Opposition Brief — New York v. Yonkers Board of Education

Supreme Court, U_S.

: ey ee Pe aap

MAY 23 1997

No. 96-1628 CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

THE STATE OF NEW YORK, ETAL.

Petitioners,

V.

YONKERS BOARD OF EDUCATION, ET AL.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

DAVID G. LEITCH*

STEVEN J. ROUTH

H. CHRISTOPHER BARTOLOMUCCI

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5822

* Counsel of Record Counsel for Respondent Yonkers

Board of Education

QUESTIONS PRESENTED

1. Whether the Second Circuit correctly held that the

State of New York and officials of that State were liable

under the Equal Protection Clause and the Equal Educa-

tional Opportunities Act for school segregation in the

City of Yonkers where the District Court found—and it

is undisputed in this Court—that the State and its offi-

cers “knew of the segregation in Yonkers, had actual or

constructive knowledge that the segregation was de jure,

had the power to take steps to remedy that segregation,

and refused to exercise that power because they were

capitulating to political pressures that they knew were

racially motivated” and that “the State defendants failed

to exercise their authority and failed to fulfill their

responsibility to take steps to achieve desegregation in

Yonkers, and instead took actions that encouraged the

perpetuation of segregation, because of their deference

to the racially inspired positions of the local officials and

the known anti-desegregation stance of other state

officials.”

2. Whether the Second Circuit correctly held, as every

other federal court to consider the issue has done, that

the Equal Educational Opportunities Act abrogates a

State’s Eleventh Amendment immunity from suit in

federal court.

(i)

TABLE OF CONTENTS

Page

SPIES TILING PRESENTED... cocccsesecsvescvceccsorsevcsosssenssavs i

pe ee sa | ee iv

SERS SESS tl se SCRE l

SAR PUPOE RNP PRR RMIT gos cicdacscasecoscvavascorsavesanssrsecsasnises 2

REASONS FOR DENYING THE WRIT ...0.0....c.eccceseeese. 10

I. THE HOLDING OF THE COURT BELOW—

THAT THE STATE OFFICIALS WERE

LIABLE UNDER 42 U.S.C. § 1983 FOR

CAPITULATING TO RACIAL PRESSURES IN

DEROGATION OF THEIR DUTY TO ENSURE

DESEGREGATION IN YONKERS—DOES

PFT WARRANT REVIEW on cccoseccccescssesecesososece- 1]

Il. THE HOLDING OF THE COURT BELOW

THAT THE STATE _ INSTITUTIONAL

DEFENDANTS WERE LIABLE UNDER THE

EQUAL EDUCATIONAL OPPORTUNITIES

ACT IS NOT IN CONFLICT WITH

DECISIONS OF OTHER FEDERAL COURTS

AND DOES NOT WARRANT REVIEW.................. 18

RT ilicnk ksi ceca stonsaincs asses casbsisecdioaiss ccs 26

(iii)

iV

TABLE OF AUTHORITIES

Page

CASES:

Arthur v. Nyquist, 573 F.2d 134 (2d Cir.), cert.

a, BFF UTD GE shtcnictitineierstisitevavnivtaicnians 7, 15, 16

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

NA tities as Kecena Dorcas ata dice esmeaabpomancens cae iatinaiail 20, 22, 23

Blatchford v. Native Village of Noatak, 501 U.S. 775

EEE Ds cisicsis niicncohnn, suconalcoicviaien deosapmababes taapnanecadeisinapilmaimeed tases 20

Board of Pub. Educ. for Savannah v. Georgia, No.

CV 490-101, 1990 WL 608208 (S.D. Ga. Sept. 24,

I scajisnsikics dante bciacabias aida btiaan i eodeoanvabasicaaeeemi anti 19, 20, 21, 23 |

Board of the County Comm'rs of Bryan County v.

Brom TTT Be TE CG i ictchcseceicsvcsccsae 16

Braxton v. United States, 500 U.S. 344 (1991).............. 19

Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986)............. 11,12

Castaneda v. Pickard, 648 F.2d 989 (Sth Cir, 1981)...... 25

City of Canton v. Harris, 489 U.S. 378 (1989) .............. 16 |

City of Cleburne v. Cleburne Living Ctr., Inc., 473 |

Be ee 1 EF poectinn ii tighonrniinesaconinioaidaiion 18 |

County Ct. of Ulster County v. Allen, 442 U.S. 140

NS Lg. RT ELIS AIMEE OMNIS SOPOT SETI 13

Dellmuth v. Muth, 491 U.S. 223 (1989)........... 20, 21, 22, 23, 24

DeShaney v. Winnebago County Dep't of Social

Sarre: GG TA CFG cance tacsstvescssincrnesscsseianianon 14

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ..........eeee . 20, 21, 22

Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60

CRRA ccisabecsavdiinaesinsd nahpnecilnaninndannsdaimbodalmlonan 26

Freeman v. Pitts, 503 U.S. 467 (1992)........sssercscosssseesess 5

Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030

FU iE SIE B vias wes csapeapnicpucotaasgnbathsdvaibdabasaensdcoiica 9, 19, 20, 23

Huddleston v. Dwyer, 322 U.S. 232 (1944)... 13

Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).......... 17

Vv

TABLE OF AUTHORITIES—Continued

Page

Los Angeles Branch NAACP v. Los Angeles Unified

Sch. Dist., 714 F.2d 946 (9th Cir. 1983), cert.

Herrin, SRF OS. TAO CLG os vs écscnwecasansnavvnevsinavnstianes 9, 19, 20

Palmer v. Thompson, 403 U.S. 217 (1971) ......::.ccecesseees 18

Palmore v. Sidoti, 466 U.S. 429 (1984)..........ccceceeeseeeeee 18

Pegues v. Mississippi State Employment Serv., 899

FA TOG CE Tiassa ees ickncecirea cas eeietincilsticss 22

Penick v. Columbus Bd. of Educ., 663 F.2d 24 (6th

Cir. 1981), cert. denied, 455 U.S. 1018 (1982)........... 11,14

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)... 21

Reid v. Kayye, 885 F.2d 129 (4th Cir. 1989).............0... i, 32

Rizzo v. Goode, 423 U.S. 362 (1976) .........::ssscsesseeeeeees 15

Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114

RED sisicnsib ix sacncshcdastresiecosiehconpcanpactenninnsdanceoacedantintes 20, 21, 23

Stanley v. Darlington County Sch. Bd., 879 F. Supp.

1341 (D.S.C. 1995), rev'd on other grounds, 84

FS FOF CE CAR, FOGG) vis ciecensecnssieisntannesninieionn 19, 20, 21, 23

United States v. City of Yonkers, 833 F. Supp. 214

CR TRIED. TOI sviscssscssnccincpivicrteinasestatantaconmcanciosiball 3,5

United States v. Fordice, 505 U.S. 717 (1992)............... 5

United States v. Hinds County Sch. Bd., 560 F.2d 619

CRE Ee SION siseicessncincestaeysneinesipeaiinessian piambeoriapnants 25

United States v. School Dist. of Ferndale, 577 F.2d

ER ae, BI nic iescnsactciciprecticsensnaniciriohesie 9, 24

United States v. Texas, 680 F.2d 356 (Sth Cir. 1982)... 24,25

United States v. Yonkers Bd. of Educ., No. 94-6052

CR TI, BIG. BP i eicdirgitsnceansincenslacipclaaiitebiceslioteste 4

United States v. Yonkers Bd. of Educ., 990 F.2d 623

CE SSO sib nistinninineenadanaiemataiaelaoinaits 4

United States v. Yonkers Bd. of Educ., 893 F.2d 498

CE Se aceassiieneoceovsinicashstiiehtendecooneananianitiadigas 4

United States v. Yonkers Bd. of Educ., 624 F. Supp.

