Bakke v. Regents Supplemental Brief for Petitioner

    IN' THE

^upranc Court of %  Puiteir

Octobee Teem  1977

t s

No. 76-811

T he  R egents of the U niversity of California,

Petitioner,
YS.

ALLAN BAKKE,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF CALIFORNIA

SUPPLEMENTAL BRIEF FOR PETITIONER

A rchibald Cox 
Langdell Hall 
Cambridge, MASS 02138

P aul J . M ish k in  
Boalt Hall 
Berkeley, CA 94720

J ack B . Owens
600 Montgomery Street 
San Francisco, CA 94111

D onald L . R eidhaar 
590 University Hall 
Berkeley, CA 94720

Counsel for Petitioner

-------- --- -  .... ....................... . ™ ,.



X

SUBJECT INDEX

Page
Statute Involved............................................................  1

Questions Presented .....................................................  2

Statement .......................................................................  2

Summary of Argument...................................................  5

Argument ......................................................................... 10

I. Title VI of the Civil Rights Act of 1964 leaves 
state universities receiving federal funds free 
to provide more nearly equal educational op­
portunities to minority groups for purposes 
and in a manner consistent with the Equal Pro­
tection Clause .....................................................  10

Introductory .......................................................  10

A. The evolution of Title VI reveals the core 
congressional purpose to tie federal fund­
ing to compliance with Equal Protection 
standards and not to create new standards
or new causes of action................................ 13

B. Title VI permits educational institutions
receiving federal funds to provide minor­
ity groups more nearly equal educational 
opportunities ..............................................  27

C. The applicable administrative regulations
permit educational institutions receiving 
federal funds to provide more nearly equal 
educational opportunities to minority 
groups ........................................................  33



11 S ubject I ndex

P
D. Judicial and administrative interpretation

of the parallel provisions of Title VII fur­
ther confirms the view that Title VI per­
mits voluntary race-conscious affirmative 
action consistent with the Equal Protection 
Clause ........................................................

E. Subsequent legislative and executive prac­
tice shows that the purpose and provisions 
of Title VI are advanced by race-conscious 
programs to counter the effects of genera­
tions of racial discrimination and increase 
minority participation in the opportunities 
of American life ........................................

II. The cause should not be remanded to take addi­
tional evidence under Title V I ........................

III. Respondent is barred from pressing an inde­
pendent claim under Title VT by his previous 
conduct of this action ......................................

A. Respondent should not be heard to press
a new, independent claim under Title VI 
for the first time in oral argument in this 
Court ..........................................................

B. Respondent’s failure to exhaust adminis­
trative remedies bars the separate pre­
sentation of a Title VI claim in this 
action..........................................................

Conclusion

__-

CITATIONS

Cases Pages
Alvarado v. El Paso Independent School District, 445

F.2d 1011 (5th Cir. 1971) ....................................... 22
Ashwander v. Tennessee Valley Authority, 297 U.S.

288 (193G) ...........    61,62
Associated General Contractors of Cal. v. Secretary 

of Commerce, No. 77-3738-AAII (C.D.Cal. filed Nov.
2,1977).......................................................................32, 54

Associated General Contractors of Mass., Inc. v. Alt- 
slmler, 490 F.2d 9 (1st Cir. 1973), cert, denied, 416 
U.S. 957 (1974) .............    43

Blair v. Oesterlein Mach. Co., 275 U.S. 220 (1927)......  59
Bossier Parish School Board v. Lemon, 370 F.2d 

847 (5th Cir. 1967) cert, denied, 388 U.S. 911 (19G7)..22, 31
Branzburg v. Hayes, 408 U.S. 665 (1972)......................  61
Brown v. Board of Education, 347 U.S. 483 (1954) .....13, 44
Burton v. Wilmington Parking Authority, 365 U.S.

715 (1961) .................................................................  24

Cannon v. University of Chicago, 559 F.2d 1063 (7th
Cir. 1977) .................................................................  22

Carr v. Montgomery County Board of Education, 289 
F.Supp. 647 (M.D.Ala. 1968), aff’d, 395 U.S. 225
(1969) .......................................................................  32

Chambers v. Omaha Public School District, 536 F.2d
222 (8th Cir. 1976)..................................................... 22

Constructors Ass’n of Western Pa. v. Kreps, No. 77-
1035 (W.D.Pa. decided Oct. 13, 1977) ......................  54

Contractors Ass’n of Eastern Pa. v. Secretary of 
Labor, 442 F.2d 159 (3d Cir. 1971), cert, denied, 404
U.S. 854 (1971) ........................................................  42

Cort v. Ash, 422 U.S. 66 (1975)..................................... 21



IV Citations

Pages

Davis v. Board of School Commissioners, 402 U.S. 33
(1971) ....................................................................... 32

Dayton Board of Education v. Brinkman, 97 S.Ct.
27G6 (1977)...............................................................  28

De Funis v. Odegaard, 416 U.S. 312 (1974) .............. 62
Dupree v. City of Chattanooga, 362 F.Supp. 1136 

(E.D.Tenn. 1973) ..................................................... 63

Erlenbaugh v. United States, 409 U.S. 239 (1972) ....  5o

Flanagan v. President and Directors of Georgetown 
College, 417 F.Supp. 377 (D.D.C. 1976) .................  22

General Electric Co. v. Gilbert, 429 U.S. 125 (1976) 11
Gilliam v. City of Omaha, 388 F.Supp. 842 (D.Neb.

1975), aff’d, 524 F.2d 1013 (8th Cir. 1975) ............. 22,32
Goodwin v. Wyman, 330 F.Supp. 1038 (S.D.N.Y. 1971),

aff’d, 406 U.S. 964 (1972) ........................................  31
Green v. County School Board, 391 U.S. 430 (1968) .... 32
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........  41

Ilostetter v. Idlewild Bon Voyage Liquor Corp., 377 
U.S. 324 (1964) ........................................................  62

Jefferson v. Hackney, 406 U.S. 535 (1972) .................  7, 31
Johnson v. County of Chester, 413 F.Supp. 1299 (E.D.

Pa. 1976) ...................................................................22, 63
Joyce v. McCrane, 320 F.Supp. 1284 (D.N.J. 1970) .... 43

Kelley v. Altlieimer, Arkansas Public School District
378 F.2d 483 (8tli Cir. 1967) ................................... 32

Kokoszka v. Belford, 417 U.S. 642 (1974)..................... 55

Lau v. Nichols, 414 U.S. 563 (1974) 21, 31, 33

Citations v

Pages

Mayor of Philadelphia v. Educational Equality
League, 415 U.S. 605 (1974).....................................61-62

Mendoza v. La vine, 412 F.Supp. 1105 (S.D.N.Y. 1976).. 63
Mourning v. Family Publications Service, Inc., 411

U.S. 356 (1973)..................... ....................................  33
McDonald v. Santa Fe Trail Transportation Co., 427

U.S. 273 (1976) ................................................ ........ 28
McGoldrick v. Compagnie Generale Transatlantique,

309 U.S. 430 (1940) ..............................................9, 60, 61
McLaughlin v. Florida, 379 U.S. 184 (1964) ...............  28

N.A.A.C.P., Western Region v. Brennan, 360 F.Supp.
1006 (D.D.C. 1973) ...................................................  32

N.A.A.C.P. v. Wilmington Medical Center, Inc., 426
F.Supp. 919 (D.Del. 1977) ......................................  63

N.L.R.B. v. International Van Lines, 409 U.S. 48
(1972) ....................................................................... 60

National Railroad Passenger Corp. v. National Ass’n
of Railroad Passengers, 414 U.S. 453 (1974) ........  21

North Philadelphia Community Board v. Temple Uni­
versity, 330 F.Supp. 1107 (E.D.Pa. 1971)...............  63

Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126 
(1941) ....................................................................... 57

Patterson v. American Tobacco Co., 535 F.2d 257 (4th
Cir. 1976) .................................................................  48

Player v. State of Alabama, 400 F.Supp. 249 (M.D.Ala.
1975) ........................................................................  22

Porcelli v. Titus, 431 F.2d 1254 (3rd Cir. 1970), cert, 
denied, 402 U.S. 944 (1971) 32



VI Citations

Pages
Ray Baillie Trasli Hauling, Inc. v. Kleppe, 477 F.2d

696 (5tli Cir. 1973) ...... :........................................... 49-50
Rios v. Enterprise Ass’n Steamfitters Local 638, 501

F.2d 622 (2d Cir. 1974) ............................................  42
Rios v. Read, 73 F.R.D. 589 (E.D.N.Y. 1977)...............  21

Santiago v. City of Philadelphia, 435 F.Supp. 136
(E.D.Pa. 1977) ........................................................  22

