Michigan Head Start Directors Association v. Butz

• Decision Date: 30 May 1975
• Docket Number: No. G74-207 C.A.,G74-207 C.A.
• Citation: 397 F. Supp. 1124
• Parties: MICHIGAN HEAD START DIRECTORS ASSOCIATION et al., Plaintiffs, v. Earl BUTZ, as Secretary of Agriculture et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

397 F. Supp. 1124

MICHIGAN HEAD START DIRECTORS ASSOCIATION et al., Plaintiffs, v. Earl BUTZ, as Secretary of Agriculture et al., Defendants.

No. G74-207 C.A.

United States District Court, W. D. Michigan, S. D.

May 30, 1975.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robertamarie Kiley, Lansing, Mich., for plaintiffs.

Frank S. Spies, U. S. Atty., Grand Rapids, Mich., for defendants.

OPINION AND ORDER

FOX, Chief Judge.

This case raises the issue of whether the Secretary of Agriculture may exclude non-school Head Start programs¹ from participation in the eighty per cent of food operating cost reimbursement provisions of the Special Food Service Program hereafter referred to as SFSP, National School Lunch Act, as amended,² Sec. 13, 42 U.S.C. Sec. 1761.³ The Special Food Service Program was established in 1968 by Public Law 90-302, Sec. 3, 82 Stat. 117, and modified by, inter alia, Public Law 92-433, 86 Stat. 724, as set forth more fully below.

The plaintiffs are Tri-County Community Action, Inc., and Capitol Area Economic Opportunity Committee, Inc. (Head Start Division), both of which are non-profit organizations which operate Head Start programs.⁴ The plaintiff Michigan Head Start Directors Association is a Michigan non-profit corporation composed of the Directors of the various Head Start programs throughout the State of Michigan.

Each of the defendants is an official of the United States Department of Agriculture hereafter referred to as USDA having some responsibility for the administration of SFSP. Earl Butz is the Secretary of Agriculture. Edward J. Hekman is the Administrator of the USDA's Food and Nutrition Service. His duties include the supervision of the SFSP. Dennis M. Doyle is Administrator of Midwest Regional Office of the USDA's Food and Nutrition Service. Michigan is within the jurisdiction of the Midwest Regional Office. Doyle's duties include the supervision of the SFSP in the region. R. J. Nelson is Director of the Child Nutrition Programs of the USDA's Food and Nutrition Service, Midwest Regional Office. He has responsibility for the operation of SFSP in the region.

The parties have filed extensive stipulations of fact. Although the defendants have never filed a written answer they have filed a motion to dismiss or in the alternative for summary judgment. The plaintiffs have filed a cross-motion for summary judgment. This opinion and separate order are based on the pleadings, affidavits, exhibits, stipulations, and other papers on file in the case.

I.

A brief review of the context in which this case arises will be helpful before the court turns to the jurisdictional and substantive issues.

In the middle and late 1960's, Congress was becoming increasingly concerned about the high incidence of hunger and malnutrition among American children. Among other actions, Congress passed the Child Nutrition Act of 1966, Pub. L. 89-642, 80 Stat. 885, 42 U.S.C. Sec. 1771 et seq., which established a school breakfast program, 42 U.S.C. Sec. 1773, to supplement the older school lunch program. The Child Nutrition Act empowered the Secretary of Agriculture to authorize financial assistance of up to eighty per cent of an individual school's costs of operating the breakfast program in circumstances of severe need where the ordinary per meal rate of government financing was deemed by the Secretary to be insufficient to carry on an effective breakfast program.⁵

Congress very quickly realized that providing breakfasts and lunches to school children was not sufficient to meet the total problem. Preschool children were not reached at all and most schoolage children were not reached during the summer months. The House Committee on Education and Labor reported out H.R. 15398 which was designed to fill the gap by establishing the SFSP and which, as amended, became Public Law 90-302.⁶

Apart from equipment, which is treated separately, SFSP has two levels of funding for participating service institutions. The lower level is a per-meal reimbursement rate, established by the USDA, intended to cover at least the cost of purchasing food, 42 U.S.C. Sec. 1761(c) (1).⁷ The higher level is an amount up to 80 per cent of the food operating cost, including the cost of obtaining, preparing, and serving food, 42 U.S.C. Sec. 1761(c)(2).⁸ Since service institutions can receive 80 per cent of food operating cost reimbursement only "in circumstances of severe need where the rate per meal established by the Secretary is insufficient to carry on an effective feeding program," 42 U.S.C. Sec. 1761(c)(2), USDA has established eligibility criteria for those not categorically excluded. In approving service institutions for operating cost funding, the administrators take into consideration all sources of funds of the applicant institution, including funds from other federal sources. Stip. No. 18.