1276 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d

Cir. 1987), cert. denied, 486 U.S. 1055 (1988)........... 2,3

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Yonkers Bd. of Educ., 635 F. Supp.

ESSG CRATE T TDR D)evressscsovicsvctocace plies otonaaginacscelianes 3

Village of Arlington Heights v. Metropolitan Hous.

Bev. Camm, GS UB Bie CEST cia scecti avicitiiespnsnenenncs 17

Will v. Michigan Dep't of State Police, 491 U.S. 58

CSD aisibecassecssipiicleridbcledinnipaiengnheada csemeaniamlatiaiials citatiss 19

Winbush v. Iowa, 66 F.3d 1471 (8th Cir. 1995)............. 22

Wisniewski v. United States, 353 U.S. 901 (1957)........ 15, 26

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............c:c00008 14

CONSTITUTIONAL PROVISION:

hoes RRs, SUMNIE. ZOE «OFF vinseckccsnessensadvacisecmabebbaiiose 22

STATUTES:

Equal Educational Opportunities Act, 20 U.S.C.

G SFr ciiidinieiineaianignaat 7

BO teen: © ET ED aietiicicvistacnteiniieecaueiapilaedeieaens 24

Me Fetes EF PREM ED invinstarncnnaseriisiatlassciahinnpouenisicl 25

EE ak 1 OF i ilactnsnanpeaidciacinigtaatisiawonrnadnatan 20, 22, 24

Pas SU Pie rinscinintusiainnbbians fiaieanstdapiacguciamailatses 20, a2

EU ileas ETAL wisnixvino inate uainisonivonnndviaviiabicmataiaateees 24

BZ ikon S BOO a nccrcnnesceewvinns esbiintchdoantunnbsinseinbeamaiaeeniel passim

Rehabilitation Act, 29 U.S.C. § 794 .....ceeceseesseesesseeees 22

Rehabilitation Act Amendments of 1986, 100 Stat.

Ss Si SP ake BOUT sispstiniessnvobindioesenaniasiiiataaila 26

Title VI of the Civil Rights Act of 1964, 42 U.S.C. §

I ca casinninaiitediab eg ueieihvitallidinnininiindiciapinediptbegens 7, 18

GS Chace FAILS ssvsccssevanessnvssesiscrcpinsieaiotivainaciae aa

RULE:

PO hc Mpa In WP ciasnienksiciesccindeicah ange ecoe nilanaacainaioa eleiee 4

Vii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITY:

Robert L. Stern, Eugene Gressman, ef al., Supreme

Court Practice § 4.10 (7th ed. 1993)... .cccscceeseeseees 13

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

No. 96-1628

THE STATE OF NEW YORK, ET AL.,

Petitioners,

Vv.

YONKERS BOARD OF EDUCATION, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

Respondent the Yonkers Board of Education respect-

fully requests that this Court deny the petition for a writ

of certiorari seeking review of the decision of the United

States Court of Appeals for the Second Circuit in this

case.

INTRODUCTION

The petition for writ of certiorari is the latest effort of

the State of New York and various state-related entities

and officials to avoid their responsibility for assisting in

the completion of the desegregation remedy in the

Yonkers public schools. The petition arises, however, in

the context of critical factual findings either wholly

unchallenged on appeal or affirmed by the court of

appeals on the basis of “ample support” in the evidence.

2

Those factual findings—many of which the petitioners

essentially ignore—demonstrate the petitioners’ respon-

sibility for the continuing effects of the former dual

school system in Yonkers and establish the correctness

of the Second Circuit’s decision.

More importantly for purposes of considering the peti-

tion, nothing in petitioners’ submission even comes

close to establishing that this case warrants plenary

review by this Court. Far from creating a conflict with

decisions in other circuits, the decision of the Second

Circuit applied settled law articulated by this Court and

by other circuits to the largely undisputed facts of this

case. Essentially admitting as much, petitioners are left

at one point to suggest that the unanimity in the circuits

against their position should compel this Court to act.

See Pet. 24. This contention, of course, serves only to

highlight that none of the traditional factors motivating

this Court to exercise its discretionary review are present

here. The petition should be denied.

COUNTERSTATEMENT

This school desegregation case was initiated in 1980

by the United States (later joined by the NAACP)

against the City of Yonkers, the Yonkers Community

Development Agency, and the Yonkers Board of Educa-

tion. In 1985, the district court found, inter alia, that the

City and the Yonkers Board had unlawfully segregated

the public schools in Yonkers, in violation of the Four-

teenth Amendment. 624 F. Supp. 1276 (S.D.N.Y. 1985),

aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied, 486

U.S. 1055 (1988).

In affirming that decision, the Second Circuit recog-

nized that “race-based decisions” had contributed to

school segregation and inequalities in Yonkers in a

number of areas, including: (i) the special education

program; (ii) the vocational education program; (ili) the

quality of school facilities and programs generally; and

(iv) school staffing. 837 F.2d at 1195-1208, 1226-33.

3

The Second Circuit also affirmed the district court’s

finding that, in Yonkers, there was an “interrelationship”

between the unlawful segregation of schools and unlaw-

ful segregation of subsidized housing as a result of site

selection decisions that concentrated subsidized housing

in Southwest Yonkers, where schools had dispropor-

tionately minority enrollments, and maintained the “all-

white” character of other areas and schools in the City.

Id. at 1185-94, 1208-09, 1214-15.

In 1986, the district court approved a school desegre-

gation remedy, 635 F. Supp. 1538, which effectively

ended the segregation of students among school facilities

in Yonkers. The district judge specifically has found

that, “[a]s a result of the good faith and zealous imple-

mentation by the Yonkers Board of Education and its

staff of this Court’s initial School Remedy Order of May

13, 1986 (Educational Improvement Plan (“EIP”) 1,”

the Yonkers Board “achieved desegregation of enroll-

ments among the schools” in “less than a year of the

issuance of EIP I.” 833 F. Supp. 214, 216 (1993).

The plaintiffs, however, soon concluded that EIP I,

while effective in ending overt segregation among

schools, was not and would not be effective in eliminat-

ing to the extent practicable inequalities in the educa-

tional program, in-school segregation, and other vestiges

of the unlawful dual school system, or in supporting

effective desegregation of schools in Yonkers pending

implementation of the housing remedy. The plaintiffs

filed motions to add the State defendants as parties to the

case, and the Yonkers Board sought leave to file a cross-

claim.! The proposed pleadings alleged that the State

| The State defendants included the State itself, the State Edu-

cation Department (“SED”), the State Urban Development

Corporation (“UDC”), and the Board of Regents, which are

collectively referred to as “the State institutional defendants.”

