thereafter, the states were

required to submit revised plans in conformity

with the Criteria within 60 days of their

receipt, and HEW was directed to accept or

reject the new plans within 120 additional

days, id.

The 1977 Order precipitated a series of

consultations and negotiations which led to

HEW's promulgation of the higher education

~ jl] =

desegregation Criteria in July of 1977. In

the published Criteria HEW expressly recog-

nized that the judicial mandate directed it

to prepare guidelines "which would identify

for the states the specific elements to be in-

Cluded in their revised desegregation plans,”

42 Fed. Reg 40780, 40781 (1977). Those ele»

ments of the Criteria include black student

enrollment goals at undergraduate, graduate

and professional levels in the formerly all

white institutions and in the system as a

whole; goals to increase black faculty, staff,

administrative and governance officials throu-

ghout the system; strengthening of the former-

ly all black institutions to make them more

attractive to all students; and the elimina-

tion of unnecessary program duplication be-

tween formerly white and formerly black insti-

tutions. Having promulgated the Criteria in

accordance with the District Court's 1977

Order, HEW then attempted to secure from North

- 12 «

Carolina and other states revised plans con-

forming therewith. In 1978 HEW accepted plans

from Arkansas, Oklahoma, Georgia, Virginia and

Florida; ultimately only North Carolina sub-

mitted a plan HEW found not in compliance with

the Criteria.

< From the first North Carolina had dis-

Played unyielding opposition to desegregation

of its higher education institutions. Follow-

ing HEW's initial February 1970 letter find-

ing continued vestiges of segregation and re-

questing a remedial plan, North Carolina was

one of five states which refused to submit any

Plan whatever, 351 F.Supp. 636, 638 (1972).

When the courts below mandated enforcement

proceedings against states that continued

their defiance, North Carolina submitted a

“plan” in 1974 which candidly reflected its

continuing opposition to reform:

Detailed commitments on all of the items

suggested in the HEW letters of November 10,

1973, and April 24, 1974, would. . . shape

the. . . future of The University in many

critical ways [and] . . . would be form-

ulated from a particular perspective, that

Of maximizing the racial “minority pres-

ence” on each campus, and doing so in

haste. The shortcomings of such an ap-

proach are obvious and it has not been

followed.

Plan filed as Appendix XIV(e) to plaintiffs’

1975 Motion for Further Relief in District

Court, pp. 73-74. (cont inued )

- 13-

As a result, in April 1979 HEW served

upon the State a Notice of Opportunity for

Hearing, the first step in a Titie VI fund

termination proceeding. North Carolina's re-

sponse was to sue HEW in the United States

District Court for the Eastern District of

North Carolina, seeking to enjoin the admin-

istrative hearing and alternatively to enjoin

any HEW deferral of new federal fund applica-

tions from the North Carolina higher educa-

tion system during the pendency of adminis-

trative proceedings, North Carolina v. Dep't

of HEW, 480 F.Supp. 929 (1979). The Govern-

ment sought transfer of the case to the

District of Columbia Circuit on the ground

In 1977, Judge Pratt directed the revocation

of HEW's approval of that North Carolina plan,

430 F.Supp. 118, 121. .In the 1979 Notice of

Opportunity for Hearing (@ 16, 20), HEW

asserted that in North Carolina "as to stu-

dents, trustees, faculty, and administrators,

the racial composition of each such group at

each constituent institution . . . reflects

the racial segregation of the de jure era”

and that North Carolina's “actions have main-

tained and perpetuated the dual system.”

- 14 =-

of conflict with the orders in Adams. 3 The

North Carolina court rejected HEW's motion

to transfer. In addition, while refusing to

interfere with the administrative proceeding,

it enjoined any HEW deferral of funds, 480

F.Supp. at 937-39. The practical effect of

the injunction against fund deferral was to

protect North Carolina in its resistance to

desegregation and to maximize the benefits of

delay by the State in the ensuing administra-

tive proceeding, for no practical consequences

3 As the Government stated:

The plaintiffs [North Carolina] seek to

have this court place obligations on HEW

that are inconsistent with those imposed

on HEW under Adams.

The plaintiffs, without stating s0

directly, are asking this court to review

the propriety of the orders and findings

made by the court in Adams. By this col-

lateral attack plaintiffs are attempting

to void the findings and orders entered by

Judge Pratt.

Motion of Federal Defendants to Transfer this

Action to the United States District Court for

the District of Columbia, served on April 30,

1979, p. 10.

- 15 -

could flow until its conclusion.

Two years later that administrative pro-

ceeding was progressing when the new Secretary

Of Education took office in 1981. Almost im-

mediately the Department and North Carolina

commenced secret settlement negotiations hid-

den from petitioners, who were intervenors in

the administrative proceeding. These negotia-

tions culminated in the agency's approval in

June 1981 of a North Carolina "desegregation

plan" incorporating enn that had previously

been rejected by the Department officials’

predecessors, which were no better (and in

some respects worse) than the State's 1974

plan that the District Court had ruled not

in compliance with Title VI. Moreover, the

terms of the plan did not remotely comply

with the agency's own published desegregation

Criteria. Although the 1977 Decree of Judge

Pratt required that any acceptable North

Carolina plan conform to the desegregation

oe 18 «

Criteria, see Appendix of plaintiffs-appel-

lants in the court below, pp. 108-18, that

requirement was abandoned by Secretary Bell,

Who has avowed that the “obligation to enforce"

Title VI is “against my own philosophy."4

The North Carolina plan failed to meet

any of the 24 specific requirements of the

Criteria dictating statewide measures to de-

segregate student bodies and faculties, inclu-

ding the most important desegregation norms.

4 Secretary Beli’s avowal appears in his

letter to Senator Laxalt of April 24, 1981

(Exhibit 2 to WEAL, et al's Response to Defen-

dants' Supplemental Memorandum and Opposition

to Plaintiffs' Motion for an Order to Show

Cause filed in the District Court on Septem-

ber 23, 1981.) Upon receiving a copy of

petitioners' motion alleging defendants' non-

compliance with another Adams order of Judge

Pratt, relating to timeframes for compliance

reviews and complaints, the Secretary wrote

to the Senator:

You can see from this complaint that the

Federal courts may soon be after us for not

enforcing civil rights laws and regulations.

Your support for my efforts to decrease the

undue harassment of schools and colleges

would be appreciated. It seems that we have

some laws that we should not have, and my

obligation to enforce them is against my own

philosophy.

- )7 -

For instance, under the plan accepted by the

Department of Education, at the traditionally

white institutions in the UNC system as late

as 1985 the faculties will remain 97% white,

even though the Department formerly indicated

that until they have substantial numbers of

black faculty those institutions "will con-

tinue to have difficulty attracting and keep-

ing black students, and will retain their his-

toric racial identity," id. at 115. Similarly,

although the Department once correctly stated,

id. at 113, that “program duplication is the

most obvious vestige of past state sanctioned

segregation,” the North Carolina plan flouts

the requirement of the desegregation Criteria

that each state take “specific steps to elim-

inate educationally unnecessary program dupli-

cation among traditionally black and tradi-

tionally white institutions in the same ser-

vice area," 42 Fed. Reg. at 40783. So too,

there is no compliance with the Criteria

- 18 -

provisions committing states to achieve pro-

portionality of entry into graduate programs

between black and white college graduates and

proportionality of entry into college between

black and white high school graduates. Equally

unmet is the vital requirement of the Criteria

for reducing the disproportionate college at-

trition rate among black students.°

5 On July 10, 1981 the United States Com-

mission on Civil Rights urged the Secretary of

Education to reconsider his decision to accept

the North Carolina plan. Writing for a unan-

imous Commission, Chairman Flemming stated:

We have concluded that this agreement

fails to incorporate the major require-

ments of the court-mandated higher educa-

tion desegregation criteria with regard to

strengthening the traditionally black in-

stitutions, desegregation of student en-

rollments, and desegregation of faculty

and administrative staffs. The agreement

offers less than the 1979 plan which was

rejected by HEW and is similar in scope to

the 1974 plan which the Adams court found

to be inadequate. Additionally, the major

issue preventing approval of the 1979

plan--the elimination of program duplica-

tion among black and white institutions

serving the same geographic areas--is not

addressed in the agreement.

(continued)

- 19 -

As soon as petitioners learned of the

Department's surrender to North Carolina on

terms not complying with and wholly ignoring

the Criteria, they sought emergency relief in

the District Court below and, when that was

denied, pursued an unsuccessful emergency ap-

peal to the District of Columbia Circuit.

Thereupon the Department and North Carolina

implemented their predetermined course of pre-

senting their settlement as a consent decree

to the North Carolina court. In the nearly

twenty years since the 1964 statute was en-

acted, hundreds of Title VI desegregation

-+-by submitting the agreement as a con-

sent decree in the U.S. District Court for

the Eastern District of North Carolina

instead of as a desegregation plan subject

to the Adams criteria and review by the

U.S. District Court for the District of

Columbia, the Department of Education and

North Carolina, in effect, may avoid scru-

tiny by the Adams court. The consent de-

cree approach sets a Departmental precedent

as a way to circumvent the Title VI admin-

istrative compliance procedures and the

court-ordered desegregation TS Ee

(emphasis added).

- 20 -

plans have been negotiated by HEW and the

Department of Education but neither Department

had previcusly sought to fortify its action

with a judicial decree, for which the statute

nowhere provides in its precise judicial re-

view procedure, see 42 U.S.C. § 2000d-2, p.

125a infra. Nevertheless, over the serious

jurisdictional objections urged by petitioners

in an amicus memorandum to the North Carolina

court, within four days that court entered

the requested consent decree.®

€ The Department of Education made no claim

Whatever that the settlement was consonant

with the Criteria. Indeed, the only reference

to the Criteria in the consent decree is North

Carolina's statement of opposition to them.

The North Carolina District Court's statement

that the settlement decree comported with the

Criteria has no basis whatever and is dispos-

itively refuted by the opinion of the dissent

below (pp. 92a-103a infra). It was not argued

to the North Carolina judge by either the

Federal Government or North Carolina, and he

had no time to review the 15,000 page admin-

istrative transcript and the hundreds of ex-

hibits to make a meaningful determination on

his own.

- 21 -

A closely divided en banc Court of

Appeals has affirmed the refusal of the Dis-

trict of Columbia District Court to grant

petitioners any relief. The majority below

recognizes that petitioners had a right to

the relief granted in 1977 by the District

Court against the Department's acceptance of

defective state higher education desegregation

Plans. But it goes on to conclude that once

the agency commences a Title VI enforcement

proceeding against a violator of the statute,

‘then petitioners are barred from judicial vin-

dication of their Title VI rights against the

defaulting federal agency and are relegated

to a suit sciely against the segregating re-

cipient of federal funds (see pp. 8a-9a n.30,

12a, l4a-l7a infra). As summarized by the

dissenting judges (p. 64a infra):

{the court] leaves aggrieved persons with-

out a direct remedy against arbitrary and

capricious Department action. To obtain

- 22 -

judicial review the court instructs ag-

grieved persons to initiate a judicial-

ly implied action against the fund re-

Cipient, and not an APA action against the

Department.

The dissenting judges urge that there is ex-

press and unqualified statutory authority to

vindicate Title VI rights by suit against a

defaulting federal agency, and stress that the

merely implied right of suit against a federal

funds recipient which is violating Title VI

cannot be made to displace the expressly au-

thorized judicial enforcement of Title VI com-

pliance directly against federal agencies. We

demonstrate hereafter that an important civil

rights issue arises from the lower court's

curtailment of the statute's provision author-

izing suits to assure federal agency compli-

ance with Title VI rights.

- 23 <-

REASON FOR GRANTING THE WRIT:

IMPORTANT CIVIL RIGHTS PROTECTION is

IMPAIRED BY THE LOWER COURT'S CURTAILMENT

OF THE STATUTORY RIGHT TO SUE A FEDERAL

AGENCY VIOLATING TITLE VI OF THE

CIVIL RIGHTS ACT OF 1964

1. Emasculation of the Statutory

Right to Sue

Section 603 of Title VI grants petition-

@rs an unqualified right to judicial vindica-

tion of their Title VI rights. ‘Yet the major-

ity decision below arbitrarily curtails this

right in disregard of the statutory language,

its legislative history, and traditional prin-

ciples of administrative law. This denial of

petitioners’ rights is supported only by erro-

neous assumptions about the Title VI enforce-

ment scheme and an erroneous interpretation of

procedural rules in the federal courts. The

result is a judicial emasculation of the

congressionally mandated right to sue federal

agencies violating the Title VI rights of

minority citizens.

Section 601 of Title VI of the Civil

Rights Act of 1964, 42 U.S.C. §2000d, p. 123a

infra, assures to every person freedom from

racial or ethnic discrimination in a program

receiving federal financial assistance. Sec-

tion 602 requires all federal agencies to give

effect to that assurance,42 U.S.C. §2000d-1, p.

124a infra. Section 603, 42 U.S.C. §2000d-2,

p. 125a infra, makes any department or agency

action taken pursuant to Section 602 subject

to "such judicial review as may otherwise be

provided by law"--including the review author-

ized by the Administrative Procedure Act, spe-

cifically referred to in the legislative his-

tory of Section 603, see H.R. Rep. No. 914,

88th Cong. lst Sess., at 25-26. This Court in

Cannon v. University of Chicago, 441 U.S. 677

(1979) reviewed Title VI precedents confirming

= 26 =

the right of a person subject to discrimina-

tion in a program receiving federal funds to

sue the offending federal agency, id. at 696

n.21, 702 n.33, 706 n. 41; dissenting opinion

at 726, n. 17. Indeed, Cannon specifically

cited the instant case as a cognizable "suit

under the Administrative Procedure Act to

compel the agency to investigate and cut off

funds," id. at 706 n.4l.

The majority below recognizes that prior

to a federal agency's initiation of a Title VI

enforcement action, the desegregation terms on

which it settles with a party charged with

violating Title VI are subject to judicial

review upon suit by victims of discrimination

(see pp. 7a-9a infra). But the majority con-

cludes that after a Title VI enforcement pro-

ceeding has been commenced, a federal agency's

settlement with the charged party no longer

Permits suit against the agency by adversely

affected individuals (see pp. 8a-9an.30, 12a,

— a

14a-17a infra). Thus the majority rules,

quite inexplicably, that judicial review

rights of the victims of discrimination a-

bruptly terminate halfway through the statu-

torily mandated Title VI enforcement proced-

ures.’ But the plain language of the statute

provides without qualification for normal ju-

dicial review of all agency action: “Any

department or agency action" pursuant to Sec-

tion 602 “shall be subject to such judicial

review" as is normally provided for agency

action. And the legislative history makes

Clear that such was the explicit intent of

Congress:

7 Initiation of an enforcement proceeding

is preceded by rulemaking, Presidential

approval, notification of non-compliance, and

voluntary compliance efforts, and is followed

by the proceeding itself, decision by an ad-

ministrative law judge, review procedures

within the agency, a written report submitted

to Congress, and a 30 day waiting period be-

fore fund cutoff. At that point agency action

becomes ripe for judicial review at the in-

stance of the fund recipient. See Sections

602-603, pp. 124a - 125a infra.

- 27 -

section 603 makes clear, in addition to the

specific judicial review of any fund cutoff

action, that all other agency action taken

under section 602 would be subject to the

same type of judicial review provided by

law for similar action taken on other

grounds.

110 Cong. Rec. 13130 (1964) (remarks of Sen.

Ribicoff).

As the dissenting opinion urges (p. 26a

infra), the line the majority creates between

agency action that is and is not subject to

direct judicial review under Section 603 is

not only "contrary to the plain language of

the statute" but "antithetical to our entire

jurisprudence of administrative law." Peti-

tioners sought, but were denied, traditional

judicial review of final agency action that

would determine whether, as petitioners con-

tend, the agency has failed to apply and con-

form to its own Title VI desegregation rules.

