Robinson v. Vollert

• Decision Date: 10 September 1979
• Docket Number: No. 76-2804,76-2804
• Citation: 602 F.2d 87
• Parties: Patricia Ann ROBINSON and Bettie Joe Robinson, Minors, by their Father and Next Friend, James Robinson, et al., Plaintiffs, v. Frank VOLLERT, as Superintendent of the Galveston Independent School District, Galveston, Texas, et al., Defendants-Third Party Plaintiffs-Appellees, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, et al., Third Party Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 87

602 F.2d 87

Patricia Ann ROBINSON and Bettie Joe Robinson, Minors, by

their Father and Next Friend, James Robinson, et

al., Plaintiffs, v. Frank VOLLERT, as Superintendent of the Galveston

Independent School District, Galveston, Texas, et

al., Defendants-Third Party Plaintiffs-Appellees, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, et al., Third Party Defendants-Appellants.

No. 76-2804.

United States Court of Appeals, Fifth Circuit.

Sept. 10, 1979.

James R. Gough, Asst. U. S. Atty., Houston, Tex., Dennis J. Dimsey, Atty., Appellate Section, Walter W. Barnett, U. S. Dept. of Justice, Washington, D. C., for Joseph Califano et al.

Ed Schwab, III, Bryan F. Williams, Jr., Galveston, Tex., for Frank Vollert et al.

Appeal from the United States District Court for the Southern District of Texas.

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

GODBOLD, Circuit Judge:

This case involves the construction of a consent order entered into by the Department of Health, Education and Welfare and the Galveston (Texas) Independent School District (GISD), and the validity of HEW's decision to deny GISD's application for federal aid under the Emergency School Aid Act, (ESAA) 20 U.S.C. §§ 1601 Et seq. ¹ Because we disagree with the district court's construction of the consent order, we reverse.

In May 1975, HEW initiated administrative proceedings for the purpose of terminating all federal assistance to GISD, pursuant to Title VI of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000d Et seq. Title VI prohibits discrimination on account of race, color, or national origin in all programs and activities receiving federal financial assistance, See 42 U.S.C. § 2000d, and vests enforcement power in the agencies disbursing federal funds, See 42 U.S.C. § 2000d-1. HEW's action was initiated because GISD had previously operated a school system that was segregated by law and there remained four elementary schools within the district that were 95% Or more black, even though blacks made up only 65% Of all pupils attending GISD schools in 1975. ²

Title VI, however, provides that educational funds may not be withheld from a school district for noncompliance with Title VI nondiscrimination requirements if the school district is in compliance "with a final order or judgment of a Federal court for the desegregation of the school or school system." 42 U.S.C. § 2000d-5. In 1961 a federal district court ordered GISD to implement a "stairstep" freedom of choice desegregation plan. Under this order GISD was required to put into effect a freedom of choice plan for the first grade in 1961, with an additional grade added to the plan each subsequent year. According to this plan, the entire system would be operating under freedom of choice in September 1973. The record in this case does not spell out in detail what method of desegregation GISD adopted, but it does show that at least by 1969 freedom of choice had been replaced by a neighborhood school assignment program and that GISD in fact achieved a greater degree of desegregation than required by the 1961 order and did so more rapidly than required by the 1961 order. Yet even though GISD by 1975 was not operating its schools pursuant to the freedom of choice plan contained in the 1961 order, GISD contended that because it was in compliance with the 1961 order HEW was therefore barred by the § 2000d-5 proviso from contending that it was in violation of Title VI.

GISD brought suit in the federal district court that had issued the 1961 order seeking a declaratory judgment that HEW's action was barred by § 2000d-5 and to enjoin HEW's Title VI proceedings against it. This suit was settled before judgment and a consent order was signed by the parties and approved by the district court. This consent order, dated June 16, 1975, provided in part that HEW would not proceed with the administrative Title VI proceedings it had begun against GISD and that HEW would not

proceed with or attempt to conclude . . . any other administrative enforcement pursuant to 45 C.F.R., Parts 80 and 81, for the purpose of withholding from or depriving said School District of any Federal financial assistance or funds under their control or administration for the reason that such School District is or has failed to desegregate its school system, or any school or schools comprising a part of such system in violation of regulations promulgated under Title VI of the Civil Rights Act of 1964 pending further order of the Court.