Also included were the individual Regents of the Board of

Regents, the Commissioner of Education, and the Director of the

UDC (collectively “the State officials”).

4

had contributed to unlawful segregation in Yonkers and

therefore could be heid liable and required to participate

in the additional remedial measures needed to complete

the process of making the Yonkers public schools a

unitary system.

After substantial delays caused in large measure by the

State,? the district court granted the motions to add the

State defendants and conducted a three-week trial

addressed to the issue whether there continue to exist

2 On November 5, 1987, at the insistence of the State, the dis-

trict court decided to hold the plaintiffs’ motions in abeyance

while the Yonkers Board developed a written plan of additional

remedial measures and sought consensual resolution on funding

for those measures. The Yonkers Board developed a detailed

remedial plan that proposed specific measures tailored to address

the practices and conditions that had been identified as vestiges of

unlawful segregation. On January 19, 1989, after plaintiffs had

spent more than a year unsuccessfully attempting to obtain State

assistance with that plan, the district court granted plaintiffs’

motions and added the State defendants as parties.

Further delay attributable to the State also resulted when the

State—on three separate occasions—sought interlocutory review

of decisions by the district court. In each case the Second Circuit

dismissed the appeals. See United States v. Yonkers Bd. of Educ.,

893 F.2d 498 (2d Cir. 1990); United States v. Yonkers Bd. of

Educ., 990 F.2d 623 (2d Cir. 1993) (table); United States v.

Yonkers Bd. of Educ., No. 94-6052 (2d Cir. Mar. 2, 1994)

(unpublished order of dismissal).

The State’s foot-dragging also affected the district court’s fact-

finding process. In response to a request from the district court,

the State initially agreed to identify any findings in the 1985

decision by which it refused to be bound. The State later re-

quested, and the district court directed, that the Yonkers Board

prepare specific Requests for Admission (RFAs) under Fed. R.

Civ. P. 36, to determine whether the State disputed any of those

findings. The State agreed to respond to such RFAs in a

“reasonable” manner. When the State later refused to respond to

those RFAs within the extended time set by the court, the district

court directed that all of the RFAs be deemed admitted, subject to

the State’s right to withdraw any admission upon a proffer of

grounds for reopening a finding from the 1985 decision. The State

never sought to withdraw any admissions.

5

“vestiges of segregation in the Yonkers school system”

not “adequately addressed” by EIP I. The district court

defined “[a] vestige of segregation” as “a policy or

practice which is traceable to the prior de jure system of

segregation and which continues to have discriminatory

effects,” 833 F. Supp. at 218-219, consistent with this

Court’s holdings in United States v. Fordice, 505 U.S.

717 (1992), and Freeman v. Pitts, 503 U.S. 467 (1992).

Using this definition, the district court found that

“vestiges of segregation remain in the Yonkers Public

School system” and that the EIP I desegregation remedy

was “inadequate to eradicate vestiges of segregation

‘root and branch’ and must be expanded.” 833 F. Supp.

at 225. The district judge specifically stated: “We find

that although minority students in Yonkers attend school

in the same buildings as majority students, they are

undergoing different educational experiences.” /d. That

decision was not at issue in the Second Circuit (see Pet.

App. 7a) and is not presented here. Thus, for purposes

of the petition, it is a given that the vestiges of the

racially dual school system continue to exist in Yonkers.

In 1994, the district court conducted a six-week trial on

whether the State was liable for unlawful school segre-

gation and its vestiges in Yonkers as of the time of the

district court’s 1985 decision. In support of their case,

plaintiffs presented testimony from over thirty witnesses

as well as over 2,000 exhibits. The district court received

testimony from members and former members of the

Board of Regents, a former State Commissioner of

Education and a former Deputy Commissioner, key

officials from the SED, the former head of the UDC, and

UDC officials who were responsible for its subsidized

housing in Yonkers. The court also received testimony

from Yonkers officials and community leaders who

interacted with the State on school and housing issues.

The district court made extensive factual findings,

which were either unchallenged or affirmed on appeal.

These included findings that:

6

“ [T]he State knew about the segregation that

existed in the Yonkers Public Schools, knew that

Yonkers would not on its own take the steps nec-

essary to end the segregation, and either knew or

reasonably should have known that the segrega-

tion was de jure rather than de facto.” Pet. App.

9a-10a (quoting id. at 67a).

The State “ ‘possessed the full means and author-

ity to deal with Yonkers school segregation, had

it been inclined to do so.’” Jd. at 10a (quoting id.

at 116a). See also id. at 73a (“the State had sev-

eral effective means for compelling local compli-

ance with its racial integration policy during the

years at issue in this litigation. If the State did not

in fact force compliance, it certainly was not be-

cause it lacked the authority or practical power to

do so”).

Rather than using that authority, “the State defen-

dants did nothing to remedy school segregation in

Yonkers, using none of their power and authority

toward that end.” Jd. at lla. “Rather than act,

the State waited.” Jd. at 73a.

To the extent it did act, moreover, “the State took

certain actions that had the effect of encouraging

that segregation.” /d. at 12a (emphasis added).

“[T]he reasons for the State defendants’ actions

and inactions * * * were that those defendants

were responding to pressures by New York State

officials and constituents who opposed desegre-

gation on grounds that were known to be race-

based.” Jd. at 13a (emphasis added). See also id.

at 76a (State’s “determined reluctance” to address

racial segregation in Yonkers was because “race-

based political opposition to integration through-

out New York State eventually exerted enough

pressure on [State education] officials to cause

them to become cautious and reactive on the issue

of desegregation”). The pressures to which State

7

officials responded, the lower courts found, “can

only be explained in racial terms.” Jd. at 15a,

1 16a.

e The State’s “race-based” conduct had the effect

of perpetuating unlawful segregation in Yonkers

in both “obvious” and “more subtle, but equally

real” ways. Id. at 80a. “The most obvious way

was that ‘Yonkers was not forced to desegregate

its schools.’ ” Jd. at 15a (quoting id. at 80a).

e Like the State itself, the New York State Urban

Development Corporation (“UDC”)—“perhaps

the most powerful state housing and development

agency ever created,” id. at 82a—‘“had the power

to take steps to alleviate” the unlawful segrega-

tion in Yonkers but “failed to do so, and instead

worsened segregation by knowingly bowing to

political pressure it knew to be race-based.” /d. at

17a.

Despite these findings, the district court concluded

“with reluctance,” id. at 116a, that there was insufficient

evidence to find the State officials liable under 42 U.S.C.

§ 1983. For this conclusion, it relied solely on its reso-

lution of the “close and difficult question,” Pet. App.

98a, of interpretation of the Second Circuit’s decision in

Arthur v. Nyquist, 573 F.2d 134 (2d Cir.), cert. denied,

439 U.S. 860 (1978). See Pet. App. 93a-99a; 112a-1 15a.

It also found that the claims against UDC and its offi-

cials were time-barred. Jd. at 110a-112a. In a separate

opinion, the district court declined to hold the State

institutional defendants liable pursuant to the Equal

Educational Opportunities Act (“EEOA”), 20 U.S.C.

