Reply Brief — Ryan v. Powell

No. 99-527

Sayan -

IN THE SUPREME COURT OF THE UNITED STATES

MATTHEW J. RYAN, ROBERT C. JUBELIRER,

JESS M. STAIRS and JAMES J. RHOADES,

Petitioners,

VS.

DAVID POWELL , et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPLY IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

DICK THORNBURGH

JOHN P. KRILL, JR. (Counsel of Record)

LINDA J. SHOREY

DAVID R. FINE

KIRKPATRICK & LOCKHART LLP

240 NORTH THIRD STREET

HARRISBURG, PA 17101

(717) 231-4500

Counsel for Petitioners

1999

enter

TABLE OF CONTENTS

REPLY IN SUPPORT OF PETITION FOR

A WRIT OF CERTIORARE ..............cccccccccsccsccccccccosecceces

I. THE PROPER SCOPE AND ENFORCEMENT

OF TITLE VI REGULATIONS ARE CRITICAL

ISSUES MERITING THIS COURT’S ATTENTION... I

A. This case squarely raises the issues of

whether Title VI disparate-impact regulations

are valid and whether they are enforceable by

RR NN pe ei I

B. The opposition does not challenge the

nationwide importance of the issues raised in

RR osteo ae

I. RESPONDENTS’ SUGGESTION THAT THIS

CASE IS NOT RIPE FOR CERTIORARI IGNORES

BOTH THE TRUE POSTURE OF THE CASE AND

DEMS CAPRI CE Ce aves Sih cscosxstclowiscandseccingiduvaci 6

III. THE COURT SHOULD REVIEW THE

STANDING ISSUE RAISED IN THE PETITION

BECAUSE IT PRESENTS AN IMPORTANT

ISSUE OF FIRST IMPRESSION ...............ccccccccccccccosceceees 9

See INT abies wicchecepamhervadhed ey Meaiidices Sochadnsetaséconccks 10

il

TABLE OF AUTHORITIES

FEDERAL CASES

Asarco, Inc. v Kadish, 490 U.S. 605 (1989)... 9

Blessing v Freestone, 520 U.S. 329 (1997) vo. 7

Buchanan v City of Bolivar, Tenn., 99 F.3d 1352

(CAG PSDB) os ccsisissicssircccrecavensiasteaatieseteipmeeseniaecss 4

Burton v City of Belle Glade, 178 F.3d 1175

CALL 1D picsciccscccccccaireeeeeaaaseimtaanniesens 4

Castenada by Castenada v Pickard, 781 F.2d 456

(CAS ¥9GB) scixciccccouscnaeareaneeriiaaanabendelades 4

Chester Residents Concerned for Quality Living v

Seif, 132 F.3d 925 (CA3

DDT) nnsisenccecicecedec site eae aaaiaeeldiads 7

City of Boerne v Flores, 521 U.S. 507 (1997)... 9

City of Chicago v Lindley, 66 F.3d 819

CAT ESOS) caccccccccee oe ea oss dpe 4

Ferguson v City of Charleston, 186 F.3d 469 (CA4

DOD) ac siccnicassnccpicsadnaaeet ance ieee tania enaaaietanl 4

Guardians Association v Civil Service

Commission, 463 U.S. 582 (1983)... eee 5

Herdrich v Pegram, 154 ¥.3d 362 (CA7 1998)....... 8

Illinois Council on Long Term Care v Shalala.

143 F.3d 1072 (CA7 1998)................................ &

Land v Dollar, 330 U.S. 731 (1947)... 6

Larry P. v Riles, 793 F.2d 969 (CA9 1984)... 4

McElroy v United States, 455 U.S. 642 ‘ty, %4 oe 4

New York Urban League, Inc. v New York,

De BOE FRE SOON vsiiccscesssasanccecessurccscesseces 4

Olech v Willowbrook, 160 F.3d 387 (CA7 1998)....8

Personnel Administrator of Mass. v Feeney,

442 U.S. 256 (1979) 2

Seif v Chester Residents Concerned for Quality

Living, 118 S. Ct. 2296 (1998) ooo. 5

United States vy General Motors Corporation.

