Petition for Writ of Certiorari — District of Columbia v. Lampkin

7Tr Lo

94 578 SEP 2 8 19%

No. 94-

OFFICE OF THE CLERK

In the Supreme Court of the United States

OcToBER TERM, 1994

DistrIcT OF COLUMBIA, et al.,

Petitioners,

V.

BRENDA LAMPKIN, AS LEGAL GUARDIAN OF

JESSICA LAMPKIN AND CHRISTINE LAMPKIN, MINoRS, et al.

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

VANESSA Ruiz,

Corporation Counsel

CHARLES L. REISCHEL,

Deputy Corporation Counsel

Appellate Division

*DonnaA M. Murasky,

Assistant Corporation Counsel

Office of the Corporation Counsel

One Judiciary Square — Sixth Floor

441 Fourth Street, N.W.

Washington, D.C. 20001

Telephone: (202) 727-6252 ext. 3303

*Counsel of Record

QUESTION PRESENTED

Whether, in light of Suter v. Artist M., 112 S. Ct.

1360 (1992), and Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1 (1981), a federal grant statute, which,

like the McKinney Homeless Assistance Act here, merely

requires States and the District of Columbia to submit plans

acceptable to designated federal executive branch officials as

a condition of receiving federal funding, creates individual

rights enforceable pursuant to 42 U.S.C. § 1983.

PARTIES

Petitioners, who were defendants below, are the

District of Columbia; its Mayor, Sharon Pratt Kelly; the

District of Columbia Public Schools ("DCPS"); and Dr.

Franklin L. Smith, DCPS Superintendent. Both the Mayor

and Dr. Smith were sued in their official capacities only.

Respondents, who were plaintiffs below, are Brenda

Lampkin, as legal guardian of Jessica Lampkin and Christine

Lampkin; Sadie Chatmon, as legal guardian of Aqua Chat-

mon; Denise Dabney, as legal guardian of Dejuan Dabney;

Barbette Fribbley, as legal guardian of Ashley Fribbley; Dawn

Harvell, as legal guardian of Krystal Harvell and Charles

Harvell; Gail Mason, as legal guardian of Clifton Morse, Jr.,

and Ashley Mason; Twana Robb, as legal guardian of Michael

Robb and Calvin Robb; Maria Summers, as legal guardian of

Donald Taylor; Patricia Sumpter, as legal guardian of Eric

Sumpter; and Cherise Thornes, as legal guardian of Kendra

Thornes. In addition, the National Law Center on Homeless-

ness and Poverty, a not-for-profit corporation, was also a

plaintiff.

Several members of the House of Representatives

appeared as amici curiae in the court of appeals: Jim Bac-

chus, Thomas Foglietta, Tom Lantos, Robert Matsui, George

Miller, Patricia Schroeder, Louise Slaughter, and Jolene

Unsoeld.

ses

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........----eeeeeees i

0 A ee ee eee ee i

OPINIONS BELOW ... ccc cc ccc ccc ccesccces 1

FUR ce ccc reese secceseses 2

STATUTORY PROVISIONS INVOLVED ........-.-.- 2

STATEMENT OF THE CASE ........-++-e++ee5 2

INTRODUCTION .....-- ee eccececcces 2

I. THE LANGUAGE OF THE MCKINNEY

BE swe wed be Wow ee ene vevecs 3

Il. THE LEGISLATIVE HISTORY OF THE

MT ~gibbeegepeeeveseseceses 8

III. THE TRIAL COURT. ........-----+-- 11

IV. THE DISTRICT OF COLUMBIA CIR-

a re. ee ee ee 12

REASONS FOR GRANTING THE WRIT ........--- 15

I. THE DECISION OF THE D.C. CIRCUIT

CONFLICTS WITH THIS COURT’S DECISIONS

IN SUTER AND PENNHURST. ......-+++-- 16

Il. THE LOWER FEDERAL COURTS EMPLOY

CONFLICTING APPROACHES IN CONS-

TRUING FEDERAL GRANT STATUTES. .... 24

ee ft. + | rr eo 28

- ili -

TABLE OF AUTHORITIES

CASES

Clifton v. Schafer, 969 F.2d 278 (7th Cir. 1992)....... 25,27

Cort v. Ash, 422 U.S. 66 (1975)... cc ccc cree nees 12

Hendrick Hudson Dist. Bd. of Education

v. Rowley, 458 U.S. 176 (1982) ......... 2220 23

Horn by Parks v. Madison County Fiscal Court, 22 F.3d

653 (6th Cir. 1994), petition for a writ of

certiorari pending, No. 94-164, ............ 26,28

Pennhurst State School and Hospital

v. Halderman, 451 U.S. 1 (1981) .......... passim

Procopio v. Johnson, 994 F.2d 325 (7th Cir. 1993) ....... 27

Resident Council of Allen Parkway Village v. HUD,

980 F.2d 1043, (Sth Cir.), cert. denied,

ff ee | re Se a a a ee 25

Smith v. Robinson, 468 U.S. 992 (1984) .............. 23

Stowell v. Ives, 976 F.2d 65 (1st Cir. 1992) ......... 25,27

Suter v. Artist M., 112 S. Ct. 1360 (1992) ......... passim

Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990) . passim

Wood v. Tompkins, 1994 U.S. App. LEXIS 23498

o> eS err re re ee 27

Wright v. Roanoke Redev. and Hous. Auth.,

ck RD. eer are are ear 12

-iv-

TABLE OF AUTHORITIES (continued)

