Petition for Writ of Certiorari — Ryan v. Powell

we

fF

99574 ocr-1'™

No.

snares Ett fied Niel tial dhielis

IN THE

Supreme Court of the United States

THOMAS RIDGE, GOVERNOR OF THE

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

Petitioners,

DAVID POWELL, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

EDWARD F. MANNINO

(Counsel of Record)

DAVID L. COMERFORD

JAMES L. GRIFFITH

OF COUNSEL: AKIN, GUMP, STRAUSS, HAUER

PAUL A. TUFANO ae eH map

JAMES SHEEHAN ne Vommerce square

Suite 2200

GREGORY E. DUNLAP

JOSEPH M. MILLER 2005 Market Street

Philadelphia, PA 19103

(215) 965-1200

Counsel for Petitioners

OS TLE ELON TTT MENON A RSIS VFA RR

PACKARD PRESS® / APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000

QUESTIONS PRESENTED

1. Did the United States Department of Education exceed

its rule making authority under Section 602 of Title VI of the

Civil Rights Act of 1964 and create substantive federal law,

where, under the guise of effectuating Section 601 of the Act,

which prohibits only intentional discrimination, it promulgated

a regulation purportedly limiting the discretion of federally-

funded state agencies when their actions allegedly result in a

discriminatory effect upon minorities?

2. Did Congress intend to create a private right of action to

enforce a generally worded regulation promulgated by the

Department of Education under Section 602 of Title VI of the

Civil Rights Act of 1964 that prohibits federally-funded state

agencies from utilizing criteria or methods of administration

which have a discriminatory effect on minorities?

3. Can a generally worded regulation promulgated by the

United States Department of Education — which regulation

prohibits recipients of federal funds from utilizing criteria or

methods of administration that have the effect of defeating or

substantially impairing accomplishment of the objectives of a

program protecting individuals of a particular race. color, or

national origin — support a broad-based attack upon state

legislation establishing a system for funding public education

in the state?

—_

LIST OF PARTIES

Petitioners are Thomas J. Ridge, Governor of the Com-

monwealth of Pennsylvania; James P. Gallagher, Chairperson

of the Commonwealth of Pennsylvania State Board of Educa-

tion; Eugene Hickok, Pennsylvania Secretary of Education;

and Barbara Hafer, Treasurer of the Commonwealth of Penn-

sylvania.

Defendant intervenors in the district court below are

State Representative Matthew J. Ryan, State Senator Robert

C. Jubelirer, State Representative Jess M. Stairs, and State

Senator James J. Rhoades.

Respondents are David Powell; Shelean Parks; Patrice

Everage; Julia A. Davis; Yvette Bland; Geraldine Newton;

Maria M. Rivera; Mary E. Miller; Gregory Luzak; Catherine

Luzak; Fu Zhen Xie; The Black Clergy of Philadelphia and

Vicinity; Philadelphia Branch of NAACP; Aspira, Inc. of

Pennsylvania; Parents Union For Public Schools; Citizens

Committee On Public Education In Philadelphia; Parents

United For Better Schools, Inc.; David W. Hornbeck, Superin-

tendent, The School District Of Philadelphia; Floyd W.

Alston, President, Board of Education of The School District

of Philadelphia; Board of Education of The School District of

Philadelphia; The School District of Philadelphia; Edward G.

Rendell, Mayor, City of Philadelphia; and the City of Philadel-

phia.

Plaintiff intervenors in the district court below are Phila-

delphia Federation of Teachers Local 3 and Ted Kirsch, Presi-

dent, Guardian Ad Litem.

There are no parent companies or subsidiaries of any

party known to Petitioners.

li

Ke

TABLE OF CONTENTS

Page

eh ey errr i

nS Nis oa she cies S66 6.5006.6.8 5600000862 ii

PUD SE FRAP EUPRPURBE EEE oc ce cccccccsccesccccesas V

re cus Gha eke ksees 04s t00 sees eo 4 l

STATEMENT OF JURISDICTION................... |

RELEVANT STATUTES AND REGULATIONS...... |

UPR MAIPUEONOR COE BREES CAS ccc ca ccccsccscccccscess 2

PC TCvGren raat cachanseeeeetunsced oi sso5 2

Tere ees eNeekbsneb és seceenscaceee 3

Pennsylvania Educational Funding System ........... 4

EEE oe TT eer eee Tee eT Terre 4

ES EE ge ere 6

OPO PLE UTT PEPE TEL EOPE ETO CET 7

i eee wah see ubdansecentawes 7

REASONS FOR GRANTING THE WRIT............ 8

I. BY DECIDING THAT A DISCRIMINATORY

EFFECT REGULATION PROMULGATED

UNDER SECTION 602 OF TITLE VI IS

VALID, THE THIRD CIRCUIT INCOR-

RECTLY DECIDED AN IMPORTANT FED-

ERAL QUESTION THAT THIS COURT

i Ss vas aus dadeeckchescenans 6 8

A. The Statutes and the Regulation............. 7)

B. The Misreading Of This Court’s Precedents.... 10

C. Improper Agency Rulemaking .............. 13

TABLE OF CONTENTS — (Continued)

Page

ll. EVEN IF THE REGULATION AT ISSUE,

WHICH INCORPORATES A DISPARATE

IMPACT STANDARD UNDER TITLE VI, IS

VALID, THE COURT SHOULD DECIDE THE

IMPORTANT QUESTION OF WHETHER A

PRIVATE RIGHT OF ACTION EXISTS TO

ENFORCE DISCRIMINATORY EFFECT

PEE Sa cuca asvancnssseadicecevess 15

A. The Impact of Powell is Far-Reaching ........ 1S

B. This Court Granted Certiorari On The Same

SRR TR CN TO ook vce a Cisseceecss 17

C. The Third Circuit Improperly Interpreted Sec-

TEE 65s end csades pie dauinenakwaeiansas 17

1. The Statutory Language and Structure Evi-

dences Congress’ Intent Not to Provide for a

Private Right of Action to Enforce Regula-

tions Promulgated Under Section 602 ...... 18

i)

. This Court’s Precedents Suggest There Is No

Private Right Of Action To Enforce Title VI

PP Oe rere TE Tyee eT Teer e 22

Ill. BY APPROVING THE USE OF A GENER-

ALLY WORDED REGULATION PROMUL-

GATED BY THE DEPARTMENT OF EDUCA-

TION UNDER TITLE VI AS A VEHICLE FOR

ATTACKING THE COMMONWEALTH OF

PENNSYLVANIA LEGISLATIVE SYSTEM

FOR FUNDING PUBLIC EDUCATION, THE

THIRD CIRCUIT HAS DECIDED AN IMPOR-

TANT FEDERAL QUESTION IN A WAY

WHICH CONFLICTS WITH THIS COURT'S

DECISION IN ALEXANDER V CHOATE...... 23

SIN 5.5 0k 5G oki cnb daa keed coon nelees 29

iV

TABLE OF AUTHORITIES

Page

FEDERAL CASES

African American Legal Defense Fund, Inc. v. New York

State Department of Education, 8 F.Supp.2d 330

Gee es BOOED 2.5 506ds kv boeReenL eee 16,

Alexander .v. .Choate,.469 .U.S..287.(1985). 7, 10, 11, 22, 24,

Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d

939 (3d Cir.), cert. denied, 474 U.S. 935 (1985).... 17,

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

Otte MOG soit tee 15,

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

CE CE, BD asc iscss binders taekeos tee

Chester Residents Concerned for Quality Living v. Seif,

cee e bw e ek fe Beene Zz, 7, 20, 15,

Chester Residents Concerned for Quality Living v. Seif,

__ US. __, 118 S. Ct. 2296 (1998), vacated as moot,

cs A sin, NO Oe Be CE bs hed re

Con vu Amt, G2 US, GO CIN as vos vce nvaandeisesaees

David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988) .........