MTs PT CID basse oa sds sciiccacoussoniseecesaei 6

Villanueva v Carere, 85 F.3d 481 (CA10 1996) .....4

DOCKETED CASES

Bryant v New Jersey Department of

Transportation, No. 97-1397 (D.N.J.) occ. 5

hy

(‘herokee Robinson v Kansas, No. 99-1193

FP ID saver sank cses cchaglas acne sues 5

Cureton Vv National Collegiate Athletic

Association, No. 97-131 (ED. Pal)... 5

Flores v Arizona, No. 92-596 (D. Ariz.) .................5

Maryland State Conference of NAACP

Branches v Maryland Department of

State Police, No. CCB-98-1098 (D. Md.).......... 5

- New York City Environmental Justice

Alliance v Guiliani, No. 99 Civ. 3330

et FEC basses eat vlen nantes cctv onion ects hisunsee encase 5

Pegram v Herdrich, No. 98-1999 |... 0... 8

Sandoval v Hagan, No. 98-6598 (CALL) ................5

Shalala v Illinois Council on Long Term Care,

Fe UR NY sax sicstuayss uae duacnscontnakavguenbaatalelabvenietcee 8

South Bronx Coalition for Clean Air v Conroy,

No. 96 Civ. 4404 (S.D.N.Y.) ........0csscccccssseasssseeed

Willowbrook, IL v Olech, No. 98-1288 ............00000.. 8

FEDERAL STATUTES

employee Retirement Income Security Act of 1974,

FO eas ee Ss OE OE: Wisi ainsi ecean 8

Religious Freedom Restoration Act of 1993,

42 U.S.C. §§ 2000bb, ef seg )

REPLY IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

I. THE PROPER SCOPE AND ENFORCEMENT

OF TITLE VI REGULATIONS ARE CRITICAL

ISSUES MERITING THIS COURT’S ATTENTION.

A. This case squarely raises the issues of

whether Title VI disparate-impact regulations are

valid and whether they are enforceable by private

actions.

The opposition to the petition is perhaps most

notable for what it does not say. Respondents tacitly

concede that the first two issues in. the petition — the

validity of Tithe VI disparate-impact regulations and their

Susceptibility to private actions are substantial and

important questions meriting consideration by this Court.

Rather than challenging that — basic and

indisputable — conclusion, Respondents attempt to re-cast

their complaint and the decision of the Third Circuit in an

effort to suggest that the complaint alleges something other

than what it does. That attempt at legerdemain should fail.

The complaint begins with a preliminary statement

that “Plaintiffs allege that Defendants have discriminated in

effect... Complaint at § 1 (App. H to Petition in Ridge v

Powell at 201a) (emphasis added). In Count | of their

complaint, Respondents allege that

73. The Commonwealth Defendants’ funding

policies and practices wrongfully discriminate | .

by utilizing criteria and methods that have had the

foreseeable effect of subjecting such students to

2

discrimination © . . in violation of the Title VI

implementing regulations applicable to federal

education programs. . .

‘++

75. The Commonwealth Defendants’ — funding

policies and practices have had the foreseeable,

racially discriminatory effect of further isolating the

Student Plaintiffs. . .

Complaint (App. Hi to Petition in Ridge v Powell at 223a)

(emphasis added). The complaint contains no allegation

that any of the defendants purposefully discriminated

against anyone. That the disparate impacts may have been

“toreseeable” does not convert their complaint into one

addressing purposeful or intentional discrimination. See

Personnel Administrator of Mass. v Feeney, 442 US. 256,

279 (1979) (knowledge of potential result) does not

constitute purposeful discrimination).

Respondents describe the Third Circuit's decision

us recognizing “that factual development of Respondents’

allegations could result in a finding of intentional

discrimination.” Respondents’ Brief at 12. That assertion

misstates the Third Circuit's dictum. In a footnote, the

court described a suggestion Respondents made at oral

argument, it did not adopt that assertion as either a holding

or a finding. See Powell v Ridge, Nos. 98-2096, 98-2157

(App. A at 7a, n.1) ("lt appears that plaintiffs suggest that

with discovery they may be able to make a case of intent

under Tithe VI... .”).