STATUTES

Individuals with Disabilities Education Act,

20 U.S.C. § 1400 ef seg. .. 0. cece reece 22,23

Adoption Assistance and Child Welfare Act of 1980,

94 Stat. 500, 42 U.S.C. §§ 620-628, 670-679a.... 16,17

UR ee 6 i 6 ee ee ON 6 ee ees passim

Developmentally Disabled Assistance and

Bill of Rights Act, 42 U.S.C. §6010.........- 20,21

Stewart B. McKinney Homeless Assistance Act,

Pub. L. No. 100-77, 101 Stat. 482, codified

as amended at 42 U.S.C. § 11301 et seg.. .... passim

PEs Cy 5 arise kr ie a 3,4,11,12

POR R Soll Os rere ere ee eee passim

Pog 8 ol |)” .: Sie i ees eee de 8,22

ee ee ok 650 6 hae ee ewe eee 8

PRR Fame 5 Sere a gre ee ee ae ee 4

MISCELLANEOUS

House Rep. No. 100-10(1), 100th Cong., Ist Sess.,

1987 U.S. Code Cong. & Admin. News 362. ......- 9

House Rep. No. 100-10(1I), 100th Cong., Ist Sess.,

1987 U.S. Code Cong. & Admin. News 400. ...... 9

House Conf. Rep., No. 100-174, 100th Cong., ist Sess.,

1987 U.S. Code Cong. & Admin. News 441 ....... 9

133 Cong. Rec. 17926-27, 100th Cong., Ist Sess.

(une 27, 1987). 2 wee cece ce eee ececees 10

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

DISTRICT OF COLUMBIA, ef al.,

Petitioners,

Vv.

BRENDA LAMPKIN, AS LEGAL GUARDIAN OF

JESSICA LAMPKIN AND CHRISTINE LAMPKIN,

MINORS, ef ai.,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

The District of Columbia and several of its officials

petition this Court for a writ of certiorari to review a decision

of the United States Court of Appeals for the District of

Columbia Circuit.

OPINIONS BELOW

The decision of the United States Court of Appeals for

the District of Columbia Circuit (App. la-18a) is reported at

27 F.3d 605. The decision of the United States District Court

for the District of Columbia (App. 21a-35a) is not reported.

The court of appeals had jurisdiction pursuant to 28

U.S.C. § 1291.

ee

JURISDICTION

The D.C. Circuit entered its judgment on July 1, 1994.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves the Stewart B. McKinney Homeless

Assistance Act ("McKinney Act"), Pub. L. No. 100-77, 101

Stat. 482, codified as amended at 42 U.S.C. § 11301 et seq.,

and 42 U.S.C. § 1983. The pertinent provisions of the

McKinney Act are reproduced in the Appendix. App. 37a-

52a. 42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any

statute, ordinance, regulation, custom, or usage

of ... the District of Columbia, subjects, or

causes to be subjected, any citizen . . . to the

deprivation, of any rights . . . secured by the

Constitution and laws, shall be liable to the

party injured... ..

STATEMENT OF THE CASE

INTRODUCTION

In recent years, Congress has enacted a wide variety

of legislation in which it has offered “seed" money to the

States and the District of Columbia to encourage them to

address pressing social problems more effectively. One of

these efforts is the 1987 McKinney Act.

The McKinney Act is an important, yet modest, federal

effort to alleviate homelessness in this country and the prob-

lems associated with homelessness. The principal provisions

<n

of the Act are directed at encouraging the identification and

development of low-cost housing and increasing the avail-

ability of medical treatment, including psychiatric and psycho-

logical treatment, for the homeless. In addition, the Act seeks

to assist the states and the District of Columbia in improving

the education of homeless children. Congress has provided

modest sums of money >*nually to achieve these goals.

Despite the long-range goals of the McKinney Act, and

the modest federal funds Congress has provided to implement

the Act, the D.C. Circuit, in a two-to-one decision, has held

that the Act confers upon homeless children a right to educa-

tional and related benefits that is enforceable in an action

pursuant to 42 U.S.C. § 1983. In so ruling, the panel majori-

ty decided that this case was not controlled by Suter v. Artist

M., 112 S. Ct. 1360 (1992), and Pennhurst State School and

Hospital v. Halderman, 451 U.S. 1 (1981). The panel majori-

ty did so even though this Court held that analogous federal

funding programs designed to assist the states and the District

in helping children in foster care (Suter) and mentally disabled

persons (Pennhurst) did not create rights enforceable pursuant

to 42 U.S.C. § 1983. As a result of this decision, a modest

federal grant program has been transformed into a largely

state-funded entitlement program, and the District of Columbia

is now faced with the choice of withdrawing from the program

or being saddled with large financial obligations that Congress

did not intend to impose.

I. THE LANGUAGE OF THE MCKINNEY ACT.

This case principally involves two sections of Part B of

Title VII o: the McKinney Act, 42 U.S.C. §§ 11431 &

11432. Section 11431 is a statement of policy. Section 11432

authorizes the Secretary of Education to award federal grants

to qualifying states; lists the activities for which such grants

~

may be used; and describes the elements of a plan a state must

submit in order to receive a McKinney Act grant, including

State assurances that localities to which it transmits McKinney

Act funds will comply with specified conditions.!’

More specifically, section 11431 states:

It is the policy of the Congress that--

(1) each State educational agency shall

assure that each child of a homeless individual

and each homeless youth have access to a free,

appropriate public education which would be

provided to the children of a resident of a State

and is consistent with the State school atten-

dance laws.

(2) in any State that has .. . laws,

regulations, practices, or policies . . . that may

act as a barrier to the enrollment, attendance,

or success in school of homeless children and

homeless youth, the State will review and

undertake steps to revise such laws to assure .

that the children of homeless individuals and

homeless youth are afforded a free and appro-

priate public education.

(3) homelessness alone should not be

sufficient reason to separate students from the

mainstream school environment.

42 U.S.C. § 11431 (emphasis added).

“The McKinney Act defines the District of Columbia as a state. See

42 U.S.C. § 11435(2).

.

Section 11432, entitled “Grants for State and local

activities for the education of homeless children and youth,"

has several components that are relevant to this case. Subsec-

tion (a) provides that “[t]he Secretary of Education is, in

accordance with the provisions of this section, authorized to

make grants to States to carry out the activities described in

subsections (c), (d), and (e) of this section."