Ernst & Ernst v. Hochfelder, 425 U.S. 185, rehearing den.,

ae USE. FOR EPPO os one omnereeeedinlseusee 13,

Flores v. State of Arizona, 48 F.Supp.2d 937

CR: PA, Ti oo se cae decks keane s uses

Garcia v. United States, 469 U.S. 70 (1984), rehearing

Gem, SE UB. EEA Ca kn ov cca nc tl to imesaeees

Georgia State Conference of Branches of NAACP v.

Georgia, 775 F.2d 1403 (11th Cir. 1985) ............

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...............

16

15

17

17

18

16

19

23

TABLE OF AUTHORITIES — (Continued)

Cases Page

Guardians Association v. Civil Service Com’'n. of City of

New York, 463 U.S. 582 (1983) .............. 10-14, 22

Industrial Union Department, AFL-CIO v. America

Petroleum Institute, 448 U.S. 607 (1980)... 0... 5. 14

Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984) ........... 16

Lau v. Nichols, 414 U.S. 563 (1974). .........cccccceees 11

Mourning v. Family Publications Service, Inc.,

421 UB, S56 CHOTaN o ccs cd ccussencsesevhesecseees 13

New York City Environmental Justice Alliance v. Giuliani,

50 F.Supp.2d 250, (S.D.N.Y. 1999)... 2.2... cece ees 16

Powell v. Ridge, No. 98cv01223, 1998 WL 804727

CHLEDPO. FOO. EG, SOG a vnkcescasectaccsactuunaas 1,7

Powell v. Ridge, Nos. 98-2096, 98-2157, 1999 WL 643364

(3d Cir. August 25, 1999) ....... 1-3, 7-11, 13, 15-23, 27

Regents of University of California v. Bakke,

S58 US. SiO CRG TER 606s ckucavesekescesoue 10, 11

San Antonio Independent School District v. Rodriguez,

411 U.S. 1, rehearing den., 411 U.S. 959 (1973)... . 23-25

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) . 18, 19

Transamerica Mortgage Advisors, Inc. v. Lewis,

AAG USD. 11 (UOTE cc ccecccccucncsadecucsceuusevs 20

United States v. Fordice, 50S U.S. 717 (1992) ......... 10, 22

United States v. Ron Pair Enterprises, Inc.,

GD US. 25S CERRO oc veauseuans isi baer 20

Villaneuva v. Carere, 85 F.3d 481 (10th Cir. 1996). ....... 16

Washington v. Davis, 426 U.S. 229 (1976). ............. 10

vi

ee

TABLE OF AUTHORITIES — (Continued)

Cases Page

STATE CASES

Campaign For Fiscal Equity, Inc. v. New York,

SP Fe GOON Wie Ns BOOED cccwascesccaeveceess 16, 23

Danson v. Casey, 399 A.2d 360 (Pa. 1979) 2.2.2.2... 6, 27

Marrero v. Commonwealth, 7089 A.2d 956 (Pa. Cmwith.).

appeal pending, No. 0032 M.D. Appeal Dkt. 1998

eh Se ktncasSudeaentesieads 5ibaeo se ekasksa 25

FEDERAL STATUTES

ee I EE naw eegsekscadeusandsdseeadancoeres 7

tes EE nbd atekeecccabesbavetedbuad scared 7

EE dad ocdlicakhsaSebecennatdbeseeacus |

a ET hb. 04dosA0endddd cases anéhbewecenns 7

Oe EE daaddukevaddcscctecndankucsectsacaca ue

ea nicsccusen as boksonscdanneaceicas * F.

ee Sn INN Gs oc nscdeuebcaceceddss 1, 7, 8, 9, 19, 20

FEDERAL REGULATIONS

Pe ED vce cibdunccbccccccccsscsscece

STATE CONSTITUTION

es ST onc cc cebsccnvccedsoucaescceens 25

STATE STATUTES

nls oc cece Seectusaseuakueensaaell

a4 PS. § Z5-250E to 25-2500.FS .. ccc ccc ccccccnccccedeS

ee et ene eae neennuninens 5

i crc cbcaswkne naWeebseenesnewoaces 4

ER RET eR ET ST 4.5

ee en de iv adecdebbstesesecdataces 5

TABLE OF AUTHORITIES — (Continued)

State Statutes Page

ee Is ook kk cccdsbnbs debdestenapareaans 5

24 PS. § PS-2IIDA. 0c cccccvccccccccccsccssnsccesssdy®

5 Rk Er Terre rer TT TTT TET Tee. S,

Re eS Terre er TTT rere Td

OM ER eck ak akadkh be sdabbsicedsdeaksseeacese care

A ee ee ere rT Te Tere ee ee eee 2.6

STATE REGULATIONS

Be SIE oc bon ed de addacedeccadededsesess 2,6

MUNICIPAL CODES

Philadelphia Municipal Code §§ 19-1801, 1804-1806..... 2, 6

Vill

Petitioners respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Third Circuit, which reversed the

final judgment of the United States District Court for the

Eastern District of Pennsylvania dismissing this action with

prejudice.

OPINIONS BELOW

The opinion and order of the Court of Appeals for the

Third Circuit are not yet reported in the Federal Reporter

(Third). They are unofficially reported at Powell v. Ridge, Nos.

98-2096, 98-2157, 1999 WL 643364 (3d Cir. August 25, 1999).

The opinion and order are reprinted in Appendix A.

The memorandum opinion and order of the United States

District Court for the Eastern District of Pennsylvania, issued

November 18, 1999, are not reported in the Federal Supple-

ment (Second). They are unofficially reported at Powell v.

Ridge, No. 98cv01223, 1998 WL 804727 (E.D.Pa. Nov. 18,

1998). The memorandum opinion and order are reprinted in

Appendix B.

STATEMENT OF JURISDICTION

The judgment and order of the United States Court of

Appeals for the Third Circuit were filed on August 25, 1999,

and this petition for writ of certiorari has been filed within

ninety days of that date. This Court has jurisdiction to review

the decision of the Third Circuit pursuant to 28 U.S.C. § 1254

(1994).

Petitioners are not challenging the constitutionality of any

statute.

RELEVANT STATUTES AND REGULATIONS

The relevant United States statutory provisions are Sec-

tions 601 and 602 of Title VI of the Civil Rights Act of 1964,

42 U.S.C. $§ 2000d and 2000d-1 (1994). These provisions are

reprinted in Appendix C.

2

The relevant federal regulatory provision is 34 C.FR.

§$100.3(b) (1999). This provision is reprinted in Appendix D.

The relevant Pennsylvania statutory provisions are found

in 24 PS. §§ 6-601 to 6-695 (giving local governments author-

ity to impose taxes for public education); and §§ 25-2502 to

25-2502.35, 25-2509.1, 25-2509.3, 25-2509.5, 8329 and 8535

(pertinent Commonwealth public school funding statutes)

(West 1992 and West Supp.1999). These provisions are

reprinted in Appendix E.

The relevant state regulatory provision is found in 351 Pa.

Code 12.12-100 (1999) (creating the School District of Phila-

delphia). This provision is reprinted in Appendix F.

The relevant municipal codes are found in Philadelphia

Municipal Code §§ 19-1801, 1804-1806 (authorizing School

District of Philadelphia to levy special taxes for public educa-

tion). These provisions are reprinted in Appendix G.