Securities Investor Protection Corp. v. Barbour, 421
U.S. 412 (1975) ..............-........................................ 21

Serna v. Portales Municipal Schools, 499 F.2d 1147
(10th Cir. 1974) ....................................................... 21

Simkins v. Moses H. Cone Memorial Hospital, 323
F.2d 959 (4th Cir. 1963)............................................  25

Southern Illinois Builders Ass’n v. Ogilvie, 471 F.2d
680 (7th Cir. 1972) .................................................  42-43

Staub v. Baxley, 355 U.S. 313 (1958) ..........................  62
Strunk v. United States, 412 U.S. 434 (1973).............. 60
Swann v. Cliarlotte-Mecklenberg Board of Education,

402 U.S. 1 (1971) .....................................................  32

Taylor v. Cohen, 405 F.2d 277 (4th Cir. 1968) ............ 31

United Jewish Organizations of Williamsburgh, Inc.
v. Carey, 430 U.S. 144 (1977) ..........................28, 29, 33

United States v. Local Union No. 212, etc., 472 F.2d
634 (6th Cir. 1973) ...................................................  48

United States v. State of Texas, 321 F.Supp. 1043
(E.D.Tex. 1970) ....................................................... 31

United States v. Stewart, 311 U.S. 60 (1940) .............. 54
United States v. Tatum, Ind. School District, 306

F.Supp. 285 (E.D.Tex. 1969) ...................................  31
Uzzell v. Friday, 547 F.2d 801 (4th Cir. 1977) ............22,32

Citations vii

Pages
Village of Arlington Heights v. Metropolitan District 

Housing Authority, 429 U.S. 252 (1977)................. 28, 62

Ward v. Winstead, 314 F.Supp. 1225 (N.D.Miss. 1970) 31
Washington v. Davis, 426 U.S. 229 (1976)...................28,41
Weiner v. Cuyahoga Community College District, 19 

Ohio St.2d 35, 48 Ohio Ops.2d 48, 249 N.E.2d 907,
cert, denied, 396 U.S. 1004 (1970)........................... 43

Wiener v. United States, 357 U.S. 349 (1958) ........ 9, 60, 61

Constitutions

California Constitution, art. I, § 21, now art. I,
§ 7(h) ............................... -........................................2,3,4

United States Constitution, Fourteenth Amendment passim

S tatutes

15 U.S.C. § 631 et seq..................................................  49
20 U.S.C. § 1134 et seq................................................  46
20 U.S.C. § 1232i..........................................................  39
20 U.S.C. § 1232i(a) ...................................................  40
20 U.S.C. § 1601 et seq................................................  45
28 U.S.C. § 1257(3) ..................................................... 9,59
42 U.S.C. § 295f(a) ..................................................... 39
42 U.S.C. § 1973 et seq.................................................. 33
42 U.S.C. § 1983 .......................................................... 17, 22
42 U.S.C. § 1988 ..........................................................  22
42 U.S.C. § 2000a-3(a) .................................................  20
42 U.S.C. § 2000b-2......................................................  20
42 U.S.C. § 2000c-8............................-.........................  20
42 U.S.C. §§ 2000d-2000d-6 (Title VT, § 601 et seq. of

the Civil Rights Act of 1964, as amended) ..........passim
42 U.S.C. § 2000e-2......................................................  40



Citationsviii
Pages

42 U.S.C. § 2000e-2(a) .................................................  8
42 U.S.C. § 2000e-2(a) (1) ............................. -.............  8
42 U.S.C. § 2000e-2(a) (2) ............................................ 41
42 U.S.C. § 2000e-2(h) ...................... -........-....-...........  41
42 U.S.C. § 2000e-2(j) ................................ - ...............2G> 41
42 U.S.C. § 2000e-5(f) .............-..............-----......-.........  20
42 U.S.C. § 6701 et seq.................................................  52
45 U.S.C. § 801 et seq..............-.................. -................ 50> 51
49 U.S.C. § 1657a ........................................................ 50-51
Hill-Burton Act, former 42 U.S.C. § 291e(f) .............  I4
National Science Foundation Authorization Act, 1977,

Pub.L. No. 94-471, 90 Stat. 2053 (1976)................... 45
Title IX of the Education Amendments of 1972, Pub.

L. No. 92-318, 86 Stat. 235, §§ 901-905 ..... ............... 22

R egulations

13 C.F.R. § 124.8-1 (c)(1) (1976) ......................... -..... 49
45 C.F.R. pt. 80 (1976) ...............................................  7,33
45 C.F.R. §80.3(a) (1976) ..........................................  33
45 C.F.R. § 80.3(b)(1) (1976) ...................................  33
45 C.F.R. § 80.3(b) (2) (1976) ...................................  36
45 C.F.R. §80.3 (b)(6) (1976) ......................................  36
45 C.F.R. § 80.3(b) (6) (i) (1976) ................................34,36
45 C.F.R. § 80.3(b) (6) (ii) (1976) ................ 7,33,35,37,39
45 C.F.R. § 80.5(c) (1976) ..........................................  34
45 C.F.R. § 80.5(i) (1976) ..........................................34> 36
45 C.F.R. §80.5 (j) (1976) ................................ 35,36,37,39
Revised Rules of the Supreme Court of the United 

States, rules 23(1) (c), 24(1) and (4), 40(1) (d)(2) 
and 40(3) .................................................................  G0

Citations ix

Pages
L egislative Materials

109 Cong. Rec. 11161.....................................................  15
110 Cong. Rec., various pages ..............18,19, 20, 21, 23,24,

25, 26, 64
117 Cong. Rec. 31981...................................................  48
117 Cong. Rec. 32111-12 .............................................. 48
122 Cong. Rec. H4316 (daily ed. May 12, 1976) ......  40
123 Cong. Rec. 111436 (daily ed. Feb. 24, 1977) ......  53
Hearings on II.R. 6890, 87th Cong., 2d Sess. before the

Subcommittee on Integration in Federally Assisted 
Public Education Programs of the House Commit­
tee on Education and Labor.................................... 13-14

II.R. Conf. Rep. No. 94-1701, 94th Cong., 2d Sess. 177,
243, reprinted in [1976] U.S. Code Cong. & Ad.
News 4877, 4944 .......................................................  40

II.R. Rep. No. 93-1178, reprinted in [1974] U.S. Code
Cong. & Ad News 4500 .............................................. 50

II. Rep. No. 914, 88tli Cong., 2d Sess., reprinted in
[1964] U.S. Code Cong. & Ad. News 2391 ..............17, 64

Title VI of II.R. 7152, reprinted in Hearings before 
Subcommittee No. 5 of the House Committee on the 
Judiciary, 88th Cong., 1st Sess., 659 .....................  16

E xecutive Orders

Executive Order 11246, 30 Fed.Reg. 12319, as amend­
ed, 32 Fed.Reg. 14303, 34 Fed.Reg. 12985 ...... 42,43,47

Executive Order 11625, 36 Fed.Reg. 19967 (1971) ..... 50

Miscellaneous

Aristotle, Nicomacliean Ethics (bk. X, ch. 8) ............ 11
Association of American Medical Colleges, Medical 

School Admission Requirements U.S.A. and Canada, 
annual eds. 1973-74 through 1978-79 38



X Citations

Pages
Association of American Medical Colleges, Minority 

Student Opportunities in United States Medical 
Schools, annual eds. 19G9-70 through 1971-72 ......  38

Brief Amicus Curiae for American Medical Colleges.. 36 
Brief Amicus Curiae for Association of American Law

Schools .....................................................................  3(5
Brief for United States Amicus Curiae..................... 49
Carnegie Commission on Higher Education, A Chance

to Learn 12-13 (1970) ................................................ 27
Comment, The Philadelphia Plan, 39 U.Chi.L.Rev.

723 (1972) ................................................................ 48
Legislative History of Equal Employment Oppor­

tunity Act of 1972 (G.P.O. 1972) ....................  .47-48

H.imwtwirTiiinnrm i -tarath* •: w

IN THE

jiitpmtte (imtri of tlje JIntfcit plates
October Term 1977

No. 76-811

T he R egents oe the U niversity of California,
Petitioner,

vs.
A llan B akke,

Respondent.

o n  w r it  o f  c e r t io r a r i to  t h e  s u p r e m e  c o u r t  
OF THE STATE OF CALIFORNIA

SUPPLEMENTAL BRIEF FOR PETITIONER

This brief is submitted by the petitioner pursuant to the 
order of the Court entered on October 17, 1977, directing 
each party “to file within 30 days a supplemental brief 
discussing Title VI of the Civil Rights Act of 1964 as it 
applies to this case.”