In fact, the Third Circuit’ clearly understood

Respondents to contend both in their complaint and at oral

argument that they were claiming only a disparate impact.

id (App. A at 7a, n.1) (Plaintiffs should not be penalized —

for their scrupulousness in declining to include allegations

against public officials concerning conduct that they

suspect but of which they currently have no direct proof.”).

(he court of appeals recognized that the linchpin of this

case 1s the disparate-impact ciaim. Thus, the court began

its analysis by writing that “[t]he complaint challenged the

practices of the Commonwealth of Pennsylvania in funding

public education as having a racially discriminatory effect.”

Id (App. A at 2a).

Both the complaint and the decision of the court of

appeals make clear that the claim of disparate-impact is at

the heart of the allegations in this matter. Respondents’

attempt to suggest otherwise at this late date underscores

their own understanding that the disparate-impact issues are

important for this Court's prompt review.

B. The opposition does not challenge the

nationwide importance of the issues raised in the

petition.

The principal basis on which Petitioners Ryan. ef

al, urged the Court to grant review is the significant

importance of the issues presented. The first two questions

in the Ryan petition raise purely legal questions about the

proper scope of administrative regulations under Title VI

and whether those regulations may give rise to private

enforcement actions.

The court of appeals repeatedly characterized the complaint as

alleging an improper disparate impact. See, e.g. Powell v Ridge. Nos

98-2096, 98-2157 (App. A at 1Sa-16a) (“The defendants in this case

are on notice that plaintiffs intend to prove that their funding formula

produced disparate effects, and the defendants are in as good a position

as anybody to know precisely what that funding formula entails.”).

4

Respondents tacitly concede that these are critically

important questions that have not been answered by this

Court. They do not — and cannot — dispute that more than

40 federal agencies have promulgated disparate-impact

regulations with their genesis in Tithe VI and that those

regulations affect almost every aspect of our society, from

agriculture to the environment to education.

The importance of those core questions ts sufficient

enough reason for the Court to accept this case for review,

Respondents counter that there is no split among the courts

of appeals and, indeed, that is so. [tis also immaterial,

The principal reason this Court grants certiorari to

consider issues about which the courts of appeals are split

is to bring uniformity to the interpretation of federal law.

See, ew. Meklroy vo United States, 455 U.S. 642, 643

(1982). But what of the situation where, as here, the courts

of appeals are uniformly incorrect in their conclusions? A

majority of the federal circuits have made known their

conclusions that Tithe VI regulations may validly prohibit

disparate impacts and that those regulations may be

enforced by private actions. See New York Urban League,

Inc. v New York, 71 F.3d 1031 (CA2 1995), Powell v

Ridge, Nos. 98-2096 and 98-2157, 1999 US. App. LEXIS

20092 (CA3 1999). Ferguson v City of Charleston, 186

F.3d 469 (CAF 1999): Castenada by Castenada v Pickard.

781 b.ld 456 (CAS 1986), Buchanan v City of Bolivar,

enn, 99 F.3d 1352 (CAG 1996). Cite of Chicago v

Lindley, 66 F.3d 819 (CA7 1995), Larry Po v Riles, 793

F.2d 969 (CAY 1984), Villanueva v Carere, 85 F.3d 481

(CALO 1996), and Burton v City of Belle Glade, 178 F.3d

1175 (CATT 1999).

There was likewise no circuit split on the issue

when the Court granted the petition for a writ of certiorari

in Seif v Chester Residents Concerned for Quality Living,

118 S.Ct. 2296 (1998). Sull, the Court recognized the vast

importance of the issue.

Now, nearly two years later, the developing caselaw

in the lower federal courts has only served to underscore

that importance. Respondents do not — and cannot — deny

the significant number of cases still pending or recently

decided in the federal courts in which Tithe VI regulations

have been the focus. See, e.g, Sandoval v Hagan, No. 98-

6598 (CAIT): Bryant vo New Jersey Department of

Transportation, No. 97-1397 (D.N.J.): Flores vo Arizona,

No. 92-596 (D. Ariz.); South Bronx Coalition for Clean Air

vV Conroy, No. 98 Civ. 4404 (S.D.N-Y.): New York City

Environmental Justice Alliance v Guiliani, No. 99 Civ.

