Kelsey v. Weinberger

• Decision Date: 14 May 1974
• Docket Number: No. 73-1960.,73-1960.
• Citation: 498 F.2d 701
• Parties: Cordelia KELSEY, infant, by her parent, Louise Kelsey, et al., Appellants, v. Caspar W. WEINBERGER, Individually and as Secretary of Health, Education and Welfare, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

498 F.2d 701 (1974)

Cordelia KELSEY, infant, by her parent, Louise Kelsey, et al., Appellants, v. Caspar W. WEINBERGER, Individually and as Secretary of Health, Education and Welfare, et al.

No. 73-1960.

United States Court of Appeals, District of Columbia Circuit.

Argued November 6, 1973.

Decided May 14, 1974.

Joseph L. Rauh, Jr., Washington, D. C., with whom John Silard, Elliott C. Lichtman, Washington, D. C., Daniel H. Pollitt, Chapel Hill, N. C. and James M. Nabrit, III, New York City, were on the briefs, for appellants.

Michael H. Stein, Atty., Dept. of Justice, with whom Irving Jaffe, Deputy Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and Kathryn H. Baldwin, Atty., Dept. of Justice, were on the brief for appellee. Robert M. Werdig, Jr., and Garey G. Stark, Asst. U. S. Attys., also entered appearances for appellee.

Before TAMM, ROBINSON and WILKEY, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Cordelia Kelsey and other public school children, the appellants, complained in the District Court that the Secretary of Health, Education and Welfare, the principal appellee,¹ violated the Emergency School Aid Act² in promulgating a new regulation enabling proposed waivers of the ineligibility, under prior regulations, of five public school districts without first requiring the elimination of the effects of racially motivated teacher assignments theretofore made in those districts. The Secretary asserts that the Act permits him to grant the waivers because the districts have ceased discriminatory assignments and have adopted plans to remove the effects of past discrimination by the beginning of the 1975-76 school year. On cross-motions for summary judgment, the District Court ruled in appellees' favor and dismissed appellants' action.³ We reverse and remand the case to the District Court with directions to enter an appropriate judgment in appellants' favor.

I

The salient facts of the case are not materially in dispute. On June 23, 1972, Congress passed the Emergency School Aid Act as Title VII of the Education Amendments of 1972.⁴ One purpose of the Act, Congress declared, is the provision of financial assistance to local educational agencies "to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools...."⁵ The Act accordingly makes funds available for a variety of enumerated activities related to its stated objectives.⁶ The Act also sets forth standards for determining eligibility for assistance⁷ and criteria for evaluating applications therefor;⁸ and it specifically requires a finding of ineligibility as to any school district which after June 23, 1972, indulged in one or more prohibited practices,⁹ including the following:

No educational agency shall be eligible for assistance under the Act if it has, after June 23, 1972— ... engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency....¹⁰

The Act contains, however, a proviso enabling an ineligible agency to apply to the Secretary for a waiver of ineligibility.¹¹ But the granting of a waiver is statutorily conditioned upon a

determination that any practice, policy, procedure or other activity resulting in ineligibility has ceased to exist, and that the applicant has given satisfactory assurance that the activities prohibited in the subsection defining ineligibility will not reoccur.¹²

The Act similarly instructs the Secretary to promulgate waiver regulations which "insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur...."¹³

On February 6, 1973, the Secretary first issued regulations implementing the provisions of the Act.¹⁴ In their original text, the regulations clearly blocked access to the Act's assistance by any public school system pursuing, after June 23, 1972, a practice leading to racial discrimination in the deployment of teachers in its schools. The regulations flatly stated that

No educational agency shall be eligible for assistance under the Act if, after June 23, 1972, it has had or maintained in effect any ... practice, policy or procedure which results in discrimination on the basis of race, color, or national origin ... in the assignment of any of its employees ... including full time classroom teachers to the schools of such agency in such a manner as to identify any such schools as intended for students of a particular race or national origin.¹⁵