Far from offering an explanation, the majority

simply avoids discussion of Section 603 and

the APA. Rather, it relies upon the unsupported

- 28 -

proposition (p. 12a infra) that individual

lawsuits against fund recipients, are the

“primary mechanism" for enforcing Title VI.

The majority cites no authority for this

untenable view, which is contrary to the stat-

utory language and its legislative history.

Title VI clearly contemplates agency action

as the primary mechanism of enforcement, and

when the agency defaults, victims of racial

discrimination, as explained above, have an

unqualified and express cause of action a-

gainst the agency under Section 603. As the

dissenting opinion emphasizes (p. 60a infra),

the merely implied statutory right to sue a

federal aid recipient that is a Title VI trans-

gressor (see Cannon, supra) cannot be made

to displace the express statutory right to

sue a federal agency for funding a program

wherein racial discrimination is practiced.

Moreover, the legislative history emphat-

ically reinforces that the primary mechanism

- 29 -

for enforcement of Title VI is executive ac-

tion, not individual lawsuits against the fund

recipient. As set forth in our later dis-

cussion of the central purpose of Title VI,

pp. 38-42 infra, legislative leaders in both

houses of Congress emphasized the primacy and

importance of direct federal agency action to

eliminate discrimination in the use of federal

funds. And President Kennedy's Special Mes-

Sage to Congress transmitting what became

Title VI, after condemning such discrimina-

tion, specifically declared that "it should

not be necessary to resort to the courts to

prevent each individual violation. Congress

and the Executive have their responsibilities

to uphold the Constitution also,” June 19,

1963, reprinted in 1963 U.S. Code, Cong. &

Ad. News 1526, 1534. Thus the federal statute

and its legislative history refute the lower

court's unsupported assertion that piecemeal

litigation against segregating fund recipients

- 30 -

is the "primary mechanism" for Title VI en-

forcement and the sole remedy for victims of

discrimination such as petitioners here,

seeking to obtain relief against the Depart-

ment's spurious settlement of the enforcement

proceeding against North Carolina.

Nor is there any basis for the further

conclusion of the court below that petitioners

were barred from obtaining redress in their

District Court suit merely because, while

their appeal was pending below, the North

Carolina court placed its imprimatur on a non-

adversary settlement between the Department

of Education and North Carolina. In foreclos-

ing petitioners’ suit because of the consent

decree entered by the North Carolina court in

a proceeding wherein petitioners were not

Parties (pp. 15a-2la infra), the majority

below violates the clear rulings of this Court

and transgresses the guarantee of due process.

As long ago as 19'9 this Court applied the

- 3l1-

rule in Gratiot County State Bank v. Johnson,

249 U.S. 246, 249-250, that “persons who

might have made themselves parties to a lit-

igation between strangers, but did not, are

not bound by the judgment." As emphasized in

the opinion by Mr. Justice Brandeis in Chase

National Bank v. City of Norwalk, 291 U.S.

431, 441 (1934), the law “does not impose upon

any person absolutely entitled to a hearing

the burden of voluntary intervention ina suit

to which he is a stranger." More recently in

Zenith Radio Corp.v.Hazeltine Research, Inc.,

395 U.S. 100, 110 (1969), this Court applied

the “elementary” principle of Hansberry v.

Lee, 311 U.S. 32 (1940) “that one is not bound

by a judgment in personam resulting from lit-

igation in which he is not designated as a

party...." The constitutional underpinnings

of that rule were emphasized in Blonder-Tongue

Laboratories, Inc. v. University of Illinois

Foundation, 402 U.S. 313, 329 (1971), where

a 22 a

the Court ruled that “due process prohibits"

binding litigants who have never appeared in

a prior action by the outcome of that action,

See also Hansberry, supra at 40; Parklane

Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327,

n.7 (1979).

Based on these and other cited author-

ities, the dissenting judges (pp. 70a-80a

infra) demonstrate the error of the majority

in its conclusion that petitioners’ litigation

rights are impaired because they did not seek

to intervene before the North Carolina court.

Intervention, the dissenters point out (p.

72a), “is a device that permits, but does not

require, non-parties to become parties to lit-

igation that affects them." In adopting the

rationale that petitioners should have sought

intervention before the North Carolina court,

the majority below transgresses the estab-

lished authorities cited above and erroneously

denies petitioners opportunity to enforce

= 33 «

against the Department's violation the prior

decrees issued on petitioners’ behalf in the

instant case. Thirteen years of litigation

by petitioners that sustained their right to

injunctive relief are rendered futile by the

unprecedented "mandatory intervention” ruling

below.

A consideration that further undermines

the majority's relegation of petitioners to

the North Carolina proceeding is that there

was not even any jurisdiction in the North

Carolina court to enter the consent decree.

As the dissenting opinion demonstrates (pp.

86a-88a infra):

In this case the Department aborted

the administrative hearing, accepted a pro-

posed desegregation plan, and continued to

distribute federal funds. The Secretary

has never made a “final" finding of noncom-

pliance. Under the terms of the statute,

neither the State of North Carolina nor the

Department should have been able to seek

review of that plan in the North Carolina

court. Nor could that court have reviewed

the plan as part of the lawsuit that the

State of North Carolina filed in 1979; all

justiciable issues in that controversy had

already been decided, and the only possible

- 34 «

controversy remaining -- a termination of

funds at the end of the administrative pro-

ceeding -- was entirely hypothetical and

Speculative in 1981. See Board of Educa-

tion of Cincinnati v. Dep't of HEW, supra,

396 F.Supp. at 247-249. Claims based on

wholly speculative events are not justic-

iable, especially when administrative pro-

ceedings are involved. In short, the North

Carolina court had no lawsuit over which

to retain jurisdiction and no statutory

basis for entertaining the proposed decree.

See Taylor v. Cohen, 405 F.2d 277, 280 (4th

Cir. 1968) (en banc); School District of

Saginaw v. U.S. Dep't of HEW, 431 F.Supp. 147,

153-55 (E.D. Mich. 1977).

Thus, the ruling below is doubly erro-

neous in denying relief to petitioners on the

ground that they might have sought to inter-

vene before the North Carolina court. First,

the majority's “mandatory intervention" ra-

tionale violates the established due process

rule confirmed by the decisions of this Court.

Second, it would have been particularly inap-

propriate for petitioners to intervene in

North Carolina on a consent decree application

over which the North Carolina court lacked

- 35 -

any statutory jurisdiction.8

What remains is the wholly unsupported

ruling below that once a federal agency has

instituted an enforcement proceeding, it

8 Another flaw in the majority's reasoning

is revealed by repeated references to the

initiation of "the process of enforcement,

the process by which the specifics of compli-

ance would then be determined" (p. 8a infra,

see also pp. 6a, 7a). The fact is that the

enforcement process ordered by previous de-

Crees in this litigation was never followed.

As we related earlier (p. 10, supra), the

District Court back in 1977 set forth its in-

tent to put defendants “under the compulsion

of a Court Order to submit to the states cer-

tain specific requirements which the states

must respond to." In its subsequent Order the

Court directed HEW to transmit to the states

"final guidelines or criteria specifying the

ingredients of an acceptable higher education

desegregation plan” and HEW was directed to

accept or reject the new plans submitted under

the Criteria. By ignoring the Criteria in the

case of North Carolina, the Department of Edu-

cation failed to utilize the process which it

had been ordered by the Courts to follow. It

would have been one thing for the Department

to have made a settlement under the guidelines

applying some requirements Of the Criteria and

explaining why others had not been applied;

it is quite a different thing for the agency

to have made a settlement wholly ignoring the

Criteria. This was a rejection ~ the very

process the majority opinion says the Depart-

ment initiated.

- 36 -

cannot be made to answer in court for ending

the proceeding by a settlement that does not

comply with Title VI or its own desegregation

Criteria. Such a ruling denies the basic

rights of petitioners to judicial review of

final federal agency action that violates

their Title VI right to be free of racial dis-

Crimination in a program receiving federal

assistance.

2. Undermining the Basic Purpose of Title VI

The sharply divided ruling below, in

relegating petitioners to a suit against the

segregating recipient of federal funds rather

than against the federal agency unlawfully

disbursing the funds, deals a serious blow to

civil rights enforcement generally, and here

particularly in the vital area of higher

education. As we show in this portion of our

petition, the central purpose of Title VI was

to compel federal agencies to act to preclude

me ee

use of any federal funds in programs where

discrimination occurs. Surely the primary

entity subject to suit for violating Title

VI, in keeping with its principal purpose,

must be the federal agency upon whom Congress

has imposed principal responsibility. In ex-

empting the federal agency from suit where its

settlement with a recipient violates Title VI

and the agency's desegregation guidelines,

the majority's ruling undermines the central

purpose underlying Title VI and opens the

door to the evasion of federal civil rights

responsibilities.

By relegating petitioners exclusively to

a suit against the segregating recipient of

federal aid, the court below regresses to the

individual litigation mechanism that Congress

deemed inadequate when it enacted Title VI.

As early as 1958, this Court made crystal

Clear that no government "funds or property”

could constitutionally be utilized in support

- 38 -

of segregated schools, Cooper v. Aaron, 358

U.S. 1, 19 (1958). At any time since then,

victims of segregation could bring suit

against the recipient of government’ funds

under 28 U.S.C. $1331, as they did, e.g., in

Simkins v. Moses H. Cone Memorial Hospital,

323 F.2d 959 (4th Cir. 1963), cert. denied,

376 U.S. 938 (1964). Under the law of Cooper

and Simkins, even without 7.tle VI petition-

ers could have sued North Carolina's segre-

gating higher education institutions receiv-

ing federal aid. The ruling below relegating

petitioners to a suit against the recipient

of federal aid thus affords petitioners no

remedy that did not already exist prior to

Title VI.

Title VI was intended to bring about a

vast improvement in the observance of exist-

ing rights, by providing a “wholesale” en-

forcement mechanism--federal agency action--

Obviating the necessity of the “retail” method

=» 30 «

of suit after suit by victims against segre-

Gating fund recipients. President Kennedy's

Message of transmittal to Congress specif-

ically stated that “it should not be necessary

to resort to the courts to prevent each in-

dividual violation. Congress and the Exec-

utive have their responsibilities to uphold

the Constitution also,” June 19, 1963, re-

printed in 1963 U.S. Code, Cong. & Ad. News

1526, 1534. Congress intended to enact as a

broad principle the rule of Simkins, supra,

“without waiting for further judicial action,"

110 Cong. Rec. 6544 (1964) (remarks of Sen.

Humphrey) ; ? id. at 7065 (remarks of Sen.

Ribicoff).

In so moving, Congress explicitly recog-

nized that it was not a new right that Title

VI was creating but a new assurance that

—a

9 The Humphrey-Kuchel analysis on the

Senate floor takes the place of the usual com-

, mittee report, B. Schwartz, Statutory History

of the United States: Civil Rights 1089.

- 40 -

existing rights would be secured by virtue

Of federal agency compliance activity. The

"national policy,” Senator Humphrey stated,

was “to end discrimination in Federal programs

and Federal assistance," but “regrettably”

there had been "violation of these policies,”

110 Cong. Rec. 6543 (1964). Title VI was

to be a “more effective means to enforce the

civil rights of persons" in America, H.R. Rep.

No. 914, 88th Cong. lst Sess., reprinted in

1964 U.S. Code, Cong. & Ad News 2391. It was

enacted to “assure the existing right to equal

treatment in the enjoyment of Federal funds,"

110 Cong. Rec. 1519 (1964)(remarks of Rep.

Cellar) .10

10 "Basically, there is a constitutional

restriction against discrimination in the use

of Federal funds; and title VI simply spells

Out the procedure to be used in enforcing

that restriction," 110 Cong. Rec. 13333 (1964)

(remarks of Sen. Ribicoff). Senator Humphrey

emphasized that Title VI did not confer new

authority, e.g., id. at 6546, as did Senator

Kuchel, id. at 6562.

e 41 «

It is clear that federal agencies were

to be the instrument for enforcement of this

national policy. Senator Humphrey enumerated

as a major reason for enacting Title VI that

"some Federal agencies appear to be reluctant

to act in this area. Title VI will require

them to act," 110 Cong. Rec. 6544 (1964), and

emphasized that "it is right for Congress to

require every Federal department and agency,

without exception, to act to eliminate such

discrimination," id. at 6546. The Chairman of

the House Judiciary Committee declared that

Title VI “would require each Federal agency

++.to reexamine its assistance program to make

sure that adequate action has been taken to

preclude...discrimination,"” 110 Cong. Rec.

1519 (1964) (remarks of Rep. Cellar). Rep.

Kastenmeier, in additional majority views to

the House committee report, praised Title VI

as “requiring that the Federal Government

‘shall take action’ to prevent the use of

- 42 «-

Federal funds in support of segregated facil-

ities," H.R. Rep. No. 914, 88th Cong., lst

Sess., reprinted in 1964 U.S. Code., Cong. &

Ad. News 2391, 2411-12. Thus federal agency

responsibility was a central thrust of Title

VI; in ruling that petitioners are barred

from suit against the Department of Education,

the majority below immunizes the very actor

upon whom Congress placed the key duty to

“preclude...discrimination." Such a ruling

subverts the central purpose of Title vi.

In short, Congress has imposed upon the

Department of Education the principal respons~

ibility for precluding racial discrimination

in the use of federal education funds. Peti-

tioners have for 13 years in the Adams litiga-

tion held the agency answerable in court when

it has repeatedly defaulted in its Title VI

duty, but now the majority below makes unavail-

able further relief from its continued evasion

of that duty. Rather, turning congressional

- 43 -

intent on its head, the majority forces peti-

tioners to resort to litigation against fund

recipients "to prevent each individual viola-

tion." In undermining the wholesale federal

enforcement approach contemplated by Title VI

and regressing to the retail basis of forcing

victims to seek relief suit by suit, the

majority turns the clock back to the inade-

quate enforcement mechanism before the enact-

ment of Title VI.

The majority's bar of suit against the

agency vested by Congress with the duty to

assure Title VI compliance is particularly

unjustified in the instant case, for the re-

Spondent federal agency bears much of the

responsibility for the continuing segregation

and discrimination in North Carolina's higher

education institutions. Thus, in 1970-1973

it was HEW's failure to follow up on its

demand for a desegregation plan from North

Carolina and other states that led to the

- 44 «

initial remedial orders of the lower courts.

In 1974-1977 it was again the agency's supine

acceptance of worthless plans from the same

States that caused the District Court to order

the Department to obtain genuine plans com-

Plying with desegregation Criteria the Court

required HEW to publish. In 1979 it was the

failure of the agency to obtain a plan from

North Carolina complying with those Criteria

that caused the initiation of an administra-

tive enforcement proceeding against the

State. And now it is the Department's unex-

plained and unexplainable approval of a North

Carolina plan which wholly ignores the Depart-

ment's own governing desegregation Criteria

that constitutes the Title VI violation for

which petitioners seek relief.

Once the Department has given content

to Title VI by issuing desegregation Criteria,

it becomes particularly necessary for vin-

dication of the central Congressional purpose

= 4§ «

that the agency be directly answerable for its

disregard of those Criteria. Cf. United States

ex rel. Accardi v. Shaughnessy, 347 U.S. 260

(1954); Service v. Dulles, 354 U.S. 363 (1957);

Vitarelli v. Seaton, 359 U.S. 535 (1959).

Under these circumstances, a suit against the

Department, utilizing contempt proceedings,

if appropriate, would greatly enhance the

likelihood of the Department's future compli-

ance with its obligations under Title VI.