§ 1701 et seqg., or Title VI of the Civil Rights Act of

1964, 42 U.S.C. § 2000d, et seg. See Pet. App. 118a-

137a.

On respondents’ appeal, the State challenged “only the

finding that the State defendants knew or reasonably

should have known that the segregation in Yonkers was

de jure rather than de facto.” Pet. App. 34a. After

————o ©

8

reviewing the evidence, the Second Circuit held that it

“amply supports the district court’s finding that the State

defendants had full knowledge of the nature, cause, and

extent of the segregation in the Yonkers schools, and

that they knew or should have known that the school

segregation in Yonkers was de jure.” Id. at 37a. The

Second Circuit also found based on a review of the

evidence that the district court’s other factual findings—

essentially not challenged by the State defendants—

were “amply supported.” /d. at 40a.

On the strength of the district court’s factual findings,

the Second Circuit unanimously reversed the district

court’s admittedly “reluctan[t]” conclusion, id. at 1 16a,

that the Stare defendants could not be held liable. After

reviewing “fundamental principles governing equal

protection claims,” id. at 26a; see id. at 26a-3la, the

court found that “[t]hese principles govern the present

case,” because the district court “found that the State

knew of the segregation in Yonkers, had actual or

constructive knowledge that the segregation was de jure,

had the power to take steps to remedy that segregation,

and refused to exercise that power because they were

capitulating to political pressures that they knew were

racially motivated.” Jd. at 3la-32a. The Second Circuit

also stated that the record left “no doubt” that “the State

defendants failed to exercise their authority and failed to

fulfill their responsibility to take steps to achieve deseg-

regation in Yonkers, and instead took actions that en-

couraged the perpetuation of segregation, because of

their deference to the racially inspired positions of the

local officials and the known anti-desegregation stance

of other state officials.” Jd. at 44a.

The “amply supported factual findings,” the Second

Circuit held, “distinguish the present case from Arthur v.

Nyquist,” the Second Circuit case on which the district

court had based its decision. Jd. at 40a. In that case.

there was evidence that the state officials “made sub-

stantial, repeated efforts” to require local officials in

9

Buffalo to develop and implement a desegregation plan

and that “the state officials’ decision not to use more

drastic measures was the result of legitimate considera-

tions rather than of their capitulation to views they knew

to be racially motivated.” Jd. at 41a. The court found

the evidence “materially different” with respect to

Yonkers, id., and held that the State officials were liable

under 42 U.S.C. § 1983.

The Second Circuit further held that the EEOA abro-

gated the Eleventh Amendment immunity of the State

institutional defendants, expressly endorsing the conclu-

sion of the Seventh Circuit in Gomez v. Illinois State

Roard of Education, 811 F.2d 1030, 1038 (7th Cir.

1987). Pet. App. 46a. See also Los Angeles Branch

NAACP vy. Los Angeles Unified Sch. Dist., 714 F.2d 946

(9th Cir. 1983), cert. denied, 467 U.S. 1209 (1984). On

the merits of the EEOA claims, the court found the

district court’s rejection of the claims infected with its

misunderstanding of the Second Circuit’s Arthur deci-

sion, and, therefore held that “[p]laintiffs’ claims against

the State, SED, and the Board of Regents under the

EEOA should have been upheld.” Pet. App. 50a. For

this conclusion, it relied on the Sixth Circuit’s decision

in United States v. School District of Ferndale, 577 F.2d

1339 (6th Cir. 1978).3

Finally, the court of appeals found that the district

court’s rejection of plaintiffs’ claims with respect to the

State’s segregative housing conduct and its continuing

effects on Yonkers schools also was affected by the

district court’s misapplication of Arthur, and ordered the

court to reconsider its dismissal of those claims on

remand. Pet. App. 5la-54a.

The Second Circuit therefore remanded the matter to

the district court for proceedings not inconsistent with its

3 The court’s conclusions with respect to section 1983 and the

EEOA made it unnecessary for the court also to consider liability

under Title VI. See Pet. App. 51a.

Ee

10

opinion. Those still-pending proceedings will include

determination of whether the housing-related claims go

forward and determination of appropriate remedies as to

all claims against the State defendants.

REASONS FOR DENYING THE WRIT

In this case, the District Court found that the State and

its officers “knew of the segregation in Yonkers, had

actual or constructive knowledge that the segregation

was de jure, had the power to take steps to remedy that

segregation, and refused to exercise that power because

they were capitulating to political pressures that they

knew were racially motivated.” Pet. App. 3la-32a. The

District Court also found that “the State defendants

failed to exercise their authority and failed to fulfill their

responsibility to take steps to achieve desegregation in

Yonkers, and instead took actions that encouraged the

perpetuation of segregation, because of their deference

to the racially inspired positions of the local officials and

the known anti-desegregation stance of other state

officials.” Jd. at 44a. On the strength of these find-

ings—for which the Second Circuit found “ample

support” in the record, id. at 37a, and which the State

barely challenged in court below, see id. at 34a, and does

not challenge at all in this Court—the Second Circuit

held that the State and its officers were liable under the

EEOA and section 1983, respectively, for the vestiges of

segregation in the Yonkers school system. This holding

does not warrant review by this Court as it is fact-bound,

turns largely upon an interpretation of state law, con-

flicts with no decision of any other court of appeals, and,

in addition, is legally correct.

1]

I. THE HOLDING OF THE COURT BELOW—

THAT THE STATE OFFICIALS WERE LIABLE

UNDER 42 U.S.C. § 1983 FOR CAPITULATING

TO RACIAL PRESSURES IN DEROGATION OF

THEIR DUTY TO ENSURE DESEGREGATION

IN YONKERS—DOES NOT WARRANT REVIEW

1. The State argues that the State officials cannot be

liable under section 1983 because they were not the

cause of the segregation in Yonkers. See Pet. 11-17.

Before this Court, the State contends that its officials had

no “responsibility” to remedy segregation in Yonkers

and whatever remedial power they did have was merely

“discretionary.” Jd. at 14, 11. On this view of the case,

the State posits a conflict between the decision below

and Reid v. Kayye, 885 F.2d 129 (4th Cir. 1989), and

“fa] case very similar to” it (id. at 132)}—Bush v.

Viterna, 795 F.2d 1203 (5th Cir. 1986). See Pet. 16.

The conflict between Reid and Bush and the decision

below is wholly illusory. In those cases, unlike this one,

the state officers lacked any responsibility under state

law to redress the constitutional violations at issue.

Here, by contrast, the State officials had a duty arising

under New York law to prevent and correct—rather than

knowingly tolerate and encourage—the de jure segrega-

tion in Yonkers. Not only is there no conflict between

Reid and Bush and the decision of the Second Circuit to

hold the State officials liable, but a contrary holding by

the court below might well have conflicted with Penick

v. Columbus Board of Education, 663 F.2d 24 (6th Cir.

1981), cert. denied, 455 U.S. 1018 (1982), another

school desegregation case in which state officials were

held liable.