Subsection (c), entitled "Authorized activities,” pro-

vides in pertinent part:

Grants under this section shall be used --

(1) to carry out the policies set forth in

section 11431 of this title in the State;

(2) to provide activities for and services

to homeless children and homeless youths that

enable such children and youths to enroll in,

attend, and achieve success in school;

(3) to establish or designate an Office of

Coordinator of Education of Homeless Children

and Youth in accordance with subsection (d) of

this section;

(4) to prepare and carry out the State

plan described in subsection (e) of this section;

(5) to develop and implement programs

for school personnel to heighten awareness of

specific problems of the education of homeless

children and youth....

42 U.S.C. § 11432(c)(emphasis added).

of.

Subsection (d), entitled "Functions of the Office of

Coordinator,” describes the functions of the Office, including

data collection and reporting, development and implementation

of the state plan, and co-ordination with other agencies and

groups that provide support to the homeless.

Subsection (e), entitled "State plan,” is the lengthiest

provision. Paragraph (1) states: “Each State shall adopt a

plan te nrovide for the education of each homeless child or

homeless youth within the State which will contain provisions

designed to" achieve nine specific goals set forth in subpara-

graphs (A) through (1). 42 U.S.C. § 11432(e)(1) (emphasis

added). The required goals include those designed to "provide

procedures for the prompt resolution of disputes regarding the

educational placement of homeless children and youth” (sub-

para. (B)); “ensure that homeless children and homeless

youths who meet the relevant eligibility criteria are able to

participate in Federal, State, or local food programs” (sub-

para. (D)); “ensure that homeless children and homeless

youths who meet the relevant eligibility criteria are able to

participate in Federal, State, or local before- and after-school

care programs" (subpara. (E)); “address problems with respect

to the education of homeless children and homeless youths,

including problems caused by . . . transportation issues"

(subpara. (G)); and “demonstrate that the State and local

educational agencies in the State have developed and will

review and revise policies to remove barriers to the enrollment

and retention of homeless children and homeless youths in

schools of the State” (subpara. (H)).

Paragraph (2) of subsection (e), in turn, requires states

to assure the Secretary that they will require localities receiv-

ing funding under the Act to meet certain obligations:

=. =

Each plan. . . shall assure, to the extent prac-

ticable under requirements relating to education

established by State law, that local educational

agencies within the State will comply with the

requirements of paragraphs (3) through (9).

42 U.S.C. § 11432(e)(2) (emphasis added).” The required

state plan assurances set forth in paragraphs (3) through (9)

include provisions that states “assure” that local educational

agencies: place a homeless child in a school that is in his

"best interest” (subpara. (3)(A)); provide to each homeless

child “services comparable to services offered to other stu-

dents in the school . . ., including transportation services,

educational services for which the child meets the eligibility

criteria . . . and school meals programs" ({(5)); “coordinate

with local social services agencies, and other agencies or

programs providing services" to homeless children ({(7));

"designate a homelessness liaison to ensure," inter alia, that

"homeless children . . . enroll and succeed" in school (4 8));

and “review and revise any policies that may act as barriers to

the enrollment of homeless children . . . in schools" and

“consider[]" “issues concerning transportation, requirements

of immunization, residency, birth certificates, school records,

or other documentation, and guardianship" ({(9)).

Finally, subsection (f) governs applications for grants.

It provides: “No State may receive a grant... unless the

State educational agency submits an application to the Secre-

YBecause the District of Columbia is defined as a state by the McKin-

ney Act (see supra note 1) and does not have local educational agencies to

which it distributes funds, section 11432(e)(2)-(9) is technically not

applicable to it. However, the District concedes that it is bound by the

substance of these provisions -- that is, that its plan must assure that it will

comply with those provisions.

= 2

tary at such time, in such manner, and containing or accom-

panied by such information as the Secretary may reasonably

require. "*’

Il. THE LEGISLATIVE HISTORY OF THE ACT.“

The legislative history of the McKinney Act demon-

strates that Congress was acutely aware that state and local

resources, both generally and for the purpose of dealing with

the problems of the homeless, were stretched to capacity. It

also demonstrates that Congress was acutely aware that the

*The McKinney Act also contains two other relevant provisions. 42

U.S.C. § 11433(d) governs the content of an application for McKinney Act

funds from local to state educational agencies. It states that such an

“application shall include . . . assurances that the applicant complies with

or will use requested funds to come into compliance with paragraphs (3)

through (9) of section 11432(e) . . ..". (Emphasis added). 42 U.S.C.

§ 11433(d)(1)(B).

Section 11434(b)(1), in turn, governs the responsibilities of the

Secretary of Education. It states:

The Secretary shall monitor and review compliance with

the provisions of this part. . .. In reviewing the State

plans submitted by the State educational agencies under

section 11432(e) of this title, the Secretary shall evaluate

whether State laws, policies, and practices described in

such plans adequately address the problems of homeless

children and homeless youth relating to access to educa-

tion and placement as described in such plans.

“The legislative history is somewhat unusual. The Senate did not

produce a report to accompany its bill. The House produced two reports

but the House bill did not contain any provision for educational services for

homeless children. See 1987 U.S. Code Cong. & Admin. News 362-411.

Its two reports are nevertheless useful in determining the nature and

purposes of the Act.

EEE EEE eee

. S

Act was only a first, albeit important, federal step in address-

ing the problems of homeless persons. The Act was not

expected to produce shelter for everyone in this country or to

alleviate, much less eliminate, all the problems of all the

homeless persons in this country. On the contrary, Congress

was well aware that, even with the injection of federal re-

sources to assist the homeless, their needs would not, and

could not, fully be met.

Thus, as one House Report stated: “The resources of

communities, nonprofit groups and charitable institutions are

stretched to the breaking point as they attempt to provide basic

shelter and essential services for the homeless.” House Rep.

No. 100-10(1), 100th Cong., 1st Sess., 1987 U.S. Code Cong.

