Adams v. Richardson, Civ. A. No. 3095-70.

• Citation: 351 F. Supp. 636
• Decision Date: 16 February 1973
• Docket Number: Civ. A. No. 3095-70.
• Parties: Kenneth ADAMS et al., Plaintiffs, v. Elliot L. RICHARDSON, Individually and as Secretary of the Department of Health, Education, and Welfare et al., Defendants.
• Court: U.S. District Court — District of Columbia

351 F. Supp. 636

Kenneth ADAMS et al., Plaintiffs, v. Elliot L. RICHARDSON, Individually and as Secretary of the Department of Health, Education, and Welfare et al., Defendants.

Civ. A. No. 3095-70.

United States District Court, District of Columbia.

November 16, 1972.

As Amended February 16, 1973.

Joseph L. Rauh, Jr. and John Silard, Washington, D. C., for plaintiffs.

Joseph Hannon, Asst. U. S. Atty., Washington, D. C., Robert Beale, Bateman, West & Beale, Newport News, Va., for defendants.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

This is a suit for declaratory and injunctive relief against the Secretary of Health, Education and Welfare and the Director of the Office for Civil Rights (OCR) of the Department of Health, Education and Welfare (HEW), complaining of alleged defaults on the part of defendants in the administration of their responsibilities under Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq. (1970).

The responsibilities of the OCR include the administration and enforcement of HEW's regulation issued pursuant to Title VI and published at 45 C. F.R. Part 80. In addition, the OCR through agreement with other departments and agencies of the Executive Branch, had been assigned responsibility for Title VI enforcement with respect to most federal financial assistance to elementary, secondary and higher education and for health and social welfare activities, including such assistance as is granted and administered by those departments and agencies.

In an earlier proceeding, defendants' motion to dismiss or for summary judgment was denied in order to allow plaintiffs to engage in and complete discovery. Such discovery, inter alia, included a very lengthy deposition of defendant Pottinger.

Upon completion of discovery, plaintiffs filed a motion for summary judgment. Defendants have filed a combined motion to dismiss and a cross-motion for summary judgment. Both sides base their motions upon the entire record before this Court. On the basis of this record, it appears that, in certain of the areas about which plaintiffs complain, HEW has not properly fulfilled its obligation under Title VI to effectuate the provisions of Section 2000d of such Title and thereby to eliminate the vestiges of past policies and practices of segregation in programs receiving federal financial assistance. Our specific findings and conclusions are set forth below.

FINDINGS OF FACT

A. Higher Education

1. Between January, 1969 and February, 1970, HEW concluded that the states of Louisiana, Mississippi, Oklahoma, North Carolina, Florida, Arkansas, Pennsylvania, Georgia, Maryland, and Virginia were operating segregated systems of higher education in violation of Title VI. At that time HEW requested each of the ten states to submit a desegregation plan within 120 days or less.

2. Five states, Louisiana, Mississippi, Oklahoma, North Carolina and Florida, have totally ignored HEW's request for a desegregation plan and have never made submissions.

3. The other five states, Arkansas, Pennsylvania, Georgia, Maryland and Virginia, submitted desegregation plans which are unacceptable to HEW. Although the submissions were made between 18 and 36 months ago, HEW has failed formally to comment on any of these submissions.

4. As yet HEW has not commenced an administrative enforcement action against any of these ten states nor have these matters been referred to the Justice Department for the filing of suits against any of said ten states.

5. HEW has attempted to justify its failure to take administrative action on the grounds that negotiations with these ten states are still pending, that there are problems of great complexity in the segregation of state-wide systems, and that the Supreme Court standard of desegregation "at once" does not apply to public higher education.

6. HEW has advanced and continues to advance federal funds in substantial amounts for the benefit of institutions of higher education in said ten states.

B. Elementary and Secondary School Districts—1970-71

1. HEW has reported that as of the school year 1970-71, 113 school districts had reneged on prior approved plans and were out of compliance with Title VI. Some 74 of these districts are still out of compliance with Title VI.

2. Although HEW has known of the noncompliance of most of these districts since early in the 1970-71 school year, HEW has commenced administrative enforcement actions against only seven such districts, and of the eight cases referred to the Justice Department, only three have been sued.