The plaintiffs in both Reid and Bush attempted to hold

state officials liable under section 1983 for allegedly

unconstitutional conditions at county jails. In each case,

the attempt was rejected on the ground that, while the

state officials may have had authority under state law to

make recommendations or take some corrective action

—

12

with respect to the conditions of which plaintiffs com-

plained, they had no state law-imposed duty or respon-

sibility to do so. See Reid, 885 F.2d at 131 (“Because. in

the case at bar, appellees had no duty to remedy the

challenged jail conditions, their inactions cannot be seen

as a cause of those conditions and a § 1983 suit cannot

be maintained against them. * * * The Bush court exam-

ined Texas law and held that a § 1983 suit could not be

maintained because the [state defendant] had no legal

duty to enforce applicable jail standards.”). Both courts

recognized, however, that a state official can be held to

have “caused” for section 1983 purposes a violation of

federal right on a supervisory liability theory. See id. at

131-132;4 Bush, 795 F.2d at 1206, 1208.

Apart from the fact that this case arises in a markedly

different context than either Reid or Bush, there is no

conflict between the decision below and those decisions

because here the Second Circuit determined that the

State officials did have both power and responsibility to

take action in response to the unconstitutional acts and

conditions that they knew were occurring in Yonkers.

The State argued in the court below that “the judgment

in their favor should be upheld on the basis that, under

New York law, they lacked legal authority or responsi-

bility to intervene in Yonkers to remedy the unlawful

segregation.” Pet. App. 42a. The Second Circuit, how-

ever, concluded that “this contention need not detain us

long” in light of “express provisions of New York

statutory law” which specifically direct that state offi-

cials “shall enforce” all laws relating to education and

are charged with the “duty” to take necessary steps to

4 “It is true that, while the doctrine of respondeat superior

cannot be invoked in § 1983 cases, supervisory officials may be

held liable in certain circumstances for constitutional injuries

inflicted by their subordinates. Liability in those circumstances is

not premised on respondeat superior but on a recognition that

supervisory indifference or tacit authorization of subordinates’

misconduct may be a causative factor in constitutional injuries.”

Reid, 885 F.2d at 131-132 (citation omitted).

13

that end. /d. at 43a. Pointing to various provisions of

the New York Education law (and also to several New

York state cases), see id. at 42a-43a, the Second Circuit

stated: “Given the statute’s clear impositions of duty and

grants of power, the State defendants’ twin disclaimers

of responsibility and authority are meritless.” /d. at

44a.°

Clearly, the Second Circuit’s understanding of the

responsibilities imposed on the State officials under New

York law is an issue of state law that does not merit this

Court’s attention. See Huddleston v. Dwyer, 322 U.S.

232, 237 (1944) (“[O]rdinarily we accept and therefore

do not review, save in exceptional cases, the considered

determination of questions of state law by the interme-

diate federal appellate courts”); see also County Ct. of

Ulster County v. Allen, 442 U.S. 140, 153-154 (1979)

(the Second Circuit’s “experience with New York

practice is entitled to respect”). The State argues that the

Second Circuit interpreted New York law incorrectly,

see Pet. 14-16, but this Court, quite properly, “usually is

reluctant to grant review of cases turning on state stat-

utes or constitutions.” Robert L. Stern, Eugene Gress-

man, et al., Supreme Court Practice § 4.10, at 183 (7th

5 The record below also contains extensive evidence—in the

form of admissions both by state officials and in state policy

statements and reports—that the State consistently has conceded

that it has a duty to prevent and remedy unlawful school segrega-

tion. See, e.g., Trial Exhibit 3-7 (1968 Policy Statement of State

Board of Regents: “Where a district fails or refuses to act [to

prevent or remedy school segregation], then the responsibility for

corrective action is clearly and inescapably that of the State”).

The record further contains extensive evidence as well as district

court findings confirming that, with respect to issues other than

school segregation and desegregation, the State not only has

acknowledged but also has vigorously discharged its duty to

supervise the schools and to take corrective action as necessary to

ensure full compliance by Yonkers officials with federal and state

law and policy. See, e.g., Pet. App. 72a (finding that New York

State Education Department “is one of the most activist state

educational bodies in the country”).

14

ed. 1993). Whether the Second Circuit was right or

wrong about the requirements of New York law, its

decision is easily reconcilable with Reid and Bush.

Furthermore, even if the State had no duty under New

York law to prevent the establishment and maintenance

of an unlawful dual school system in Yonkers, but only

had—as the State concedes—discretionary authority to

do so, its failure to exercise that authority because of

illegitimate racial reasons is sufficient to impose liabil-

ity. See DeShaney v. Winnebago County Dep't of Social

Servs., 489 U.S. 189, 197 n.3 (1989) (although Due

Process Clause does not require a State to provide

protective services, failure to do so for discriminatory

reasons violates Equal Protection Clause) (citing Yick

Wo v. Hopkins, 118 U.S. 356 (1886)); see also

DeShaney, 489 U.S. at 210 (Brennan, J., dissenting)

(under DeShaney footnote 3, state “inaction” violates

equal protection if it is “the product of invidious dis-

crimination”). In neither Reid nor Bush was there an

allegation that state officials failed to act for racially

invidious reasons. Compare Pet. App. 3la-32a (the

State officials “had the power to take steps to remedy

[the segregation in Yonkers], and refused to exercise that

power because they were capitulating to political pres-

sures that they knew were racially motivated”).

As the State acknowledges, see Pet. 16, this case is like

Penick, in which state education officials, including the

state board of education, were found liable for segrega-

tion in Ohio. Much like the New York state defendants

in this case, the Ohio state board was found liable for

“adopt[ing] a ‘hands-off, let someone else do it’ ap-

proach” to school desegregation. 663 F.2d at 27. As

the Sixth Circuit further explained:

[T]he Board operated with a few narrow exceptions

according to a ‘hands-off policy in the area of

school desegregation. Rather than using its supervi-

sory powers to inquire into the possibility of law

violations and its pursestrings to enforce compliance

ot dl

15

with the law, the Board developed policies and prac-

tices which effectively disabled it from acting at all

in this area, thereby avoiding its obligation in the first

instance to ferret out constitutional violations with

the foreseeable result of maintaining and condoning

constitutional violations by local boards.

* * *

The Court concludes that although there were avail-

able procedures for the discovery of unlawful segre-

gation in Ohio, and the Board had the authority to

remedy it, there was great reluctance to self-initiate

any inquiry, and even more reluctance to exercise its

power by withholding funding or using other avail-

able means as sanctions for a local district’s mainte-

nance of unconstitutional racial segregation. [/d. at

26].

Like the court below, the Sixth Circuit in Penick saw

no conflict between its decision and the Second Circuit's

decision in Arthur. See id. at 30. Thus, far from creat-

ing an intercircuit conflict, the court below likely

avoided conflict by distinguishing Arthur and following

Penick. The State does not argue that the court below

erred in distinguishing Arthur and, in any event, any

intracircuit conflict between the decision below and

Arthur is a matter for the Second Circuit to resolve in the

first instance. See Wisniewski v. United States, 353

U.S. 901, 902 (1957) (per curiam). No judge on the

Second Circuit requested that a vote be taken on whether

to rehear the case in banc. Pet. App. 139a.