& Admin. News 362. That report also recognized that,

"(cJonsidering the magnitude of the problem," the proposed

Act was "a modest federal response." Jd. at 366. A compan-

ion House Report, in turn, stated that the purpose of the Act

was "to assist and encourage local public or private agencies

to increase their efforts to meet the health needs of the home-

less." House Report No. 100-10(II), 100th Cong., ist Sess.,

1987 U.S. Code & Cong. & Admin. News 400.

The House Conference Report, No. 100-174, 100th

Cong., Ist Sess., 1987 U.S. Code Cong. & Admin. News

441, reiterated these points. It observed that Congress had

"found an immediate and increasingly severe crisis of home-

lessness which demands greater resources than ha[ve] been

provided by public and private organizations." Jd. In addi-

tion, it stated:

Indications are that the problem is not

improving. The U.S. Department of Housing

and Urban Development estimated that 250,000

persons were homeless in 1984. Current esti-

io

.

mates by the National Coalition for the Home-

less are that as many as 3 million individuals

may be homeless. Washington city officials

reported a 500 percent increase in the number

of homeless families seeking shelter just this

year.

Id. at 472.

In the floor debates on the compromise measure, the

same themes were sounded -- the themes of too-scarce state

and local resources and the need to provide some federal

assistance to help deal with the rapid growth of the homeless

population in this country. Thus, Senator Cranston character-

ized the Act as one which "lays the foundation for a national

commitment to end homelessness in America." 133 Cong.

Rec. 17926, 100th Cong., 1st Sess. (June 27, 1987). He also

observed that the McKinney Act "gives State Governors and

the mayors of major cities responsibility for developing

coherent homeless assistance strategies tailored to local needs"

and "would provide some additional support for . . . educa-

tional services for homeless children.” Id. at 17926 & 17926-

27. See also, e.g., Senator Kennedy (The McKinney Act "is

a downpayment by Congress on coming to grips with this

problem" and “is a start but . . . only a start.") (/d. at 17932).

In short, the legislative history demonstrates that Con-

gress, in passing the McKinney Act, was well aware that even

with its new federal commitment, states would not have the

financial resources necessary to resolve the problems of the

homeless. Instead, Congress’ purpose was to assist the states

in tackling these problems more systematically and effectively.

a

Ill. THE TRIAL COURT.

This suit was filed by homeless parents on behalf of

their children. In their complaint, they alleged that the

District had violated certain rights guaranteed by the McKin-

ney Act: (1) the statement-of-policy provisions (§ 11431(1)

& (2)); (2) the provisions describing the activities for which

McKinney Act funds may be used (§ 11432(c)(2) & (4)); and

(3) the list of elements for which state plans must give assur-

ances about the activities of local educational agencies to

which they distribute McKinney Act funds (§ 11432(e)(3), (5),

(7), (8), and (9)). Plaintiffs sought injunctive relief requiring,

inter alia, that the District make “best interest" determinations

in assigning homeless children to schools, provide transpor-

tation to and from school, and ensure that they have access to

various educational and school meal programs.

The Honorable Royce C. Lamberth dismissed the com-

plaint for failure to state a claim. He held that the McKinney

Act does not confer individual rights and thus that the viola-

tions of the Act alleged are not redressable under 42 U.S.C.

§ 1983. App. 2la-32a. His decision was based on two

central considerations. First, the McKinney Act “is basically

a grant statute" pursuant to which the District receives a very

modest sum of money annually -- $50,000.00 -- to assist

homeless children in continuing their education. App. 22a;

see App. 31a-32a. Second, and more importantly, the McKin-

ney Act is not distinguishable from the Adoption Assistance

and Child Welfare Act which, this Court held in Suter v.

Artist M., supra, does not create enforceable rights. Both

statutes are, in part, “mandatory in their terms," but “both

statutes only require states to submit plans or applications to

be approved by the federal government." App. 30a, 31a.

Because Suter was controlling, Judge Lamberth declined to

engage in the analysis set forth in this Court’s earlier decision

e

in Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990).

App. 3la n.7.2/

IV. THE DISTRICT OF COLUMBIA CIRCUIT.

A divided panel of the D.C. Circuit reversed. The

majority (Edwards & Buckley, JJ.) characterized the McKin-

ney Act as:

a mix of large visions and gritty detail, com-

bining specific sections dealing with the provi-

sion of education of homeless children and

yw ths with a broad congressional policy that

"each State educational agency . . . assure that

each child of a homeless individual and each

homeless youth have access to a free, appropri-

ate public education . . .."

App. 2a, quoting 42 U.S.C. § 11431.

In its decision, the panel majority acknowledged that

"[a] statute will not be deemed enforceable under section 1983

if Congress did not intend to create any enforceable rights in

it. . . and where the statute ‘did not create enforceable rights,

privileges, or immunities within the meaning of § 1983.’"

App. 5a, quoting Wright v. Roanoke Redev. and Hous. Auth.,

479 U.S. 418, 423 (1987). These "exceptions" to the rule of

enforceable rights are, according to the panel majority, "more

“Judge Lamberth also ruled that (1) any alleged less favorable treat-

ment of homeless children vis-a-vis handicapped children does not violate

the equal protection component of the Due Process Clause of the Fifth

Amendment to the Constitution; and (2) the McKinney Act cannot be inter-

preted to create by implication a private right of action under Cort v. Ash,

422 U.S. 66 (1975), and its progeny. App. 32a-35a. Neither of these

rulings was challenged on appeal.

a is

easily stated than applied, as will be apparent from the Su-

preme Court’s decisions” in Wilder and Suter. App. Sa.

Following a discussion of Wilder and Suter, the panel

majority ruled that the Wilder framework was proper. Under

Wilder, a court is required to ask whether a federal statutory

provision is “intended to benefit the putative plaintiff." App.

6a. If the provision is so intended, it

"creates an enforceable right unless it [1] re-

flects merely a congressional preference for a

certain kind of conduct rather than a binding

obligation on the governmental unit. . . or [2]

unless the interest the plaintiff asserts is too

vague and amorphous such that it is beyond the

competence of the judiciary to enforce.”

App. 6a, quoting Wilder, supra, 496 U.S. at 509, and omit-

ting citations to Pennhurst, supra.