STATEMENT OF THE CASE

Background

The questions presented in this petition are familiar to

this Court but have not yet been decided by it. Before plain-

tiffs filed their complaint in this case, the Court of Appeals for

the Third Circuit held in another case that “a private right of

action exists under discriminatory effect regulations promul-

gated by federal administrative agencies pursuant to section

602 of Title VI of the Civil Rights Act of 1964.” Chester Resi-

dents Concerned for Quality Living v. Seif, 132 F.3d 925, 927

(3d Cir. 1997). This Court granted the petition for a writ of

certiorari in that case, but later vacated the judgment of the

court of appeals as moot. Chester Residents, ___ U.S. __, 118

S.Ct. 2296 (1998), vacated as moot, __ U.S. __, 119 S.Ct. 22

(1998). This case presents the identical, important federal

question decided by the Third Circuit in Chester Residents. See

Appendix A, p. 17a (acknowledging that in Chester Residents,

it “considered the [same] issue before us here, ‘whether a pri-

3

vate right of action exists under discriminatory effect regula-

tions promulgated by federal administrative agencies pursuant

to section 602 of Title VI.’”).

The Complaint

Plaintiffs’ complaint represents a broad-based attack on

the entire legislative system for funding public education in

the Commonwealth of Pennsylvania based on a single “dis-

criminatory effect” regulation promulgated by the United

States Department of Education under Title VI of the Civil

Rights Act of 1964. Plaintiffs are the City and School District

of Philadelphia, several parents of children attending Philadel-

phia public schools, several organizations that allegedly pro-

vide services that Supplement or are ancillary to the educa-

tional system in Philadelphia, and several local public officials

and entities. Appendix H, pp. 202a-208a, J 3-26. Their com-

plaint has two counts. Count I is for violation of “Title VI

Implementation Regulations,” ie., 34 CER. §100.3(b), and

Count II is for violation of 42 U.S.C. § 1983. Plaintiffs seek a

declaration that the defendants’ “funding policies and prac-

tices” discriminate against minorities and a broadly-worded

injunction prohibiting defendants from “continuing to imple-

ment a system of funding public schools that discriminates

against . . . minority children enrolled in the School District of

Philadelphia.”

While the complaint principally focuses on the Basic Edu-

cation Funding (“BEF”) element of the funds provided by the

Commonwealth to the various school districts,! the Court of

Appeals read the Complaint to attack both that element and

total funding as well. Appendix A, p. 13a and n.2. The com-

plaint alleges that the Commonwealth has a “statutorily estab-

lished system for funding public school education [that]

depends upon a combination of locally generated revenues . .

-. State funds... , and. . . federal funds.” Appendix H, pp.

215a-216a, J 47. Plaintiffs claim that defendants’ “policies and

practices in [that Statutorily established] funding system” lead

1. See Appendix H, pp. 215a-217a, 44 47-49, 51.

4

to “racial distinctions in the distribution of [all] revenues” and

discrimination against “school districts . . . such as Philadel-

phia with relatively high non-white-enrollment.” /d., pp. 219a,

223a, JY 59-60, 74.

Plaintiffs’ complaint does not allege that defendants

intentionally discriminated against minorities in making school

funding choices or that the school funding system provides less

funding statewide to minority students. Rather, plaintiffs claim

that the Pennsylvania legislative system results in a disparate

impact upon certain school districts in the Commonwealth

with large populations of minority students, particularly the

School District of Philadelphia. In support of their disparate

impact claim, plaintiffs contend that the School District of

Philadelphia has special needs that require funding beyond

that required by other school districts. These special needs

allegedly include severe poverty; persistent racial segregation;

low academic performance; and high incidences of support

cases, child abuse, juvenile delinquency, births to single moth-

ers, welfare placements, and AFDC placements. Appendix H,

pp. 212a-215a, 220a-221a, JJ 37-46, 65. According to the com-

plaint, the funding methods employed by the Commonwealth

are insufficient to “meet the needs ofa substantial number of

its students particularly including its racial and other minority

students.” /d., pp. 214a-215a, J 45.

Pennsylvania Educational Funding System

Under the Pennsylvania statutory system, as in the vast

majority of other states, public education is financed by a com-

bination of state and local funds.

State Funding

The Pennsylvania statutory school funding system, and, in

particular, the BEF allocation formula, is set forth in annual

legislative enactments.* In calculating BEF payments, the

Pennsylvania Department of Education (*“PDOE”) applies the

2. The BEF formula used in a given school year ts set forth in a sepa-

rate statute. See 24 PS. §§ 25-2502.29 (1994/95 school year), 25-2502.31

>

legislative formula, which employs such factors as the average

personal income of the school district, its real property valua-

tion, its school population and its residents’ poverty level.

In years prior to 1997-1998, these and other factors were

included in the formula, which has generally taken into

account the size and age of each school district's student popu-

lation, its number of low-income students. its local tax effort,

reprinted in Appendix E.

In addition to the BEF allocation, school districts also

receive substantial additional payments from the

Commonwealth, including payments for special education,

payments to intermediate units, payments for transportation

of non-public school students and payments for social

Security and retirement subsidies. These payments are based

upon various allotments, formulas or factors. See. e.g., 24 PS.

§§ 25-2509.1 (intermediate units), 25-2509.3 (non-public

NOTES (continued)

(1995/96 school year), 25-2502.33 (1996/97 school year), and 25-25()2.35

(1997/98 school year), reprinted in Appendix E

3. The 1997-1998 school year was the most recent school year for

which data was available at the time the case was pending in the district

court. For the 1997-1998 school year, the Commonwealth paid each qualify-

ing school district a BEF allocation consisting of five parts: (1) a base

amount equal to the BEF allocation for the pnor school year: (2) a base

supplement payable to districts whose 1998-1999 market value/personal

income aid ratio is equal to or greater than 0.4000; (3) a growth supplement

payable to districts whose average daily membership between the 1996-1997

and 1997-1998 school years: (4) a poverty supplement payable to districts

where the number of children in low income families residing in the district

for the 1997 calendar year divided by the district’s average daily membership

for the 1997-1998 school year was greater than or equal to 10%: and (5) a

minimum increase calculated by reference to the district's 1998-1999 market

value/income aid ratio. See 24 PS. § 25-2502.35. reprinted in Appendix E. In

that same school year, the Commonwealth also paid an amount equal to

$75.00 multiplied by the school district's average daily membership to each

small and poor district which has an average daily membership of 1.5(4) or

less and a market value/income aid ratio of ().5000 or greater. 24 PS. §

25-2502.13, reprinted in Appendix E.

6

school transportation), and 25-2509.5 (special education),

8329 (social security), and 8535 (retirement subsidies),

reprinted in Appendix E.

Local Funding

In addition to funding public school education directly

through the legislative enactments summarized above, the

General Assembly of the Commonwealth also legislatively

authorizes local governments to impose local taxes to fund the

501 public school districts in Pennsylvania. 24 P.S. §§ 6-601 to

6-695, reprinted in Appendix E. As the Pennsylvania Supreme

Court held in Danson v. Casey, 399 A.2d 360, 367 (Pa. 1979),

the legislative system for financing public education in Penn-

sylvania “endorsed the concept of local control to meet

diverse local needs and took notice of the right of local com-

munities to utilize local tax revenues to expand educational

programs subsidized by the State.”

The City and School District of Philadelphia, both plain-

tiffs in this action, have even greater local flexibility and dis-

cretion than Pennsylvania’s 500 other school districts in terms

of funding Philadelphia public schools. The City adopted

home rule, including a 1965 supplement to the City of Phila-

delphia Home Rule Charter that created the School District of

Philadelphia. 351 Pa. Code § 12.12-100, reprinted in Appendix

F. Under its home rule powers and the special taxation privi-

leges for public education granted to the City and School Dis-

trict of Philadelphia by the General Assembly, the Schoo! Dis-

trict of Philadelphia is authorized to levy not only real estate

and net income taxes for public education, but also a special

liquor sales tax as well as a realty use and occupancy tax.

Philadelphia Municipal Code §§ 19-1801, 1804-1806, reprinted

in Appendix G.