The fact that Arthur remains the law in the Second

Circuit also belies the State’s claim that the decision of

the court below represents “an expansion of civil rights

liability beyond what this Court has established.” Pet.

11. Arthur rejected the notion that the State court be

held liable on a respondeat superior theory, see 573 F.2d

at 146 (“[W]e do not believe that the appellee’s theory of

derivative or indirect liability can be sustained”) (citing

16

Rizzo v. Goode, 423 U.S. 362 (1976)), and also refused

to impose liability simply because “it would have been

possible for the state appellants to have intervened more

forcefully in [the Buffalo desegregation] matter.” 573

F.2d at 146. That remains the law in the Second Circuit

after the decision below.

2. In light of the Second Circuit's determination that,

under New York law, the State defendants had the legal

“responsibility to intervene in Yonkers to remedy the

unlawful segregation,” Pet. App. 42a, there is no merit to

the State’s argument that the “failure of the state offi-

cials to play a sufficient remedial role,” Pet. 17, could

not be the “cause” of the constitutional violation for

section 1983 purposes. It is well established in this

Court’s cases that section 1983 liability may be imposed

on those who have a duty to act but fail to do so, see,

e.g., City of Canton v. Harris, 489 U.S. 378, 388 (1989)

(inadequate police training gives rise to section 1983

liability for municipality where the “failure to train

amounts to deliberate indifference”), and on those who

are responsible for the constitutional violations of others

under their charge, see, e.g. Board of the County

Comm'rs of Bryan County v. Brown, 117 S. Ct. 1382,

1389 (1997) (recognizing that a municipality is liable

under section 1983 even absent “an allegation that the

municipal action itself violated federal law, or directed

or authorized the deprivation of federal rights” if it is the

“moving force” behind the deprivation).

Furthermore, the record in this case establishes that the

State officials not only failed to act to remedy the segre-

gation in Yonkers but took actions that helped perpetuate

the unlawful segregation. See Pet. App. 12a (“In addi-

tion to refusing to act to end segregation in Yonkers, the

State took certain actions that had the effect of encourag-

ing that segregation”); id. at 12a-i3a (“{T]Jhe Board of

Regents itself took actions that were, and were recog-

nized to be, designed to cut back on school desegrega-

tion”); id. at 13a (referring to “the State defendants’

17

actions and inactions”); id at 15a (“The district court

found that the State’s acts and omissions ‘impacted the

City in several ways’ ”); id. at 41a (“[T]he State acted in

a way that had the effect of encouraging the perpetuation

of de jure segregation and knew that through its actions

and omissions it was capitulating to pressures that were

racially motivated”); id. at 44a (“[TJhe State defendants

* * * took actions that encouraged the perpetuation of

segregation’).

3. The State also argues that its officials lacked the

requisite discriminatory intent to commit a violation of

the Equal Protection Clause. See Pet. 17-19. The State

contends that the Second Circuit made an improper

“legal leap” in finding such an intent in the State’s

failure to act. /d. at 19. The State identifies no court of

appeals decision in conflict with the court below on this

point and its argument is without merit.

The Second Circuit specifically recognized in this case

that, to establish an equal protection violation, a plaintiff

must “show not only that the state action complained of

had a disproportionate or discriminatory impact but also

that the action was taken with intent to discriminate.”

Pet. App. 26a (citing Village of Arlington Heights v.

Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977);

Keyes v. School Dist. No. 1, 413 U.S. 189 (1973)). The

Second Circuit determined that the findings made by the

District Court established such an intent on the part of

the State defendants as “the State knew of the segrega-

tion in Yonkers, had actual or constructive knowledge

that the segregation was de jure, had the power to take

steps to remedy that segregation, and refused to exercise

that power because they were capitulating to political

pressures that they knew were racially motivated.” Pet.

App. 3la-32a (second emphasis added). Indeed, as the

Second Circuit recognized, the principles relied upon to

find discriminatory intent and an equal protection viola-

tion by the State were precisely the same principles

relied on by that court in affirming the liability of the

18

Yonkers Board of Education in 1987. See id. at 28a-

31a.

Finding discriminatory intent in such circumstances

falls squarely within this Court’s previous articulation of

equal protection principles: “Private biases may be

outside the reach of the law, but the law cannot, directly

or indirectly, give them effect. ‘Public officials sworn to

uphold the Constitution may not avoid a constitutional

duty by bowing to the hypothetical effects of private

racial prejudice that they assume to be both widely and

deeply held.” Palmore v. Sidoti, 466 U.S. 429, 433

(1984) (quoting Palmer v. Thompson, 403 U.S. 217,

260-261 (1971) (White, J., dissenting). Accord City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,

448 (1985).

Finally, in light of the above, the “fundamental princi-

ples of federalism,” Pet. 19, that the State invokes cannot

excuse it from liability for violating the Equal Protection

Clause since the Fourteenth Amendment acts as an

express limitation upon state sovereignty.®

TIONAL OPPORTUNITIES ACT IS NOT IN

CONFLICT WITH DECISIONS OF OTHER

FEDERAL COURTS AND DOES NOT WAR-

RANT REVIEW.

The Second Circuit held that, based upon the same

factual findings supporting the liability of the State

officials under section 1983, the State institutional

defendants were liable under the EEOA. See Pet. App.

6 In the court below, respondents argued that the State officials

were liable under Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d et seq. See Respondents’ C.A. Br. 48-57. Title VI

therefore provides an additional legal basis on which the judgment

against the State officials can be defended.

19

45a-50a.? The State contends that the Second Circuit

erred in holding (1) that in the EEOA Congress abro-

gated the States’ Eleventh Amendment immunity from

suit in federal court, see Pet. 21-24, and (2) that the State

institutional defendants were liable under the EEOA.

See id. at 24-28. Neither contention merits review.

1. As the State points out, the Seventh and Ninth Cir-

cuits agree with the Second Circuit’s conclusion that the

EEOA abrogates a State’s Eleventh Amendment im-

munity. See Pet. 24 (citing Gomez, 811 F.2d at 1037

(“Congress abrogated the states’ Eleventh Amendment

immunity to the extent necessary to effectuate the

purposes of the [EEOA]”’), and Los Angeles Branch

NAACP, 714 F.2d at 950 (“Congress abrogated Califor-

nia’s immunity from suit in desegregation cases by

enacting [the EEOA]’).8 With admirable (but mis-

guided) pluck, the State argues that the unanimity of the

Second, Seventh, and Ninth Circuits is itself a reason

“why certiorari is warranted in this case.” Pet. 24. This

Court’s usual practice, however, is to step into a legal

fray only when the circuit courts are at odds. See Brax-

ton v. United States, 500 U.S. 344, 347 (1991) (a

“principal purpose for which we use our certiorari

jurisdiction * * * is to resolve conflicts among the

United States courts of appeals”).?

7 The Second Circuit recognized that the Eleventh Amendment

barred the imposition of liability against the State institutional

defendants pursuant to section 1983. See Pet. App. 45a (citing

inter alia Will v. Michigan Dep't of State Police, 491 U.S. 58

(1989)).