STATUTE INVOLVED
Title VI of the Civil Rights Act of 1964, as amended, 

42 U.S.C. §§ 2000d-2000d-6, is reprinted in Appendix A, 
infra.

The Department of Health, Education and Welfare has 
issued regulations pursuant to section 602 of Title VI, 42 
U.S.C. § 2000d-l. The regulations are reproduced as Appen­
dix B, infra.



2
QUESTIONS PRESENTED

1. Whether Title VI of the Civil Rights Act of 1964, 
like the Equal Protection Clause, permits professional 
schools receiving federal funds to take race into account 
in admissions in order to provide minority groups with 
more nearly equal educational opportunities, thereby re­
ducing racial injustice and achieving other compelling 
educational, professional and social purposes.

2. Whether respondent is barred from pressing a new 
independent claim under Title VI by his prior conduct of 
the action.

STATEMENT
In his complaint filed in California Superior Court 

respondent attempted to state a cause of action under the 
Equal Protection Clause, the California Constitution and 
Title VI of the Civil Rights Act of 1964. All three con­
tentions were lumped together in a single cause of action 
as if there were only one legal theory (R. 3):

. .. plaintiff has been invidiously discriminated against 
on account of his race in violation of the Equal Pro­
tection Clause of the Fourteenth Amendment to the 
United States Constitution, the Privileges and Im­
munities Clause of the California Constitution (Art. 
1, sec. 21), and the Federal Civil Rights Act (42 
U.S.C. sec. 2000(d).).

The only allegation of fact specially relevant to Title 
VI was that the Medical School at Davis “is supported 
by public funds and tax monies and receives federal finan­
cial assistance.” (R. 2). There was no allegation that the 
plaintiff had exhausted administrative remedies or that 
the effort would be futile.

MB ; .a.-.-. '

3
The answer and cross-complaint filed by the University, 

both in its original form and as amended, admits that 
the school “is supported by public funds and tax monies 
and receives federal financial assistance” (R. 11, 14, 24, 
29). Neither party submitted evidence to particularize 
these averments.

Several letters contained in a bundle of assorted cor­
respondence attached to a deposition indicate that the 
plaintiff filed a complaint with the Department of Health, 
Education and Welfare. (R. 191, 277-281.) No evidence 
was offered to show whether the complaint was still pend­
ing or what had been its disposition.

The plaintiff’s legal memorandum in support of the 
application for immediate relief did not refer to Title 
VI (R. 97-111).

The opinion of the trial court (Notice of Intended 
Decision) noted the mention of the Civil Rights Act in 
the complaint but discussed the issues exclusively in fed­
eral constitutional terms (R. 286-308). In an addendum to 
the Notice of Intended Decision, the court observed (R. 
384):

. . .  in the original opinion, no reference was made as 
to whether the special admissions program in question 
violates Article 1, Section 21, of the California Consti­
tution or 42 U.S.C. § 2000(d), a part of the Federal 
Civil Rights Act, as alleged by the plaintiff, and as 
requested by defendants. This was because all of 'plain­
tiff’s oral argument and written memoranda were 
directed to a consideration of the Fourteenth Amend­
ment to the U.S. Constitution. The Court concludes 
that the same reasoning as set forth in the original 
opinion applies equally to the California constitutional 
provision above mentioned and to the Federal Civil 
Rights Act. (Emphasis supplied)

i



4
Upon the basis of the averments in the complaint., answer 

and cross-complaint, the trial court found (R. 387) that 
the University has

full powers of organization and government over the 
University of California, a public trust, including the 
Medical School of the University of California at 
Davis, which is supported by public funds and tax 
monies and receives Federal financial assistance.

And the court ruled (R. 391) that the Task Force pro­
gram “does violate the Fourteenth Amendment to the 
United States Constitution, Article 1, Section 21 of the 
California Constitution, and the Federal Civil Rights Act 
(42 U.S.C. § 2000(d)).”

No separate significance was attached to the Civil Rights 
Act in the Supreme Court of California. Plaintiff’s initial 
brief (p. 14) before that court explicitly stated that he 
viewed the state and Title VI claims as presenting no 
issue independent of the Equal Protection Clause. Plain­
tiff’s reply brief (p. 2) reiterated this position:

This case also involves the application of the privi­
leges and immunities clause of the California Con­
stitution (Art. 1, § 21) and the Federal Civil Rights 
Act of 1964 (42 U.S.C. § 2000 [d]). Because those 
provisions parallel the fourteenth amendment, we do 
not separately discuss them. We confine our dis­
cussion herein to the scope of the equal protection 
clause.

In this Court neither petitioner nor respondent placed 
the slightest reliance upon Title VI until its potential 
application was suggested by questions during oral argu­
ment. Counsel for petitioner took the position that Title 
VT was not properly before the Court as a separate issue 
(Transcript of Oral Argument pp. 21-25). Counsel for

5
respondent on the spur of the moment apparently at­
tempted for the first time to place independent reliance 
on Title VI (id. at 68-72), a position he had disclaimed 
in the courts below. Because the parties are now filing 
simultaneous briefs, the University is unaware of the posi­
tion that respondent will now take as to Title VI.

Thereafter the Court entered the order quoted above.

SUMMARY OF ARGUMENT
I

Title VI was a product of the conditions confronting 
the nation in 1964. Generations of hostile discrimination, 
de jure as well as de facto, had condemned black people 
and other racial minorities to the stigma of inferiority; 
isolated them in barrios and ghettos and on Indian reserva­
tions ; denied them equal education and access to the more 
rewarding occupations and thus withheld from succeeding 
generations the examples which stimulate self-advance­
ment through education to the learned professions. The 
Civil Rights Act of 1964, of which Title VT is an integral 
part, sought to remove such barriers—to provide the min­
orities victimized by racial discrimination with equality of 
access to the ballot, to public education, to places of public 
accommodation, to employment and membership in labor 
organizations, and to higher education and the benefit of 
other programs supported by federal funds.

The Equal Protection Clause leaves State universities 
and professional schools free, like private institutions, 
to adopt remedial race-conscious admissions policies afford­
ing minorities more nearly equal access to higher education 
and the learned professions. Title VI is no different. Such 
policies do not discriminate “on the ground of race [or] 
color” in violation of Title VI, because neither the policies



6
nor the selections for admission rely upon race or color 
per se out of hostility, prejudice or a racially selfish or 
arbitrary preference. The ground of the decision is not 
race or color but the educational, professional and remedial 
objectives. To read Title VI to deprive minorities of the 
increased access to higher education and the professions 
which the universities might otherwise voluntarily affoid 
would not only stand the Civil Rights Act of 1964 on its 
head; it would turn a charter of liberty into an instrument 
of exclusion from opportunities central to American life.

The structure and legislative history of Title VI reveal 
particular purposes consonant with the basic policy of the 
Civil Rights Act. The aim was to tie federal funding to 
compliance with Equal Protection standards proscribing 
racial discrimination against historically oppressed and 
alienated minorities. Section 601 Avas consistently described 
as a general declaration of policy paraphrasing constitu­
tional obligations. Section 602, which was perceived as the 
only operative section and a limitation upon section 601, 
directed the withdrawal of funds by the funding agency, 
subject to the judicial revieAv authorized by section 603, 
if the agency Avere unable to induce voluntary compliance.

Title VI contains no explicit grant of a private right 
of action such as Congress created in other titles. The 
sponsors Avere explicit in describing this omission. No neAv 
authority to sue was conferred upon any government 
agency. These omissions confirm the independent evidence 
of a general congressional understanding that Title VI 
Avould simply gear the administrative machinery to ensure 
that federally financed activities are conducted in accord­
ance with constitutional standards of Equal Protection.

The words of section 601, read in the context of the 
purpose and the legislative history, aptly paraphrase the

3

7
antidiscrimination principle of the Fourteenth Amendment. 
They proscribe any use of race which carries a racial slur 
or stigma or Avhieh treats an individual as better or worse 
or more deserving or less deserving because of his race as 
such. Not race but the educational, professional and reme­
dial objectives served by giving the minority groups more 
nearly equal access to higher education are “the ground” 
of the medical school’s Task Force program.

The Court proceeded on this understanding of the 
congruence betAveen Title VI and the antidiscrimination 
principle of the Equal Protection Clause in Jefferson v. 
Hackney, 406 U.S. 535 (1972). Lower federal courts have 
uniformly proceeded on the same basis. Any interpretation 
of Title VI Avhieh barred affirmative action consistent Avith 
the Fourteenth Amendment would invalidate the very 
judicial decrees requiring the elimination of dual school 
systems which Title VI Avas intended to support.