)

7

The District Court

Plaintiffs’ complaint alleges the district court had jurisdic-

tion to hear plaintiffs’ case under 28 U.S.C.§1331, 28 U.S.C.§

1343(a)(3) and (4), and 28 U.S.C.§2201 et seq. Appendix H, p.

210a, J 32.

The district court found that a private cause of action

existed under section 602 of Title VI, but dismissed the com-

plaint under Rule 12(b)(6) because the plaintiffs had failed to

allege a prima facie case of discriminatory impact under Alex-

ander v. Choate, 469 U.S. 287 (1985). Appendix B, pp. 52a-S4a

(citations omitted).

The Court of Appeals

In an opinion dated August 25, 1999, the Third Circuit

reversed the district court and remanded the case. It held that

although the complaint was not always “precise” or “clear.”

plaintiffs had stated a claim under a Title VI regulation and 42

U.S.C. § 1983. Appendix A. p. 13a.

The Third Circuit decided three important federal ques-

tions that are the subject of this certiorari petition. First, the

Third Circuit held that the Department of Education regula-

tion at issue, which Purported to restrain conduct having a

discriminatory effect on protected classes, did not contravene

Congressional intent or create substantive federal law. Second.

following its earlier decision in Chester Residents y. Seif, the

Third Circuit once again decided that Congress intended to

create a private right of action under discriminatory effect

regulations promulgated by federal administrative agencies

pursuant to section 602 of Title VI. In so holding, it acknowl-

edged that this Court had not yet decided this issue. Finally,

the court rejected, without discussion, this Court's holding in

Alexander v. Choate, that broadly-worded regulations could

not support a broad-ranging attack on an entire State legisla-

tive system in an area in which States traditionally possessed

discretion.

8

A petition for writ of certiorari seeking review of the

Powell decision was filed by certain defendant-intervenors on

September 24, 1999. Ryan, et al. v. Powell, et al., No. 99-527.

These intervenors, state senators and representatives, are not

federal fund recipients and therefore are not subject to Title

VI. They intervened in the district court solely to support

defendants.

REASONS FOR GRANTING THE WRIT

I. BY DECIDING THAT A_ DISCRIMINATORY

EFFECT REGULATION PROMULGATED UNDER

SECTION 602 OF TITLE VI IS VALID, THE THIRD

CIRCUIT INCORRECTLY DECIDED AN IMPOR-

TANT FEDERAL QUESTION THAT THIS COURT

SHOULD DECIDE.

This Court should review the important question, which it

has never squarely addressed, of whether a federal agency

exceeds its rulemaking authority under Section 602 of Title VI

by promulgating a regulation which incorporates a discrimina-

tory effect standard, when the statutory authority under which

the agency acts reaches only intentional discrimination.* While

the Third Circuit acknowledged in Powell that this Court has

“held that Title VI itself did not extend [so] far” as to prohibit

disparate impact, Appendix A at 21a, the Third Circuit none-

theless erroneously found that administrative regulations pro-

mulgated under Section 602 of Title VI that prohibit disparate

impact are valid. Other federal courts, in addition to the Third

Circuit, erroneously have assumed that such regulations are

valid, and many federal agencies have adopted regulations

prohibiting disparate impact discrimination pursuant to Title

VI. See id. at 9a, (noting that at least forty federal agencies

have adopted regulations pursuant to Section 602 prohibiting

discriminatory disparate impact and that at least five other

federal courts of appeals have found that individual plaintiffs

can bring disparate impact claims under Title VI regulations).

4. This issue was raised below on the Brief of Appellees Jubelier,

Ryan, Rhoads and Stairs at 50-52 and the Brief of Appellees at 35-38.

Lee

9

The holdings of Powell and other courts ignore the plain

language of the statute, are based on a misreading of decisions

of this Court, allow federal agencies to engage in improper

rulemaking and require that this Court review this important

issue. Absent review, federal agencies will continue improp-

erly to promulgate and enforce invalid discriminatory effect

regulations, and courts will continue to erroneously approve

of such improper lawmaking by allowing claims and affording

relief under such regulations.

A. The Statutes and the Regulation

Section 601 of Title VI, 42 U.S.C. § 2000d, provides that:

No person in the United States Shall, on the ground

of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be sub-

jected to discrimination under any program or activ-

ity receiving Federal financial assistance.

Appendix C, p. 57a. Section 602 of Title VI provides that:

Each Federal department and agency which is

empowered to extend Federal financial assistance to

any program or activity...is authorized and directed

to effectuate the provisions of Section 2000d [Section

601)...by issuing rules, regulations, or orders of gen-

eral applicability.

Id. at S7a-S8a.

The regulation at issue in this case was promulgated by

the Department of Education “in exercising its Statutory

authority under Section 602” and is codified at 34 CER. §

100.3(b)(2). Appendix A, p. 9a. That regulation prohibits a

funding recipient from

utiliz[ing] criteria or methods of administration

which have the effect of subjecting individuals to dis-

crimination because of their race, color, or national

origin, or have the effect of defeating or substantially

10

impairing accomplishment of the objectives of the

program as respect individuals of a particular race,

color, or national origin.

Appendix D (emphasis added).

Neither the Constitution nor the statute giving the

Department of Education its rulemaking authority authorize

discriminatory effect regulations. The Fourteenth Amendment

prohibits only intentional discrimination and does not prohibit

conduct resulting in a discriminatory effect. Washington v.

Davis, 426 U.S. 229 (1976). Title VI, the underlying statutory

authority pursuant to which the Department of Education

acted in promulgating the regulation at issue, extends no fur-

ther than the Fourteenth Amendment; thus, Title VI itself

does not prohibit instances of discriminatory effect. U.S. v.

Fordice, 505 U.S. 717, 732 n.7 (1992); Guardians Ass'n v. Civil

Service Com'n of City of New York, 463 U.S. 582, 608 n.1

(1983) (Powell, J, concurring); Regents of Univ. of California v.

Bakke, 438 U.S. 265, 284-87 (1978). Indeed, as the Third Cir-

cuit acknowledged in Powell, this Court has held that Section

601 of Tithe VI “prohibits only intentional discrimination.”

Appendix A, pp. 8a-9a (emphasis added) (citing Guardians).

B. The Misreading Of This Court's Precedents

In its vacated Chester Residents opinion, the Third Circuit

noted that “[h]idden within the Court's statement [in Fordice]

may be an indication that implementing regulations...that

incorporate a discriminatory effect standard are invalid,

because they extend further than the Fourteenth Amend-

ment.” Chester Residents, 132 F.3d at 931 n.9. However, as in

Chester Residents, the Third Circuit in Powell ignored Fordice

and instead misread Guardians and Alexander v. Choate, 469

U.S. 287 (1985) as holding that administrative regulations

incorporating a disparate impact standard are valid. Appendix

A, pp. 21a-22a.

Justice Powell correctly predicted that the opinions in

Guardians “will further confuse rather than guide.” Guard-

1]

tans, 463 U.S. at 608 (Powell, J., concurring). Reviewing the

important question of whether a federal agency exceeds its

Section 602 rulemaking authority in promulgating discrimina-

tory effect regulations will end the confusion. The Third Cir-

cuit and other courts are confused as to the holding of Guard-

ans. For example the Powell panel stated that “five of the

nine justices [in Guardians] agreed that the administrative

regulations incorporating a disparate impact standard are

valid.” Appendix A, p. 21a (emphasis added). An examination

of the Guardians opinion, however, reveals that no opinion

garnered a majority. See Alexander, 469 U.S. at 293. Moreover,

comments by Justices White, Blackmun, Brennan, Stevens and

Marshall, four of whom wrote in dissent, regarding validity of

discriminatory effect regulations were dicta and did not

impact the Court's holding that affirmed the Second Circuit’s

determination that the plaintiffs were limited to noncompen-

satory prospective relief under Title VI and its regulations.