3. HEW has attempted to excuse its administrative inaction on the grounds that it is still seeking voluntary compliance through negotiation and conciliation.

4. These non-complying districts have received and continue to receive substantial federal assistance from HEW.

C. Compliance with Supreme Court Decisions

1. In Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S. Ct. 29, 24 L.Ed.2d 19 (1969), the Supreme Court required desegregation "at once" of dual school systems in thirty Mississippi school districts. At the time of this decision (October 29, 1969), 87 school districts had HEW-approved desegregation plans which permitted segregation to be postponed until September, 1970. Despite the Supreme Court's directive, HEW took no steps to compel immediate desegregation in these 87 districts.

2. Following the decision of the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), which enunciated "a presumption against schools that are substantially disproportionate in their racial composition" HEW identified 300 non-court order school districts with one or more schools composed mostly of local minority students.

3. Initially, HEW eliminated 75 of the 300 districts from further consideration without any on-site investigation or communication with the districts because in HEW's judgment the racial disproportion of the schools in these districts was too small to constitute a violation of Swann. HEW then eliminated 134 of the remaining 225 districts from further consideration still without any on-site investigation or communication with the districts. Although at least 85 of these districts have one or more schools substantially disproportionate in their racial composition, none was required to justify the substantial racial disproportion in its schools. HEW mailed letters to the remaining 91 districts in the summer of 1971, notifying them that additional desegregation steps may be required under the Swann decision. Of these 91 districts, HEW received desegregation plans acceptable to HEW from 37 districts, noticed three for administrative hearing, and found Swann "not applicable" to nine.

4. Thus, 42 districts which HEW deemed to be in presumptive violation of Swann remain so approximately a year later while HEW continues to review them.

5. These 42 school districts have been receiving federal funds from HEW throughout this period of over one year.

D. Vocational and Other Schools

1. State departments of education in the 17 southern and border states administer or operate numerous vocational and other schools. In the latter category are schools for deaf, blind and mentally handicapped children.

2. While apparently not a complete list, HEW did provide the names of 205 vocational schools, 28 schools for the blind and the deaf and certain other schools for the mentally handicapped administered by the departments of education in the 17 states.

3. HEW does not have any student enrollment and faculty data by race for many of these schools but it did provide statistics of students and faculty in Louisiana's vocational schools which show seven schools as overwhelmingly black and 25 schools as overwhelmingly white. Many of the schools operated by state departments of education are obviously segregated.

4. Prior to the filing of this suit, HEW had no comprehensive program of Title VI enforcement for such schools.

5. After the filing of this suit, HEW announced a program to enforce Title VI with respect to state department-administered schools, but the program only affects vocational schools. As yet, HEW has scheduled no on-site reviews of the segregated vocational schools in the south.

6. Federal funds have been distributed to most of these schools for years and HEW continues to give such federal assistance.

E. Districts Subject to Court Orders

1. Some 640 school districts which receive HEW aid, including many of the largest school districts, are subject to school desegregation court orders in the 17 southern and border states.

2. Shortly after the passage of the statute in 1964, HEW issued a regulation which, in effect, deemed a district in compliance if it were subject to a final desegregation order and provided assurance that it will comply with said order including any subsequent modification thereof.

3. In 1968, Congress in amending § 2000d-5 of the statute, adopted the HEW regulation in part by providing that, for the purpose of determining whether an educational agency is in compliance with Title VI, compliance by such agency with a final court desegregation order shall be deemed to be compliance with said Title.

4. Once a school district has been placed under a court desegregation order and gives assurance "on paper" that it is in compliance with such order, it is the practice of HEW to regard such school district as in compliance with Title VI. HEW does not monitor said school districts to determine whether or not the court order is being obeyed.

5. HEW's justification for failure to monitor school districts under court order is allegedly based upon possible conflicts with the courts, possible conflicts with the Justice Department, and HEW's alleged lack of resources to provide systematic monitoring.

6. HEW has advanced and continues to advance substantial federal funds to school districts under court order.

F. HEW's...