The HEW regulations issued under Title VI, 45 C.F.R. 
pt. 80 (1976), Appendix B, infra, explicitly permit affirma­
tive action to increase the educational opportunities avail- 
able to minority groups not only to correct the consequences 
of an institution’s past racial discrimination but to “over­
come the effects of conditions which resulted in limiting 
participation by persons of a particular race, color, or na­
tional origin.” 45 C.F.R. § 80.3(b) (6) (ii). The regulations, 
being expressly authorized and reasonably related to the 
purposes of the legislation, are entitled to great weight.

Judicial and administrative interpretation of the parallel 
provisions of Title VII further confirms our interpretation 
of Title VI. A long line of authority construes Title VTI 
to permit orders setting targets and requiring preferential 
hiring as a remedy for unlawful discrimination. A second 
long line of authority holds that requiring federal con-



8
tractors to recruit and employ racial minorities, even in 
the absence of a determination that the particular employer 
had previously engaged in racial discrimination, is not 
inconsistent with the prohibition against discrimination 
in employment “because of such individual’s race, color ..
42 U.S.C. § 2000e-2(a) (1). In 1972 Congress reviewed and 
revised Title VII, but rejected amendments to overturn 
these interpretations.

A series of executive and congressional measures detailed 
in our Argument implements the national policy of drawing 
the disadvantaged and isolated minority groups into the 
mainstream of American life by race-conscious measures 
designed to offset the inequality of opportunity resulting 
from previous discrimination. Plainly, Congress saw no 
inconsistency between a general condemnation of racial 
discrimination and specific affirmative action programs 
designed to afford minorities greater access to opportunities 
which they would otherwise lack because of the isolation 
and disadvantage long imposed by invidious discrimination.

The Task Force program at Davis is fully in keeping 
with the policy of Congress.

II
The cause should not be remanded to take additional 

evidence concerning the status of the Task Force program 
under Title VI.

Throughout this litigation respondent has presented 
a single contention: that his legal rights were violated 
because the minority status of some qualified applicants 
was taken into account in selecting students for admission. 
The limited preference is admitted. No other information 
about the Task Force program is required to adjudicate

9
the only claim presented, whether it be based upon Title 
VI or the Fourteenth Amendment.

For the Court to read subordinate requirements relating 
to the details of admissions programs into Title VI would 
impair the autonomy of educational institutions and of the 
States in dealing with matters properly within their 
provinces and thereby eliminate one of the great virtues 
of federalism as a source of creativity in dealing with 
complex and subtle problems.

I l l
Bespondent’s previous conduct of this action bars him 

from now pressing a new independent claim under Title VI. 
Although respondent’s papers in the courts below mentioned 
Title VI, the substance of his presentation, which was 
uniformly devoted to the Fourteenth Amendment, con­
sistently drained the formal recitals of any significance. 
Bespondent invariably asserted that Title VI required no 
separate treatment because it parallels the Equal Protec­
tion Clause. Because of this disclaimer, it cannot be said 
that “any title, right, privilege or immunity . . . under” 
Title VI was “specially set up or claimed” in any meaning­
ful sense within 28 U.S.C. § 1257(3).

Even if there is jurisdiction, the claim is barred by rules 
of practice and sound judicial administration. McGoldrick 
v. Compagnie Generate Transatlantique, 309 U.S. 430 
(1940); Wiener v. United States, 357 U.S. 349, 351 n. 1 
(1958).

Bespondent is also barred by failure to plead and prove 
exhaustion of administrative remedies. Assuming arguendo 
that a private right of action arises under Title VT, it must 
be subject to the administrative process upon which 
Congress explicitly relied.



10
ARGUMENT

I
Title VI of the Civil Rights Act of 1964 Leaves State Uni­

versities Receiving Federal Funds Free to Provide 
More Nearly Equal Educational Opportunities to 
Minority Groups for Purposes and In a Manner Con­
sistent With the Equal Protection Clause.

Introductory
The Civil Rights Act of 1904 is one of the great char­

ters of human dignity. The Act seeks to provide black 
people and other victims of racial prejudice with equality 
of access to the ballot, to public education, to places of 
public accommodation, to employment and membership in 
labor organizations, and to the benefit of programs sup­
ported by federal funds, including higher education.

The function of Title VI was and is to ensure that fed­
eral monies are not used to support invidious discrimina­
tion inconsistent with the constitutional standards of 
equality established by the Fourteenth Amendment. Title 
VI, like the Fourteenth Amendment, seeks to achieve 
equality of opportunity regardless of race, not as a philo­
sophical abstraction but as a vital human condition. To 
read Title VI as barring efforts to make equality of oppor­
tunity a reality would be to allow blind allegiance to a 
formalistic abstraction of equality to preclude any chance 
at real equality. “In the field of moral action truth is 
judged by the actual facts of life, for it is in them that 
the decisive element lies. So we must examine the con­
clusions we have reached so far by applying them to the 
actual facts of life; if they are in harmony with the facts, 
we must accept them, and if they clash, we must assume

that they are mere words.” Aristotle, Nicomacliean Ethics 
(bk. X, ch. 8).1

Members of Congress are too pragmatic to permit us to 
suppose that they ignored the conditions confronting the 
nation in 1964. Individuals belonging to minorities long 
victimized by racial discrimination did not have real equal­
ity of opportunity in 1964, and all too often they do not 
have it today. Generations of hostile discrimination, de 
jure as well as de facto, condemned them to the stigma 
of inferiority: subjected them to inferior education; 
isolated them in barrios and ghettos and on Indian reserva­
tions; denied them access to the more rewarding occupa­
tions and thus withheld from succeeding generations the 
examples which stimulate self-advancement through educa­
tion to the learned professions. Those barriers must be 
eliminated if reality is ever to approach the philosophical 
ideal. Because the barriers were imposed by race, their 
consequences are associated with race; and race must be 
used to define the scope of the effective remedies.

The framers of the Civil Rights Act cannot have been 
blind to these facts. They cannot rationally be supposed 
to have required the recipients of federal funds to ignore 
reality and to refrain from any voluntary remedial meas­
ures consistent with Equal Protection which the recipients 
might otherwise be willing to undertake. The words in 
section 601 prohibiting exclusion, denial of benefits or

1. Compare the observation of Justice Brennan, joined by Jus­
tice Marshall, in General Electric Co. v. Gilbert, 429 U.S. 125, 159 
(1976) (dissenting opinion) :

fin Lau v. Nichols] a unanimous Court recognized that dis­
crimination is a social phenomenon encased in a social context 
and, therefore, unavoidably takes its meaning from the de­
sired end-products of the relevant legislative enactment, end- 
products that may demand due consideration to the unique­
ness of “disadvantaged” individuals.



12
other discrimination “on the ground of race [or] color” 
pick up the antidiscrimination principle of the Fourteenth 
Amendment, i.e. they condemn discrimination which im­
parts a racial slur or stigma or which treats an individual 
as better or worse or as more deserving or less deserving 
than another solely by reason of his race or color as such. 
Under the Task Force program there is no reliance upon 
race or color per se out of hostility, prejudice, or a racially 
selfish or arbitrary preference. Race is used only to define 
the scope of a program for correcting ills caused by, and 
in the first instance measured by, distinctions of race. Not 
only minority students but all students benefit from the 
inclusion of minorities in the student body. The entire 
medical profession and the entire legal profession benefit, 
as does the whole community, when the profession is truly 
open to the whole community. Whether the judgment 
required by section G01 be based upon inquiry into the sub­
jective motivation of the faculty and admissions commit­
tee, or upon inferences drawn solely from objective conduct, 
or upon a weighing of the relative significance of the 
dangers of race-conscious choices and the benefits of equal­
izing opportunities, the ground of the admissions policy 
at Davis and of the selections made thereunder was not 
racial prejudice or preference but the educational, profes­
sional and social benefit of all whom the school could reach.

The Equal Protection Clause leaves state universities 
and professional schools free to adopt race-conscious ad­
missions policies affording minorities more nearly equal 
access to higher education and the professions, where 
necessary to achieve such objectives, bringing an increased 
measure of racial justice to a society still marred by the 
consequences of racial injustice. To read Title VT as 
operating to take away this freedom not only from state

13
but also from private universities as the price of accepting 
federal funds—and thus to deprive minorities of the in­
creased access to higher education and the professions 
which universities might • otherwise voluntarily afford— 
would not only stand the Civil Rights Act of 1964 upon its 
head; it would turn a charter of liberty into an instrument 
of exclusion from opportunities central to American life.

The structure and legislative history of Title VI reveal 
particular purposes more consonant with the basic policy 
of the Civil Rights Act.