As appears more fully below, nonschool Head Start programs are now eligible to receive reimbursement at the lower per meal rate under SFSP, but are categorically ineligible for the higher level of assistance.

Public Law 90-302 authorized $32,000,000 to be appropriated for fiscal years 1969, 1970 and 1971 to carry out the SFSP. It appeared however, that the authorized sum was inadequate to fulfill the aims of the program. In 1972, Congress enacted an open-ended authorization for fiscal years 1973, 1974 and 1975. Pub.L. 92-433, Sec. 2(a), 86 Stat. 724.⁹

The Special Food Service Program under 42 U.S.C. Sec. 1761 is administered by the United States Department of Agriculture. Within the USDA, the Food and Nutrition Service and its Regional Offices have primary responsibilities. In 32 states, the program is administered by, and the funds are disbursed by, state educational agencies under regulations and instructions issued by the USDA. In Michigan, the program is administered by the Michigan Department of Education under a contract and binding guidelines and instructions issued by USDA. Stip. No. 11.

This suit concerns the relationship of Head Start projects to the Special Food Service Program. Head Start projects are under the jurisdiction of and are funded by the Office of Child Development hereafter referred to as OCD in the Office of Human Development in the Department of Health, Education and Welfare hereafter referred to as HEW. Stip. No. 7. One among many of the purposes of Project Head Start is to provide preschool children from low income families with certain "comprehensive . . . nutritional . . services . . .," 42 U.S.C. Sec. 2809 (a)(1). Head Start projects are required, as a condition of OCD funding, to provide nutritional services, including a food service which meets OCD's standards. Stip. No. 24. At present, Head Start projects make no charge for meals served to children. Stip. No. 25. See also, Stip. No. 23.

It is undisputed that all Head Start projects are "service institutions" within the meaning of the statute establishing the Special Food Service Program, 42 U.S.C. Sec. 1761(a)(1). Head Start projects are, at an absolute minimum, not statutorily precluded from participating in SFSP. The problem in this case arises in part because of the curious division of administrative duties by Congress. The Secretary of Agriculture is assigned operational responsibilities with regard to SFSP, including Head Start projects, while HEW and OCD have general operational authority over Head Start projects in other respects, including the nutritional services.

HEW and OCD have no established funding differentiation between Head Start projects administered by schools and those administered by non-school agencies. Stip. No. 8. Nevertheless, for the purposes of determining the level of funding under SFSP, it has come to make a difference whether an individual Head Start program is administered by a school or not. If a school operates a Head Start program, if the school is the grantee or delegate agency, and if the school is participating in either the National School Lunch or the Breakfast program, or both, then the Head Start program is administratively defined as a "school," 7 C.F.R. Secs. 210.2(o), 220.2(q), and is eligible to participate with the school in one or both programs, as the case may be. Stip. No. 9. In these circumstances, the school Head Start project does not need to participate in the separate Special Food Service Program.

If a Head Start program is not connected with a grantee or delegate participating school, then the eligibility requirements for participation in SFSP may be different. In November 1969, USDA and the Office of Economic Opportunity the agency then administering Head Start projects decided to exclude all Head Start projects not already participating from any participation in the SFSP. Since only about five per cent of the existing Head Start projects were then participating in SFSP, ninety-five percent of the non-school projects became categorically ineligible. There have been almost no new Head Start programs begun since 1969. Stip. No. 10.

In October 1973, a suit was filed in the United States District Court for the District of Columbia, challenging USDA's refusal to allow non-school Head Start projects to participate in the SFSP. Community Education Extention of Mary Holmes College, et al. v. Butz (D.D.C.No.CA — 1655-73). Later that month, USDA formally rescinded the instruction which denied participation in the SFSP to non-school Head Start Projects. However, USDA allows these projects to participate only on a per-meal reimbursement basis, the lower of the two possible levels of funding under the SFSP. Stip. No. 13.

As of June 1974, 994 non-school Head Start projects were participating in SFSP. In Michigan, 15 non-school Head Start projects enrolling approximately 4,400 children were participating in SFSP as of June 1974. Stip. No. 17. All of these were receiving a per-meal reimbursement, and none was receiving reimbursement for 80% of food operating costs.

The plaintiffs brought ...