# Reply Brief — Ryan v. Powell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0105%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 1046

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0105%3A6. Public record. Not legal advice.