Petition — Adams v. Bell
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= 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
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