A. The evolution of Title VI reveals the core congressional pur­
pose to tie federal funding to compliance with Equal Protec­
tion standards and not to create new standards or new causes 
of action.

In the early 1960’s racial segregation and discrimination 
violating the Fourteenth Amendment were common in thou­
sands of school systems, hospitals and welfare programs 
supported by federal financial assistance. School desegre­
gation was slow and painful. The only remedy, suits by 
parents and children, imposed heavy burdens on the federal 
courts. Many of the most recalcitrant school districts were 
operating with heavy federal financial support received as 
construction grants or as compensation for the “impact” 
of the families of soldiers, sailors and other federal per­
sonnel. There was much criticism of the continued payment 
of federal monies to districts resisting the plain constitu­
tional mandate of Brown v. Board of Education, 347 U.S. 
483 (1954). Then IIEW Secretary Ribicoff answered con­
gressional critics with the explanation that he had no 
power under then-existing law to withhold funds appro­
priated for the school districts by the Congress. Hearings 
on H.R. 6890, 87th Cong., 2d Sess. before the Subcommittee 
on Integration in Federally Assisted Public Education



14
Programs of the House Committee on Education and 
Labor, 14-15, 18, 20-21, 32, 37-38. The Secretary urged 
Congress to exercise its responsibility by enacting legisla­
tion (Id. at 21, 32):

Secretary Ribicoff. Congressman, you people control 
the purse strings. You vote the impacted money in 
Congress. You vote us the money and say, “(live it 
out.” As far as I am concerned, our Department listens 
to the voice and the instructions of the Congress of the 
United States.

You control the purse strings and you can determine 
how the money is spent. And this is a congressional 
problem and not an administrative problem. You can 
determine under what conditions the money is paid out.

T say to you that if you give me the authority, if 
Congress gives me the authority, we will act under that 
authority. But if you do not give me the authority, I 
cannot act and I must obey the law of the land and the 
law of the land is as Congress gives it to me.

Segregation and other forms of discrimination against 
black people were frequent in other activities Avliolly or 
partly financed by the federal government. Discrimination 
was rife, for example, in hospitals built with federal aid. 
Food stamp programs suffered from similar abuse. In some 
instances—for example, in the Hill-Burton Act, former 
42 U.S.C. § 291e(f) (1958)—an administrative cut-off of 
funds was implicitly barred by a provision approving pay­
ments to build separate but equal facilities. Under other 
acts the agency’s power to withhold funds was doubtful at 
best, for the legislative history showed that antidiscrimina­
tion amendments had been rejected.

On June 19,1963, President Kennedy addressed the prob­
lem by a message proposing the legislation which, after 
amendment and revision, became the Civil Rights Act of

15
1964. The message proposed that Congress grant executive 
departments and agencies authority to cut off federal funds 
used in programs violating constitutional rights of blacks 
(109 Cong. Rec. 11161):

v. Federal Programs
Simple justice requires that public funds to which all 

taxpayers of all races contribute, not be spent in any 
fashion which encourages, entrenches, subsidizes or 
results in racial discrimination. Direct discrimination 
by Federal, State or local governments is prohibited by 
the Constitution. But indirect discrimination, through 
the use of Federal funds, is just as invidious; and it 
should not be necessary to resort to the courts to pre­
vent each individual violation. Congress and the Exec­
utive have their responsibilities to uphold the Constitu­
tion also . . . .

*  *  *

Instead of permitting this issue to become a political 
device often exploited by those opposed to social or 
economic progress, it would be better at this time to 
pass a single comprehensive provision making it clear 
that the Federal Government is not required, under 
any statute, to furnish any kind of financial assistance 
—by way of grant, loan, contract, guaranty, insurance, 
or otherwise—to any program or activity in which 
racial discrimination occurs.

The message plainly equates the discrimination at which the 
legislation would be aimed with violations of the Equal 
Protection Clause.

The administration bill introduced in Congress on the 
day following the message became, after amendment and 
revision, the Civil Rights Act of 1964. Three strands of 
thought run through the legislative history of Title VI, and 
are clearly reflected in the title’s substance and structure:

(1) The policy declared in section 601 is a paraphrase of



16
the constitutional antidiscrimination principle embodied in 
the guaranty of Equal Protection.

(2) Section 601 is a declaration of policy whose sole 
function is to guide executive departments and agencies in 
implementing the operative provisions of Title VI, which 
call for the issuance of regulations, efforts to obtain volun­
tary compliance and, if necessary, the use of the govern­
ment’s legal remedies and the cutoff of federal funds.

(3) Section 601, standing alone, is to create no private 
right of action.

At the outset Title VI was a single paragraph containing 
two authorizations: (1) it gave discretion to federal 
agencies to withhold financial assistance when individuals 
actually or potentially under a federally-assisted program 
are subjected to discrimination “on the ground of race, 
color, religion or national origin;” (2) it empowered the 
President to prescribe conditions to be included in contracts 
for federal aid barring discrimination in employment.2

2. Title VI of II.Jt. 7152 as introduced in the Eighty-eighth 
Congress, 1st Session, read:

Notwithstanding any provision to the contrary m any law 
of the United States providing or authorizing direct or indi­
rect financial assistance for or in connection with any program 
or activity by way of grant, contract, loan, insurance, guar­
anty, or otherwise, no such law shall be interpreted as requir­
ing" that such financial assistance shall be furnished in cir­
cumstances under which individuals participating in or bcne- 
fitting from the program or activity are discriminated against 
on the ground of race, color, religion, or national origin or 
are denied participation or benefits therein on the ground 
of race, color, religion, or national origin. All contracts made 
in connection with any such program or activity shall con­
tain such conditions as the President may prescribe for the 
purpose of assuring that there shall be no discrimination in 
employment by any contractor or subcontractor on the ground 
of race, color, religion, or national origin. The bill is reprinted 
in Hearings before Subcommittee No. 5 of the House Com­
mittee on the Judiciary, 88th Cong., 1st Sess. p. 659.

17
There were no other provisions. At this stage, therefore, 
Title VI dealt only with stopping the expenditure of federal 
funds to support denials of racial equality. It proposed no 
legal rights or duties beyond those already existing under 
the Constitution and 42 U.S.C. § 1983.

The House Judiciary Committee revised Title VI but did 
not change the essence of the plan. It directed the agencies 
to enforce section 601 but (1) left the cut-off provisions 
discretionary; (2) directed the issuance of implementing 
regulations by the agency, with Presidential approval; and 
(3) subjected any agency termination of assistance to judi­
cial review. H. Rep. No. 914, 88tli Cong., 2d Sess., reprinted 
in [1964] U.S. Code Cong. & Ad. News 2391, 2400-01. Thus, 
Title VI of the Committee bill was the same in structure and 
material substance as Title VI of the enacted statute. Sec­
tion 601 now as then “states the general principle” of non­
discrimination. Id. at 2401. Section 602 now as then “directs 
each Federal agency administering a program of Federal 
financial assistance . . .  to effectuate the principle of Section 
601___” The agency is to seek to effect compliance by volun­
tary means, but if a recipient of funds refuses, it is to cut off 
funds or employ other means of obtaining compliance 
authorized by law. Section 603 provided for judicial review 
of agency action under section 602. In essence, Title VI

“declares it to be the policy of the United States that 
discrimination on the ground of race, color, or national 
origin shall not occur in connection with programs and 
activities receiving Federal financial assistance and 
directs and authorizes the appropriate Federal depart­
ments and agencies to take action to carry out this 
policy.” Id. at 2400.

Both the obvious interrelationship between sections 601 
and 602 and the Committee’s description make it plain that



18
the general principle of section C01 is stated solely to inform 
administrative action. If section 601 had been intended by 
itself and without agency action to create new legal rights 
and duties, the committee would hardly have described it 
only as a “declaration of policy.” Section 601 was treated 
as wholly dependent upon section 602 in other phases of the 
debate. When critics of the bill expressed concern that Title 
VI would reach the actions of all banks whose deposits were 
insured by the Federal Deposit Insurance Corporation, and 
even the actions of all homeowners and land developers who 
had received loans as the result of a repayment guarantee 
by the Veterans’ Administration or the Federal Housing 
Administration, Representative Celler, who was the Chair­
man of the House Judiciary Committee which had reported 
the bill, offered an amendment Avhereby the words “contract, 
or loan” in section 602 would be changed to “loan, or con­
tract other than a contract of insurance or guaranty.” He 
explained (110 Cong. Rec. 2500):

In order to make crystal clear that guarantees and 
insurance are not in title VI we are offering this 
amendment, and only contracts not connected with 
insurance, not connected with guarantees are included.

