Robinson v. Vollert

Citation411 F. Supp. 461
Decision Date27 March 1976
Docket NumberCiv. A. No. 2643.
PartiesPatricia Ann ROBINSON et al., Plaintiffs, v. Frank VOLLERT et al., Defendants, v. Caspar WEINBERGER et al., Third-party Defendants.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas


Bryan F. Williams, Jr., Royston, Rayzor, Vickery & Williams, Galveston, Tex., and Edward H. Schwab, III, Galveston, Tex., for defendants, third-party plaintiffs.

Joseph D. Rich and Jeremiah Glassman, Dept. of Justice, Washington, D. C., for third-party defendants.


NOEL, District Judge.


Plaintiffs, black students and their parents, filed this action on August 18, 1959, to obtain declaratory and injunctive relief requiring the Galveston Independent School District (hereafter called "GISD" or "the District") to administer its schools without regard to the race of its students. On January 23, 1961, the Court entered an agreed order permanently enjoining the District, its Superintendent and Board of Trustees, from discriminating on the basis of race. That order required the implementation of a "stairstep" freedom of choice desegregation plan that was fully consistent with the constitutional requirements then prevailing.1

The action lay quiescent for some fourteen years until the District sought leave in May, 1975, to implead the secretary of the Department of Health, Education and Welfare (hereafter called "HEW" or "the Department") and other Department officials.2 After the District's Motion was granted, GISD filed a third-party complaint seeking to enjoin administrative enforcement proceedings initiated by HEW pursuant to Title VI of the Civil Rights Act of 1964 to terminate federal financial assistance that GISD received.3 Although the Court entered its Order to Show Cause why an injunction should not be granted, GISD and HEW jointly requested that the Court enter a consent order that seemingly resolved the dispute in the District's favor. Plaintiffs did not appear, and no other parties sought to intervene. The Consent Order was signed on June 16 and entered on June 18, 1975.

On November 10, 1975, GISD again sought an order to show cause, alleging that HEW had failed to comply with the Consent Order in that it had denied GISD's application for funds under the Emergency School Aid Act of 1972 (hereafter called "ESAA"). Though signed by the presiding judge, the order to show cause was never formally filed and entered through error of the Clerk. HEW did, however, receive notice that a hearing was set. On the appointed day, HEW appeared through its representatives and consented to proceed in an effort to show cause. HEW agreed that its discretion in refusing to fund GISD's ESAA application would be subject to review.

A hearing was held on December 8-11, 1975, the testimony of officials from the Department and the District was received, and the Court took the matter under advisement. This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law.

Prefatory to the Court's findings of fact, a brief summary of the pertinent statutory provisions is in order. Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-4, prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin. 42 U.S.C. § 2000d. To implement that command, section 602 of the Act requires federal agencies that administer federal assistance to adopt enforcement procedures culminating in the termination of aid to recipients that fail to comply. 42 U.S.C. § 2000d-1. Four years after the Act's passage, Congress added a proviso stating that compliance by a local education agency with a final order of a federal court for the desegregation of schools is to be deemed compliance with Title VI. Elementary and Secondary Education Amendments of 1967 § 112, 42 U.S.C. § 2000d-5. The proviso's language was taken almost word for word from a regulation adopted by HEW shortly after the Act's passage. See 45 C.F.R. § 80.4(c) (1964).

The Emergency School Aid Act, 20 U.S.C. §§ 1601-1619, was enacted to aid local school agencies in the process of eliminating and preventing minority isolation. 20 U.S.C. § 1601. To qualify for ESAA funds, school districts are required to establish what HEW denominates as their "threshold eligibility" by showing that they are implementing one of three types of desegregation plans: a plan undertaken pursuant to the order of a court or other appropriate body, a plan approved by HEW as adequate under Title VI, or one of several types of voluntary plans. 20 U.S.C. § 1605(a). A school district is ineligible under the Act if it has transferred property to a private segregated academy, discriminated against minority employees, assigned students to classes on a discriminatory basis, or limited school activities to avoid participation by minority students. The Act also provides that an ESAA application may be approved only if HEW's Assistant Secretary determines that the applicant's threshold eligibility plan does not involve freedom of choice, unless he determines that freedom of choice "has achieved, or will achieve, the complete elimination of a dual school system in the school district . . .." 20 U.S.C. § 1609(a)(7).