Paragraph 2 of the consent order further provided:

The third party defendants will allow filing of, and consider, evaluate, process, and act upon, any request or application by defendant Galveston Independent School District for Federal financial assistance or funds under their control, supervision, or administration, with which it has sought or may seek to fund or defray the cost of any educational program to which it would be entitled. HEW funding shall not be deferred pursuant to 45 C.F.R. § 80.8(b) inasmuch as HEW has agreed not to proceed with administrative proceedings as outlined in paragraph 1, pending further order of the Court.

On May 5, 1975, while negotiations concerning settlement of the Title VI dispute between GISD and HEW were proceeding, HEW received GISD's application for federal funds under the Emergency School Aid Act, 20 U.S.C. §§ 1601 Et seq., for the 1975-76 school year. GISD proposed to use these funds to partially fund the operation of a guidance and counselling center.

The Emergency School Aid Act of 1972 was enacted in order to provide additional funding for schools that are in the process of eliminating minority group segregation. 20 U.S.C. § 1601. A school district is eligible for ESAA funds only if it "is implementing" (a) a court-ordered desegregation plan or (b) a plan that has been approved by the Secretary of HEW as adequate under Title VI or (c) a voluntarily-adopted plan to eliminate, reduce, or prevent minority group isolation in its schools, or to establish one or more "integrated schools," as restrictively defined in the Act. 20 U.S.C. § 1605(a)(1). The Act also provides that a plan involving freedom of choice will not satisfy ESAA eligibility requirements unless the HEW Assistant Secretary for Education finds that the plan has achieved or will achieve the complete elimination of a dual school system in the district. 20 U.S.C. § 1609(a)(7). Several other specified discriminatory acts, such as transferring school property to discriminatory private schools or the operation of segregated classes within an integrated school, will disqualify an otherwise qualified school system from receiving ESAA funds. 20 U.S.C. § 1605(d)(1).

The immediate parties to the settlement negotiations between HEW and GISD discussed whether the proposed consent order would have any application to ESAA grants, and HEW officials stated that the consent order would apply only to Title VI procedures and not to grants under ESAA. However, on June 6, 1975, HEW Regional Program Officer Joe Smith orally advised GISD that its 1975-76 ESAA application had been approved. Though GISD never received formal written notice of approval the district court found that GISD relied on Smith's oral representation in entering into the consent order.

On the day the consent order was signed by the parties, GISD received a mailgram from Dr. Goldberg, HEW Associate Commissioner for Equal Educational Opportunity, informing GISD that its application for 1975-76 ESAA funds would be denied because it had committed a disqualifying act under 20 U.S.C. § 1605(d)(1)(D). This subsection prohibits any school district from receiving ESAA funds if it has

had in effect any other practice, policy, or procedure, such as limiting curricular or extracurricular activities (or participation therein by children) in order to avoid the participation of minority group children in such activities, which discriminates among children on the basis of race, color, or national origin . . . .

HEW informed GISD that its operation of four elementary schools with disproportionately high concentrations of black students was a practice that violates this subsection.

HEW subsequently sent another mailgram to GISD, on June 25, stating another statutory ground for denial of ESAA funds GISD's desegregation plan did not meet the threshold eligibility requirements of § 1605(a)(1) in that it was not currently operating under a plan approved by HEW as meeting the requirements of Title VI and that the 1961 court-ordered plan was not acceptable under ESAA because it involved freedom of choice and there had not been a determination by HEW that it would achieve the complete elimination of the previous dual school system. ³

GISD then went back to federal district court, alleging that HEW's denial of ESAA funds violated the June 16 consent order. The district court agreed and ordered HEW either to disburse the ESAA funds or demonstrate that it did not have sufficient funds available. The district court rejected HEW's argument that the maintenance of racially concentrated schools was a disqualifying act under § 1605(d)(1)(D) and held that HEW by signing the consent order implicitly agreed that it would not deny GISD any funds, including ESAA funds, "solely on the ground that the District was ineligible to receive assistance because of the status of its desegregation efforts." The court reasoned that HEW was thereby barred from denying, under § 1609(a)(7), that the 1961 court-ordered freedom of choice plan would achieve the complete elimination of the dual school system previously operated by GISD. The district court thus held that GISD was qualified to receive ESAA funds and, since HEW had otherwise approved GISD's proposal as worthy of funding, ordered HEW to disburse the funds or show that sufficient funds were not available to it. ⁴ This appeal followed. We reverse.

The district court held that GISD was qualified under §...