The limitation could be “crystal clear” only if section 
602, where the amendment was put, was the only operative 
section with section 601 simply a predicate for administra­
tive action. Senator Gore raised a question about this in 
the Senate debate (110 Cong. Rec. 13132):

There still remains the question of whether the broad 
language of section 601 is fully limited by the language 
of section 602. If the provisions of 601 are not so 
limited, as I believe to be the case, then section 601 
might well be interpreted as conferring statutory 
authority which might be implemented by means other 
than those prescribed by section 602.

19
Senator Humphrey, the floor manager, replied (110 Cong. 

Rec. 13378):
First of all, section 601 states general policy. Section 
602 states the means of effectuating that general policy, 
the implementation and the exclusion. The exclusion 
relates to, as the language says, other than a contract 
of insurance or guarantee. So FDIC-—Federal Deposit 
Insurance Corporation—and all activities pertaining, 
thereto are eliminated. The Federal Housing Admin-1 
istration is eliminated. So let us not have any more) 
talk about that.

When the opposition continued to press the point, Senato 
Pastore, a sponsor of the Act with special responsibilit; 
for Title VI, replied (110 Cong. Rec. 13435):

Mr. President, frankly, I  think what we are beginning 
to do is kick a dead horse. The trouble with the spon­
sors of the present amendment is that they are not 
reading title VI as a whole. . . .
Section 602 is just as much a part of title VI as is 
section 601. Section 601 is a statement of policy. Sec­
tion 602 is the section that gives authority to the 
agencies. . . . # * #
I am saying to Members of the Senate that what the 
Senator from Louisiana has pointed out to us as a 
possibility under section 601, can never happen

/->£ -iirViof io  c+ntprl i n  s p p t i n n  602.

Later, any possibility of the perverse interpretation 
which worried opponents was shut off by the addition of 
section 605, 42 H.S.C. § 2000d-4, which explicitly excepts 
federal assistance by insurance or guaranty. The previous 
debate reveals, however, a clear understanding that the 
sole function of section 601 would be to lay a predicate 
for administrative action under section 602.



20
The interrelation between sections 601 and 602 becomes 

even plainer as one notes wliat Title VI says and what 
it omits with respect to enforcement. Section 602 directs 
the funding agencies “to effectuate” the policy declared 
in section 601. Section 602 further provides that compliance 
“may be effected” by cutting off funds or by “any other 
means authorized by law.” The compliance to be effected, 
however, is not compliance with section 601; it is Com­
pliance with any requirement adopted pursuant to this 
section . . .,” i.e., pursuant to section 602. The quoted 
phrase is repeated in the penultimate sentence of section 
602.

Title VI makes no new provision for actions by either 
individuals or the government to enforce section 601. The 
omission cannot be explained away as inadvertence. Those 
titles of the Civil Rights Act of 1964 which create new legal 
obligations contain provisions conferring private rights 
of action. Title II, section 204, 42 U.S.C. § 2000a-3(a) (dis­
crimination in places of public accommodation); Title III, 
section 303, 42 U.S.C. § 2000b-2 (public facilities); Title IV, 
section 409, 42 U.S.C. § 2000c-8 (discrimination in public 
education); Title VII, section 706, 42 U.S.C. § 2000e-5(f) 
(equal employment opportunity).3 No one could miss the 
contrasting omission from Title VI.

The omission was pointed out by sponsors of the measure 
during the Senate debate. After describing the role which 
Senator Ribicoff and he had in revising Title VI of the 
original bill in consultation with the Department of Justice, 
Senator Keating said (110 Cong. Rec. 7065):

Parenthetically, while we favored the inclusion of the 
right to sue on the part of the agency, the State, or

3 In  Titles I I I  and IV, private suits are expressly authorized 
even though no new substantive obligations may have been created.

21
the facility which was deprived of Federal funds, we 
also favored the inclusion of a provision granting the 
right to sue to the person suffering from discrimina­
tion. This was not included in the bill.4

Representative Gill, in emphasizing the restraint with 
which Title VI had been drafted, had previously explained 
to the House of Representatives (110 Cong. Rec. 2467): 

Nowhere in this section do you find a comparable 
right of legal action for a person who feels he has been 
denied his rights to participate in the benefits of 
Federal funds. Nowhere. Only those who have been 
cut off can go to court and present their claim.6

The deliberate omission, the contrast with other titles 
and the legislative history show that Title VI does not give 
rise to legal rights enforceable by private action.6

4. Later Senator Keating gave a similar but somewhat less ex­
plicit description. 110 Cong. Rec. 9112.

5. By defeating the Meador amendment the House rejected a 
proposal authorizing private actions but the inference to be drawn 
is not very strong because the Meador amendment would not have 
allowed the cut-off of financial assistance after the recipient had 
signed a contractual undertaking to refrain from racial discrimi­
nation. 110 Cong. Rec. 2494, 2497.

6. The omission of an express right of action, the explicit leg­
islative history, the provision of administrative machinery and the 
explained relationship between sections 601 and 602 would seem 
to bring the case within such recent decisions as Cort v. Ash, 422 
U.S. 66 (1975); Securities Investor Protection Corp. v. Barbour, 
421 U.S. 412 (1975); National Railroad Passenger Corp. v. Na­
tional Ass’n of Railroad Passengers, 414 U.S. 453 (1974).

Lau v. Nichols, 414 U.S. 563 (1974), is not to the contrary. Al­
though some lower courts have misinterpreted the decision, plain­
tiffs’ standing in Lau was not disputed. Insofar as the claim of 
standing was related in any way to Title VI, the claim was made 
as beneficiaries of the federal funding contract. See id. at 571, n. 2 
(concurring opinion).
There are lower court decisions citing Lau v. Nichols as authority 
for a private right of action. E.g., Serna v. Portalcs Municipal 
Schools, 499 F.2d 1147 (10th Cir. 1974), Rios v. Read, 73 F.R.D. 
589 (E.D. N.Y. 1977). The issue has been thoroughly considered 
upon full briefing only in the Seventh Circuit, where it was held



22
Both the omission of any express private right of action 
and the treatment of section G01 as a general declaration 
of policy laying the foundation for administrative action

that there is no private right of action under the parallel act, Title 
IX of the Education Amendments of 1972, Pub. L. No. 92-318 86 
Stat. 235, §§ 901-905, prohibiting discrimination on the ground of 
sex. Cannon v. University of Chicago, 559 F.2d 1063̂  (7th Cir. 
1977). Title IX of the Education Amendments of 1972 is based on 
Title VI: it contains identical nondiscrimination language and its 
structure and enforcement mechanisms parallel those of Title VI. 
Flanagan v. President and Director of Georgetown College, 417 F. 
Supp. 377 (D.D.C. 1976) sustained an action based upon section 
601 without discussion of this point. The Eighth Circuit has as­
sumed a private right of action arguendo but noted the uncertainty 
in dismissing actions on other grounds. Chambers v. Omaha Public 
School District, 536 F.2d 222 (8th Cir. 1976); Gilliam v. City of 
Omaha, 524 F.2d 1013 (8th Cir. 1975).
Other courts have stated without analysis that section 601 gives 
a private right of action in situations in which the point was unim­
portant because the action was also grounded on the Equal Pro­
tection Clause and 42 U.S.C. § 1983. E.g., Vzzell v. Friday, 547 
F  2d 801 (4th Cir. 1977), Alvarado v. E l Paso Independent School 
District, 445 F.2d 1011 (5th Cir. 1971) ; Bossier Parish School 
Board v. Lemon, 370 F.2d 847 (5th Cir. 1967), cert, denied, 388 
U.S. 911 (1967). Player v. State of Alabama, 400 F.Supp. 249 
(M.D.Ala. 1975).
In Johnson v. County of Chester, 413 F.Supp. 1299 (E.D.Pa. 
1976) and Santiago v. City of Philadelphia, 435 F.Supp. 136, 157- 
158 (E.D.Pa. 1977) the claims alleging violations of section 601 
were dismissed upon the ground that the plaintiff failed to allege 
or prove exhaustion of administrative remedies.
In the present case respondent is barred from asserting a claim 
under Title VI by his failure to allege or prove exhaustion of 
administrative remedies. See Part I II  B, infra.
The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 
2641, 42 U.S.C. § 1988, throws no light upon the question whether 
a private action may be maintained to enforce Section 601 against 
a recipient of federal grants. The discussion in the House of Rep­
resentatives makes it entirely clear that the 1976 Act was intended 
not to affect the question. Representative Railsbacli said:

I t has been brought to my attention that by granting attor­
neys’ fees to prevailing parties other than the United States, 
Congress might implicitly authorize a private right of action 
under title VI and title IX. This is not the intent of Congress.