3330 (S.D.N.Y.): Cureton v National Collegiate Athletic

Association, No. 97-131 (ED. Pa.): Maryland State

Conference of NAACP Branches v Maryland Department

of State Police, No. CCB-98-1098 (D. Md.); Cherokee

Robinson v Kansas, No. 99-1193 (D. Kan.); and cases cited

on the previous page.

This Court has never squarely decided whether

disparate-impact regulations exceed the scope of Title V1

and it has never addressed at all whether those regulations,

if valid, may support private actions.” It should accept this

opportunity to resolve both questions.

,

As noted in the Ryan petition, to the extent the Court

addressed the validity of Tithe VI regulations in Guardians Ass'n v

Civil Service Comm'n, 463 US. 582 (1983), the Court reached no

holding. Moreover, the splintered decision in) Guardians has

unfortunately generated more confusion than it has resolved.

6

II. RESPONDENTS’? SUGGESTION THAT THIS

CASE IS NOT RIPE FOR CERTIORARI IGNORES

BOTH THE TRUE POSTURE OF THE CASE AND

THE COURT'S PRACTICE.

Respondents argue in their opposition brief that this

case is not ripe for this Court's consideration because there

has not yet been a final judgment below.

This Court has not hesitated to review cases in

which the courts of appeals have construed purely legal

questions and then remanded the cases to the district courts.

See, e.g, United States v General Motors Corporation, 323

U.S. 373, 377 (1945); and Land v Dollar, 330 U.S. 731,

734 n.2 (1947). In both General Motors and Land. the

Court explained that review was appropriate because the

decision of the court of appeals involved an_ issue

“fundamental to the further conduct of the case.” General

Motors, 323 U.S. at 377; Land, 330 U.S. at 734 n.2.

As noted in the first section of this reply brief, no

matter how urgently Respondents attempt to re-package

their assertions, they cannot avoid one fundamental point:

the linchpin of their complaint is their claim that the

Pennsylvania school-funding formula results in a disparate

impact upon members of minority groups. The issues

raised in the petition regarding the disparate-impact

regulations are “fundamental to the further conduct of the

case.” General Motors, 323 U.S. at 373. Discovery in this

case could be protracted and costly, dealing as it likely will

with difficult statistical and sociological analyses. While

that process will impose significant expense and burden on

all parties, the purely legal issues raised in the petition will

not change. They are ripe for review now, and immediate

review wiil serve the purposes of the parties to this case as

7

well as those of the parties to other Title VI regulation

cases pending nationwide.

There is strong — and recent — precedent for the

Court to take the case in its present procedural posture. For

example, consider Chester Residents, the case in which the

Court agreed to consider one of the same issues presented

in this case. In that case, the district court granted a motion

to dismiss the complaint. The Third Circuit reversed and

remanded for further proceedings. Chester Residents

Concerned for Quality Living v Seif, 132 F.3d 925 (CA3

1997)... The defendants filed a petition for a writ of

certiorari and this Court granted it. This case is now in the

same procedural posture as Chester Residents was in at the

time the Court accepted review of that case.

In Blessing v Freestone, 520 U.S. 329 (1997), the

district court held that the federal statute at issue did not

give rise to an right enforceable by a Section 1983 action.

A divided panel of the Ninth Circuit reversed, held that the

statute did provide a private right of action, and remanded

the matter to the district court for further proceedings. At

that procedural juncture, the Court granted certiorari and

reversed the Ninth Circuit's decision.

Indeed, at least three cases on the Court’s docket in

the current Term are similarly situated.

In Shalala v Illinois Council on Long Term Care,

No. 98-1109, the district court dismissed the complaint on

‘

The Third Circuit wrote that “we will reverse and remand for

further proceedings, including a consideration of the remaining

grounds for dismissal contained in defendants’ Motion to Dismiss.”