The majority's bar of Section 603 suits

against the agency, as in the present case,

has the most serious consequences for civil

rights enforcement. The dissenting judges

below, quite appropriately, made this point

forcefully and without response from the ma-

jority (pp. 105a - 106a):

By rewriting the judicial review provisions

of Title VI and by recalibrating our rules

of procedure, the court initiates the pro-

cess by which discriminatory institutions

can dilute the nondiscrimination policies

expressed in Title VI and other civil rights

|

- 46 -

statutes. This case demonstrates that the

Department can still distribute funds to

institutions allegedly operating ina

racially discriminatory manner. Allowing

the Department to abandon its own desegre-

gation criteria in this case undercuts the

credibility of Title VI enforcement efforts

in all the other states. Similarly, com-

mitting Department compliance decisions to

the unreviewable discretion of the agency

removes an essential check on bureaucratic

arbitrariness. Finally, allowing the

Department and North Carolina to evade the

statute's instructions on choice of forum

encourages the other states to do the same.

The court's decision opens the floodgates

through which the Department and recal-

citrant states can water down Title VI's

(and other civil rights acts') moral and

legal imperative. This dilution makes a

mockery of Congress' and our nation's moral

sense that racial (and sexual) equality

must begin in the schools where our chil-

dren are educated. Thus today's decision

works a yet untold substantive injustice.

CONCLUSION

The gaping “settlement" loophole permit-

ted by the court below invades the basic pur-

pose of Title VI in freeing defaulting federal

agencies from Title VI suits and relegating

complainants to individual suits against seg-

regating recipients of federal funds. It

= 47 «

makes victims’ suits against segregating re-

Cipients of federal funds the primary mech-

anism for enforcement of Title VI in the face

of the incontrovertible fact that long before

Title VI was enacted victims had the clear

right to bring such suits. The Civil Rights

Act of 1964, of which Title VI was so im-

portant a part, was enacted after enormous

national attention and effort as one of the

most carefully crafted pieces of federal leg-

islation. As emphasized by the Title VI mes-

sage from President Kennedy, it was precisely

to prevent the necessity of individual lit-

igation that the new federal law proposed

vesting direct responsibility in federal agen-

cies to enforce the rule of nondiscrimination.

The ruling below emasculates the “right to sue”

provision of the statute, absolving federal

agencies of their fundamental Title VI re-

sponsibility to vindicate the constitutional

rule of Cooper v. Aaron, and to carry out the

- 48 -

desegregation purpose of the legislation.

Since its historic pre-Brown series of

higher education decisions this Court has not

spoken on the -important issue of higher educa-

tion desegregation. Yet twenty-nine years

after Brown higher education remains segre-

gated in North Carolina and other Southern

and Border states. North Carolina has but 7%

black students and 3% black faculty in its

traditionally white institutions. In the

State's system there remains vast duplication

Of program offering between traditionally

white and traditionally black institutions,

and manifest inferiority of programs and fa-

cilities at the black schools. With higher

education ever more the door to the achieve-

ment of professional and business opportunity

in our society, it becomes particularly neces-

sary that such vestiges of a century of segre-

gation in state higher education systems be

eliminated “root and branch." An appropriate

- 49 «

means to facilitate that result is grant of

review to petitioners, reversal of a ruling

which leaves North Carolina's higher educa-

tion system in a continuing condition of seg-

regation, and a clear declaration by the

highest court of the land that segregation of

higher education will no longer be tolerated.

For the foregoing reasons, it is sub-

mitted that the writ should be granted.

Respectfully submitted,

Jack Greenberg Joseph L. Rauh, Jr.*

James M. Nabrit, III John Silard

Elliott C. Lichtman

10 Columbus Circle Mary M. Levy

New York, New York

10019 Rauh, Silard and

Lichtman, P.C.

1001 Connecticut

Ave., N.W.

Washinrjton, D.C.

20036

(202) 331-1795

* Counsel of Record

Attorneys for Petitioners

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1715

KENNETH ADAMS, ET AL., APPELLANTS

Vv.

TERREL H. BELL, INDIVIDUALLY, AND AS SECRETARY

OF THE DEPARTMENT OF EDUCATION, ET AL.

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil Action No. 70-03095)

Argued 8 January 1982

Argued En Banc 2 February 1988

Decided 10 June 1983

Joseph L. Rauh, Jr., with whom John Silard, Elliot C.

Lichtman, Jack Greenberg, James M. Nabrit, Ill, Bill

Lann Lee and Brent E. Simmons were on the brief, for

appellants.

Michael Jay Singer, Attorney, Department of Justice,

2

Before: ROBINSON, Chief Judge, WRIGHT, TAMM,

MACKINNON, WILKEY, WALD, MIkKva, ED-

WARDS, GINSBURG and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting Opinion filed by WRIGHT, Circuit Judge, in

which ROBINSON, Chief Judge, WALD and MIKvA, Circuit

Judges join as to Parts I, II, III, and V.

WILKEY, Circuit Judge: Since 1978 the United States

District Court of the District of Columbia, in the course

of adjudicating the suit Adams v. Richardson,' has taken

an active role in delineating the Department of Educa-

tion’s responsibilities in enforcing Title VI of the Civil

Rights Act.*? The present appeal calls upon us to decide

whether the district court appropriately declined to en-

join the Department from settling its Title VI enforce-

ment proceeding against the North Carolina higher edu-

cation system. The district court found that such an

order was outside the scope of its prior decrees super-

vising the enforcement efforts of the Department.’ We

affirm the district court.

I. BACKGROUND

Title VI of the Civil Rights Act‘ prohibits discrimi-

nation by programs receiving federal financial assist-

ance.* Title VI directs the federal agencies which grant

78), F. Supp. 92 (D.D.C.). aff'd, 480 F.2d 1159 (D.C. Cir.

?See Adams v. Weinberger, 391 F. Supp. 269 (D.D.C.

1775) (first supplemental order); Adams v. Califano, 480

F. Supp. 118 (D.D.C, 1977) (second supplemental order).

* See infra pp. 5-6.

* Pus. L. 88-852, Title VII, §§ 601-605, 78 Stat. 252 (1964),

codified at 42 U.S.C. §§ 2000d-2000d-4 (1976). See also 42

U.S.C. §§ 2000d-5—-6 (1976 & Supp. IV 1980).

5 42 U.S.C. § 2000d (1976).

-2a-

funds to issue rules to achieve nondiscrimination by re-

cipients and authorizes the federal agencies to terminate

grants to recipients which are found after hearing to

have failed to comply with these rules.* Plaintiffs brought

suit in 1970 to compel the Department of Education (then

Department of Health, Education and Welfare) to com-

ply with its obligations under Title VI.7 In 1973 U.S.

District Judge Pratt issued a comprehensive order which

required the Department of HEW to commence enforce-

ment proceedings against delinquent southern states

within 120 days.* On appeal, this court modified the or-

der to require the states, in the area of higher education,

first to submit plans based on Department of HEW guide-

lines, with enforcement actions to follow against those

states which failed to file or to implement acceptable

plans.°

The 1978 decree, as modified by this court, provided

the basis for continuing litigation before Judge Pratt.

In 1977 the district court ordered the Department to re-

voke its previous acceptance of some desegregation plans,

including that submitted by North Carolina in 1974.”

The court found that the plans failed to meet the require-

ments set down by the Department and made

progress towards desegregation of higher education.”

The Department was ordered to promulgate final criteria

specifying the ingredients of an “acceptable higher edu-

cation desegregation plan” and to require the states to

*Id. § 2000d-1.

7 Plaintiffs are black students, taxpayers and citizens who

are wronged by expenditure of federal funds in programs

which discriminate against blacks.

* Adams v. Richardson, 856 F. Supp. 92 (D.D.C.), aff’d, 480

F.2d 1159 (D.C, Cir. 1978).

* 480 F.2d at 1165.

10 Adams v. Califano, 480 F. Supp. 118 (D.D.C. 1977).

11 Jd. at 119-20.

-3a-

S.

4

submit revised plans which the Department would accept

or reject.’

In March 1979, after North Carolina’s revised plans

had been rejected by the Department, the Department

initiated enforcement proceedings against the State of

North Carolina. In response, Worth Carolina filed suit

against the Department in the U.S. District Court for

the Eastern District of North Carolina to enjoin the De-

partment from conducting the administrative hearing

and from deferring payment of grants if the hearings

were permitted to proceed." North Carolina contended

that the enforcement proceeding was unauthorized by

Title VI and violated various norms of constitutiona] and

administrative law."*

The Department moved to transfer the action to the

District of Columbia on the grounds that this court was

the more appropriate forum for consideration of the le-

gality of the Secretary’s actions. The North Carolina

U.S. District Court rejected this argument, holding that

the District of Columbia court order did not preclude

action in other courts to test the legality of specific en-

forcement measures undertaken by the Secretary.“ The

North Carolina federal court then enjoined HEW defer-

ral of aid during the enforcement proceeding,’* but de-

clined to reach the merits of North Carolina’s challenge

to that proceeding. Rather, under the doctrine of pri-

mary jurisdiction, the court stayed the suit and retained

jurisdiction pending completion of the administrative

hearing."”

2 Jd, at 121.

18 North Carolina v. Dep’t of HEW, 480 F. Supp. 929

(E.D.N.C. 1979).

14 Id. at 937-38.

4 Id. at 932-34.

16 Id, at 988-40.

11 Id. at 987-38 & 940 n.8.

-4a-

5

An administrative law judge in the Department of

Education then began to hear the Department’s evidence

on the desegregation of the North Carolina system. At

the same time, North Carolina and the Department car-

ried on informal] negotiations. Shortly after the Depart-

ment had completed the presentation of its case in chief,

these negotiations culminated in a settlement agreement

which was embodied in a consent judgment issued in the

North Carolina federal court.'* That court concluded

that implementation of the terms of the settlement would

bring the North Carolina higher education system into

compliance with Title VI."° The consent decree was the

final judgment in North Carolina’s suit against the De-

partment, and its provisions terminated the administra-

tive proceeding against North Carolina.”

Although appellants were limited intervenors in the

administrative proceeding,” they did not seek at any time

to intervene in the suit before the North Carolina fed-

eral court and therefore had no standing to appeal the

consent judgment.” Instead, appellants sought to prevent

entry of the decree by requesting that the District of

Columbia federal court, before which they were plaintiffs,

enjoin the Department of Education from acceding to

the proposed settlement.“ U.S. District Judge Pratt

18 North Carolina v. Dep’t of Educ., Mem. op., No. 79-217-

CIV-5 (E.D.N.C. 17 July 1981).

19 Td. at 3-8.

20 Td, at 1-2.

21 Jn the Matter of the State of North Carolina and the

Board of Governors of the University of North Carolina,

E.D. Docket No. 79-IV-1 and HUD Docket No. 79-4 (Oruer

of 13 Aug. 1979).

22 North Carolina v. Dep’t of Educ., Mem. op. at 2 n.1. See

infra pp. 15-16 and note 39.

23 Plaintiffs’ Motion for Temporary Restraining Order and

for Preliminary Injunction, Civil Action No. 70-8095 (25

June 1981).

-5a-

6

ruled, however, that supervision of this Department de-

cision was beyond the scope of his initial decree.* This

appeal ensued.

* Adams v. Bell, Transcript at 26-30, Civil Action No. 70-

3095 (25 June 1981). Judge Pratt concluded that the exercise

of its power under the decree was “directed primarily at the

agency and not at the individual states and school districts

with which the agency has to deal,” i.e., this power was

“directed against the agency to see that the agency complied

with its statutory [and] constitutional responsibilities. It was

not directed ... at the individuals that are the subject of any

action that the agency might see fit to take.” Jd. at 29-30.

The 1973 decree which Judge Pratt interprets here had

ordered the Department to initiate enforcement procedings.

See, e.g., Adams v. Richardson, 356 F. Supp. at 94 (“Having

once determined that a state system of higher education is

in violation of Title VI, and having failed during a substantial

period of time to achieve voluntary compliance, defendants

have a duty to commence enforcement proceedings .. . [dJe

fendants, their successors, agents and employees, are required

and enjoined within 120 days from the date of this Order to

commence enforcement proceedings by administrative notice

of hearing, or to utilize any other means authorized by law,

in order to effect compliance with Title VI by the states... .’’).

See also infra note 25, 30.

We wrote on review that the purpose of the 1973 decree

was not to “resolve particular questions of compliance and

noncompliance.” 480 F.2d at 1163. Our opinion continued:

Far from dictating the final result with regard to any of

these districts, the order merely requires initiation of a

process which, excepting contemptuous conduct, will then

pass beyond the District Court’s continuing control and

supervision. The school districts must be notified of the

purpose to terminate and be given a hearing. 45 C.F.R.

§ 80.8(c). At the hearing conducted by a hearing ex-

aminer, the district enjoys the usual protections of an

adjudicatory proceeding, including the right to counsel,

the right to introduce all relevant evidence, and the right

to cross-examine witnesses. The examiner’s decision can

be appealed to a reviewing authority, then to the Secre-

tary, and finally to the courts. 45 C.F.R. §§ 80.10, 80.11;

42 U.S.C. § 2000d-2. 28 U.S.C. § 1891 gives the school

-6a-

7

II. ANALYSIS

Judge Pratt correctly interpreted the initial decree not

to extend to supervision of the Department’s settlement

of its enforcement action against North Carolina. While

we do not pass on the scope of the district court’s author-

ity with reference to other possible Department of Edu-

cation actions,” we affirm Judge Pratt’s ruling that the

injunction requested in this case would be inappropriate

in light of the scope of his initial decree.

The purpose of Judge Pratt’s 1973 decree was to re-

quire the Department to initiate appropriate enforce-

ment proceedings under Title VI. It was directed at the

Department’s lassitude, if not recalcitrance, in fulfilling

its responsibilities under that Act.** However, Judge

Pratt’s 1973 decree, as affirmed with modifications by

this court und as supplemented by him in 1977, did not

purport to supervise or dictate the details of the Depart-

ment’s enforcement program, once that program culmi-

nated in an administrative proceeding, itself subject to

judicial review, against a recipient state.

Judge Pratt’s remedial decrees have been carefully

crafted to embody this limitation. When the court or-

dered the Department to enforce the statute in 1973, it

districts and states petitioning for such judicial review a

choice of venue, including the judicial district in which

the plaintiff resides.

% Since the decision affirmed here, the district court has

entered two additional orders. On 10 March 1983 the court

set deadlines for agency investigation of discrimination com-

plaints, for attempts to achieve voluntary compliance and for

initiation of enforcement proceedings. See Adams v. Bell,

51 U.S.L.W. 2560 (10 March 1983) (summary of order). On

24 March 1983 the district court ordered the Department to

did not purport to dictate a fixed formula for choosing

among these modes of implementation; i.e., it did not dic-

tate specific compliance criteria but left the choice among

lawful criteria to the discretion of the Department and

of the states.** Similarly, the particular terms of the

amended criteria issued by the Department pursuant to

the 1977 District of Columbia District Court order were

never endorsed or compelled by the district court,”* and

indeed have been subsequently revoked by the Depart-

ment.”” Thus, the point of his various district court or-

ders, as Judge Pratt explained, was not to specify what

the fina] results of enforcement would be in every detail,

nor to decree unalterable requirements for compliance

with Title VI, but rather to have the Department initi-

ate the process of enforcement, the process by which the

specifics of compliance would then be determined.”

277 Hence the details of the initial decree are limited to

monitoring steps taken by the Department to initiate adminis-

trative hearings and do not extend to the substance of the

Department’s enforcement policy. See 356 F. Supp. at 94-95.

Similarly, the court’s most recent decrees address the Depart-

ment’s responsibility to initiate enforcement proceedings, not

the Department’s subsequent conduct of these proceedings. See

supra note 25. This court, modifying and affirming the dis-

trict court decision, also articulated these bounds upon the

scope of the district court’s decree. See Adams v. Richardson,

480 F.2d at 1163-64 & n.5. (As to the content of the second

supplemental decree, see infra note 30.)

% See Adams v. Califano, 430 F. Supp. at 121 (order);

Acceptable Plans

to Desegregate

42 Fed. Reg. 40780 (11 Aug. 1977).

*” See Revised Criteria, 438 Fed. Reg. 6658 (15 Feb. 1978).