The relevant colloquy is quoted in Cannon v. University of Chi­
cago, supra, 559 F.2d at 1079-80.

23
under section G02 but carrying no independent legal bite 
confirm the general understanding that the antidiscrimina­
tion principle declared by section G01 is the same guaranty 
of racial equality found in the Fourteenth Amendment. 
On this understanding there was no need for new rights 
of action.

The exclusions, denials of benefits and discrimination 
declared to be against the policy of the United States 
in section 601 were uniformly treated as discrimination 
against blacks and other racial minorities (although the 
latter were less often mentioned). E.g., 110 Cong. Rec. 
24G9 (Representative Libonati),. 2720-21 (Representative 
Green), 2766 (Representative Matsunaga), 7058 (Senator 
Pastore), 7382 (Senator Young). On numerous occasions 
sponsors explained that the function of Title VI was to 
give effect to the mandate of the Constitution. This was the 
thrust of President Kennedy’s message to Congress. In 
laying the measure before the House, Representative Celler, 
the chairman of the Judiciary Committee, which reported 
the bill, explained that Title VI “would, in short, assure 
the existing right to equal treatment in the enjoyment 
of federal funds.” 110 Cong. Rec. 1519 (emphasis supplied).7

7. Representative Celler returned to the theme on a later occa­
sion (110 Cong. Rec. 2467):

In general, it seems rather anomalous that the Federal Gov­
ernment should aid and abet discrimination on the basis of 
race, color, or national origin by granting money and other 
kinds of financial aid. I t  seems rather shocking, moreover, 
that while we have on the one hand the 14th amendment, 
which is supposed to do away with discrimination since it 
provides for equal protection of the laws, on the other hand, 
we have the Federal Government aiding and abetting those 
who persist in practicing racial discrimination.
I t is for these reasons that we bring forth title VI. The enact­
ment of title VI will serve to overide specific provisions of 
law which contemplate Federal assistance to racially segre­
gated institutions.



24
Congressman Celler also filed a legal memorandum describ­
ing the constitutional bases for congressional enactment 
of Title VI. The memorandum states (110 Cong. Rec. 1527- 
1528):

[Burton v. Wilmington Parking Authority, 305 U.S. 
715 (1961)] and the general trend of authorities it 
cites, indicates that, as to many of the Federal assist­
ance programs to which title VI would apply, the 
Constitution may impose on the United States an 
affirmative duty to preclude racial segregation or dis­
crimination by the recipient of Federal aid. In exer­
cising its authority to fix the terms on which Federal 
funds will be disbursed . . ., Congress clearly has 
power to legislate so as to insure that the Federal 
Government does not become involved in a violation 
of the Constitution.

Representative Lindsay, a member of the Judiciary 
Committee and strong supporter of the measure, also 
observed (110 Cong. Rec. 2467):

Both the Federal Government and the States are 
under constitutional mandates not to discriminate. 
Many have raised the question as to whether legis­
lation is required at all. Does not the Executive already 
have the power in the distribution of Federal funds 
to apply those conditions which will enable the Fed­
eral Government itself to live up to the mandate of the 
Constitution and to require States and local govern­
ment entities to live up to the Constitution, most 
especially the 5th and 14th amendments?

He then explained that the legislation was required be­
cause of the explicit “separate but equal” provisions of 
some statutes and the defeat of antidiscrimination riders 
proposed for other legislation. Ibid. See also 110 Cong. Rec. 
2732 (Representative Dawson); 2766 (Representative 
Matsunaga).

25
When the bill first came to the Senate floor, its principal 

manager, Senator Humphrey, explained that Title VI was 
linked to existing constitutional obligations (110 Cong. 
Rec. 6544):

The purpose of title VI is to make sure that funds of 
the United States are not used to support racial dis­
crimination. In many instances the practices of segre­
gation or discrimination, which title VI seeks to end, 
are unconstitutional. This is clearly so wherever Fed­
eral funds go to a State agency which engages in 
racial discrimination. It may also be so where Federal 
funds go to support private, segregated institutions, 
under the decision in Simians v. Moses II. Cone 
Memorial Hospital, 323 F.2d 959 (C.A. 4, 1963), ceit. 
denied, March 2,1964. In all cases, such discrimination 
is contrary to national policy, and to the moral sense 
of the Nation. Thus, title VI is simply designed to 
insure that Federal funds are spent in accordance with 
the Constitution and the moral sense of the Nation.

Nowhere in the debates have we found an assertion that 
section 601 declares an antidiscrimination policy going 
beyond the Fourteenth Amendment,.8 The general under-

8 Our search did turn up one or two occasions in which oppo­
nents of the bill raised the charge that Title VI would be used to 
compel preferential action in favor of minorities. 110 Cong. Rec. 
1611 1619 (1964). The proponents of the legislation denied that 
such’action could be compelled. 110 id. at 1540. The legislative his­
tory apparently contains no discussion of voluntary programs by 
recipients of federal funds to extend increased opportunities to 
minorities. Evidently Congress had no concern about such pro­
grams and no thought that Title VI should be taken to bar them. 
This case deals, of course, with a voluntary rather than a federally- 
compelled special admissions program.
An opponent of desegregation made the only even remotely rele­
vant reference to the possibility of minority preference in the ex­
penditure of federal funds when he inquired about approval of a 
federal loan to an “all-Negro city.” Chairman Celler replied that 
he would “call that discrimination against the white folks if there



26
standing that section G01 would be used to effectuate exist­
ing constitutional obligations was repeatedly affirmed. For 
example, at the close of a major speech by Senator Pastore 
explaining Title VI, Senator Pell asked (110 Cong. Rec. 
7064):

Mr. PELL . . .  Is it not true that the philosophy of Title 
VI is already in the law! The authority is permissive. 
Title VI would merely extend it, but would not bring 
in a new concept. Is that correct.
Mr. PASTORE. That is correct.9

To interpret Title VI as incorporating the antidiscrim­
ination principles developed under the Fifth and Four­
teenth Amendments gives it the only meaning consistent 
with the legislative history. More important, perhaps, to 
interpret Title VI to allow voluntary, remedial action per­
mitted under the Fourteenth Amendment is essential to 
avoid defeating the central thrust of the Civil Rights Act 
of 1964. The aim was to remove the obstacles barring 
blacks and other minorities from full participation in 
American life. Perhaps the greatest single handicap blacks 
and other minorities face is their underrepresentation in 
higher education and the learned professions. Cf. The

is undue favoritism to the colored folks.” 110 id. at 2494 (1964)
(emphasis supplied).
The charge that preferential action could be compelled was raised 
and denied more often in relation to Title VII (see e.g., 110 Cong. 
Rec. 1518, 2560, 6549, 6553, 6563, 7382, 7420, 7711, 7738, 7800) 
(1964). For the special development in the employment area, see 
42 U.S.C. § 2000e-2(j) and the analysis of the statute’s history and 
meaning in the cases cited in Part I D of this brief and at 67 
n.67 of our opening brief. As noted in those places, Title VII lias 
repeatedly been read by the federal courts to permit race-conscious 
remedies.

9. For additional expressions of intent to ensure that federal 
funds would be spent only in accordance with the Constitution, 
see 110 Cong. Rec. 7057, 7062, 13333.

27
Carnegie Commission on Higher Education, A Chance to 
Learn 12-13 (1970). It would be unfaithful to the spirit of 
the Act to read Title VI to prohibit reducing the handicap 
by voluntary and constitutional measures.

B. Title VI permits educational institutions receiving federal 
funds to provide minority groups more nearly equal educa­
tional opportunities.

Section 601 of Title VI provides:
No person . . . shall, on the ground of race, color, or 
national origin, be excluded from participation in, be 
denied the benefits of, or be subjected to discrimina­
tion under any program or activity receiving Federal 
financial assistance.

These words, read in context, conform closely to the pur­
poses revealed by the legislative history and policy of Title 
VI: (1) to stop federal funding of State agencies, especially 
of public schools and institutions of higher education, 
which were engaging in invidious discrimination against 
black people and other minorities in violation of the Four­
teenth Amendment; (2) to give minorities equal access to 
the benefits of other federally-funded programs in accord­
ance with the standards of equality established by the 
Fourteenth Amendment.