The regulations also insisted that where ineligibility followed a discriminatory assignment of teachers, an "application for waiver shall contain evidence that such agency has assigned its full-time classroom teachers to its schools so that no school is identified as intended for students of a particular race, color or national origin."¹⁶ A further limitation imposed by the regulations was that agencies not implementing a judicial or administrative order relating to faculty assignment reassign teachers "so that the proportion of minority group full-time classroom teachers at each school is between 75 percentum and 125 percentum of the proportion of such minority group teachers which exists on the faculty as a whole, and so that the variations in such proportions which remain on various faculties do not correspond to such variations in the student populations of such schools."¹⁷ As appellees admit, under the original regulations "a school which had in the past made discriminatory assignments was required not only to stop such assignments, but to correct the effect of past discriminatory assignments by reassigning, prior to approval of the waiver, all of its teachers in such a way that the racial identifiability of schools resulting from assignments of the preceding years would be completely corrected."¹⁸

While the original regulations were in vogue, a host of school districts qualified for financial aid under the Act. The Secretary found a small number¹⁹ ineligible to receive funds for fiscal year 1973 because of the racial identifiability of faculties in their schools—a reflection of racially inspired assignments of teachers.

On June 29, 1973, the Secretary issued a press release announcing his intention to reexamine the regulations with a view toward softening the restrictive elements of the waiver provision in order to allow for more "realistic" funding of programs in previously ineligible communities. On July 16, the Secretary issued a notice of proposed rulemaking envisoning modification of the rule pertaining to waivers of ineligibility consequent upon discrimination in faculty assignments.²⁰ The crux of the proposed revision was a new regulation permitting approval of an application for a waiver in favor of a previously ineligible school district even though the effects of such discrimination had not been fully rectified.²¹ The new regulation would demand a showing that the educational agency had adopted a policy of racially nondiscriminatory faculty assignments and would make all future assignments in such manner that racial identifiability of faculties would not increase.²² The regulation would, however, allow the agency to continue one-race faculties for one year and racially identifiable faculties for two years.²³ The regulation would also eliminate the administrative definition of a racially identifiable faculty²⁴ without provision of any substitute. Despite vigorous opposition by civil rights groups, the new regulation was promulgated without change on August 9, 1973, clearing the way for five cities to seek waivers of their prior ineligible status soon after the effective date of August 16, 1973.²⁵

The five cities promptly filed applications for waiver.²⁶ The submissions reveal that none of the cities offers to undertake any involuntary redistribution of teachers presently assigned on a racial basis. Rather, they propose to rely on the gradual though inevitable process of teacher attrition to create vacancies, and upon nondiscriminatory appointment and assignment of new teachers as a means of reducing prohibited racial concentrations within the two-year time frame of the regulation. In short, instead of altering faculty setups ensuing from racially induced faculty assignments in the past, the cities will continue those assignments in effect, subject to change only by the filling of vacancies on a nonracial basis.

On August 16, 1973, the effective date of the revised waiver regulation, the Secretary, as required by the Act,²⁷ transmitted to statutorily designated congressional committees²⁸ notices of intent to grant waivers of ineligibility to the five cities. This litigation challenges the validity of the new regulation in relation to the waivers contemplated. Appellants, minority group children attending public schools in three of the five affected cities, sought in the District Court a declaration that the current regulation is invalid and an injunction restraining the grant of the waivers. Hearing the case on cross-motions for summary judgment, the court entered judgment upholding appellees on the merits and dismissing appellants' action,²⁹ and this appeal followed.

II

The Emergency School Aid Act is explicit in its stipulation that "no educational agency shall be eligible for assistance" under its provisions if after June 25, 1972, the date of its enactment, the agency has "engaged in discrimination based upon race, color, or national origin in the ... assignment of its employees...."³⁰ Thus the Act prohibits financial aid to any educational agency which continued to utilize a racial factor in the deployment of teachers in the schools under its jurisdiction. The record leaves no alternative to the conclusion on this appeal that each of the applicant agencies was ineligible for statutory benefits because of racially discriminatory assignments of faculty...