» Of course, the court scrutinized plans for compli-

ance when it ordered revocation of department's accept-

9

The district court orders were a rational means of as-

suring Department compliance with Title VI without an

undue exercise of judicial control over the Department.

Given the sweeping language of Title VI and the com-

plexity of the educational systems to which it applies,

the Department and the states have available to them

many ways of implementing Title VI’s goals of prevent-

ing discrimination in federally aided education. An en-

forcement proceeding or voluntary settlement may cul-

minate in any one of these possible approaches to com-

pliance; Title VI, as interpreted by Judge Pratt’s decrees

of 1973 and 1977, in the first instance gives responsibil-

ity to the agency and not the courts to choose among

possible means of compliance. Hence, these decre#\ cor-

rect systemic defalcation on the part of the Department

in fulfilling that responsibility, but do not, as we held in

Adams v. Richardson, “resolve particular questions of

compliance and noncompliance.” ™

Were the district court to read its initial decree to

contemplate the relief plaintiffs now seek, that court

would encroach upon the role of the institutions respon-

which provided the ground for the court’s scrutiny of specific

plans—i.e., Department acceptance of those plans—preceded

any enforcement action. The court’s action in this respect

differs significantly, for reasons spelled out further infra

pp. 12-17, from court scrutiny of desegregation plans accepted

after initiation of administrative proceedings which culminate

in a court order.

In other words, we agree with the district court that, for

the reasons set out at pp. 9-12, the decision made by the

district court. Ser infre. pp. 14-17.

+! 480 F.2d at 1168. See supra note 24.

10

sible for implementing Title VI and constitute this court

as perpetual supervisor of the enforcement actions of the

Department and of the desegregation policies of the

states. Moreover, were the district court to interpret its

prior decrees to embody its conception of a specific plan

for compliance with Title VI, such an interpretation

would effectively reverse the normal relations between

agency and court. Normally the court reviews the deci-

sions of the agency rather than the agency simply obey-

ing prior directives of the courts: a court issues direc-

tives governing the agency’s future course of conduct

only in the course of reviewing some fina] administra-

tive action. Thus Judge Pratt’s decrees of 1973 and 1977

reviewed the agency’s prior policy of neglect in initiat-

ing enforcement proceedings and corrected this policy

by decrees directing the initiation of enforcement. But

Judge Pratt did not further purport in these decrees to

specify in advance particularized determinations of pol-

icy to be adopted by the Department in the course of

enforcement proceedings. The District Judge correctly

saw no justification for such an extension of the court’s

domain. Rather, the form of compliance with the norms

of desegregation is to be determined in the course of an

ongoing enforcement proceeding against an individual

state.”

*2 This is clearly articulated both by Title VI, see 42 U.S.C.

§§ 2000d-1, -2, and by our opinion in Adams, see supra note 31.

It should also be noted that the enforcement process naturally

contemplates settlements such as that reached in the present

case. We explained in Adams: “As judges well know, the

setting down of a case for hearing does not automatically

terminate voluntary negotiations nor eliminate the possibility

of agreement. The need to prepare for actual hearing fre-

quently causes litigants to focus on their weaknesses as well

as their desires.” 480 F.2d at 1165. See also 42 US.C.

§ 2000d-1 (policy of Title VI to encourage voluntary compli-

ance). Extending the Adams decree to the Department’s

decisions to settle, in contrast to permitting challenges to the

settlement later in an appropriate district court, would im-

-10a-

Re

11

Finally, appellants’ argument would have the effect of

centralizing judicial control of Title VI implementation in

the District of Columbia district court. But, as the Su-

preme Court has recognized, “[i]n cases which touch the

affairs of many persons, there is reason for holding the

trial in their view and reach rather than in remote parts

of the country where they can learn of it by report only.

There is a local interest in having localized controversies

decided at home.” ** Moreover, geographic dispersion of

cases is one way to avoid excessive concentration of judi-

cial power in a single tribunal. The district court decrees

in this case reflect sensitivity to these principles.“ Under

pede such voluntary settlements. Indeed, we note that per-

mitting challenges to continued funding while compliance

negotiations were in progress, though justified in the Adams

situation of conscious Department under- or non-enforcement,

might in other situations be an undesirable distraction to

Department attempts at obtaining voluntary compliance, al-

though we of course do not reach this more general question

in deciding the present case.

*% Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947). We

have also suggested that it is desirable to try cases concerning

primarily local issues in the affected localities. See Liquors

Salesmen’s Union Local 2 v. N.L.R.B., 664 F.2d 1200, 1205

(D.C. Cir. 1981).

“Under the common law, trial in the vicinage was an

ancient and respected right. See generally Blume, Place of

Trial in Civil Cases, 48 Micu. L. Rev. 1 (1949). Originally,

this right was established to facilitate trial by a jury with

first-hand knowledge of the transactions at issue. As trial pro-

cedures evolved towards present-day practices, the right of

venue came to serve the roles of protecting defendants from

the inconvenience and harassment of participating in trial far

from home, and of assuring an appropriate distribution of

cases among different tribunals. Venue policies thus limit plain-

tiffs’ control over the litigation they initiate by limiting the

courts to which they have access. In complex suits such as the

12

the limitation on its decrees established by the district

court, state school systems who wish to challenge specific

Department action with regard to their localities may

choose to bring suit in the federal courts in their states.

In contrast, the result of appellants’ argument would be

to vest in the federal courts of the District of Columbia

plenary power to approve or disapprove the Department’s

Title VI decisions. We should hesitate to arrogate such

power to ourselves.

If the limitation Judge Pratt recognized upon the scope

of his authority enabled state instrumentalities to con-

tinue receipt of federal funding without judicial review,

we would hesitate to accede to the decision below. In fact,

however, such review is always available. The primary

mechanism is a Title VI suit against the state itself.

When such a suit is successful, failure of the Department

to terminate funds would be an abuse of discretion, and

would also evidence continuation of a general policy of

non-enforcement violative of the district court’s earlier

decree. The point is, however, that direct relief wnder

that decree is limited to situations which indicate persist-

interests are in fact most vitally affected by the suit—the

people of North Carolina. As the common law doctrine recog-’

nized, trial in the locality of the policies or transactions at

issue is one way to respect those interests; and it serves to

further public participation in and the accountability of a

judicial process that will result in decisions directly and vitally

affecting large numbers of citizens. The litigation of judicially-

mandated desegregation—which has universally proceeded in

the districts where the desegregation decrees are to be imple-

mented— illustrates the same concern.

Of course, we do not suggest that the district court below

would not in a formal sense meet the prerequisites of jurisdic-

tion and venue for hearing plaintiffs’ case (except perhaps the

requirement of jurisdiction to hear a suit against North

Carolina, see infra pp. 18-19). Instead, as noted in text, these

principles correctly informed Judge Pratt’s interpretation of

the decrees at issue in this case.

-l2a-

13

ence by the Department in the conduct that prompted it—

namely, that the Department “has consciously and ex-

pressly adopted a general policy which is in effect an

abdication of its statutory duty.” *

% See Adams v. Richardson, 480 F.2d at 1162. The evolving

law under Title VI has provided a dual enforcement mecha-

nism, comprising private suits brought directly against offend-

ing instrumentalities and administrative proceedings for ter-

mination of funding as prescribed by 42 U.S.C. § 2000d-1. See

aenerally Cannon v. University of Chicago, 441 U.S. 677, 704-

09 (1979) (discussing Title VI as “model” for Title IX). For

examples of private suits against grant recipients to enforce

Title VI, see Uzzell v. Friday, 547 F.2d 801, aff’d en banc, 558

F.2d 727 (4th Cir.), vacated on other grounds, 488 U.S. 912

(1977); Gilliam v. Omaha, 524 F.2d 1013 (8th Cir. 1975);

Serna v, Portales Municipal Schools, 499 F.2d 1147 (10th Cir.

1974); Otero v. New York City Housing Authority, 484 F.2d

1122 (2d Cir. 1973). The Supreme Court has described pri-

vate suits as an “important and especially flexible part” of the

procedures for enforcing Title VI. Cannon, 441 U.S. at 706

n.49. In contrast, the Court notes that Congress had described

the fund cutoff remedy as a “last resort”: “In most cases al-

ternative remedies, principally lawsuits to end discrimination,

would be the preferable and more effective remedy.” Jd. at

705 n.38 (quoting legislative history); see also id. at 712 n.49.

As the Court observed, one advantage of private actions as a

means of judicial consideration of compliance with Title VI

is that such actions are consistent with the Department’s ful-

fillment of its own responsibilities under Title VI, particularly

where the aggrieved party complains of Department inaction.

“TA] suit to compel the agency to investigate and cut off funds

[citing Adams v. Richardson] . . . is far more disruptive of

[the Department’s] efforts efficiently to allocate its enforce-

ment resources under Title IX than a private suit against the

recipient of federal aid could ever be.” Jd, at 707. As the

Court’s citation of Adams suggests, Title VI and Title IX are

analogous in this respect. Jd. Clearly, private suits provide

an appropriate and effective mechanism for judicial considera-

tion of compliance with Title VI.

Of course, administrative proceedings for fund cutoffs pro-

vide an important means for enforcing Title VI. But such

proceedings will be less frequently the occasion for judicial

scrutiny of compliance by federally funded programs, because

-l3a-

Py

-

5 ag

14

We have no occasion in the context of the present case

to speculate what Department decisions rise to the level of

a general policy of abdication; or what particularized de-

terminations, short of the failure to cut off funds to an

instrumentality finally adjudged to be in violation of Ti-

tle VI, constitute such clear evidence of a continuing pol-

icy of nonenforcement as to support invocation of our

earlier decree. Suffice it to say that the Department’s

commencement of an enforcement action that is later set-

tled through a compliance agreement approved by an ap-

propriate district court does not qualify.

Moreover, after an administrative hearing is initiated,

judicial consideration of the particular compliance deci-

sions of the Department and the states may generally pro-

ceed by normal processes of judicial review. For example,

if the administrative proceedings against North Carolin

had culminated in a decision issued by the administrative

law judge and adopted by the Department, the state or

appellants here (intervenors in the administrative pro-

ceeding) would have been free to seek judicial review in

federal court.”

judicial review will be available only after a Federal “depart-

ment or agency action.” 42 U.S.C. 2000d-2, Such action may

include the “conscious[] and express[] adopt[ion] of a gen-

era] policy” of nonenforcement, the action which provides the

predicate for the decrees in the Adams litigation. 480 F.2d

at 1162. But, as we have stated, see supra pp. 9-13, the statu-

tory requirement of administrative action to be followed by

judicial review places responsibility for determination of the

form of compliance, in the first instance, with the Department

and the states, not with the courts.

% See 42 U.S.C. § 2000d-2 (“Any department or agency ac-

tion taken pursuant to section 2000d-1 of this title shall be

subject to such judicial review as may otherwise be provided

by law for similar action taken by such department or agency

on other grounds.”). Plaintiffs would arguably be persons

“adversely affected or aggrieved by agency action within the

meaning of” Title VI and therefore entitled to seek judicial

review. 5 U.S.C. § 702 (1976).

-l4a-

15

The normal course of judicial review was similarly

available for appellants in the context of the enforcement

proceeding in question here. Because they assert claims

vhich raise issues of law and fact common to the claims

asserted by North Carolina in its suit against the Depart-

ment, appellants could have sought to intervene in that

suit;* indeed, they may have had a right to intervene,

because they claim “an interest relating to the. . . trans-

action which is the subject of the action and [are] so

situated that the disposition of the action may as a prac-

tical matter impair or impede [their] ability to protect

that interest ....”™ Had appellants intervened in the

North Carolina U.S. District Court proceeding, they could

have taken an appeal to the Fourth Circuit Court of Ap-

57 See F.R.Civ.P. 24(b) (Permissive Intervention). It is

noteworthy in this regard that, upon appellants’ application,

the North Carolina federal court did consider amicus briefs

they submitted. See North Carolina v. Dep’t of Educ., Mem.

op. at 2 n.1.

38 Jd. 24(a) (Intervention of Right). In similar situations,

some courts have denied intervention because the government

is thought adequately to represent the putative intervenor’s

claims. See, ¢.g.. U.S. v. South Bend Community School Corp.,

511 F.Supp. 1352, 13857 (D.C. Ind. 1981); U.S. v. Carroll

County Bd. of Educ., 427 F.2d 141 (5th Cir. i970). However,

the cases indicate that the right to intervene may be enjoyed

by putative intervenors who assert interests adverse to the

government or who claim that the governmental party has been

derelict in fulfilling its duties—which are precisely appellants’

claims in the present case. See Trbovich v. United Mine Work-

ers of America, 404 U.S. 528 (1972); Hanson v. Smuck, 408

F.2d 175 (D.C. Cir. 1969); U.S. v. School of Omaha, 367

F, Supp. (D.C. Neb. 1973); U.S. v. Bd. of Educ. of Chicago,

88 F.R.D. 679, 686 (D.C. Ill. 1981). In any event, the more

critical point is that appellants did not even seek to intervene

in the North Carolina proceedings, an omission which colors

an equity court’s consideration of the propriety of the extraor-

dinary relief they now seek.

-l15a-

16

peals and then petitioned the United States Supreme

Court.” In short, appellants had an.ple opportunity to as-

* It is well settled that an intervenor may appeal from

subsequent orders in an action. See, e.g., Cerro Metal Prods.

v. Marshall, 620 F.2d 964, 969 (3d Cir. 1980); In the Matter

of First Colonial Corp. of Amer., 544 F.2d 1291 (5th Cir.),

cert, denied, 431 U.S. 904 (1977); Fishgold v. Sullivan Dry-

dock & Repair Corp., 328 U.S. 275 (1946). (Indeed, inter-

vention may be granted solely to enable the intervenor to ap-

peal, see, e.g., Smuck v. Hobson, 498 F.2d 175 (D.C. Cir.

1969).) Conversely, one who does not seek to intervene may

not appeal a subsequent order, see, e.g., Brotherhood of Rail-

road Trainmen v. Baltimore & O.R. Co., 331 U.S. 519 (1947).

We are puzzled by the suggestion that it was the responsi-

bility of the North Carolina federal district court and of the

parties hefore it to join the Adams plaintiffs in the litiga-

tion before that court. See Judge Wright’s Dissenting Op.

at 53-56. When that litigation was pending, none of the

Adams plaintiffs were citizens of North Carolina. North

Carolina citizens were joinec to the Adams suit, by appel-

lants’ motion to add new parties plaintiff, only in November

1982, a year after entry of the consent judgment by the North

Carolina district court. Thus, when the proposed consent

decree was before the North Carolina federal district court,

the Adams plaintiffs were not persons “subject to service of

process” by that court and therefore could not meet the ele-

mentary requirement for joinder set out by the opening words

of Rule 19(a). If appellants—who of course now include citi-

zens of North Carolina—wished to assert some interest in the

administrative proceeding and in the review of that proceed-

ing by the North Carolina federal district court, it was in-

cumbent upon them to intervene.

In any case, whatever the responsibility of the North Caro-

lina parties to join the Adams plaintiffs in order to obtain

collateral estoppel effect for the North Carolina federal dis-

trict court judgment, this responsibility bears no relation to

our present holding. We do not consider that relief under the

Adams decrees is barred of findings on any particular

issues by the North Carolina federal district court, Moreover,

given the timing of appellants’ suit, it would indeed be odd to

consider collateral estoppel relevant to the initial action in the

U.S. District Court of the District of Columbia. The Adams

plaintiffs sought to enjoin the Department’s action prior to

-~l16a-

17

sert their rights through the normal routes of judicial

review. The district court therefore correctly declined to

exercise extraordinary supervisory power over the Depart-

ment to further appellants’ interests: These interests

could have been fully protected by intervention in a pend-

ing lawsuit which provided an appropriate forum for con-

sideration of appellants’ claims.”

entry of the North Carolina consent judgment; their action

could of course not be barred by a judgment which had not

yet issued. In short. we have no occasion to give collateral

estoppel effect to the North Carolina judgment; nor do we hold

that plaintiffs’ failure to intervene in the North Carolina

district court proceedings foreclosed relief otherwise avail-

able in the district court below. Compare Dissenting Opin-

ion of Judge Wright at 49-56. Rather, our observation that

appellants could have intervened in the North Carolina federal

district court proceedings emphasizes that the interpretation

of the Adams decrees by U.S. District Judge Pratt does not

foreclose appellants from seeking judicial consideration of the

Department’s actions: such consideration was fully available

through normal procedures for judicial review.