Here, the panel majority ruled, "the McKinney Act

was enacted to benefit homeless children" and did not merely

express a congressional preference for a certain kind of

conduct. App. 10a. Thus, section 11432(c) specifies the

activities for which McKinney Act grants may be used,

including “inter alia, ‘to prepare and carry out the State

plan.’"" App. lla. More importantly, section 11432(e)(2)

mandates that “‘[eJach plan . . . assure . . . that local educa-

tional agencies . . . will comply with’" the “highly specific

instructions" contained in paragraphs (3) through (9) of

subsection 11432(e). App. lla. It was this “gritty detail”

that was critical to the panel majority even though these

provisions merely list the assurances states must make to the

Secretary in their plans concerning the activities of local

educational agencies receiving McKinney Act funds.

~ Sn

The statute in Suter, according to the panel majority,

was distinguishable. First, "[a]lthough both Acts describe in

detail the contents of the plan a participating State must adopt,

only the McKinney Act provides specific directions for the

plan’s execution." App. lla. Second, the McKinney Act

"differs significantly from the Adoption Act in that paragraphs

(3) through (9) of subsection 11432(e) of the McKinney Act

not only inform the State in great detail on how its plan is to

be implemented, they impose obligations that are independent

of the plan." App. 12a. What was critical was that the Mc-

Kinney Act contains "specific, mandatory terms." App. 12a.

The panel majority addressed several other matters,

including the following. First, citing Suter, the panel majority

stated that "the McKinney Act contains no statutory mecha-

nism for the administrative enforcement of the beneficiaries’

rights suggesting that Congress did not intend to [foreclose]”

a private cause of action that is enforceable under section

1983." App. 13a. Second, citing federal legislation govern-

ing the education of handicapped children, which also requires

“a free, appropriate public education,” the panel majority

ruled that the McKinney Act provisions at issue were not so

vague 9¢ to be beyond the competence of the judiciary to

enforce. App. 15a.

Judge Sentelle dissented. In his view, “the genuine

statutory duty of a recipient state under the McKinney Act is

to ‘prepare and carry out’ a plan ‘designed to’ achieve nine

designated goals." App. 17a, quoting 42 U.S.C. §§

11432(c)(4) & 11432(e)(1) (emphasis by Sentelle, J .). This

statutory scheme is no different from that in Suter, which also

dealt with a statute containing mandatory language and specif-

ic, detailed provisions. App. 17a. Furthermore, the “de-

%As amended on July 28, 1994.

~%.

signed to" and "best interest" language is just as amorphous

as the "reasonable efforts" language considered in Suter.

App. 17a.

REASONS FOR GRANTING THE WRIT

This Court should review the decision of the D.C.

Circuit for three reasons. First, Congress has increasingly

used federal grant programs to assist hard-pressed states and

the District of Columbia in addressing widespread, serious,

and intractable social problems. The funding provided in such

programs ranges from “seed" money to nearly full funding,

and the conditions for receipt of such funding range from the

submission of a plan acceptable to designated federal executive

branch officials to the assumption of varying obligations to

beneficiaries of the legislation. The question of just what

conditions accompany federal grants, and what obligations

acceptance of such grants impose on the states and the Dis-

trict, when Congress adopts one legislative model rather than

another, is thus of important, nationwide significance.

Second, the D.C. Circuit’s decision in this case is in

conflict with this Court’s decisions in Suter and Pennhurst and

is otherwise seriously flawed. In Suter, for example, this

Court ruled that the Adoption Assistance Act, which also

contains mandatory language and requires states to submit

plans meeting numerous criteria, including quite specific

criteria, does not create enforceable rights. By contrast, the

D.C. Circuit, in the context of a modest federal assistance

program, interpreted the McKinney Act by focusing on its

"gritty detail" without regard to the context in which this

detail is found -- the obligation of States to give assurances

that local educational agencies to which they transmit McKin-

ney Act funds will do certain things. Furthermore, the D.C.

Circuit overlooked the fact that when Congress wants to create

= f

an enforceable right to a free, appropriate public education, it

knows how to do so, as it did in legislation aiding handi-

capped children.

Third, this Court needs to give guidance to the federal

courts of appeals which have been struggling unsuccessfully

to reconcile Suter and Pennhurst with Wilder. Their efforts

have resulted in at least three distinct approaches for determin-

ing whether a federal grant statute creates rights enforceable

under 42 U.S.C. § 1983, and two of these approaches have

been criticized by judges bound by the law of their respective

Circuits. This Court should clarify this important aspect of its

jurisprudence to ensure that similar federal grant statutes are

consistently construed and to prevent the states and the Dis-

trict from being subjected to financial burdens not intended by

Congress, burdens that include not only the costs of entitle-

ment programs but also attorney’s fees.—

I. THE DECISION OF THE D.C. CIRCUIT

CONFLICTS WITH THIS COURT’S DECI-

SIONS IN SUTER AND PENNHURST.

In Suter and Pennhurst, this Court ruled that a ‘federal

statute enacted pursuant to the Spending Clause must “unam-

biguously" confer rights before a beneficiary of the statute

may enforce it pursuant to 42 U.S.C. § 1983. Suter, supra,

112 S. Ct. at 1366; Pennhurst, supra, 451 U.S. at 17. In

Suter and Pennhurst, this Court also made clear that a federal

grant statute requiring only that states submit plans acceptable

to federal executive branch officials does not "unambiguously"

confer rights on individuals even when the statute contains

specific and detailed provisions or the language of rights.

In Suter, this Court ruled that the Adoption Assistance

and Child Welfare Act of 1980, 94 Stat. 500, 42 U.S.C. $$

ot.

620-628, 670-679a, "does not create an enforceable right on

behalf of” children "either under the Act itself or through an

action under 42 U.S.C. § 1983." 112 S. Ct. at 1363. Specif-

ically before the Court in Suter were two provisions of the

Act, 42 U.S.C. §§ 671(a)(9) & (15), a child-abuse-and-neglect

reporting provision and a provision mandating that states make

“reasonable efforts" to preserve families.”

In Suter, this Court ruled that neither the reporting

provision nor the “‘reasonable efforts’" provision, despite

their mandatory language, “unambiguously confer[s] upon the

child beneficiaries of the Act a right to enforce" its require-

ments. Jd. at 1367. Thus, although "the Act does place a

requirement on the States, . . . that requirement only goes so

far as to ensure that the State have a plan approved by the

Secretary which contains . . . 16 listed features." Jd. at 1367.