Thus, the issue in Guardians was whether there is a cause of

action for compensatory damages for allegations of discrimi-

natory effect under either Title VI or agency regulations. The

Court held that there is no such cause of action. The Court did

not “hold” that discriminatory effect regulations are valid.

Moreover, four justices in Guardians, each of whom con-

curred in the judgment, stated to the contrary — that discrimi-

natory effect regulations are not a valid exercise of agency

authority.° Guardians, 463 US. at 61 1, n.S (Powell, J., concur-

5. Indeed, in Bakke, Justices Brennan, White and Marshall agreed

that “[nJowhere is there any suggestion that Title VI was intended to termi-

nate federal funding for any reason other than consideration of race or

national origin by the recipient institution in an manner inconsistent with

the standards incorporated in the Constitution.” Bakke, 438 U.S. at 332. As

Justice Powell pointed out in Guardians, “[i]f nowhere’ is there any evidence

that Congress intended the Title VI standard to differ from the constitu-

tional standard, clearly an agencyn interpretation to the contrary is entitled

to no deference.” Guardians, 463 U.S. at 611 n.S (Powell, J., concurring).

6. The concurring Justices noted that to the extent this Court tacitly

approved liability under Title VI for conduct having only a discriminatory

impact in Lau v. Nichols, 414 US. 563 (1974), that holding was incorrect and

was impliedly overruled by the Court in Bakke, Guardians, 463 U.S. at 611

1?

ring in judgment and joined by Burger, C.J.); id. at 612 (Reh-

nquist, J.. concurring in judgment and joining Part Il of Pow-

ell’s opinion); id. at 614-15 (O’Connor, J., concurring in

judgment). For example, Justice Powell stated that “|a]dmin-

istrative agencies do not have - and should not have - such

lawmaking power.” Id. at 611 n.5. Justice O'Connor reasoned

that, since proof of purposeful discrimination is a necessary

element of a valid Title VI claim, “regulations umposing an

impact standard are not valid.” Guardians, 463 U.S. at 612

(O'Connor, J., concurring) (emphasis added). Justice

O'Connor further stated that:

..it is difficult to fathom how the Court could uphold

administrative regulations that would proscribe con-

duct by the recipient having only a discriminatory

effect. Such regulations do not simply “further” the

purpose of Title VI; they go well beyond that pur-

pose.

Guardians, 463 U.S. at 613 (O'Connor, J., concurring).

The Third Circuit's reliance upon Alexander is similarly

misguided and further demonstrates the confusion in the fed-

eral courts of appeals necessitating review by this Court. In

Alexander, plaintiffs, Medicaid recipients, challenged the

state's reduction in the number of inpatient hospital days for

which the state’s Medicaid program would pay, claiming the

reduction had a discriminatory effect on the handicapped and

violated the Rehabilitation Act and its implementing regula-

tions. This Court held that such claims were not cognizable

under that Act or its regulations. In addition, Justice Mar-

shall’s incorrect characterization of Guardians, which the

Third Circuit offered in support of its decision, was pure dicta

and did not relate to the resolution of Alexander. The holding

of Alexander, that the plaintiffs had not established a pnma

facie violation of Section 504 of the Rehabilitation Act, did

NOTES (Continued)

n.4 (Powell, J., concurring in judgment and joined by Burger, CJ. and Reh-

nquist, J.) and 463 US. at 615 (O'Connor, J., concurring in judgment).

LLL ee

13

not involve the issue of whether discriminatory effect regula-

tions thereunder are valid: and, therefore, the Third Circuit

improperly relied on the case.

C. Improper Agency Rulemaking

Administrative agencies should not be permitted to con-

tinue to usurp the power of Congress and effectively create

substantive law through regulations which exceed the specific

reach of Title VI's prohibitions.

In Powell, the Third Circuit found discriminatory effect

regulations to be valid despite recognizing that such regula-

tions “go further than [the] statute.” Appendix A, p. 22a. As

this Court pointed out in Ernst & Ernst v. Hochfelder, 425 US.

185, rehearing denied. 425 U.S. 986 (1976):

[T]he rulemaking power granted to an administrative

agency charged with the administration of a federal

statute is not the power to make law. Rather, it is “the

power to adopt regulations to Carry into effect the

will of Congress as expressed by the statute.”

425 U.S. at 213-14 (emphasis added).

There is nothing in the language of Title VI to Suggest an

intent or “will of Congress” to reach anything other than

intentional discrimination. As Justice O'Connor opined in

Guardians, a discriminatory effect regulation exceeds statu-

tory authority because the language and history of the statute.

as well as the Supreme Court's application of it, dictate a pro-

scription of only intentional discrimination. Justice O'Connor

reasoned as follows:

An administrative agency Is itself a creature of stat-

ute. Although the Court has Stated that an agency's

legislative regulations will be upheld if they are “rea-

sonably related” to the Purposes of the enabling stat-

ute. Mourning vy. Family Publications Service, Inc..

411 U.S. 356, 369 (1973). we would expand consider-

ably the discretion and power of agencies were we to

14

interpret “reasonably related” to permit agencies to

proscribe conduct that Congress did not intend to

prohibit. “Reasonably related to” simply cannot

mean “inconsistent with.” Yet that would be the

effect of upholding the administrative regulations at

issue in this case if, as five Justices concluded in

Bakke, the expressed will of Congress is that federal

funds recipients are prohibited only from purpose-

fully discriminating on the grounds of race, color, or

national origin in the administration of funded pro-

grams.

Guardians, 463 U.S. at 614 (O’Connor, J., concurring).

In promulgating discriminatory effect regulations, federal

agencies such as the Department of Education have outlawed

otherwise lawful conduct and thereby have made fundamental

policy determinations that are for Congress to make. If the

“will of Congress” to which Justice O’Connor referred in

Guardians were to prohibit disparate impact, then Congress

would have so provided. It did not. This policy choice cannot

and should not be usurped by administrative agencies. See

Industrial Union Dep't, AFL-CIO v. Am. Petroleum Institute,

448 U.S. 607, 685-86 (1980) (Rehnquist, J., concurring) (noting

that nondelegation doctrine ensures that important social poli-

cies are made by Congress).

This Court should grant review of the Third Circuit's deci-

sion in order to correct a serious error in the interpretation

and application of Title VI and this Court's precedents.

15

ll. EVEN IF THE REGULATION AT ISSUE, WHICH

INCORPORATES A DISPARATE IMPACT STAN.

DARD UNDER TITLE VI, IS VALID, THE COURT

SHOULD DECIDE THE IMPORTANT QUESTION

OF WHETHER A PRIVATE RIGHT OF ACTION

EXISTS TO ENFORCE DISCRIMINATORY EFFECT

REGULATIONS

Assuming a regulation which incorporates a disparate

impact standard were valid, an additional important question

is whether a private right of action exists to enforce such a

regulation. This Court should decide whether a private right

of action exists under discriminatory effect regulations pro-

mulgated by federal administrative agencies pursuant to Sec-

tion 602 of Title VI for two principal reasons. First, this Court

granted certiorari on this issue in Chester Residents, but never

reached the issue because the underlying judgment was

vacated as moot.’ Thus, this important question remains unde-

cided. Appendix A, p. 17a. Second, the Third Circuit's resolu-

tion of the issue completely undermines the Title VI enforce-

ment scheme intended by Congress. Given the proliferation of

discriminatory effect regulations, the Powell decision is des-

tined to have far-reaching implications for the entire federal

system that were never authorized by Congress. For these rea-

sons and the reasons discussed more fully herein, the Court

Should grant review of this important issue.