# As the North Carolina district court recognized, a court

should enter a consent decree affecting the public interest only

after considering the substantive validity of the decree. North

Carolina v. Dep’t of Educ., Mem. op. at 2 (E.D.N.C. 17 July

1981). See U.S. v. Miami, 614 F.2d 1822, 1330-31 (5th Cir.

1980).

Of course, nothing in the present opinion reflects upon the

power of the district court in the District of Columbia to

supervise the policy of the Department with regard to whether

it will initiate enforcement proceedings against school sys-

tems. As noted above, this is the gravamen of the court’s

initial decree. See supra pp. 7-8. The court exercised this

power in 1977, for example, when it ordered the Department

to revoke its acceptance of plans submitted by the individual

states which perpetuated past illegal discrimination. Adams

v. Califano, 430 F. Supp. at 119-21; sce supra note 30. We of

to plans accepted by the Department after negotiation. Rather

once the processes of administrative enforcement and subse-

quent judicial review are set in motion, the role of the district

court’s enforcement orders comes to an end.

-l7a-

18

Our holding that appellants’ failure to intervene in the

North Carolina suit undermines their claims before us

derives from more than merely an overscrupulous regard

for the niceties of appellate procedure. This failure has

severe practical consequences in the present case. Because

the consent decree has been entered, appllants must now

request that this court order the Department to continue

the enforcement proceeding against North Carolina and

to petition the North Carolina U.S. District Court for re-

lief from its obligations under the consent decree. Such

an order by this court would disturb the fundamental bal-

ance our rules of procedure strike, not only between courts

and executive agencies, but also among the powers of co-

ordinate federal tribunals and the rights of parties who

are or ought to be before those tribunals.

Because they declined to present their claims before the

federal court in North Carolina, appellants now find them-

selves ir the position of asking the District of Columbia

federal courts to disregard a judgment of the North Caro-

lina federal court. This posture of the case has several

consequences. Initially, because the consent decree estab-

lishes rights which North Carolina is entitled to protect

against subsequent judicial interference, effective relief by

“ Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38, 39

(1976). Se also Valley Forge Christian College v. Americans

United for Separatior. of Church and State, 454 U.S. 464,

19

pelling the Department to withdraw from the consent

judgment called for only a gesture, a pro forma motion

by the Department, this would neither provide relief sub-

stantial enough nor evidence enough of any real injury

which was being redressed to satisfy the “case or con-

troversy” requirement, The government would simply ask

the North Carolina federal court to reconsider its decision

as to whether the terms of the consent judgment were

“fair and adequate”; that court would endorse the agree-

ment once again; and the government would remain

bound.

On the other hand, an order from this court that the

government use all efforts to withdraw from the settle-

ment agreement might have greater effect, if it were

somehow to influence the North Carolina federal court’s

reevaluation of the merits of its own prior decision. But

insofar as this is the case, the judgment of this court will

have substantially undermined the rights of North Caro-

lina as secured by the consent judgment. North Carolina

then becomes a party “needed for just adjudication,” and

arguab!ly indispensable to the proceeding here under the

terms of Rule 19(b).*

627 F.2d 258, 261-63 (D.C. Cir. 1980). The court cannot exer-

cise its article III jurisdiction if the injunction sought by

appellants would do nothing to remedy the injury which

brings them into court—i.e., the granting of federal funds to

a system allegedly in violation of Title VI.

“@ F.R.Civ.P. 19(b). Of course, it is our responsibility to

protect the rights of absent parties under Rule 19, even when

the district court had no occasion to do so. See Provident

Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102,

110-11 (1968). In particular, the rule requires the court to

consider four factors in determining whether to dismiss an

action on the ground that a person not before the court is an

indispensable party:

[F]irst, to what extent a judgment rendered in the per-

son’s absence might be prejudicial to him or those already

parties; second, the extent to which, by protective provi-

sions in the judgment, by the shaping of relief, or other

-19a-

20

In short, the only effectual relief from the U.S. District

Court consent judgment is relief which undermines the

rights of North Carolina and thus requires that the state

be before a federal court in the District of Columbia—

which it is not. The more clearly a “case or controversy”

is defined, the more meaningful the relief sought, the more

certainly North Carolina is an indispensable party.

Moreover, the relief now requested by appellants would

place the Secretary of Education in the position of dis-

obeying either U.S. District Judge Pratt’s order or the

measures, the prejudice can be lessened or avoided; third,

whether a judgment rendered in the person’s absence will

be adequate; fourth, whether the plaintiff will have an

adequate remedy if the action is dismissed for nonjoinder.

Under the first and second prongs of this test, when the relief

requested must, to satisfy plaintifis’ claims, be in derogation

of the rights of a person not before the court, that person is

an indispensable party. In the present case, the essence of

plaintiffs’ claims is, of course, that the North Carolina higher

education system should not receive federal funds because

of the anti-discrimination provisions of Title VI; it is there-

fore inherently prejudicial to the entitlement established by

the North Carolina federal court—the determination that the

North Carolina higher education system is in compliance with

Title VI, so that those provisions do not bar the grant of any

aid otherwise available to the system. Moreover, applying the

fourth prong of the test under Rule 19(b), we note, without

passing on the question of the remedies which appellants may

now pursue, that at the time of the decision under review,

appellants could have asserted their claims by intervening in

the suit before the North Carolina district court. See supra

pp. 15-17._

Judge Wright’s dissent suggests that North Carolina may

have “waived” the protections of Rule 19 by failing to join the

Adams plaintiffs as parties before the North Carolina fed-

eral district court. But, as we have already noted, that court

had no personal jurisdiction over these plaintiffs at the time

it approved the consent decree. See supra note 39. North

Carolina hardly “waived” its rights by not asking the North

Carolina federal district court to do something that court had

no power to do.

-20a-

21

order of U.S. District Judge Dupree in North Carolina.

Appellants ask us to order the government’s agents to do

everything within their power to repudiate or disrupt the

North Carolina consent judgment and then to hold those

agents in contempt if they fail in doing so. Such relief

would create an unseemly, indeed an intolerable, situa-

tion.”

We thus hold that, in the circumstances of this case,

Judge Pratt correctly interpreted his prior decrees not to

apply to the Department’s actions in the present case. For

these reasons, the judgment of the district court is

Affirmed.

#7 As we have explained, see supra note 39, we have no

occasion to give collateral estoppel effect to the judgment of

the North Carolina federal district court. Nor does our affirm-

ance of the decision of the district court here, dismissing this

suit, carry any implication for the question of whether the

Department has complied with its statutory and constitutional

responsibilities. Like District Judge Pratt, we simply do not

reach this issue.

-2la-

;

'

’

;

:

1

WRIGHT, Circuit Judge, with whom Chief Judge

ROBINSON and Circuit Judges WALD and MIKVA concur

as to Parts I, II, III, and V, dissenting:

I.

TABLE OF CONTENTS

EAE DD a AE See RET

Il. TITLE VI AND THE Adams ORDERS .........0..... eee eeee ee

III.

IV.

A. Title VI Enforcement Scheme .......0000000000000000....

ae eminions

tahitian cee eackiniasah phacoasiindadisibebeemmnaenntabinunbiane

A. Title VI Suit Against Fund Recipient ...............

B. Justifying This Alternative Vision ....................

1. Decentralizing judicial administration of

_ 5 a ey eae Re

2. Procedural balance among courts and

parties ....... es ARR HE EG ESE es

a. Mandatory intervention |..............0..........

b. Indispensable parties ........000000..0...00000..

3. Recognizing North Carolina court’s judg-

EE a ES Se ee ee

RIE AES TRI RE hh

A. Abandonment of Desegregation Criteria ..........

B. — to Correct Deficiencies of the Prior

1. Desegregation of student bodies ..................

2. Desegregation of faculties 0.0.0.0...

3. Reduction of program duplication ................

4. Enhancement of black institutions ..............

2

In Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d et seg. (1976 & Supp. V 1981), Congress

adopted a federal statutory solution to the century-old

problems of segregation and racial discrimination in in-

stitutions of higher education. Section 601 of the Act de-

clares that “[{n]o person in the United States shall, on

the ground of race, color. or national origin, * * * be sub-

jected to discrimination under any program or activity

receiving Federal financial assistance.” 42 U.S.C.

§ 2000d. Section 602 then imposes upon each federal

agency empowered to extend federal aid a “mandatory

duty * * * to utilize the funds * * * to enforce civil

rights requirements,” H.R. Rep. No. 914, 88th Cong.,

lst Sess., Pt. 1 at 76 (1963), and requires these agen-

cies to terminate the flow of funds to recipients found in

violation of the Act.' 42 U.S.C. § 2000d-1. Congress orig-

inally assigned to the Department of Health, Education

and Welfare (HEW) the task of effectuating Title VI

with respect to institutions of higher education, and later

transferred this “mandatory duty” to the Department of

Education (DE).?

1 Title VI states that each federal agency empowered to ex-

tend federal aid is both “authorized and directed” to effectu-

ate the law with respect to the particular programs it admin-

isters. 42 U.S.C. § 2000d-1 (1976). As originally proposed by

the Administration, Title VI would simply have granted each

agency discretion to withhold federal funds from public agen-

cies that discriminated. House Doc. 124, 88th Cong., 1st Sess.,

Message from the President of the United States Relative to

Civil Rights at 24 (June 19, 1963). However, the House Ju-

diciary Commitee proposed a bill, similar to the one ulti-

mately enacted, that declared unequivocal rights and made

the agency’s vindication of those rights mandatory. See H.R.

Rep. No. 914, 88th Cong., Ist Sess., Pt. 1 at 76 (1964).

2 Congress transferred the responsibility for enforcing Title

VI in the field of higher education to the Secretary of Educa-

tion in 1979. See 20 U.S.C. § 3401 et seq. (Supp. V 1981).

-24a-

Beginning in 1970 appellants, the Adams plaintiffs,’

brought a series of suits under Section 603 of the Act,

42 U.S.C. § 2000d-2, to force\HEW to carry out its man-

datory duty under Section 60 enforce the nondiscrim-

ination provisions with respect to the institutions of

higher education in ten Southern states.‘ On at least

three occasions—twice im the District Court of this cir-

cuit® (hereafter the District Court) and once in this

court “—appellants’ efforts were vindicated: The courts

of this circuit issued orders requiring HEW to carry out

its Section 602 duties and thereby to implement the man-

date to end racial discrimination that is stated in Sec-

tion 601. However, on June 25, 1981, when the Adams

plaintiffs returned to the District Court—this time seek-

ing to enjoin the Secretary of Education (Secretary)

from entering into an allegedly unlawful agreement with

the State of North Carolina—the District Court found

itself without the statutory authority to grant the re-

quested relief." This court now affirms on the theory that

the relief requested was outside the scope of the prior

* Plaintiffs-appellants are certain black students, citizens,

and taxpayers of 11 states, including North Carolina.

* This action was originally brought against the Secretary

of Health, Education and Welfare (HEW). But the current

defendants are Secretary of Education Terre! H. Bell and the

director of the Office of Civil Rights of the Department of Ed-

ucation. Sce note 2 supra (explaining that responsibility for

Title VI enforcement was transferred to Secretary of Edu-

cation).

* Adams v. Richardson, 351 F.Supp. 686 (D. D.C. 1972)

(Memorandum Opinion); 356 F.Supp. 92 (D. D.C. 1972)

(Declaratory Judgment and Injunction Order); Adams v.

Califano, 430 F.Supp. 118 (D. D.C. 1977) (Second Supple-

mental Order).

* Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1978) (en

banc) (per curiam).

7 Adams v. Bell, D. D.C. Civil Action No. 70-8095 (June 25,

1981), Appendix for Plaintiffs-Appellants (App.) at 30.

-25a-

| am

4

orders of the courts of this circuit. Majority opinion

(Maj. op.) at 2. In so holding the court necessarily rules

that Section 603 does not authorize judicial review of a

final Department compliance decision once the agency

has initiated an enforcement proceeding against a par-

ticular state.* See maj. op. at 7, 8-9 n.30, 10 n.32, 14.

I respectfully dissent. In my judgment, the line the

court draws between agency action that is and is not

subject to direct judicial review under Section 603 is

contrary to the plain language of the statute and anti-

thetical to our entire jurisprudence of administrative

law. Section 603 of the Civil Rights Act unambiguously

provides aggrieved persons with a right to challenge

“fajny [Dlepartment or agency action,” including the

Department’s final decision to continue funding a system

of higher education that allegedly discriminates on the

basis of race. Section 602 requires the Department to en-

force the nondiscrimination provision of the statute, and

Section 603 authorizes aggrieved persons directly to ob-

tain review of Department action taken pursuant to that

statutory mandate. The court orders previously issued in

this litigation were, of necessity, based on Section 603,

and hence I believe that appellants’ request for relief

easily fell within the scope of those orders. But even

if no prior orders had ever issued, appellants would

have a separate and enforceable right under Section 603

to obtain relief against allegedly arbitrary and capri-

cious Department action in the venue of their choice.

Final Department action is always subject to judicial re-

* Dismissal, without an examination of the merits, is in-

appropriate if there is any legal theory upon which relief can

be based. See notes 89-91 infra. Appellants’ motion for fui-

ther relief invoked § 603 via six separate statutes—including

the APA— and dismissal is inappropriate if any of them state

a cause upon which relief can be granted. See notes 86-88

infra and accompanying text; see also notes 53, 54 infra. When

the majority dismisses without examining the merits, it neces-

sarily holds that § 603, via these six statutes, does not state

a cause upon which relief can be based. The majority’s hold-

-26a-

5

view, unless explicitly precluded by statute or committed

to agency discretion by law. 5 U.S.C. §§ 701-706 (1976).

Section 603 obviously does neither.

In light of the enforcement scheme Congress created in

Sections 602 and 603, I would remand this case to the Dis-

trict Court. I would instruct it to determine whether the

Department has followed its own rules and regulations in

assessing the compliance of the State of North Carolina

with the Act, and, should it find that the Department ig-

nored its own criteria for what constitutes an acceptable

desegregation plan, to order the Department to resume the

administrative hearing process that is condition precedent

to a termination of funds. The District Court’s role in

this litigation, as in any other case where it reviews final

administrative action, is to review Department resolutions

of fund recipients’ compliance, not to resolve these ques-

tions itself or to order a termination of funds.

In Part I of this dissent I detail appellants’ diligent ef-

forts over the past thirteen years to force the Department

to carry out its mandatory Section 602 duties. Part II

then outlines the scheme Congress created in Sections 602

and 603 for enforcing the nondiscrimination proscription

and explains how the prior orders of the courts of this

circuit fit within that scheme. Part III argues that the

majority’s opinion substitutes its own vision of an ideal

enforcement scheme for the one which Title VI and our

rules of civil procedure jointly create. More specifically,

I will show: that suits against the Department, not the

fund recipient, are the primary mechanism Title VI

creates for obtaining judicial review; that the venue laws

give plaintiffs their choice of forum for bringing such

lawsuits; and that no principle of procedure or equity

supports the majority’s effort to affirm the District Court’s

forfeiture of its statutory authority to review challenges

ing that the relief requested falls outside the scope of the

prior orders thus includes a finding that these prior decrees

established the outermost limits of § 603’s authorization for

judicial review.