8 Accord Stanley v. Darlington County Sch. Bd., 879 F. Supp.

1341, 1363-67 (D.S.C. 1995), rev'd on other grounds, 84 F.3d 707

(4th Cir. 1996); Board of Pub. Educ. for Savannah v. Georgia,

No. CV 490-101, 1990 WL 608208, at *6 (S.D. Ga. Sept. 24,

1990) (“Savannah Board’).

9 The State implies that Gomez and Los Angeles Branch NAACP

are somehow flawed because they were “decided before this

Court’s most recent pronouncements” on the Eleventh Amend-

ment. Pet. 24. But in 1985—two years before Gomez was

ET

20

That the EEOA abrogates state sovereign immunity is

not only the unanimous view of the courts of appeals, it

is the legally correct view. “Congress’ intent to abrogate

the States’ immunity from suit must be obvious from ‘a

clear legislative statement.’ ” Seminole Tribe of Florida

v. Florida, 116 S. Ct. 1114, 1123 (1996) (quoting

Blatchford v. Native Village of Noatak, 501 U.S. 775,

786 (1991)). The language of the EEOA—-specifically,

20 U.S.C. §§ 1703 and 1706—meets this standard. See

Gomez, 811 F.2d at 1037 (concluding, based upon

sections 1703 and 1706, that it is “clear” that the EEOA

abrogates state sovereign immunity); Los Angeles

Branch NAACP, 714 F.2d at 951 (EEOA “clearly”

abrogates Eleventh Amendment); Stanley v. Darlington

County Sch. Bd., 879 F. Supp. 1341, 1365 (D.S.C. 1995)

(“The EEOA clearly manifests Congress’ intent to

abrogate Eleventh Amendment immunity for suits

brought under the EEOA”), rev'd on other grounds, 84

F.3d 707 (4th Cir. 1996); Savannah Board, 1990 WL

608208, at *6 (“Congress’ intention to abrogate the

states’ immunity is clearly expressed in the text of the

[EEOA]’).!°

decided—this Court could say that the requirements for Eleventh

Amendment abrogation were already “well established in our

cases.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242

(1985). Although Dellmuth v. Muth, 491 U.S. 223 (1989)}—the

only recent case other than Atascadero on which the State relies

heavily—was decided after Gomez, both Stanley and Savannah

Board cite Dellmuth but hold that the EEOA abrogates Eleventh

Amendment immunity. At all events, as shown below, this

holding is in no way contrary to Atascadero or Dellmuth.

10 The State does not dispute that the EEOA was “passed pursu-

ant to a constitutional provision granting Congress the power to

abrogate.” Seminole Tribe, 116 S. Ct. at 1125. In any event,

“It]here can be no dispute that the EEOA was passed pursuant to

the enforcement authority of § 5 of the Fourteenth Amendment.”

Gomez, 811 F.2d at 1037. Section 5, of course, grants Congress

abrogation power. See Seminole Tribe, 116 S. Ct. at 1125;

Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976).

21

Section 1703 provides: “No State shall deny equal

educational opportunity to an individual on account of

his or her race, color, sex, or national origin, by * * * (b)

the failure of an educational agency which has formerly

practiced such deliberate segregation to take affirmative

steps * * * to remove the vestiges of a dual school

system” (emphasis added). Creating a judicial remedy

for this State-targeted command, section 1706 then

provides that “[a]n individual denied an equal educa-

tional opportunity * * * may institute a civil action in an

appropriate district court of the United States against

such parties, and for such relief, as may be appropriate”

(emphasis added). The combined effect of these provi-

sions is clear: “The ‘appropriate parties’ against whom

such a civil action may be instituted as those upon whom

the statutory obligations and prohibitions are imposed—

namely, the ‘State.’” Stanley, 879 F. Supp. at 1366.

Thus, “[rJead together, the text of 20 U.S.C. §§ 1703 and

1706 (1988), is specific enough to indicate clearly

Congress’ unequivocal intent to abrogate.” Savannah

Board, 1990 WL 608208, at *6.!!

In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), this

Court relied upon the language of section 5 of the Four-

teenth Amendment—in which “Congress is expressly

granted authority to enforce ‘by appropriate legislation’

the substantive provisions of the Fourteenth Amend-

ment, which themselves embody significant limitations

on state authority,” id. at 456 (quoting section 5; em-

phasis added)—to hold that section 5 permits Congress

11 Although Congress’ intent to abrogate the Eleventh Amend-

ment must be clearly expressed in statutory text, such a clear

expression can be found in text lacking “explicit reference to state

sovereign immunity or the Eleventh Amendment.” Dellmuth, 491

U.S. at 233 (Scalia, J., concurring) (fifth vote for majority opin-

ion). See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 13 n.4

(1989) (“[N]o magic words are required for abrogation”), over-

ruled on unrelated grounds, Seminole Tribe, 116 S. Ct. at 1124-

1132. Here, sections 1703 and 1706 “together convey a message

of unmistakable clarity.” Union Gas, 491 U.S. at 8.

; :

22

to abrogate the Eleventh Amendment.'? Since section

1703 cannot be read as anything other than an express

limitation on state authority, compare § 1703 (“No State

shall deny equal educational opportunity to an individual

on account of his or her race”) with U.S. Const., Amend.

XIV, § 1 (“No State shall * * * deny to any person

within its jurisdiction the equal protection of the laws”),

a suit against a State must be deemed a suit against an

“appropriate” party under section 1706.!°

The decision below is not contrary to Atascadero State

Hospital v. Scanlon, 473 U.S. 234 (1985), or Dellmuth

v. Muth, 491 U.S. 223 (1989). In the former, this Court

admonished that “[a] general authorization for suit in

federal court is not the kind of unequivocal statutory

language sufficient to abrogate the Eleventh Amend-

ment.” 473 U.S. at 246. In the latter, this Court rejected

an attempt to distinguish Atascadero on the ground that,

in addition to a general authorization for suit, the statute

at issue also made “frequent reference to the States.”

491 US. at 232. In neither case, however, was there any

provision, comparable to section 1703, which makes

unmistakably plain Congress’ intent that it is appropriate

to bring suit under the EEOA against a State.

The statute at issue in Atascadero was the Rehabilita-

tion Act, which at that time afforded relief against “any

recipient of Federal assistance.” 29 U.S.C. § 794a. The

12 The Fitzpatrick Court said: “We think that Congress may, in

determining what is ‘appropriate legislation’ for the purpose of

enforcing the provisions of the Fourteenth Amendment, provide

for private suits against States or state officials which are consti-

tutionally impermissible in other contexts.” 427 U.S. at 456.

13 Cf Winbush v. Iowa, 66 F.3d 1471, 1483 (8th Cir. 1995)

(holding that the provision of Title VII giving courts power to

grant any “equitable relief as the court deems appropriate,” 42

U.S.C. § 2000e-5(g)(1) (emphasis added), abrogates the Eleventh

Amendment to allow awards of prejudgment interest on damages

against States); Pegues v. Mississippi State Employment Serv., 899

F.2d 1449, 1454 (Sth Cir. 1990) (same).

