Adams v. Richardson

Decision Date12 June 1973
Docket NumberNo. 73-1273.,73-1273.
PartiesKenneth ADAMS et al., v. Elliot L. RICHARDSON, Individually and as Secretary of the Department of Health, Education and Welfare, et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Leonard Schaitman, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty., and Eloise E. Davies, Atty., Dept. of Justice, were on the brief, for appellants. Alexandra P. Buek, Atty., Dept. of Health, Education and Welfare, also entered an appearance for appellants.

Elliott C. Lichtman, Washington, D. C., with whom Joseph L. Rauh, Jr., John Silard, Washington, D. C., and James M. Nabrit III, New York City, were on the brief, for appellees.

Herbert O. Reid, Sr., and J. Clay Smith, Jr., Washington, D. C., filed a brief on behalf of the National Association For Equal Opportunity In Higher Education as amicus curiae.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON,* ROBB and WILKEY, Circuit Judges sitting en banc.

Argued En Banc April 16, 1973.

PER CURIAM:

This action was brought to secure declaratory and injunctive relief against the Secretary of Health, Education, and Welfare, and the Director of HEW's Office of Civil Rights. Appellees, certain black students, citizens, and taxpayers, allege in their complaint that appellants have been derelict in their duty to enforce Title VI of the Civil Rights Act of 1964 because they have not taken appropriate action to end segregation in public educational institutions receiving federal funds.1 The matter was before the District Court on cross motions for summary judgment, on an extensive record consisting of depositions and documentary evidence.

The District Court found appellants' performance to fall below that required of them under Title VI,2 and ordered them to (1) institute compliance procedures against ten state-operated systems of higher education, (2) commence enforcement proceedings against seventy-four secondary and primary school districts found either to have reneged on previously approved desegregation plans or to be otherwise out of compliance with Title VI, (3) commence enforcement proceedings against forty-two districts previously deemed by HEW to be in presumptive violation of the Supreme Court's ruling in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), (4) demand of eighty-five other secondary and primary districts an explanation of racial disproportion in apparent violation of Swann, (5) implement an enforcement program to secure Title VI compliance with respect to vocational and special schools, (6) monitor all school districts under court desegregation orders to the extent that HEW resources permit, and (7) make periodic reports to appellees on their activities in each of the above areas.3

We modify the injunction concerning higher education and affirm the remainder of the order.

I

Appellants insist that the enforcement of Title VI is committed to agency discretion, and that review of such action is therefore not within the jurisdiction of the courts. But the agency discretion exception to the general rule that agency action is reviewable under the Administrative Procedure Act, 5 U.S.C. §§ 701-02, is a narrow one, and is only "applicable in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.' S.Rep.No. 752, 79th Cong., 1st Sess., 26 (1945)." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). The terms of Title VI are not so broad as to preclude judicial review. A substantial and authoritative body of case law provides the criteria by which noncompliance can be determined, and the statute indicates with precision the measures available to enforce the Act.

Appellants rely almost entirely on cases in which courts have declined to disturb the exercise of prosecutorial discretion by the Attorney General or by United States Attorneys. Georgia v. Mitchell, 146 U.S.App.D.C. 270, 450 F.2d 1317 (1971); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (1965); Moses v. Katzenbach, 342 F.2d 931 (D.C.Cir.1965). Those cases do not support a claim to absolute discretion and are, in any event, distinguishable from the case at bar. Title VI not only requires the agency to enforce the Act, but also sets forth specific enforcement procedures. The absence of similar specific legislation requiring particular action by the Attorney General was one factor upon which this court relied in Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234, 235 (1965), to uphold the exercise of discretion in that case.

More significantly, this suit is not brought to challenge HEW's decisions with regard to a few school districts in the course of a generally effective enforcement program. To the contrary, appellants allege that HEW has consciously and expressly adopted a general policy which is in effect an abdication of its statutory duty. We are asked to interpret the statute and determine whether HEW has correctly construed its enforcement obligations.

A final important factor distinguishing this case from the prosecutorial discretion cases cited by HEW is the nature of the relationship between the agency and the institutions in question. HEW is actively supplying segregated institutions with federal funds, contrary to the expressed purposes of Congress. It is one thing to say the Justice Department lacks the resources necessary to locate and prosecute every civil rights violator; it is quite another to say HEW may affirmatively continue to channel federal funds to defaulting schools. The anomaly of this latter assertion fully supports the conclusion that Congress's clear statement of an affirmative enforcement duty should not be discounted.

Appellants attempt to avoid the force of this argument by saying that, although enforcement is required, the means of enforcement is a matter of absolute agency discretion, and that they have chosen to seek voluntary compliance in most cases. This position is untenable in light of the plain language of the statute:

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 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability . . . . Compliance with any requirement adopted pursuant to this section 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 . . . or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. . . . 42 U.S.C. § 2000d-1.

The Act sets forth two alternative courses of action by which enforcement may be effected. In order to avoid unnecessary invocation of formal enforcement procedures, it includes the proviso that the institution must first be notified and given a chance to comply voluntarily. Although the Act does not provide a specific limit to the time period within which voluntary compliance may be sought, it is clear that a request for voluntary compliance, if not followed by responsive action on the part of the institution within a reasonable time, does not relieve the agency of the responsibility to enforce Title VI by one of the two alternative means contemplated by the statute. A consistent failure to do so is a dereliction of duty reviewable in the courts.4

II

Although both parties were content to have this case disposed of in the District Court on cross motions for summary judgment, appellants now contend that the case was not one properly to be resolved in that posture. In the District Court, HEW, although denying the contention that it had disregarded its statutory duties, made no claim or showing of disputed material facts relevant to that issue and requiring resolution by trial. Instead, it argued that agency enforcement of Title VI is completely discretionary, and it presses that contention here. That is a legal question involving statutory construction which can be resolved on the record before us. It is true that data concerning the present status of the various school systems is constantly changing, and the record may not identify accurately systems which are currently in compliance. For example, the District Court found, on the basis of the record before it, that seventy-four districts had reneged on previously approved desegregation plans or were otherwise out of compliance. HEW now contends that thirty-nine of these districts were so classified only because of agency error, and that fourteen others are, for various reasons, no longer properly included in that group.

We believe that problems of that nature can be resolved without trial. The District Court went out of its way to note on the first page of its order that it was to be read and interpreted with the staleness of the record in mind. This suggests that, if HEW can demonstrate to the District Court that certain districts are presently in compliance, either interpretation or modification of the order can prevent unnecessary enforcement proceedings. Insofar as the order involves districts as to which HEW lacks sufficient information to determine their current status, an initial purpose of the enforcement proceeding is to obtain that information. Since there was reason in the past to believe that each of these...

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