A. The Impact of Powell is Far-Reaching

Many federal agencies have adopted regulations prohibit-

ing disparate impact discrimination Pursuant to Title VI and

various courts have assumed, without directly deciding the

issue, that there is a private right of action to enforce those

regulations. See, e.g., Castenada by Castenada v. Pickard. 78}

F.2d 456 (Sth Cir. 1986); Buchanan y. C ity of Bolivar, Tenn.. 99

7. On June 8, 1998, this Court granted the Petition for Writ of Certio-

rari in Chester Residents on this very issue, but on August 17, 1998 vacated

the judgment of the Court of Appeals as moot. In Powell, the Third Circuit

relied upon its analysis in Chester Residents in finding that a private right of

action exists under discriminatory effect regulations.

16

F.3d 1352 (6th Cir. 1996); David K. v. Lane, 839 F.2d 1265 (7th

Cir. 1988); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984); Vil-

laneuva v. Carere, 85 F.3d 481 (10th Cir. 1996); Georgia State

Conference of Branches of NAACP v. Georgia, 775 F.2d 1403

(11th Cir. 1985): African Am. Legal Defense Fund, Inc. v. N.Y.

State Dep't of Educ., 8 FSupp.2d 330 (S.D.N.Y. 1998); Cam-

paign for Fiscal Equity, Inc. v. New York, 655 N.E.2d 661 (N.Y.

1995).8 However, the Third Circuit’s decision in Powell is the

only federal court of appeals decision to expressly hold that a

private right of action exists to enforce disparate impact regu-

lations under Section 602. This decision reopens the invitation,

initially issued by the Third Circuit in Chester Residents, to

federal litigation by private parties against state or local gov-

ernment agencies which receive federal funds. Under the

Third Circuit’s construction of Title VI, any person or entity

displeased with treatment by a state or local agency can sim-

ply bypass the federal agency process set up by Congress and

seek direct federal court redress for violations of agency regu-

lations.

As discussed in detail below, such a scheme is completely

at odds with the system set up by Congress to address dis-

crimination by entities receiving federal funds. The Third Cir-

cuit’s improper finding of a private right of action to enforce

agency regulations promulgated under Section 602 will, con-

trary to the intent of Congress, require federal courts to

become enforcers of regulations without the benefit of the

administrative framework that Congress designed to deal with

such regulations. Federal courts do not have the expertise to

do so, Congress did not intend them to do so, and they should

not be forced to do so by an improper ruling of a federal court

of appeals. The implications of this de. ‘sion are wide ranging

and will impact all state and local governments, thereby war-

ranting this Court’s immediate review.

8. At least one district court has determined that disparate impact

regulations cannot support a private action. New York City Environmental

Justice Alliance v. Giuliani, 50 F. Supp 2d 250 (S.D.N.Y. 1999).

17

B. This Court Granted Certiorari On The Same Issue In

Chester Residents

On June 8, 1998, this Court granted certiorari in Chester

Residents. Chester Residents. 118 S.Ct. 2296. The petition upon

which certiorari was granted in Chester Residents, like the

petition here, requested this Court to decide whether Con-

gress intended to create a private cause of action under Sec-

tion 602 of Title VI in favor of any person or entity which

alleged a discriminatory effect in the administration of pro-

grams and activities of a federally funded state or local agency.

Thus, Chester Residents and Powell present identical issues. As

the Third Circuit noted in Powell:

In Chester Residents, 132 F.3d at 927, a decision that

has since been vacated as moot, this Court consid-

ered the issue before us here, “whether a private

right of action exists under discriminatory effect

regulations promulgated by federal administrative

agencies pursuant to Section 602 of Title VI.”

Appendix A, p. 17a. The Powell court went on to note that

“...the Supreme Court never directly addressed the issue” and

that the Third Circuit has “..found no direct authority con-

firming or denying a private right of action under the Title V]

regulation.” Jd. This issue is still as important today as it was

a year ago when this Court granted certiorari in Chester Resi-

dents and is an issue this Court would have reached in Chester

Residents had that action not been rendered moot.

C. The Third Circuit Improperly Interpreted Section 602

Review by this Court is necessary to ensure that the

administrative system set up by Congress for addressing dis-

crimination by federal funds recipients is not rendered mean-

ingless by judicial activism. In Powell, the Third Circuit

applied its analysis from Angelastro v. Prudential-Bache Secu-

rities, Inc., 764 F.2d 939 (3d Cir. 1985) to determine that there

is an implied private right of action to enforce discriminatory

effect regulations promulgated by federal administrative agen-

cies pursuant to Section 602. Appendix A, pp. 16a-20a. The

18

Third Circuit applied these factors in a manner that improp-

erly read Section 602 of Title VI by creating a private right of

action where none was intended.

The Angelastro analysis asks: (1) whether a private right

of action exists under the statute under which the regulation

was promulgated; (2) whether the agency regulation is prop-

erly within the scope of the enabling statute’; and (3) whether

implying a private right of action will further the purposes of

the enabling statute. Appendix A, pp. 17a-18a.

1. The Statutory Language and Structure Evidences Con-

gress’ Intent Not to Provide for a Private Right of Action

to Enforce Regulations Promulgated Under Section 602

The Third Circuit incorrectly resolved the first prong of

the Angelastro test and in so doing improperly supplanted the

administrative scheme established by Congress. In Chester

Residents, the Third Circuit applied this Court’s analysis in

Cort v. Ash, 422 U.S. 66 (1975) to Section 602 of Title VI in

resolving the first prong of the Angelastro analysis.'° In Pow-

ell, the Third Circuit dismissed such a resolution of the first

Angelastro factor as “circuitous.” Appendix A, p. 19a.

Instead, the Court reasoned that although the rule [34

C.FR. § 100.3(b)(2)] was promulgated under Section 602, that

section “implements” Section 601, and since Section 601 of

Title VI gives rise to an implied right of action to enforce

intentional violations of Title VI, regulations under Section

602, which are promulgated to “effectuate” the provisions of

9. Because the discriminatory effect regulation at issue is not within the

scope of the enabling statute, the second prong of the Angelastro analysis is

not met. See supra at Section I.

10. The Cort analysis asks (1) is the plaintiff one of the class for whose

especial benefit the statute was enacted; (2) is there any indication of con-

gressional intent to deny or create a private remedy; (3) is the implication

of a private remedy consistent with the purposes of the legislative scheme

and (4) is the cause of action traditionally relegated to state law. Cort, 422

U.S. at 78. The second question regarding Congressional intent is the “ulti-

mate issue”. Touche Ross & Co. v. Redington, 422 U.S. 560, 575-76 (1979).

——

19

Section 601, also must give rise to a private right of action.

Appendix A, p. 20a. This transitive reasoning essentially evis-

cerates Section 602 by transplanting the implied right of action

for intentional discrimination under Section 601 into discrimi-

natory effect regulations under Section 602, despite the fact

that the plain Statutory text, congressional intent and appli-

cable precedents are to the contrary.

The plain language of Section 602 indicates that no pri-

vate right of action was intended. In determining congres-

sional intent, the Starting point is always the language of the

Statute. Touche Ross & Co. y, Redington, 442 U.S. 560. 575-76

(1979): Ernst & Ernst, 425 U.S. at 197, 200-01. The language

and structure of Section 602 do not create any privately

enforceable rights and, indeed, do not create any substantive

rights at all. Rather, Section 602 directs agencies that provide

federal funding to issue rules, regulations and orders of gen-

eral applicability to effectuate the provisions of Section 601.

Appendix C, p. 57a. Limitations on such agency regulations

include consistency with the purposes of the statute authoriz-

ing federal financial assistance and approval by the President.