23

Court held that this “general authorization for suit in

federal court” was insufficient to abrogate state sover-

eign immunity because it did not “subject the States to

federal jurisdiction * * * specifically.” 473 U.S. at 246.

Sections 1703 and 1706, however, “do not simply

authorize relief against a general, undefined class of

defendants that may or may not include the state and its

agencies.” Stanley, 879 F. Supp. at 1366-67 n.16.

Rather, section 1706 authorizes suits in federal court

against “appropriate” parties and section 1703 “mentions

specifically the state,’ Savannah Board, 1990 WL

608208 at *6, and “expressly contemplates that relief is

to be obtained from the state.” Gomez, 811 F.2d at

1038. Thus, there is no conflict between Atascadero and

the Second Circuit’s decision in this case. See id. at

1037-38 (distinguishing Atascadero); Stanley, 879 F.

Supp. at 1366 n.16 (same); Savannah Board, 1990 WL

608208 at *6 (same).

Nor is the decision below contrary to Dellmuth. As in

Atascadero, the statute at issue in Del/muth—the Educa-

tion of the Handicapped Act (“EHA”)—contained little

more than a general authorization for suit in federal

court. The Court rejected the attempt of the proponent

of abrogation to distinguish Atascadero on the ground

that “the EHA ‘is replete with references to the states,” ”

491 US. at 232 (quoting the respondent’s brief), saying

that this created nothing more than “a permissible

inference” that the Congress intended for States to be

amenable to suit in federal court. Jd.'4 There is, how-

ever, nothing in the EHA akin to section 1703's express

injunction against the States and section 1706’s authori-

zation of suit against “appropriate” parties—language

that collectively creates much more than a mere permis-

sible inference that Congress intended abrogation. Thus,

14 But cf, Seminole Tribe, 116 S. Ct. at 1124 (“[T]he numerous

references to the ‘State’ in the text of [the Indian Gaming Regula-

tory Act] make it indubitable that Congress intended through the

Act to abrogate the States’ sovereign immunity from suit”).

|

24

although the Court cotild say in Del/muth that the EHA

did not “address abrogation in even oblique terms” and

“in no way intimate[d] that the States’ sovereign im-

munity is abrogated,” 491 U.S. at 231, the same cer-

tainly cannot be said here.

2. The Second Circuit also held correctly that the

State institutional defendants were liable under the

EEOA. In the EEOA, Congress declared it to be the

policy of the United States that “all children enrolled in

public schools are entitled to equal educational oppor-

tunity without regard to race, color, sex, or national

origin.” 20 U.S.C.§ 1701(a)(1). As noted above,

section 1703 of the EEOA provides that “[n]o State shall

deny equal educational opportunity to an individual on

account of his or her race, color, or national origin, by

* * * (b) the failure of an educational agency which has

formerly practiced [race-based] deliberate segregation to

take affirmative steps * * * to remove the vestiges of a

dual school system.” The EEOA defines the term

“educational agency” as a “State education agency” or a

“local educational agency.” Jd. at 1720(a). Under the

plain language of the EEOA, then, a State denies equal

educational opportunity “by” the failure of a local

educational agency to eliminate the vestiges of segrega-

tion. Therefore, the Second Circuit correctly held that

the principles articulated by the Sixth Circuit in United

States v. School District of Ferndale, 577 F.2d 1339 (6th

Cir. 1978), supported the imposition of “supervisory”

liability on the State institutional defendants under the

EEOA on the same facts that warranted the imposition

of liability on the State officials under the Equal Protec-

tion Clause and section 1983. See Pet. App. 48a-49a.

The State contends that the Second Circuit concluded

that liability under section 1703(b) of the EEOA “is

broader than the Fourteenth or Fifth Amendments,” Pet.

27. in conflict with United States v. Texas, 680 F.2d 356

(Sth Cir. 1982). In that case, the district court held that

Texas had engaged in unlawful segregation of students

25

in violation of the Fourteenth Amendment and the

EEOA, including section 1703(b). The Fifth Circuit

reversed, holding that the evidence was insufficient to

establish a violation of the Equal Protection Clause or

section 1703(b), since the putative EEOA violation

“rest{ed] on the same factual premises” as the equal

protection violation. 680 F.2d at 371.

There is no conflict between the Fifth Circuit’s deci-

sion and the decision below. The Fifth Circuit held that

certain evidence insufficient to establish an equal pro-

tection violation was also insufficient to establish an

EEOA violation. Here, the Second Circuit held that

evidence sufficient to establish an equal protection

violation also established an EEOA violation. There is

no logical inconsistency between these holdings.

Moreover, the State is incorrect when it asserts that the

Second Circuit held that the EEOA is broader than the

Equal Protection Clause. Rather, it stated that “the

EEOA provides protections similar to those provided by

the Equal Protection Clause.” Pet. App. 47a (emphasis

added). Since the Second Circuit imposed liability

under the EEOA based upon the same factual findings

for which it imposed liability under the Equal Protection

Clause, it is not necessary to the Second Circuit’s deci-

sion for the EEOA to go beyond the Equal Protection

Clause and the judgment below can stand even if that

proposition is untrue.

Finally, accepting for purposes of argument that State

of Texas stands for the proposition that the EEOA is no

broader than the Equal Protection Clause, there are other

expressions in Fifth Circuit case law to the contrary. See

Castaneda v. Pickard, 648 F.2d 989, 1001 (Sth Cir,

1981) (the EEOA “makes unlawful practices, such as

segregation of students on the basis of sex, which may

not violate the fourteenth amendment’); United States v.

Hinds County Sch. Bd., 560 F.2d 619, 623 (Sth Cir.

1977) (the declaration of policy in 20 U.S.C.

§ 1702(a)(1) “expressly goes beyond the rights guaran-

26

teed to school children under the Fourteenth Amendment

prior to the EEOA’s adoption”). Given the tension in

the Fifth Circuit’s own cases, even if there were a

conflict between the decision below and United States v.

Texas (which there is not), such conflict would not

warrant review prior to the Fifth Circuit’s clarification of

its law. See Wisniewski v. United States, supra.'5

CONCLUSION

For the foregoing reasons, the petition should be de-

nied.

Respectfully submitted,

DAVID G. LEITCH*

STEVEN J. ROUTH

H. CHRISTOPHER BARTOLOMUCCI

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5822

* Counsel of Record Counsel for Respondent Yonkers

Board of Education

'5 As with the State officials, see note 6, supra, the judgment of

liability against the State can also be defended on the basis of Title

VI. Respondents reserve their right to raise Title VI in support of

the judgment below in any future proceedings. The States’

Eleventh Amendment immunity is expressly abrogated for Title

VI claims. 42 U.S.C. § 2000d-7. See Franklin v. Gwinnett

County Pub. Schs., 503 U.S. 60, 72 (1992) (“In the Rehabilitation

Act Amendments of 1986, 100 Stat. 1845, 42 U.S.C. § 2000d-7,

Congress abrogated the States’ Eleventh Amendment immunity

under Title IX, Title VI, § 504 of the Rehabilitation Act of 1973,

and the Age Discrimination Act of 1975”).