132 F.3d at 937.

8

jurisdictional grounds. The Seventh Circuit vacated the

dismissal and remanded the case for further proceedings.

See Illinois Council on Long Term Care v Shalala, 143

F.3d 1072 (CA7 1998). The court of appeals’ remand

order did not prevent this Court from granting review.

In Willowbrook, IL v Olech, No. 98-1288, the

district court dismissed the complaint for failure to state a

claim. The Seventh Circuit reversed and remanded for

further proceedings. See Olech v Willowbrook, 160 F.3d

387 (CA7 1998). Nonetheless, this Court granted a petition

for a writ of certiorari to review the Seventh Circuit's

decision.

In Peeram v Herdrich, No. 98-1949, the district

court granted a motion to dismiss after it determined that

the plaintiff had failed to state a claim under the Employee

Retirement Income Security Act of 1974, 29 U.S.C. §§

LOOL, ef seg. The court of appeals disagreed, reversed, and

remanded the case for discovery. See Herdrich v Pegram,

154 F.3d 362 (CA7 1998). With the case in that posture,

this Court granted a petition for a writ of certiorari to

consider the purely legal question decided by the court of

appeals. -

Che bottom line is that, confronted with particularly

important legal issues, this Court has regularly accepted

review of cases in precisely the same procedural posture as

this case. There is no impediment to a prompt

consideration.'

4 . ‘ a :

Respondents argue that the question of whether Tithe V1

regulations can give rise to private actions would not be dispositive of

this case because the second count of their complaint pleads a Section

1983 claim. Their assertion is misguided. First, the petition raises as

9

ll. THE COURT SHOULD REVIEW THE

STANDING ISSUE RAISED IN THE PETITION

BECAUSE IT PRESENTS AN IMPORTANT ISSUE

OF FIRST IMPRESSION.

The petition asserted that this case presents a

standing issue of first’) impression for this Court.

Respondents do not question that assertion.

Respondents contend that this case Is

distinguishable from Asarco, Inc. v Kadish, 490 U.S. 605

(1989), because that case concerned taxpayer standing

while this case concerns an allegation of discrimination.

Unfortunately, Respondents do not explain why they

believe this distinction to be material, and in fact it 1s not.

As noted in the petition, Asarco stands tor the rule that,

where the remediation of the plaintiff's asserted injury rests

on the unfettered choices of third parties not before the

court, the injury is not redressable as required for Article-

III standing. Here, Respondents complain of an array of

ills that all stem from lack of funding for the School

District of Philadelphia. They do not dispute that

approximately half of the funding for the school district 1s

provided by the City of Philadelphia, which is a plaintiff, or

by the federal government, which is not a party. That

scenario provides the Court with an opportunity to consider

its first issue the validity of the regulation itself, an issue that would be

case dispositive (the Section 1983 claim in the complaint could not

proceed were the regulation invalid). Second, the Court has often

taken cases that raise important federal issues even if there are other

issues in the case. See, e.g, City of Boerne v Flores, 521) U.S. 507

(1997) (considering the constitutionality of the Religious Freedom

Restoration Act of 1993, 42 ULS.C. §§ 2000bb, ef seq., although “[t]he

complaint contained various claims. . .”)

10

the rule in Asarco in a slightly different, but no less

important, setting.

Respondents correctly note that the standing inquiry

is a subpart of the Article-II] case or controversy

requirement. One of that requirement’s principal goals 1s

to insure that the federal courts do not render decisions that

are, in fact, merely advisory opinions without effect in the

real world and in the affairs of the parties. Because of the

Wholly speculative nature of Respondents’ claim that an

injunction directed only to the executive officers of the

Commonwealth of Pennsylvania would redress the injuries

claimed in the complaint, there is a substantial reason for

this Court to question whether this matter presents a proper

case or controversy for resolution by the federal courts.

CONCLUSION

The Court should grant this petition for a writ of

certiorart.

Respectfuily submitted,

DICK THORNBURGH

JOHN P. KRILL, JR. (counsel of record)

LINDA J. SHOREY

DAVID R. FINE

Counsel for Petitioners

NOVEMBER 12, 1999