There is no contention that the District has violated the 1961 desegregation Order. Instead, the evidence indicates that the District voluntarily implemented supplemental programs designed to desegregate its schools at a more rapid rate than that literally required by the Court. The District's progress in these efforts went unchallenged until April, 1973. Prior to that date, no request for funds administered by HEW was denied on the basis of noncompliance with the Department's Title VI criteria. In fact, HEW determined in 1968 that the District's plan "should eliminate all vestiges of the dual school system that existed prior to the 1961 Order," and commended the District for its leadership.4

During the two previous school years, 1972-73 and 1973-74, HEW approved the District's application under ESAA for funds to assist in the operation of a Guidance and Counseling Center. The Center, which seeks to prevent school dropouts, served 531 students during the 1973-74 school year, consisting of 290 Blacks, 119 Spanish-surnamed students, and 122 non-minority students.5 The HEW official most familiar with the program characterized it as excellent.

Although prior to 1975 HEW had given no indication that the District was ineligible to receive funds under ESAA, the decision early in 1973 of Adams v. Richardson, 351 F.Supp. 636 (D.D.C.), made apparent that the Department's previous position would undergo a marked change. In that case, the District Court for the District of Columbia held that HEW had not sufficiently enforced Title VI's requirements. Among other directives not pertinent here, the Adams Court enjoined HEW to notify some 85 school districts that they were presumptively in violation of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and to require them to rebut or explain the substantial disproportion thought to exist in their schools. Adams v. Richardson, 356 F.Supp. 92 (D.D.C.), aff'd as modified, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973). HEW's Office for Civil Rights (hereafter called "OCR") advised the District accordingly in April, 1973.

Unknown to HEW,6 the District was mistakenly included in the group of 85 districts listed in Adams. In its Memorandum and Order filed on December 19, 1975, this Court noted:

Section 2000d-5, title 45 42 U.S.C., provides that a school district's compliance with a final court order for desegregation of that district's schools shall be deemed compliance with the requirements of Title VI. The Adams Court recognized that
Until there has been a finding by the Court entering the order that its order has not been complied with, HEW is under no obligation to effectuate the provisions of Title VI through administrative or judicial enforcement proceedings. . . . The responsibility for compliance by a school district and other educational agencies under court order rests upon the court issuing said order.
356 F.Supp. at 99. Since the Order entered by this Court on January 23, 1961 is a final desegregation order within the meaning of section 2000d-5, it is apparent that the Adams opinions were entered without knowledge of it. Thus, GISD was misclassified as a school district with respect to which HEW retained Title VI administrative compliance responsibilities.

Accordingly, this Court directed appropriate government officials to advise the Adams Court "of the pendency of this action and of this Court's finding that its 1961 Order is a final desegregation order within the meaning of 42 U.S.C. § 2000d-5. . . ."

Between April, 1973 and May 2, 1974, officials from HEW's Regional Office met and exchanged correspondence with GISD representatives. As a result, it became clear that the sole basis for the contention that the District was in violation of Title VI lay in the fact that four of the District's schools reflected the statistical disproportion condemned in Swann.7

During its discussions with HEW, GISD submitted various documents to show that this statistical imbalance could be explained on grounds other than the existence of vestiges of a dual system, such as an increase in the proportion of minority students to over 60%, a significant decline in the total number of school age children, and changes in the District's demographic patterns.8 Although HEW did not present any witness who personally evaluated GISD's position, it appears that the Department took the position that as long as the four schools maintained the statistical disproportion, the District would be held ipso facto to be in noncompliance.9 Though the District emphasized the importance of an on-site inspection, HEW apparently ignored these invitations. There is...

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