-27a-

©

to final Department action. Finally, Part IV demon-

strates that, were the District Court to evaluate the merits

of this case, it would find, as the United States Commission

on Civil Righs has already found,® that the Department

arbitrarily and capriciously abandoned its own criteria

for an adequate desegregation plan when it accepted the

North Carolina settlement. The Department has thus

abdicated its duty to enforce the law and the District

Court should take all steps necessary to ensure that it

does not do so again in the future.

*On July 10, 1981 the United States Commission on Civil

Rights urged the Secretary of Education to reconsider his

decision to accept the North Carolina plan. Chairman Flem-

ming of the Commission, writing for the full body, gave the

Commission’s reasons as follows:

“| .. We have concluded that this agreement fails to

incorporate the major requirements of the court-mandated

higher education desegregation criteria with regard to

strengthening the traditionally biack institutions, deseg-

gregation of student enrollments, and desegregation of

faculty and administrative staff. The agreement offers

less than the 1979 plan which was rejected by HEW and

is similar in scope to the 1974 plan which the Adams

court found to be inadequate. Additionally, the major

issue preventing approval of the 1979 plan—the elimi-

nation of program duplication mong black and white in-

stitutions serving the same geographic areas—is not ad-

dressed in the agreement.”

The Commission then went on to express its concern

that “. . . by submitting the agreement as a consent decree

in the U.S. District Court for the Eastern District of

North Carolina instead of as a desegregation plan subject

to the Adams criteria and review by the U.S. District

Court for the District of Columbia, the Department of

Education and North Carolina, in effect, may avoid scru-

tiny by the Adams court. The consent decree approach

sets a Departmental precedent as a way to circumvent the

Title V1 administrative compliance procedures and the

court-ordered desegregation requirements.”

Brief of plaintiffs-appellants at 12 (quoting report of Com-

mission on Civil Rights) (emphasis added).

-28a-

7

I. BACKGROUND

Congress passed Title VI iu 1964 to prohibit racial and

ethnic discrimination in education programs financed with

federal funds.'® But it was not until January 1969 that

HEW took its first steps to enforce the nondiscrimination

principle embodied in Section 601. At that time the De-

partment sent letters of noncompliance to ten states, in-

'° Title VL. was Congress’ response to a century-old prob-

lem. After the Civil War, states throughout the South enacted

statutes or constitutional provisions requiring segregation of

the races in elementary and secondary schools. U.S. CoMM’N

ON CIVIL RIGHTS, EQUAL PROTECTION OF THE LAWS IN HIGHER

EDUCATION 9 & n.45 (1960). North Carolina was among the

worst offenders. See, e.g., North Carolina Laws 1868-69, ch.

184, § 50, p. 471; North Carolina Const. 1875, Art. IX, § 2.

Initially, many of the states’ provisions did not apply to col-

leges or universities; nonetheless, state legislatures subse-

quently passed statutes extending compulsory racial segrega-

tion to higher education. U.S. Comm'n ON CrviL RIGHTs,

supra, at 9 & n.47. While the Supreme Court initially gave

sanction to such practices, ser Plessy v. Ferguson, 168 U.S.

537 (1896), it ultimately found that such segregation created

intolerable inequities in educational opportunities. See, e.g.,

Missouri ex rel. Gaines v. Canada, 306 U.S. 337 (1938):

Sipuel v. Board of Regents of Unive. sity of Oklahoma, 382

U.S. 631 (1948); Sweatt v. Painter, 3389 U.S. 629 (1950);

McLaurin v. Oklahoma State Regents, 389 U.S. 687 (1960).

These suits had their counterpart in North Carolina in Mc-

Kissick v. Carmichael, 187 F.2d 949 (4th Cir.), cert. denied,

341 U.S. 951 (1951). The Supreme Court finally rejected

_ but equal’’ public education as violative of equa! pro-

of the laws, finding that separate educational facili-

ties were inherently unequal. Brown v. Board of Education,

347 U.S. 483 (1954).

cluding North Carolina."' The letters indicated that each

state was operating a segregated system of higher educa-

tion and requested that each state submit a plan for de-

segregating its system within 120 days."* North Carolina

and four other states * totally ignored this request, while

the five others * submitted plans that HEW found totally

unacceptable. But, following its announced policy of non-

enforcement,'* HEW took no further action against any of

the states.’*

The Adams plaintiffs sued HEW officials for ignoring

their responsibilities under Title VI, alleging that HEW’s

inaction aggrieved persons in each of ten states. The

District Court found that plaintiffs had stated an en-

forceable cause of action and concluded that HEW had

“not properly fulfilled its obligation under Title VI * * *

to eliminate the vestiges of past policies and practices of

segregation in programs receiving federal financial as-

sistance.” Adams v. Richardson, 351 F.Supp. 636, 637

1 The nine other states were Louisiana, Mississippi, Okla-

homa, Florida, Arkansas, Pennsylvania, Georgia, Maryland,

and Virginia.

2 Adams v. Richardson, supra note 5, 351 F.Supp. at 637-

638. The letter to North Carolina characterized the state’s

system of higher education as one “in which certain institu-

tions are clearly identifiable as serving students on the basis of

race.” Letter from Leon Panetta, Director, Office of Civils

Rights, HEW, to Governor Leon W. Scett, February 16, 1970,

quoted in Rentschler, Courts and Politics: Integrating Higher

Education in North Carolina, NOLPE Scu. L. J. 1, 2 (1977).

48 Louisiana, Mississippi, Oklahoma, and Florida.

1* Arkansas, Pennsylvania, Georgia, Maryland, and Virginia.

46 HEW had an announced policy of seeking “voluntary com-

pliance through negotiation and conciliation.” Adams v. Rich-

ardson, supra note 5, 351 F.Supp. at 688. See also Note, Ju-

dicial Control of Systemic Inadequacies in Federal Admin-

istrative Erforcement, 88 YALE L. J. 407, 423-424 & n.71

(1978) (describing history of Adams litigation).

18 Adams v. Richardson, supra note 5, 351 F.Supp. at 638.

-30a-

9

(D. D.C. 1972) (Memorandum Opinion). The District

Court further declared that the time for securing volun-

tary compliance had “long since passed” and that HEW’s

continued financial] assistance to segregated systems of

higher education violated plaintiffs’ rights under Title

VI. Adams v. Richardson, 356 F.Supp. 92, 94 (D. D.C.

1973) (Declaratory Judgment and Injunction Order).

It therefore ordered HEW to effect compliance with Title

VI in the ten states—by instituting administrative en-

forcement proceedings or by any other means authorized

by law—and thereby to vindicate plaintiffs’ rights. Id.

The court’s order, like the plaintiffs’ original complaint,

was aimed at requiring HE W either to obtain compliance

with Title VI or to cease distributing federal funds to

the institutions of higher education in those ten states.

On appeal to this court the government argued that

its actions were not reviewable in any court of law *” and

asserted that, in any event, the lower court’s order “vir-

tually transfer{red] the responsibility for the admin-

istration of Title VI to a single district judge.” ** This

court, sitting en banc, unanimously rejected both argu-

ments and affirmed the District Court. Adams v. Richard-

son, 480 F.2d 1159 (D.C. Cir. 1973) (en bane) (per

curiam). It explicitly rejected HEW’s arguments that

enforcement of Title VI was committed to agency discre-

tion and that review of such action was especially not

within the jurisdiction of the District Court for the

District of Columbia. Jd. at 1161-1163. The en banc

court noted that the Administrative Procedure Act

(APA), 5 U.S.C. §§ 701-706 (1976), commits only cer-

** Brief for appellants in Adams v. Richardson, supra note

6, at 11-16.

18 Id. at 10.

’ The court, sua sponte, decided to hear the case en banc

because of the exceptional importance of the issues involved.

In affirming, the court did give HEW an additional 180 days

to secure acceptable plans, 480 F.2d at 1165.

-3la-

10

tain narrowly defined actions to agency discretion and con-

cluded that Title VI stated sufficiently specific law for a

court to apply on review. Jd. at 1161-1162. Moreover,

the court held that the APA and Title VI together allow

an aggrieved person to bring suit in any court of com-

petent jurisdiction and venue “to assure that the agency

properly construes its statutory obligations, and that the

policies it adopts and implements are consistent with those

duties and not a negation of them.” Jd. at 1163-1164.

Following the court’s decision, HEW identified by

letter the critical requirements of acceptabie desegrega-

tion plans for each of the ten states. In response, North

Carolina and seven other states * submitted higher edu-

cation plans.” In June 1974 HEW approved those plans.

In 1975, however, appellants requested further relief,

emphasizing that numerous deficiencies in the approved

plans infringed upon their Title VI rights. Appellants

requested that HEW be required to revoke its approval

of the desegregation plans that North Carolina and the

other states had submitted in 1974.% Appellants also

asked that the states be directed to submit new plans that

actually would comply with Title VI.

In 1977 the District Court once again found that HEW

had failed to vindicate plaintiffs’ Title VI rights. Adams

* Oklahoma, Florida, Arkansas, Pennsylvania, Georgia,

Maryland, and Virginia.

*1 HEW referred the other two states, Louisiana and Missis-

sippi, to the Department of Justice for enforcement proceed-

ings. See note 57 infra.

22 See Motion for Further Relief and Points and Authori-

ties in Support Thereof, Adams v. Weinberger, D. D.C. Civil

Action No. 70-3095 (filed 1975).

*3 See Revised North Carolina State Plan for the Further

Elimination of Racial Duality in the Public Post-Secondary

Education Systems (May 31, 1974) (the 1974 Plan). A copy

of the plan was filed with the District Court in 1974 as Appen-

dix XIV (e), and is part of the record on appeal in this case.

-32a-

ea

ll

v. Califano, 430 F.Supp. 118 (D. D.C. 1977) (Second

Supplemental Order).** The court held that the deseg-

regation plans submitted by North Carolina and the five

other states * “did not meet important desegregation re-

quirements” earlier specified by HEW and “have failed

to achieve significant progress toward higher education

desegregation.” Jd. at 119. The court therefore ordered

HEW to notify the states, including North Carolina, that

the plans submitted did not satisfy requirements that

were critical for compliance with Title VI. Jd. at 121.

In addition, the court ordered HEW to transmit to the

states, serve upon appellants, and file with the court

“final guidelines or criteria specifying the ingredients

of an acceptable higher education desegregation plan.”

Id. In particular, the court recognized:

* The District Court had issued its first supplemental order,

dealing with HEW’s failure to enforce Title VI with respect

to numerous elementary and secondary school districts, in

1975. See Adams v. Weinberger, 391 F.Supp. 269 (D. D.C.

1975), modificd sub nom, Adams v. Mathews, D. D.C. No.

70-3095 (July 17, 1975) (directing HEW to commence prompt

enforcement on all complaints and setting strict deadlines for

monitoring HEW’s performance) ; see also Adams v. Mathews,

D. D.C. No. 70-3095 (June 14, 1976). The court later ordered

HEW to obtain more resources, see Adams v. Califano, D.

D.C. No. 70-3095 (Oct. 26, 1977), and held that it would be a

violation of the order not to use fully the resources that were

available, see Adams v. Califano, D. D.C. No. 70-3095 (Dec.

29, 1977).

% The other states were Arkansas, Florida, Georgia, Okla-

homa, and Virginia. The court deferred action with respect

to: Louisiana and Mississippi, which were the subject of ju-

dicial enforcement proceedings elsewhere; Maryland, whose

claim that HEW failed adequately to engage in voluntary com-

pliance was pending before another Court of Appeals; and

Pennsylvania, which was in the midst of settlement negotia-

tions. Thus, where the Department was fulfilling its legal ob-

ligations, the court deferred action. On the other hand, with

respect to the six states where the Department had failed to do

so, the court required that the plans be revoked.

-33a-

12

the need to obtain specific commitments necessary for

a workable higher education desegregation plan

* * * concerning admission, recruitment, and reten-

tion of students * * *, concerning the placement and

duplication of program offerings among institutions

* * *, the role and the enhancement of Black in-

stitutions * * *, and concerning changes in the ra-

cial composition of the faculties involved * * *. * * *

Id. at 120.

In directing the parties to draft the order, the District

Judge made clear that he wanted the Department to be

“under the compulsion of a Court Order to submit to the

states certain specific requirements which the states must

respond to * * *.”* This directive reflected the concern

of this court en banc that HEW had “not yet formulated

guidelines for desegregating state-wide systems of higher

learning * * *.” 480 F.2d at 1164.” The District Court

therefore ordered HEW to require the six states to sub-

mit desegregation plans revised in accordance with these

criteria within 60 days of their receipt, and to accept

or reject such submissions within 120 days thereafter.

430 F.Supp. at 121.

Pursuant to both the “specific direction” of the District

Court and the en banc opinion of this court, HEW issued

* Transcript of January 17, 1977 Hearing at 54 (emphasis

added).

77 This court, 480 F.2d at 1164 n.9, cited Alabama NAACP

State Conference of Branches v. Wallace, 269 F.Supp. 346

(M.D. Ala. 1967). In that case a three-judge court had

stressed the importance of “explicit, certain and definite”

guidelines for assuring compliance with the law. Jd. at 352. As

the court stated, “In the absence of judicial review, the school

authorities may and should respect the Guidelines as a reliable

guide to what the Department’s enforcement action should

be,” Id. at 351 (emphasis added). Thus the court envisioned

that unreviewed voluntary compliance would proceed along

the criteria stated in the Guidelines, with exceptions to be

allowed under proper judicial scrutiny.

-34a-

13

“Amended Criteria Specifying Ingredients of Acceptable

Plans to Desegregate State Systems of Public Higher Ed-

ucation,” 42 Fed. Reg. 40780 (1977) (hereafter Amended

Criteria), Appendix of Plaintiffs-Appellants (App.) 102.

By the Department’s own concession,” these decisions in-

terpreted both Title VI” and the Constitution ® as im-

28 See Amended Criteria, 42 Fed. Reg. at 40780, 40781, App.

102, 108 (states have “statutory obligation to devise and im-

plement plans that are effective in achieving the desegregation

of the system”’).

* HEW regulations implementing Title VI provided that

where a recipient of federal funds had previously discrimi-

nated on the basis of race ‘the recipient must take affirma-

tive action to overcome the effects of prior discrimination.”

45 C.F.R. § 80.3(b) (6) (i) (1977) (emphasis added). These

regulations still exist. See 34 C.F.R. § 100.8(b) (6) (i)

(1982).

* Relying on the Fourteenth Amendment, the Supreme

Court long ago made clear that public school officials have “the

affirmative duty to take whatever steps might be necessary to

convert to a unitary_.gystem in which racial discrimination

would be eliminated and branch.” Green v. County School

Board of New Kent County, 391 U.S. 480, 487-488 (1968).

This duty was to be implemented “now,” id. at 489 (emphasis

in original) , and the objective was “to eliminate from the pub-

lic schools all vestiges of state-imposed segregation.” Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15

(1971). While the Supreme Court has not made clear the pre-

cise application of its desegregation doctrines to institutions

of higher education, the weight of precedent at the lower court

level confirms the application of the duty to integrate to institu-

tions of higher education. See, e.y., Norris v. State Council of

Higher Education, 327 F.Supp. 1368, 1878 (E.D. Va.) (three-

judge court), aff'd per curiam, 404 U.S. 907 (1971) ; Sanders

v. Ellington, 288 F.Supp. 937, 942 (M.D. Tenn. 1968). These

cases hold that, while “[t]he means of eliminating discrimi-

nation in public schools necessarily differ from its elimina-

tion in colleges, * * * the state’s duty is as exacting.” Norris,

supra, 327 F.Supp. at 1878 (emphasis added). In issuing the

criteria the Department concluded that “[t)he affirmative duty

to desegregate applies with equal force to higher education.”