’'They provided at the time of the Suter decision:

In order for a State to be eligible for payments under this

part, it shall have a plan approved by the Secretary [of

Health and Human Services] which --

(9) provides that where any agency of the State

has reason to believe that the home. . . in which a child

resides . . . is unsuitable . . . because of the neglect,

abuse, or exploitation of such child, it shall bring such

condition to the attention of the appropriate court or law

enforcement agency . . .; [and]

(15) . . . provides that in each case, reasonable

efforts will be made (A) prior to the placement of a child

in foster care, to prevent or eliminate the need for re-

moval of the child from his home, and (B) to make it

possible for the child to return to his home. . ..

112 S. Ct. at 1364 & 1368 n.10, quoting 42 U.S.C. § 671(a)(9) & (15)

(emphasis added).

.

In its decision, this Court distinguished Wilder, which

found an enforceable right, on the principal ground that the

federal statute there, the Boren Amendment, required states to

adopt, as part of their federally mandated plans, reasonable

and adequate rates for reimbursing providers of medical ser-

vices and that the providers had urged that the state’s plan did

not satisfy that requirement. By contrast, in Suter, the state

plan itself was not challenged but only its implementation.

In Suter, this Court also distinguished Wilder on the

ground that, in contrast to the “reasonable efforts" provision

of the Adoption Assistance Act, the statute and regulations at

issue in Wilder provided guidelines for construing the Boren

Amendment’s mandate that states pay reasonable and adequate

rates. This distinction, however, is insignificant. First, this

distinction is not applicable to the reporting provision of the

Act which, this Court also ruled, does not create an enforce-

able right. Second, this Court in Suter did not appear to

regard the concept of "reasonable efforts" as so vague as to

preclude its application by the judiciary. Indeed, as this Court

observed, in the Adoption Assistance Act, Congress directed

that states be reimbursed for certain expenses on behalf of

children involuntarily removed from their homes only after

state family courts certify in neglect and abuse proceedings

that “reasonable efforts" had been made to keep a child in his

home or to return him home. 112 S. Ct. at 1368.

In light of the foregoing, the conclusion is inescapable

that the dispositive rationale of Suter is that a federal statute

does not create individual rights when all that it requires of

states is the submission of a plan acceptable to federal authori-

ties. This is so even if isolated provisions of a statute contain

mandatory and specific language; these provisions must be

carefully examined "in the context of the entire Act;" and it

'

i

Deicide vasa ie nite 4 vo

_ -

is the context that determines a state’s obligations. 112 S. Ct.

at 1370.2

When the language of the McKinney Act relied on by

the D.C. Circuit is carefully examined in context, it is clear

that the Act does not create enforceable rights. Here, as in

Suter, the provisions principally relied upon by the D.C.

Circuit (42 U.S.C. § 11432(e)(3)-(9)) are merely elements that

are required to be included in a state plan pursuant to subsec-

tion (e). Under subsection (e), states receiving McKinney Act

funds are required only to provide assurances in their plans

that local educational entities to which they transmit federal

funds will do certain things. The other provisions relied on

by the D.C. Circuit are isolated parts of subsections 11432(c)

& (d). Neither of these provisions, however, imposes on

States obligations to individuals. Subsection (c) merely

identifies the activities for which McKinney Act grants may be

used, while subsection (d) merely describes the duties of state

coordinators.

Wilder, moreover, does not compel a different result.

Insofar as Wilder is relevant here, it requires two inquiries:

(1) whether the McKinney Act is intended to benefit homeless

children; and (2) whether, in light of Pennhurst, the McKin-

ney Act “does no more than express a congressional prefer-

ence for certain kinds" of conduct, rather than create binding

obligations on the states, which run to and are enforceable by

the heneficiaries of the Act. 451 U.S. at 19.

“Assuming, however, that Suter can be read as a vagueness case, the

District believes that the principal statutory provision invoked by plaintiffs

here -- that a homeless child must be assigned to a school based on his

“best interest" -- is at least as vague as the “reasonable efforts" provision

which this Court in Suter regarded as vaguer than the reasonable rates

provision at issue in Wilder.

FE Re, ee eee a ee ee a ee

— -

Both inquiries must be answered affirmatively. Of

course, the Act is intended to benefit homeless children. At

the same time, however, it reflects merely a congressional

preference for certain kinds of conduct -- e.g., the provision

of educational and related services to homeless children -- and

does not impose a binding obligation on state governments,

that is, an obligation that runs to each and every individual

who is a member of the group Congress intended to benefit.

In Pennhurst, the Court explained the difference

between a congressional preference and a binding obligation

in rejecting the argument that the "bill of rights" provision of

the Developmentally Disabled Assistance and Bill of Rights

Act, 42 U.S.C. § 6010, conferred substantive rights on

mentally retarded persons, including “a right to appropriate

treatment" in the "least restrictive” environment. Id. at 13.”

In rejecting the argument of mentally retarded residents of a

state hospital receiving funds under the Act that this provision,

because it expressly speaks of rights, in fact creates rights, the

Court wrote:

¥ The Act stated, inter alia:

"Congress makes the following findings respect-

ing the rights of persons with developmental disabilities:

"(1) Persons with developmental disabilities have

a right to appropriate treatment, services, and habili-

tation for such disabilities.

"(2) The treatment, services, and habilitation for

a person with developmental disabilities . . . should be

provided in the setting that is least restrictive of the

person's personal liberty.

Pennhurst, supra, 451 U.S. at 13, quoting 42 U.S.C. § 6010 (emphasis

added).

ii

= 3.

Their reliance is misplaced. "‘In expounding

a Statute, we must not be guided by a single

sentence or member of a sentence, but look to

the provisions of the whole law, and to its

object and policy.’" ... Contrary to [their] .

. . assertion, the specific language and the

legislative history of § 6010, are ambiguous.

We are persuaded that § 6010, when read in

the context of other more specific provisions of

the Act, does no more than express a congres-

sional preference for certain kinds of treatment.