Id. Section 602 authorizes federal agencies to enforce their

regulations through termination or denial of federal funds or

by any other means authorized by law. Jd.'! No action, how-

ever, can be taken to enforce regulations under Section 6(2

11. The only remedy expressly provided by Section 602 is the termina-

tion of federal funding by the promulgating agency. On enforcement Section

602 provides:

Compliance with any requirement adopted pursuant to this sec-

tion may be effected (1) by the termination of or refusal to grant

or to continue assistance under such program or activity to any

recipient as to whom there has been an express finding on the

record, after Opportunity for hearing, of a failure to comply

with such requirement, but such termination or refusal shall be

limited to the Particular political entity, or part thereof. or

other recipient as to whom such a finding has been made. and,

shall be limited in its effect to the particular program, or part

thereof, in which such non-compliance has been so found. or

(2) by any other means authorized by law:

Appendix C, pp. 57a-58a (emphasis added).

20

until the agency has determined that a regulation has been

violated, informed the recipient of federal funds of its failure

to comply with the regulation and determined that it is not

possible to obtain voluntary compliance with the regulation.'?

Thus, the congressional intent in Section 602 is plain on

the face of the statute — Congress intended that federal agen-

cies, not private plaintiffs, enforce regulations promulgated

under Section 602. In light of this detailed structure which

provides for enforcement by the federal government, not pri-

vate plaintiffs, “it is highly improbable that ‘Congress absent-

mindedly forgot to mention an intended private action.’”

Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 20

(1979). Where, as here, a “statute’s language is plain, ‘the sole

function of the courts is to enforce it according to its terms.””

United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241

(1989). When the court finds “the terms of a statute unam-

biguous, judicial inquiry is complete, except in ‘rare and

exceptional cases."” Garcia v. United States, 469 U.S. 70, 75

(1984), rehearing den., 469 U.S. 1230 (1985). See Appendix A,

p. [8a (“If under Cort v. Ash and its progeny, a court finds that

Congress did not intend the statute to be enforced by private

actions, then the inquiry is concluded.”). The language of the

12. Any enforcement of Section 602 regulations is restricted as tollows:

Provided, however,

That no such action shall be taken until the department or

agency concerned has advised the appropriate person or per-

sons of the failure to comply with the requirement and has

determined that compliance cannot be secured by voluntary

means. In the case of any action terminating, or refusing to

grant or continue, assistance because of failure to comply with

a requirement imposed pursuant to this section, the head of

the Federal department or agency shall file with the commit-

tees of the House and Senate having legislative jurisdiction

over the program or activity involved a full written report of

the circumstances and the grounds for such action. No such

action shall become effective until thirty days have elapsed

after the filing of such report.

Appendix C, p. 58a (emphasis in statute).

21

Statute should have concluded the inquiry against the exist-

ence of a private right of action to enforce agency regulations

under Title VI. It did not. Thus, the Third Circuit's decision

Should be reviewed by this Court because. in holding a private

right of action exists under Section 602 regulations. the Third

Circuit improperly eliminated Procedures put in place by

Congress.

Moreover, a private right of action to enforce agency

regulations undermines the Purposes of Section 602; and, thus.

the third Prong of the Angelastro analysis also is not met.

Congress decided to effect enforcement of Title VI at the

administrative level through agency procedures. A private

right of action under Title VI regulations would allow a pri-

vate plaintiff to use the tools provided by Congress to bring

about compliance with Title VI regulations without any regard

for the congressional preconditions and Safeguards created for

the use of those tools. Enforcement of agency regulations

Should be left to the expertise, judgment and special proce-

dures Promulgated by the agency at issue, in this case the

Department of Education. The Third Circuit erroneously rea-

soned that a private right of action will increase enforcement

and that “...such increased enforcement will further Title VI's

Purposes, compensating for the agency's lack of sufficient

resources to adequately enforce the regulation itself.” Appen-

dix A, p. 18a.

displacing Congress’ intent to have the agency enforce the

22

2. This Court’s Precedents Suggest There Is No Private Right

Of Action To Enforce Title VI Regulations

As the Third Circuit noted in Powell, this Court has never

directly addressed the important question of whether a private

right of action exists to enforce discriminatory effect regula-

tions. Appendix A, p. 17a. In Guardians, no interpretation of

Title VI with respect to the issue obtained a majority of the

court. Thus, the Third Circuit was without direct guidance as

to whether private plaintiffs can maintain an action against a

state agency based upon the discriminatory effect regulations

of the Department of Education.

However, this Court has suggested that no private right of

action exists to enforce Title VI regulations. In acknowledging

the administrative structure established by Congress in Title

VI, this Court in Alexander commented on its Guardians opin-

ion as follows:

In essence, then, we held that Title V/ had delegated

to the agencies in the first instance the complex deter-

mination of what sorts of disparate impacts upon

minorities constituted sufficiently significant social

problems, and were readily enough remediable, to

warrant altering the practices of the federal grantees

that had produced those impacts.

Alexander, 469 U.S. at 294 (emphasis added).

Finally, as noted herein, this Court has found that Title VI

itself prohibits only intentional discrimination and, by implica-

tion, authorizes a private right of action for violations of the

statute. Such implied actions are “limited by the discrimina-

tory intent standard required to prove violations of Title VI.”

Guardians, 463 U.S. at 608 n.1 (Opinion of Powell, J.): see

Fordice, 505 U.S. at 732 n.7 (noting that Title VI’s protection

extends no further than the Fourteenth Amendment ).

Thus, it is clear from the plain text of Section 602 and this

Court's precedents that Congress “delegated to the agencies in

the first instance” the enforcement of agency regulations and

eee

23

that it did not intend for there to be a right of action under

which private plaintiffs could assert alleged violations of Title

VI regulations.

ill. BY APPROVING THE USE OF A GENERALLY

WORDED REGULATION PROMULGATED BY

THE DEPARTMENT OF EDUCATION UNDER

TITLE VI AS A VEHICLE FOR ATTACKING THE

COMMONWEALTH OF PENNSYLVANIA LEGISLA-

TIVE SYSTEM FOR FUNDING PUBLIC EDUCA-

TION, THE THIRD CIRCUIT HAS DECIDED AN

IMPORTANT FEDERAL QUESTION IN A WAY

WHICH CONFLICTS WITH THIS COURT'S DECI-

SION IN ALEXANDER Y. CHOATE

As the Third Circuit recognized, this action challenges

under a single, generally worded regulation of the United

States Department of Education the entire legislative system

of the Commonwealth of Pennsylvania for funding public edu-

cation, claiming that it has a racially discriminatory effect.

Appendix A, pp. 6a, 9a. Since the Pennsylvania System is the

Same or similar to that of other States, authorization of attacks

on that system under a generally worded regulation encour-

ages such attacks in other States, as has already occurred in

New York and Arizona.3 As this Court noted of Similar

attacks on public education funding systems in San Antonio

Independent School District v. Rodriguez:

..lt would be difficult to imagine a case having a

greater potential impact on our federal system than

the one now before us. in which we are urged to

abrogate systems of financing public education

presently in existence in virtually every State.

13. This action is the fourth reported case utilizing the Title VI regula-

tion to attack a state legislative public school funding system. See Campaign

For Fiscal Equity, Inc. v. New York, 655 N.E.2d 661. 669-671 (N.Y. 1995):

ES ~=~“s ——————

24

441 U.S. 1, 44, rehearing den., 411 U.S. 959 (1973).

The regulation which forms the basis for this suit was

promulgated by the Department of Education under Section

602 of Title VI of the Civil Rights Act of 1964. It prohibits a

recipient of federal educational funds from “utiliz[ing] criteria

or methods of administration which have the effect of subject-

ing individuals to discrimination because of their race, color,

or national origin, or have the effect of defeating or substan-

tially impairing accomplishment of the program as respects

individuals of a particular race, color, or national origin.”

Appendix D.

This regulation of the Department of Education closely

mirrors a regulation promulgated under Section 504 of the

Rehabilitation Act of 1973, which was before this Court in

Alexander v. Choate, 469 U.S. 287 (1985). In Alexander, after

noting its agreement with the petitioner’s premise that Section

504 was modeled in part on Title VI, 469 U.S. at 293 n.7, this

Court unanimously held that the regulations relied upon by

Medicaid recipients in that case to challenge the State of Ten-

nessee’s reduction of the number of covered annual days of

in-patient hospital care “do not in fact support respondents’

action,” 469 U.S. at 294 n.10, and that “generally worded regu-

lations” are insufficient to support broad-based attacks upon

State legislative actions in areas of traditional state discretion.