Amended Criteria, 42 Fed. Reg. at 40780, App. 102 (citing

-35a-

14

posing an affirmative duty on the states to devise plans

that would be effective in desegregating higher education

systems.*' The Department recognized that the court had

directed it “to prepare criteria which would identify for

the states the specific elements to be included in their re-

vised desegregation plans.” 42 Fed. Reg. at 40781, App.

103. After further negotiations with all of the affected

states and the Adams plaintiffs* HEW then promul-

gated “Revised Criteria” to provide “specific guidance to

the states and at the same time [be] sufficiently flexible

to provide for circumstances which may vary from state

to state.” See Revised Criteria Specifying Ingredients

of Acceptable Plans to Desegregate State School Systems

of Public Higher Education, 43 Fed. Reg. 6658 (1978)

(emphasis added) (hereafter Revised Criteria). Thus

the criteria were developed with the unique needs and

Norris, supra; Lee v. Macon County Board of Education, 267

F.Supp. 458 (M.D.Ala) (three-judge court), aff'd, 389 U.S.

215 (1967); Geier v. Dunn, 337 F.Supp. 573 (M.D. Tenn.

1972) ).

%1 Amended Criteria, 42 Fed. Reg. at 40780-40781, App. 102-

103. See Comment, Integrating Higher Education: Defining

the Scope of the Affirmative Duty to Integrate, 57 Iowa L.

REV. 898 (1972) ; Note, The Affirmative Duty to Integrate in

Higher Education, 79 YALE L. J. 666 (1970).

* It further noted that “[c]onsistent with the requirements

of Title VI these criteria set forth the elements of a desegre-

gation plan which would eliminate the effects of past discrim-

ination.” Amended Criteria, 42 Fed. Reg. at 40781, App. 103;

see Adams v. Califano, supra note 5, 480 F.Supp. at 121.

% The Department undertook an extensive consultation

process in formulating the criteria. Parties participating in

the consultation process included a departmental task force,

the six states to whom the Guidelines would apply, students,

officials of the National Association for Equal Opportunity in

Higher Education, two panels of nationally recognized edu-

cators, plaintiffs’ representatives, and citizens from the six

states. Revised Criteria, 43 Fed. Reg. at 6658, 6660-6661.

-36a-

15

circumstances of each of the relevant states, including

North Carolina, in mind.”

Following publication of the criteria, HEW attempted

to secure revised plans from the six states. By early

1979 the Department had obtained acceptable plans from

five of them.” But HEW’s efforts to negotiate with North

Carolina proved fruitless.” To begin with, HEW would

not accede to North Carolina’s demand that the settle-

mer*+ offer be submitted to a court in the form of a pro-

posed consent decree. It explained that “HEW’s enforce-

ment of Title VI would be irreparably undermined if a

recipient of funds could routinely by-pass statutorily-

mandated administrative compliance procedures by the

expedient of filing a lawsuit and then obtaining a sub-

stantive consent decree * * *.”” Rather, the matter

could “be settled only by the submission of an acceptable

desegregation plan, to be monitored and enforced admin-

* See also note 78 infra. In a separate publication Joseph

A. Califano, Jr., the Secretary of HEW who developed the

Criteria, has said:

Within the limits of the court orders, the means were

left to the state governors, legislatures, and higher educa-

tion system. We tried to draw a line between “education

decisions,” properly left to the states, and decisions that

perpetuated dual systems. * * *

J. CALIFANO, GOVERNING AMERICA 247 (1981). Within this

sphere, however, states’ plans had to comply with the letter

of the Criteria. Jd. at 248.

55 The process of securing these plans is described in id. at

248-250.

*%* Then-Secretary Califano described North Carolina to be

the most “intractable state of all,” id. at 250, and the negoti-

ating effort with it to be a “wrenching dispute,” id. at 244.

** Letter from James P. Turner, Deputy Assistant Attorney

General, Civil Rights Division, Department of Justice, to

Joseph J. Levin, Jr., July 23, 1979, at 1, App. 108.

-37a-

16

istratively, with the lawsuit dismissed by consent.” ™

Second, HEW concluded that the measures North Caro-

lina had proposed in its latest submission offered “no

realistic promise * * * of desegregating the UNC [Uni-

versity of North Carolina] system in the foreseeable fu-

ture, as the law requires.” Indeed, the government

asserted that North Carolina’s current proposal was “a

large step backwards from the positions which pre-dated

the lawsuit,” “ and was unacceptable because it did not

meet the requirements of the Revised Criteria.”

Having failed to obtain an acceptable plan, HEW

filed a Notice of Opportunity for Hearing in April 1979

to determine whether federal funds to assist higher ed-

ucation in North Carolina should be terminated. North

Carolina immediately filed suit against HEW in the

United States District Court for the Eastern District of

North Carolina (hereafter the North Carolina court).

. State of North Carolina v. Dep't of HEW, 480 F.Supp.

929 (E.D. N.C. 1979). North Carolina challenged HEW’s

effort to enforce Title VI and sought, inter alia, to en-

join the hearing and HEW’s deferral of federal aid dur-

ing the hearing’s progress.** The government, in re-

38 Jd. (emphasis added). But the government added that

such a dismissal would “be without prejudice to [North Caro-

lina’s) * * * seeking judicial review of any future adverse ad-

ministrative action.” Jd. (emphasis added).

* Letter from Albert T. Hamlin, Assistant General Coun-

sel, Civil Rights Divisioa, HEW, to Joseph J. Levin, Jr., De-

cember 18, 1979, at 1, App. 111 (emphasis added).

* Letter, supra note 37, at 2, App. 109. The plan was “vir-

tually identical” to the 1974 plan, and one member of North

Carolina’s own university board, civil rights attorney Julius

Chambers, resigned because of it, charging that the plan was

“not a sincere commitment to see that minorities [were]

brought into the system.” J. CALIFANO, supra note 34, at 251.

“ See Letter, supra note 39, at 83-6, App. 113-115.

* North Carolina contended that the enforcement proceed-

ing was unauthorised by Title VI and violated various norms

-38a-

[ual

Pa

17

sponse, requested that the North Carolina court either

dismiss the lawsuit for lack of jurisdiction, id. at 934,“

or transfer the action to the District Court for the Dis-

trict of Columbia, id. at 931.** The North Carolina court

refused to enjoin the administrative hearing, but re-

strained HEW from imposing a limited deferral of

funds.* ZJd. at 939. It also refused to transfer the case

to the District of Columbia or to dismiss for lack of

jurisdiction. 7d. at 931, 935. Instead, it stayed judicial

proceedings until the agency action had run its course

since “technical questions of non-compliance should, in-

itially, be left to the Secretary of HEW with judicial

review as a final check on his methodologies.” Jd. at 937

n.4, 940 n.8. The government apparently did not appeal

these adverse rulings because it had prevailed in its ef-

forts to start the administrative hearing process.

DE commenced a formal hearing before an administra-

tive law judge (ALJ) in July 1980. The Adams plain-

of constitutional and administrative law. State of North Car-

olina v. Dep't of HEW, 480 F.Supp. 929, 937-938 (E.D. N.C.

1979).

** The government argued that jurisdiction did not arise

under 42 U.S.C. § 2000d-1 until after an adverse decision had

been rendered in the administrative hearing process. 480

F. Supp. at 934-935. The government also contended that the

administrative proceeding would provide the state with an

adequate forum in which to raise all its legal and factual con-

tentions concerning Title VI and the Constitution. Jd.

“The government sought to transfer the case under 28

U.S.C. § 1404(a) (1976) because of comity principles and be-

cause the North Carolina suit collaterally attacked the Adams

orders. /d. at 931. HEW asserted that transfer was necessary

to prevent courts of concurrent jurisdiction from foisting

inconsistent obligations upon it. /d.

** The Adams plaintiffs then sought injunctive relief in the

District Court against the Department to require a deferral

of funds. But the court expressly refused to grant relief on

comity grounds. Adams v. Harris, D. D.C. Civil Action No.

70-3095 (Oct. 18, 1979).

-39a-

18

tiffs were allowed a limited right to intervene. Over a

period of nine months the parties presented their affirma-

tive cases, creating a record of 15,000 pages and 500

exhibits. On June 20, 1981, however, the hearing was

aborted because the government and North Carolina

agreed finally to settle their dispute. Appellants were

notified of the proposed agreement and were served with

a copy of it two days later.*’

On June 25, 1981 the Adams plaintiffs went to the

District Court seeking a temporary restraining order

and preliminary injunction to stop the Secretary from

accepting the proposed agreement. The District Court

denied the requested relief. Adams v. Bell, D. D.C. Civil

Action No. 70-3095 (June 25, 1981), App. 26-30. The

Adams plaintiffs filed their appeal the next day.

Before this court could consider the merits of their

appeal, the Secretary accepted the settlement. He then

joined with North Carolina in presenting the settlement

to the North Carolina court for its imprimatur. The

North Carolina court promptly scheduled a hearing re-

garding the proposed decree for July 13, 1981, and gave

the Adams plaintiffs notice and opportunity to appear

as amicus curiae. The Adams plaintiffs never sought to

intervene as a party to the action ** and the North Caro-

** The Secretary credited United States Senator Jesse Helms

with helping to get the talks started. Washington Post, June

21, 1981, at All, col. 1-2. This article was brought to the

court’s attention by the government. See brief for appellees

at 7.

*7 See Letter from Frank K. Krueger to Joseph Rauh, June

22, 1981, Appendix A to Points and Authorities in Support of

Issuance of a Temporary Restraining Order and Preliminary

Injunction in Adams v. Bell, D. D.C. Civil Action No. 70-3095

(filed June 25, 1981). The consent decree appears in the rec-

ord at App. 32.

48 North Carolina v. Dep't of Education, E.D. N.C. No. 79-

217-CIV-5 (Memorandum Decision, July 17, 1981) at 2 n.1,

App. 120.

-40a-

19

lina court did not inquire whether they were parties

needed for a just adjudication.” DE and North Caro-

lina filed memoranda in support of the decree and at-

tached as support the reeord of the administrative hear-

ing as it had been completed to date. The Adams plain-

tiffs filed as amicus a memorandum in opposition, and

contended that, without rebuttal evidence and administra-

tive findings, the administrative record was an inade-

quate basis for judging the proposed decree. Neverthe-

less, on July 17, 1981 the North Carolina court ap-

proved the proposed consent decree. North Carolina v.

Dep’t of Education, E.D. N.C. No. 79-217-CIV-5 (Memo-

randum Decision, July 17, 1981).”

Today, this court affirms the District Court’s June 25,

1981 denial of plaintiffs’ request for relief. It appar-

ently agrees with the District Judge that the requested

relief “was outside the scope of [the District Court’s]

prior decrees supervising the enforcement efforts of the

Department.” Maj. op. at 2. In the court’s view, these

prior orders were limited—and necessarily so—to situa-

9 See Fed. R. Civ. P. 19(a) & (b). Rule 19(a) cleafly re-

quires the court to join parties who will be ultimately af-

fected by it judgment. If the persons cannot be joined, then

Rule 19(b) requires the court to determine whether in “equity

and good conscience” the action should proceed without them.

The North Carolina court did not conduct either the Rule 19

(a) or (b) inquiry.

* The North Carolina court made two substantive findings:

(1) that the settlement did not violate, in any way, the orders

of the District Court for the District of Columbia or the orders

of this court, and (2) that the plan which the decree embodied

substantially complied with the criteria promulgated by HEW

in 1977. In accordance with the decree, the North Carolina

court agreed to retain jurisdiction over the case until] Decem-

ber 31, 1988, and to monitor compliance by North Carolina

with Title VI and the Fourteenth Amendment. Finally, a pro-

vision in the consent decree obligates the government to dis-

miss without prejudice the administrative enforcement pro-

ceeding against North Carolina.

-4la-

20

tions which indicate that the Department has adopted a

general policy of nonenforcement. Thus neither these or-

ders ner the statute authorize the District Court to re-

view a compliance agreement entered into after the De-

partment had started an administrative enforcement pro-

ceeding against the state. See maj. op. at 2, 7, 8-9 n.30,

10, 14. Rather, in the court’s view, appellants’ only re-

course against such compliance agreements is through

a Title VI suit against the state itself or through in-

tervention in a court reviewing the settlement at the re-

quest of the government and the state. Maj. op. at 12,

15-17. I think that both the District Court and this

court are plainly wrong.

IJ. TmtTLe VI AND THE Adams ORDERS

In the decision below the District Court found that

its authority to review agency action was limited to judg-

ing agency compliance “with its statutory [and] constitu-

tional responsibilities,” °' and did not extend to review of

specific questions concerning the “individual states and

school districts with which the Agency has to deal.” **

Therefore, the District Court concluded that it “wholly

lacked jurisdiction” to enjoin the Department from ac-

cepting a settlement that allegedly did not comport with

the Department’s own criteria for what constitutes an

acceptable desegregation plan.** To understand why the

“ Transcript of June 25, 1981 Proceeding at 25, App. 30.

52 Td. at 24, App. 29.

3 Jd. at 25, App. 30. Although the District Court spoke of

lacking “jurisdiction,” id., no one disputes that it had jurisdic-

tion over the persons and the subject matter. Compare brief

of plaintiffs-appellants at 16-22 (federal courts have juris-

diction over this type of action) with supplemental brief for

appellees at 13-17 (“The district court did not rule that it

lacked jurisdiction to enforce its own orders.”) (emphasis in

original).

In 1972 the District Court identified six separate statutory

bases for jurisdiction over appellants’ original lawsuit against

-42a-

—

21

District Court had authority to determine the merits of

appellants’ claim, and therefore to grast the requested

relief, it is necessary to review the scheme Congress

created for enforcing Title VI and how the prior de-

crees of the courts of this circuit fit within that scheme.

A. Title VI Enforcement Scheme

Section 601 of the Civil Rights Act gives every per-

son participating in a program receiving federal financial

assistance the right to be free from racial or ethnic dis-

crimination. 42 U.S.C. £ 2000d. Congress was plainly

dissatisfied with agency efforts to ensure nondiscrimina-

tory use of federal funds and hoped to root out the ves-

the enforcement agency. Adams v. Richardson, supra note 5,

351 F.Supp. at 640. These statutory provisions were: 5

U.S.C. §§ 701-706 (review of agency action under the Admin-

istrative Procedure Act); 28 U.S.C. § 1331 (general federal

question jurisdiction) ; id. § 1343(4) (jurisdiction over actions

to protect civil rights); id. § 1361 (jurisdiction over action

to compel officer of the United States to perform his duty) ;

id. §2201 (declaratory judgment authority); id. § 2202

(granting of further necessary relief). At no point in the

subsequent history of the lawsuit has anyone questioned the

lower court’s jurisdiction, and these six statutes definitively

establish that jurisdiction.

“ The court recharacterizes, and I think correctly, the Dis-

trict Court’s statement that it “wholly lacked jurisdiction” to

be a mere statement that it could not grant the relief appel-

lants requested, even though it technically had jurisdiction

and venue. Maj. op. at 12 n.34. Thus the District Court’s:

denial of the relief requested amounts to a dismissal for fail-

ure to state a claim upon which relief could be granted. See

Fed. R. Civ. P. 12(b) (6). In other words, the District Court’s

statements concerning “jurisdiction” were directed to the re-

lief available to it, and it denied the request for relief because

it saw the Adams plaintiffs’ challenge as reaching beyond any

relief it had granted or could grant. This is precisely what the

government asserts before this court. See supplemental brief

for appellees at 13-17 (Adams plaintiffs’ challenge to the North

Carolina settlement beyond the reach of litigation in the Dis-

trict Court).

-43a-

22

tiges of such discrimination by conditioning distribu-

tion of federal funds on its cessation.~ But Congress

enacted a very elaborate scheme for implementing this

plan because some funding terminations harm benefici-

aries of programs funded as much as they harm fund

recipients themselves.* This scheme is embodied prin-

cipally in Sections 602 and 603 of the Act. See 42 U.S.C.