. . The closest one can come in giving §

601 O meaning is that it justifies and supports

Congress’ appropriation of money under the

Act and guides the Secretary in his review of

state applications for federal funds.

Id. at 18-19 (citations omitted) (emphasis added).

Pennhurst stands for the principle that even when Congress

uses the language of rights in a federal grant statute, the

statute does not confer enforceable rights on the beneficiaries

of the statute when the context in which this language is found

indicates otherwise. The same principle applies here. Here,

as in Pennhurst,

nothing suggests that Congress intended the Act

to be something other than a typical funding

statute. Far from requiring the States to fund

newly declared individual rights, the Act has a

systematic focus, seeking to improve care to

individuals by encouraging better state plan-

ning, coordination, and demonstration projects.

rei pis inte masala

Id. at 22 (footnote omitted).

en

.-.

The absence of any enforceable rights in the McKinney

Act is underscored by two other matters. First, the Act itself

expressly contemplates that not all homeless children will

receive all the benefits authorized by the Act for which they

are eligible. Thus, for example, 42 U.S.C. § 11433(d)(1)(B),

which, like the rest of Part B of Title VI, contains no timeta-

ble, states that an "application" from a local to a state educa-

tional agency for McKinney Act funds “shall include .. .

assurances that the applicant complies with or will use request-

ed funds to come into compliance with paragraphs (3) through

(9) of section 11432(e) .. «." (Emphasis added). See also 42

U.S.C. § 11433(b)(2)) (placing limits on the extent to

which McKinney Act money may be used to fund transporta-

tion of homeless children to and from school even though such

limits may preclude the provision of transportation to all

eligible children).

Second, the language of the McKinney Act differs in

important respects from the language of the Individuals with

Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et

seq. The IDEA, originally enacted in 1975 as the Education

for the Handicapped Act, like the McKinney Act, states that

it is intended to ensure a “free appropriate public education"

for designated children. 20 U.S.C. § 1400(c). Furthermore,

as in the McKinney Act, states participate in the IDEA pro-

gram by accepting federal funds after submission of a plan

acceptable to the Secretary of Education. 20 U.S.C. §§ 1412

& 1413. But there the similarity ends. The IDEA provides

that states "shall establish and maintain procedures" elsewhere

specified in the Act "to assure that handicapped children...

are guaranteed procedural safeguards with respect to the

provision of a free appropriate public education. . .." 20

«%.

U.S.C. § 1415(a).4% The IDEA also requires states to identi-

fy handicapped children within their jurisdiction and to devel-

op for each of them an individualized education program

("IEP"). 20 U.S.C. § 1415(b)(1). Ifa parent objects to the

IEP, the IDEA requires a due process hearing before an

impartial administrative agency. 20 U.S.C. § 1415(0)(2) &

(c). Any party aggrieved by the decision may then seek

judicial review. 20 U.S.C. § 1415(e)(2).

In the IDEA, Congress unambiguously created enforce-

able rights. See, e.g., Smith v. Robinson, 468 U.S. 992, 1010

(1984) ("Congress made clear that the [IDEA]. . . is not

simply a funding statute" but that it “establishes an enforce-

able substantive right to a free appropriate public education");

Hendrick Hudson Dist. Bd. of Education v. Rowley, 458 U.S.

176 (1982). By contrast, in the McKinney Act, Congress, al-

though it had before it an obvious model of how to create an

enforceable right to a free, appropriate public education, did

not adopt the language of the IDEA. Congress’ failure to

follow this model is powerful evidence that it had a different

program and a different enforcement scheme in mind when it

enacted Part B of Title VII of the McKinney Act -- a federal

funding program to assist states in their efforts to provide

educational and related benefits to homeless children in which

state compliance is to be monitored only by the Secretary of

‘Congress did provide for an individual administrative enforcement

mechanism in the McKinney Act but, in contrast to the IDEA, left its

design to the states, a decision that supports the argument that the Act

creates no enforceable rights. 42 U.S.C. § 14432(e)(1)(B) provides:

Each State shall adopt a plan to provide for the education

of each homeless child . . . which will contain provisions

designed to . . . provide procedures for the prompt

resolution of disputes regarding the educational place-

ment of homeless children. . ..

———————————

a M-

Education. As this Court stated in Pennhurst, “in those in-

stances where Congress has intended the States to fund certain

entitlements as a condition of receiving federal funds, it has

proved capable of saying so explicitly." 451 U.S. at 17-18.

In short, Suter and Pennhurst establish that a duty on

the part of a state to use federal funds to assist the beneficia-

ries of a federal statute does not constitute an obligation that

runs to each and every beneficiary of the statute. Here, as in

Suter and Pennhurst, it would be wrong to construe modest

Spending Clause legislation as providing guarantees specifical-

ly enforceable by individuals. The McKinney Act, like the

legislation construed in Suter and Pennhurst, constitutes a

modest federal response to a serious social problem which has

outstripped the resources of the states and the District; it

should not be interpreted as creating enforceable individual

rights in the absence of unambiguous language. Indeed, here,

this Court’s “common sense” admonition in Pennhurst (451

U.S. at 24) -- that when Congress does impose affirmative

obligations on the states, it usually makes a very substantial

contribution to defray costs -- is particularly relevant. The

modest sum of money the District receives annually under

Part B of Title VI of the McKinney Act is woefully inadequate

to cover its potential liability to homeless children for educa-

tional and related services should Part B be interpreted as an

entitlement program. The disparity between the District’s

federal benefit and its potential liability itself suggests that no

entitlement program was intended by Congress here.

Il. THE LOWER FEDERAL COURTS EMPLOY

CONFLICTING APPROACHES IN CON-

STRUING FEDERAL GRANT STATUTES.