This Court specifically concluded that:

Before we would find that these generally worded

regulations were intended to limit a State’s long-

standing discretion to set otherwise reasonable Med-

icaid coverage rules, that intent would have to be

indicated with greater specificity in the regulations

themselves or through other agency action.

469 U.S. at 307 n.32.

Alexander involved several generally worded regulations,

one of which was virtually identical to the single regulation

a

25

relied upon as the basis for this action.'* Moreover, just as the

State of Tennessee was recognized by this Court to have

“longstanding discretion to set otherwise reasonable Medicaid

coverage rules,” 469 U.S. at 307 n.32. so too here sovereign

States, such as the Commonwealth of Pennsylvania, have long

been recognized to have discretion in the area of establishing

a system for funding their public schools. As this Court stated

in Rodriguez, public school funding is “an area in which [this

Court] has traditionally deferred to state legislatures,” specifi-

cally noting that the Court “lack[s] both the expertise and the

familiarity with local problems so necessary to the making of

wise decisions with respect to the raising and disposition of

public revenues,” as it relates to State public school funding

issues. 411 U.S. at 40, 41.15 Indeed, this Court concluded in

Rodriguez that:

The consideration and initiation of fundamental

reforms with respect to state taxation and educa-

tion are matters reserved for the legislative pro-

cesses of the various States, and we do no vio-

lence to the values of federalism and separation

of powers by Staying our hand.

Id. at 58.

The approach taken by this Court in Alexander and Rod-

riguez is consistent with its longstanding recognition that the

14. See Alexander, 469 U.S. at 304-305 (noting that one of the regula-

tions relied upon prohibited “a recipient of federal funding from adopting

‘criteria or methods of administration that have the purpose or effect of

defeating or substantially impairing accomplishment of the objectives of the

recipient’s program with respect to the handicapped.””)

15. The importance of public school funding to the sovereign interests

of the Commonwealth of Pennsylvania is made even more manifest by the

Pennsylvania Constitution, which mandates the General Assembly to pro-

vide for a “thorough and efficient system of public education” in the Com-

monwealth. Pa.Const. Article II], § 14. See Marrero vy. Commonwealth, 709

A.2d 956 (Pa. Cmwith.), appeal pending, No. (32 M.1D. Appeal Dkt. 199%

(Pa. 1998).

26

States “retain substantial sovereign authority under our con-

Stitutional system.” Gregory v. Ashcroft, 501 U.S. 452, 457

(1991). Federal courts have, therefore, been enjoined by this

Court to be certain of Congress’ intent before finding that

federal law overrides the constitutional balance between the

federal and state governments. /d. at 460. This Court has fur-

ther held that “Congress should make its intention ‘clear and

manifest’ if it intends to pre-empt the historic powers of the

States,” since “the requirement of clear statement assures that

the legislature has in fact faced, and intended to bring into

issue, the critical matters involved in the judicial decision.” /d.

at 461.

While Petitioners raised this issue as their first point in

arguing for affirmance of the district court’s dismissal of the

complaint in their appellate brief in the Third Circuit, the

Court of Appeals simply ignored this fundamental issue of

whether the regulation which formed the sole basis for this

suit could support this action, and did not address it in its

opinion.

The wisdom of Alexander's recognition that “generally

worded regulations” are insufficient to evince a determination

that matters traditionally committed to the States have been

taken away from them is demonstrated by the United States’

Amicus Brief in the district court in this action. That brief

Suggested that a federal court, under the generally worded

regulation relied upon in the complaint, “may” be able to

rewrite state school funding legislation based upon “the

demands on social services in addition to education on an

urban area’s tax base, the ‘buying power’ of the education dol-

lar in an urban school district, or the special education and

physical plant needs that must be addressed in such a district.”

Appendix I.

The generally worded regulation relied upon in the com-

plaint gives no basis for a federal court reasonably to conclude

that Congress meant to vest it with the power to rewrite a

state’s legislative system for public school funding in favor of

certain urban school districts based upon such factors. As

27

detailed above, the Pennsylvania public school funding for-

mula provides for both local and state funds, and considers

many factors. For the state BEF component, these include

school district wealth (measured by market value of real estate

and personal income), school district residents’ poverty and

Student population growth. Additional funding is granted

under the state formula to school districts such as Philadelphia

where the poverty rate is high or where student population

has increased. Additional funding is also granted to poor and

small districts. For the local component, the local taxing

authorities and school districts (including the City of Philadel-

phia, a Plaintiff in this action) are free to impose such taxes

for public education as are felt desirable at the local level to

provide appropriate educational Opportunities.

Moreover, the use of federal regulations to rewrite a

legislatively-created mechanism for raising tax revenues in

support of local school districts raises serious federalism con-

cerns. Plaintiffs’ allegations of disparities in total revenues

represent an attack on the local funding component of Penn-

sylvania’s entire system of funding its schools. By permitting

all of plaintiffs’ claims to go forward, the Third Circuit's deci-

sion not only authorizes an attack on the legislative formula

that allocates state funds, but also sanctions a challenge to the

fundamental premise of the funding system: that state funds

are to be combined with local and other revenues to finance

public education. Appendix A, p. 13a, n.2; and id. at pp. 16a,

22a; see also Danson, 399 A.2d at 367 (quoted supra at 7).

Under the Third Circuit's reasoning, plaintiffs may use a

generally-worded regulation not only to attack the allocation

of state monies, but also to attempt to dismantle the system of

local control over school funding. One of the plaintiffs, the

School District of Philadelphia, could use such federal regula-

tions to escape completely its obligation to raise local rev-

enues to support its schools, instead thrusting this responsibil-

ity completely onto the state. Such a result threatens to turn

the federalist system on its head.

28

Permitting a federal court to enjoin further use of Penn-

sylvania’s multifactor funding formula, which weighs compet-

ing interests with which courts are institutionally unfamiliar,

and which is based on both local and statewide legislative

enactments, eviscerates Alexander and is inconsistent with the

teachings of Gregory. For this reason, and because this prece-

dent encourages additional unfounded attacks on other state

public school funding systems, this Court should grant certio-

rari to review this important federal question under Title VI.

29

CONCLUSION

For each of the foregoing reasons, petitioners respectfully

request that this Court grant their petition for writ of certio-

ari to the United States Court of Appeals for the Third

Circuit.

Respectfully submitted,

EDWARD F. MANNINO

(Counsel of Record)

DAVID L. COMERFORD

JAMES L. GRIFFITH

AKIN, GUMP, STRAUSS,

HAUER & FELD, LLP

One Commerce Square

2005 Market Street, Suite 2200

Philadelphia, PA 19103

Telephone: (215) 965-1200

Facsimile: (215) 965-1210

Attorneys for Thomas J. Ridge,

Dr. James P. Gallagher,

Dr. Eugene W. Hickok and

Barbara Hafer

and

PAUL A. TUFANO

General Counsel

Commonwealth of Pennsylvania

Office of General Counsel

225 Main Capitol Building

Harrisburg, PA 17120

GREGORY E. DUNLAP

Deputy General Counsel

Commonwealth of Pennsylvania

Office of General Counsel

P.O. Box 11775

Harrisburg, PA 17108

Dated: October 1, 1999

30

JAMES SHEEHAN

Chief Counsel

Commonwealth of Pennsylvania

Department of Education

333 Market Street

Harrisburg, PA 17126

Attorneys for Thomas J. Ridge,

Dr. James P. Gallagher and

Dr. Eugene W. Hickok