$§ 2000d-1 and 2000d-2.

Section 602 requires all federal agencies to effectuate

the antidiscrimination provisions of the law. 42 U.S.C.

§ 2000d-1. It unambiguously contemplates that agency

action is the principal mechanism for enforcing the fed-

eral policy of nondiscrimination: Every federal depart-

ment or agency furnishing financial support is to im-

plement the nondiscrimination proscription by appropriate

rule or regulation. Jd. If a fund recipient does not

comply with those rules and regulations, then the de-

partment or agency must terminate the flow of funds. Jd.

But Section 602 also indicates that termination of

funds is a serious enforcement step, and an agency is not

to terminate funds without exhausting every possibility for

conciliation. Thus the Department must make every ef-

fort to secure compliance by voluntary means. Jd. If

the Department determines that compliance by voluntary

means is not possible, then it must initiate the formal

proceedings that are condition precedent to a termin-

ation of funds.*’ Jd. But even during these formal pro-

55110 Cong. Rec. 6544-6546 (1964) (remarks of Sen.

Humphrey).

56 See, e.g., id. at 2490 (remarks of Rep. Boggs); id. at

2498 (remarks of Rep. Willis). For an elaborate review of

the debates, see NAACP v. Medical C ter, Inc., 599 F.2d

1247, 1253-1255 (3d Cir. 1979).

5? These formal proceedings can take several different forms.

First, the distributing agency may initiate a formal adminis-

trative hearing of its own to determine whether the fund re-

-44a-

23

ceedings the department or agency must seek voluntary

compliance, and any agieements reached during this

period are to be given the same effect as if they had

been negotiated before the “setting down of [the] case

for hearing.” Adams v. Richardson, supra, 480 F.2d at

1165. Finally, prior notice must be given to Congress in

each case where, at the conclusion of the formal proceed-

ings, the department or agency proposes to terminate

funds. 42 U.S.C. § 2000d-1.

Once the Department has exhausted its efforts under

Section 602, as indicated by its “final” finding of com-

pliance or noncompliance (and the concomitant decision

to continue or terminate funding), judicial review be-

comes available under the terms of Section 603. /d.

§ 2000d-2. Section 603 first renders “[a]ny department

or agency action taken pursuant to section [602] * * *

subject to such judicial review as many otherwise be

provided by law * * *.” Jd. One such other provision in

cipient is in compliance with Title VI. 42 U.S.C. § 2000d-1.

In this proceeding an Administrative Law Judge will make

preliminary findings of fact and conclusions of law, which can

then be reviewed and changed, in turn, by an interdepart-

mental review board, the secretaries of the respective agen-

cies, or the courts. See 34 C.F.R. § 100.10 (1982). This is the

traditional means by which administrative enforcement occurs,

and is the route the Department chose in this case.

Alternatively, the statute authorizes the agencies to ensure

that compliance is effected “by any means authorized by law.”

Id. Regulations issued under the authority of this statute de-

fine these other means to include (1) a referral to the Justice

Department with recommendation that appropriate proceed-

ings be brought to enforce any rights of the United States

under any law of the United States, and (2) any applicable

proceeding under state or local law. 45 C.F.R. § 80.8 (1982).

This course has been chosen in the government’s efforts to get

Louisiana and Mississippi to comply with Title VI. See, e.g.,

United States v. Louisiana, 527 F.Supp. 509 (E.D. La. 1981)

(order of three-judge court approving consent decree in Jus-

tice Department’s settlement of government’s ongoing Title

VI desegregation case); United States v. Finch, N.D. Miss.

Civil Action No. D.C. 75-9-P (filed in March 1975).

-45a-

24

law, as specifically identified in the legislative history of

the Act,"* is the Administrative Procedure Act, 5 U.S.C.

$$ 701-706 (1976). The APA entitles any person “suffer-

ing legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the mean-

ing of [Title VI]” to obtain judicial review. Jd. § 702.

Furthermore, Section 603 independently authorizes an ag-

grieved person, including a state or political subdivision

thereof, to obtain judicial review only when the Depart-

ment makes a “final” finding of noncompliance and or-

ders a termination of funds. 42 U.S.C. § 2000d-2. Under

both provisions of Section 603, the persons aggrieved are

entitled to judicial review in the venue of their choice.

28 U.S.C. $1391/e) (1976). But, in either case, courts

are not to resolve particular questions of fund recipient

compliance or noncompliance; rather, they are to review

—in the traditional and deferential manner in which

courts review agency action—the Department’s resolution

of these compliance questions. See Adams v. Richardson,

supra, 480 F.2d at 1164 n.6 (discussing nature of judi-

cial review in these actions).

This traditional judicial review of administrative action

is al] that appellants asked for in the District Court. They

58 See H.R. Rep. No. 914, supra note 1, at 25-26 (APA-type

review the primary mechanism by which § 603 operates).

” Thus, if the Department decides to continue funding with-

out completing the formal proceedings, judicial review would

be that customarily applied to informal agency action. See 5

U.S.C. § 706(2) (A) (1976) (arbitrary, capricious, abuse of

discretion, or without authority of law); see also Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).

On the other hand, if the Department reaches its decision—

either to continue or to terminate funding—at the conclusion

of formal proceedings, judicial review would be that custom-

arily applied to formal adjudicatory procedures. See 5 U.S.C.

§ 706(2)(E) (1976) (substantial evidence review applicable

to formal adjudicatory procedures). Of course, if the Depart-

ment refers a case to the Justice Department for an enforce-

ment action, a court in that situation would, of necessity,

apply de novo review.

-46a-

25

wanted the District Court to determine whether the De-

partment’s application (or nonapplication) of the Re-

vised Criteria in the North Carolina settlement was a

proper and consistent use of the rules the Department

has adopted in implementing its duties under Section

602.” Appellants alleged that they were aggrieved by

the proposed settlement and that the Secretary would be

acting without authority of law if he accepted it." In

my judgment, Section 603 and the APA unambiguously

give appellants a right to review of this final agency

action.”

© It is » well established precept that government agencies

must generally conform to their own rules and regulations, es-

pecially where those rules are to have substantive effect. See

Service v. Dulles, 354 U.S. 363 (1957); United States ex rel.

Accardi v. Shaughnessy, 347 U.S. 260 (1954); see also United

States v. Heffner, 420 F.2d 809 (4th Cir. 1970); Equal Em-

ployment Opportunity Comm'n v. Western Electric Co., 382

F.Supp. 787 (D. Mich. 1974).

The published desegregation criteria certainly fall within

the APA's definition of a rule. 5 U.S.C. §551(4) (1976) states

that a “rule means the whole or a part of an agency statement

of genera] or particular applicability and future effect designed

to implement * * * law or policy * * *.” The Department

stated in the original publication of the desegregation criteria

that they were to be binding and to have substantive effect.

See Amended Criteria, 42 Fed. Reg. at 40780, 40781, App. 102,

108; Revised Criteria, 43 Fed. Reg. at 6658, 6659. An agency

statement that is binding and that has substantive effect is a

rule. See, e.g., Guardian Federal S. & L. Ass’n v. Federal S.

& L. Ins. Corp., 589 F.2d 658, 666-669 (D.C. Cir. 1978);

Pickus v. United States Board of Parole, 507 F.2d 1107,

1112-1118 (D.C. Cir. 1974).

*!1 See brief of plaintiffs-appellants at 17; see also Tran-

script of June 25, 1981 Proceeding at 18, App. 23 (the court’s

“jurisdiction [was] the very same jurisdiction that began

this case; that the government is giving substantial federal

funds to these recipients”).

*2 A settlement is undoubtedly final agency action that an

allegedly aggrieved person can ask a court to review. See,

e.g., 5 U.S.C. §554(c) (1976); Center for Auto Safety v.

Lewis, 685 F.2d 656 (D.C. Cir. 1982).

-47a-

26

B. The Adams Orders

In dismissing appellants’ challenge to the Department’s

proposed acceptance of the settlement, this court and

the District Court hardly cite to Section 603 or to the

APA. Rather, they rely on a footnote in the 1973 en

bane Adams decision.“ In footnote 5 of that opinion the

court stated, in part:

Far from dictating the final result with regard to

any of these districts, the order [of the District

Court issued in 1972] merely requires initiation of

a process which, excepting contemptuous conduct,

will then pass beyond the District Court’s continuing

control and supervision. * * *

Adams v. Richardson, supra, 480 F.2d at 1163 n.5. This

court and the District Court now interpret this footnote

as requiring only that the Department initiate an en-

forcement proceeding once it has determined that volun-

tary compliance is not possible.“ As a corollary, they

read this footnote as prohibiting District Court review of

particular compliance decisions the Department makes

after the enforcement proceeding has begun.” This literal

reading of footnote 5 cannot stand alone against either

the remainder of the 1973 en bane decision or the Dis-

trict Court’s 1977 order, both of which followed directly

from the Title VI enforcement scheme.

1. En bane decision.

To begin with, the 1973 en bane decision recognized that

Section 603 and the APA authorize judicial review of all

agency action that allegedly aggrieves persons entitled to

*8 See maj op. at 6 n.24; Transcript of June 256, 1981 Pro-

ceding at 28, App. 28.

* Maj. op. at 6 n.24; Transcript of June 25, 1981 Proceed-

ing at 25, App. 30.

% Maj. op. at 7, 8-9 n.380; Tranecript of June 25, 1981 Pro-

ceeding at 24, App. 29.

-48a-

27

the protection of Title VI.“ The court held that enforce-

ment was not a matter committed to absolute agency dis-

cretion * and that Title VI and the APA authorized courts

to take all steps necessary to ensure that HEW “end

segregation in public educational institutions receiving

federal funds.” Jd. at 1161. The en banc court under-

stood that HEW—and not the courts around the country

—would initially resolve particular questions of fund re-

cipient compliance. Jd. at 1163. But the court also recog-

nized that reviewing courts should assure that the agency

“properly construe[d] its statutory obligations, and that

the policies it adopt{ed] and implement[ed] [were] con-

sistent with [its statutory] duties and not a negation of

them.” Jd. at 1163-1164. This type of review, the court

noted in yet another footnote, “is consistent with the na-

ture of judicia! review exercised in other situations.”

Id. at 1164 n.6.% Thus, though the court did not want the

District Court substituting its judgment for that of the

Department, neither did it intend to insulate the De-

partment’s final decisions from review. Denying the Dis-

trict Court’s authority to assess the merits of the settle-

* The court stated that the only agency action not subject

to judicial review (and committed to agency discretion) was

that where there was no law to apply. Adams v. Richardson,

supra note 6, 480 F.2d at 1161-1162. See Citizens to Preserve

Overton Park, Inc. v. Volpe, supra note 59, 401 U.S. at 410.

*7 Adams v. Richardson, supra note 6, 480 F.2d at 1162.

*8 The court gave three examples of the kind of review it

found consistent with what it was approving: substantial

evidence review of an Interstate Commerce Commission order

granting a motor carrier certificate, see Burlington Truck

Lines, Inc. v. United States, 371 U.S. 166, 165-169 (1962);

reversal of HEW fund termination for failure to make sepa-

rate findings of fact, see Board of Public Instruction of Taylor

County, Fla. v. Finch, 414 F.2d 1068, 1073-1075 (5th Cir.

1969) ; and scrutiny of ICC opinion to determine if in excess

of statutory authority, sec Elgin, Joliet & Eastern R. Co. v.

Benj. Harris & Co., 245 F.Supp. 467, 472 (N.D. Ill. 1965).

“49a-

28

ment in this case, however, would prevent it from per-

forming that review function.

Furthermore, this court’s statement in footnote 5—

that enforcement would “pass beyond the District Court’s

continuing control and supervision” after initiation of

administrative proceedings—simply reflected the status

of the case as it had been presented to the court. At that

time HEW had never before initiated an enforcement pro-

ceeding.” The case was one of agency inaction and this

court, as it has done in other circumstances, see, ¢.g.,

WWHT, Inc. v. FCC, 656 F.2d 807 (D.C. Cir. 1981);

Environmental Defense Fund, Inc. v. Ruckelshaus, 489

F.2d 584 (D.C. Cir. 1971), was requiring the agency to

act. The court’s decision was lowering the longstanding

bar to judicial supervision of agency decisions to prosecute.

It is inconceivable that the court was simultaneously

erecting a new bar to traditional judicial review of agency

enforcement action. Footnote 5 merely reflects the time-

honored wisdom that courts are not to interfere with the

conduct of ongoing administrative proceedings. See Myers

v. Bethlehem Shipbuilding Corp., 308 U.S. 41, 50-51

(1938). It does not and cannot bar normal judicial re-

view of final agency action.” See Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).

To read it as doing so undermines Section 603 and our

accepted jurisprudence of administrative law.

2. District Court decrees.

The District Court’s own prior orders reflect this un-

exceptional interpretation of the statute and the en banc

decision. In 1977 this case did return to the District

Court’s “control and supervision” for review of agency

resolutions of fund recipient compliance with Title VI.

Adams v. Califano, supra, 430 F.Supp. 118. First, the

* See notes 11-19 supra and accompanying text.

7 See note 59 supra.

-50a-

29

District Court ordered the Department to revoke its ac-

ceptance of North Carolina’s 1974 Desegregation Plan

and the plans of five other states because they were “not

adequate to comply with Title VI of the 1964 Civil

Rights Act.” "' The District Court found much evidence

that HEW’s acceptance of these plans was contrary to

law.” Second, in 1977 the District Court ordered the De-

partment to transmit “final guidelines’ ™ that would

constitute “specific requirements which the state must

respond to * * *.”* It ruled that HEW had the responsi-

bility to devise those criteria and to obtain “specific com-

mitments” from the states.** Pursuant to the court’s

“specific direction,” the Department developed those

71 430 F.Supp. at 121.

7 HEW even admitted that the plans were inadequate.

Adams v. Califano, supra note 5, 430 F.Supp. at 120. But the

court found other evidence that the plans the agency accepted

were in violation of the law. See id. at 120 n.1. It invalidated

that agency action as arbitrarily and capriciously taken on

the basis of all this evidence’ This was the exact type of re-

view that this court en banc in 1973 had contemplated. Adams

v. Richardson, supra note 6, 480 F.2d at 1164 n.6; see also

note 68 supra and accompanying text.

78 Adams v. Califano, supra note 5, 430 F.Supp. at 121.

™ Transcript of January 17, 1977 Hearing at 54 (emphasis

added). Another federal District Court had also specifically

ordered adoption of such criteria. See Mayor & City Council

of Baltimore v. Mathews, 571 F.2d 1278, 1276 (4th Cir.)

(Winter, J., concurring and dissenting) (District Court en-

joined Secretary of HEW to “adopt specific standards for

compliance with Title VI by institutions of higher education”),

cert. denicd, 439 U.S. 862 (1978), aff’g by equally divided

Court Mandel v. HEW, 411 F.Supp. 542 (D. Md. 1976).

See also Alahoma NAACP State Conference of Branches v.

Wallace, supr« vote 27, 269 F.Supp. at 351 (Civil Rights Act

of 1964 requires Department to act pursuant to guidelines of

general applicability).

75 430 F.Supp. at 120.

16 Amended Criteria, 42 Fed. Reg. at 40780, App. 102.

-5la-

v 30

criteria and subsequently applied them to the five other

states.” Anything less would have reduced “the entire

process to a meaningless exchange of theory rather than a

determination of fact.” Mayor & City Council of Balti-

more v. Mathews, 562 F.2d 914, 922 (4th Cir. 1977).”

These actions in 1977 are antithetical to the court’s at-

tempt to narrow the District Court’s authority in this

_ ease. Both then and now appellants have argued that the

Department accepted voluntary desegregation plans that

fail to meet “the requirements of [DE’s] own detailed

letters [and Desegregati

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.