Since this Court’s decision in Suser, the lower federal

courts have questioned whether this Court continues to sub-

~ 2

scribe to the analytical framework of Wilder. See, e.g.,

Resident Council of Allen Parkway Village v. HUD, 980 F.2d

1043, 1051 (Sth Cir.) (Suter "calls into question the continued

viability of the framework set forth in Wilder."), cert. denied,

114 S. Ct. 75 (1993); Stowell v. Ives, 976 F.2d 65, 68 (ist

Cir. 1992) (With Suter, "the old [Wilder] regime fell on hard

times."); Clifton v. Schafer, 969 F.2d 278, 284 (7th Cir.

1992) (following analytical approach of Suter, not that of

Wilder).

Despite their uncertainty whether Suter may have

altered the analytical framework of Wilder, without overruling

Wilder, the federal courts of appeals, mindful that this Court

in Suter preserved the result in Wilder, have attempted to

reconcile the two decisions. Their efforts, however, have

produced conflicting analytical approaches among the Circuits

and intra-Circuit disagreements, results that underscore the

need for this Court to clarify this important aspect of the law.

The Seventh Circuit has ruled that, after Suter, a court

must focus on the nature, not the specificity and detail, of the

obligation Congress has imposed on the states in legislation

enacted under the Spending Clause. Clifton v. Schafer, supra,

969 F.2d at 284. Thus, if as in that case, the only obiigation

imposed on states under a federal grant statute is the submis-

sion of a plan acceptable to federal executive branch officials,

that statute does not permit private enforcement of the plan

even if the statute contains detailed language.

The First Circuit, in turn, has focused on the locus of

responsibility for compliance with a federal grant statute. As

it explained in Stowell v. Ives, supra, “Suter instructs that,

when a provision in a statute fails to impose a direct obliga-

tion on the States, instead placing the onus of compliance with

the statute’s substantive provisions on the federal government,

- 26 -

no cause of action cognizable under section 1983 can flour-

ish." 976 F.2d at 70.

Third, the D.C. Circuit, like the Sixth Circuit, has

focused on whether a federal grant statute contains “gritty

detail." App. 2a. If such a statute contains mandatory

language and specific directives, it creates a right enforceable

under 42 U.S.C. § 1983 irrespective of the context in which

the "gritty detail” appears.

Thus, the basic conditions that states must meet to

secure McKinney Act funds are two-fold. First, states must

“adopt a plan to provide for the education of each homeless

child . . . within the State which will contain provisions

designed to" achieve nine goals. 42 U.S.C. § 11432(€)(1).

Second, "[eJach plan... shall assure, to the extent practica-

ble under requirements relating to education established by

State law, that local educational agencies within the State will

comply with the requirements of paragraphs (3) through (9)."

42 U.S.C. § 11432(e)(2). What the D.C. Circuit did was to

read paragraphs (e)(3) through (e)(9), which simply lists those

matters for which states must give assurances, as if they were

addressed to the states themselves and as if they were’ indepen-

dent of paragraphs (1) and (2) of subsection 11432(e).

Similarly, the Sixth Circuit, in Horn by Parks v.

Madison County Fiscal Court, 22 F.3d 653 (6th Cir. 1994),

petition for a writ of certiorari pending, No. 94-164, ruled

that a federal juvenile justice statute, which provides modest

federal funds to states which submit plans designed to improve

their juvenile justice systems, creates individual rights enforce-

able in a section 1983 action. In its decision, the majority did

not focus on the nature of the obligation imposed on states by

the legislation -- the submission of a plan acceptable to the

Department of J ustice. Instead, its decision turned on the fact

Rca Aa aie aide

«SD.

Department of Justice. Instead, its decision turned on the fact

that the legislation contained mandatory and specific language

in the provisions of the statute setting forth requirements for

acceptable state plans.

The conflicting approaches among the Circuits have

been accompanied by intra-Circuit disagreements. Thus, for

example, in Procopio v. Johnson, 994 F.2d 325 (7th Cir.

1993), the panel, without noting that Suter involved two

distinct statutory provisions, including one which is quite

specific, suggested that Clifton v. Schafer, supra, had misread

Suter by not understanding that it turned on vagueness. The

panel nevertheless ruled that the statute before it could not be

enforced in a section 1983 action because, "[f]or better or

worse," Clifton is the law of the Circuit. Jd. at 332. As

another example, a divided panel of the Sixth Circuit in Wood

v. Tompkins, 1994 U.S. App. LEXIS 23498 (August 29,

1994), took the "gritty detail" approach using the Wilder

analytic framework while purporting to follow the approach of

the First Circuit which another panel of the Sixth Circuit had

previously adopted. Noting that it was bound by Circuit

precedent, the majority wrote that were it not, it "would

prefer to avoid the seemingly artificial distinction created by

the First Circuit’s Stowell opinion between statutes that place

the ‘onus of compliance’ directly upon the Secretary and those

that place a direct obligation on the states" and it "would

decline to adopt such an impermissibly truncated mode of

analysis." Slip Op. at 26 n.18 & 26.

This Court should resolve these conflicting approaches

and disagreements concerning the meaning of Suter, and, in

light of Suter, it should modify the Wilder analytic approach.

Among other matters, this Court should reject the approach of

the D.C. Circuit here and the Sixth Circuit in Horn as flatly

in conflict with Suter. Any "gritty detail" in a federal grant

- 28 -

statute must be interpreted in context, and if the context

demonstrates that the only obligation imposed on states is to

submit a plan acceptable to federal executive branch authori-

ties, no right of action lies under 42 U.S.C. § 1983. Further-

more, it should rule that a presumption of an enforceable right

does not arise whenever a beneficiary of a federal grant pro-

gram seeks benefits under that program in court.

CONCLUSION

This case raises an important and constantly recurring

issue that has been wrongly decided by the D.C. Circuit and

that should be resolved by this Court. This Court should

grant the petition for a writ of certiorari and reverse the

decision below.

Respectfully submitted,

VANESSA RUIZ

Corporation Counsel

CHARLES L. REISCHEL

Deputy Corporation Counsel

Appellate Division

DONNA M. MURASKY*

Assistant Corporation Counsel

Office of the Corporation Counsel

One Judiciary Square - Sixth Floor

441 Fourth Street, N.W.

Washington, D.C. 20001

Telephone: (202) 727-6252 ext. 3303

*Counsel of Record