The prohibition against various forms of discrimination 
“on the ground of race [or] color,” read in context, refers 
to a use of race or color which carries a racial slur or 
stigma or which treats an individual as better or worse or 
as more deserving or less deserving than another by reason 
of his race or color. It is hard to think of more apt legis­
lative language in which to state the constitutional anti- 
discrimination principle. Thus, the public policy declared 
by section 601 to govern the recipients of federal funds



28
and inform the administration of section G02 and section 
G03, does not by its own force go beyond standards estab­
lished by the Equal Protection Clause and expounded in 
such decisions as Washington v. Davis, 426 U.S. 229 (197G); 
Village of Arlington Heights v. Metropolitan District 
Housing Authority, 429 U.S. 252 (1977); United Jewish 
Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 
144 (1977); and Dayton Board of Education v. Brinkman, 
97 S.Ct. 2766, 2772 (1977).

The point is readily illustrated. Knowingly to exclude a 
black applicant from a federally financed program in favor 
of a white with no reason other than race or color gives 
rise to an irrebuttable or virtually irrebuttable inference 
of an “invidious” use of race. In those circumstances it is 
impossible or almost impossible to find a reason for the 
racial choice sufficient to overbalance the racial injury. 
Compare the opinion of the Court with the concurring opin­
ion of Justice Stewart in McLaughlin v. Florida, 379 U.S. 
184, 191-192, 198 (1964).

Evidence that a white applicant was knowingly excluded 
in favor of a black may give rise to a similar inference of 
invidious (including irrelevant) use of race in the absence 
of other evidence10 because of the risks inherent in any 
drawing of racial lines (Brief for Petitioner at 57-60); but 
the inference is easier to overcome, partly because the deci-

7n See McDonald v. Santa Fe Trad Transportation Co 427 
IJS  '273 (1976) (Title V II). The Court in McDonald specifically
noted (n. 8, p. 281) that: , „

Santa Fe disclaims that the actions challenged here were 
any part of an affirmative action program, see Brief for 
Respondent Santa Fe, at 19 n. 5, and we emphasize that we 
do not consider here the permissibility of such a program 
whether judicially required or otherwise prompted. Cf. Briet 
for the United States as Amicus Curiae, at 7 n. 5.

29
sion carries no racial slur or stigma in a predominantly 
white society and partly because race-conscious action 
preserving or opening opportunities for minority racial 
groups may be indispensable to “effective social policies 
promoting racial justice in a society beset by deep-rooted 
racial inequities,” United Jewish Organizations of Wil­
liamsburgh, Inc. v. Carey, 430 U.S. 144, 175 (1977) (Bren­
nan, J., concurring).

The preference given to 15 or 16 disadvantaged minority 
applicants, even standing unexplained, could hardly imply 
a racial slur but perhaps one could infer an arbitrary or 
irrelevant preference inconsistent with the ideal of racial 
equality. The full facts belie the possibility. Giving a degree 
of preference to disadvantaged minority applicants “is not

. . the equivalent of discriminatory intent,” nor does it 
imply “insult or injury to those whites who are affected 
by the [action].” United Jewish Organizations of Williams­
burgh, Inc. v. Carey, 430 U.S. 144, 180 (Stewart, J., con­
curring in judgment), 178 (Brennan, J., concurring in 
part) (1977). The Task Force program applicants were 
fully qualified when admitted; they formed only a fraction 
of the class. The program favored educationally or econo­
mically disadvantaged members of four minority groups 
and thus ran against all others; but the others were wholly 
undifferentiated on grounds of race. The general pool of 
applicants and the class selected from the pool were both 
made up, actually or potentially, of young men and women 
of every race and color, including non-disadvantaged in­
dividuals from the same four minority groups. The limited 
preference does not flow from the notion that being black, 
Chicano, Asian or American Indian is inherently better or 
worse, or makes one more deserving or less deserving, than 
anvone else. Nor was an increase in the number of minority



30
students desired because of any notion that opportunities 
should be apportioned to racial groups. The increase was 
sought:

(1) to improve medical education and the medical 
professional through the participation of men and 
women drawn from all segments of society;
(2) to reduce the separation of blacks, Cliicanos, 
Asians and American Indians from the mainstream of 
American life by drawing them into higher education 
and the professions;
(3) to demonstrate to boys and girls in still isolated 
minority groups that the historic barriers to their 
entering the medical profession raised by racial dis­
crimination have now been eliminated; and
(4) to improve medical care in the minority commu­
nities now so seriously underserved.

Thus, the Task Force program is entirely consistent 
with the words of section G01 whether the phrase “on 
ground of race [or] color” be read to require proof of an 
intent to make invidious comparisons or to require only 
proof of such use of race or color as would lead a fair- 
minded observer with full knowledge of all relevant cir­
cumstances to say that a preference for one race or color 
over another as such was the ground of the decision. The 
educational, professional and social goals are so predomi­
nant in significance that they—not a racial preference- 
form “the ground” upon which both the program and the 
individual decisions stand.

The judicial decisions sustain our view that section 601 
is a paraphrase of the antidiscrimination principle of the 
Equal Protection Clause. The Court proceeded upon this

31
understanding in Jefferson v. Ilaclcney, 406 U.S. 535 
(1972).11 The opinions expressed by other federal courts also 
treat the statutory and constitutional duties as the same. 
Taylor v. Cohen, 405 F.2d 277, 281 (4th Cir. 1968); Bossier 
Parrish School Board v. Lemon, 370 F.2d 847 (5th Cir. 
1967), cert, denied, 388 U.S. 911 (1967); Ward v. Winstead, 
314 F.Supp. 1225, 1235 (N.D.Miss. 1970); United States v. 
Tatum Ind. School District, 306 F.Supp. 285, 288 (E.D. Tex. 
1969); United States v. State of Texas, 321 F.Supp. 1043, 
1056-57 (E.D. Tex. 1970); Goodwin v. Wyman, 330 F.Supp. 
1038, 1040 n.3 (S.D.N.Y. 1971), aff’d, 406 U.S. 964 (1972);

11. Lau v. Nichols, 414 U.S. 563 (1974), is not to the contrary. 
There the complaint alleged that some 2,000 students of Chinese 
ancestry in the San Francisco schools were being denied equal edu­
cation because they were given instruction only in English, a lan­
guage which they did not understand and which the school district 
did nothing to teach them. The suit was based upon the Equal 
Protection Clause and upon the school district’s promise to “com­
ply with title VI and all requirements imposed by or pursuant to 
the Regulation,” a promise given in return for federal funds. Pur­
suant to section 602, HEW had issued regulations and a clarifying 
guideline requiring school districts to take “affirmative steps to 
rectify the language deficiency” wherever inability to speak Eng­
lish excluded national-origin minority group children from effec­
tive participation in a federally supported program of education.

The Court apparently ruled that the complaint stated a cause of 
action under Title VI, the HEW regulation, and the contractual 
agreement of the school district. Mr. Justice Stewart, with whom 
the Chief Justice and Mr. Justice Blackmun concurred, was more 
explicit. After observing that “it is not entirely clear that § 601 
of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d), standing 
alone, would render illegal the expenditure of federal funds on 
these schools,” he stated that the regulation requiring affirmative 
action to correct language deficiencies was binding because it was 
“reasonably related to the purposes of the enabling legislation.” 
Id. at 570-571. There is nothing in Lau to suggest that section 601, 
standing alone, proscribes or compels HEW  to proscribe action for 
the benefit of minorities which is permissible under the Fourteenth 
Amendment because it serves compelling public purposes.



32
N.A.A.C.P., Western Region v. Brennan, 360 F.Supp. 1006 
(D.D.C. 1973); Gilliam v. City of Omaha, 388 F.Supp. 842 
(D.Neb. 1975), aff’d, 524 F.2d 1013 (8th Cir. 1975); Uzzell 
v. Friday, 547 F.2d 801 (4th Cir. 1977) (semble); Associ­
ated General Contractors of California v. Secretary of 
Commerce, No. 77-3738 AAH (C.D. Cal. filed Nov. 2, 1977).

The single most important aim of Title VI was to with­
draw federal funds from school districts refusing to comply 
with desegregation decrees. See Part IA, supra. Those 
decrees often required race-conscious action. E.g. Green v. 
Comity School Board, 391 U.S. 430 (1968); Swann v. Char- 
lotte-Mecldenberg Board of Education, 402 U.S. 1 (1971); 
Davis v. Board of School Commissioners, 402 U.S. 33, 35 
(1971); Porcelli v. Titus, 431 F.2d 1254 (3rd Cir. 1970), 
cert, denied, 402 U.S. 944 (1971); Kelley v. Altheimer 
Arkansas Public School District, 378 F.2d 483 (8tli Cir. 
1967); Carr v. Montgomery County Board of Education, 
289 F. Supp. 647 (M.D. Ala. 1968), aff’d, 395 U.S. 225 
(1969). To interpret section 601 to declare a mandate of 
color-blindness would bar these race-conscious remedies to 
correct the effects of prior discrimination.12 The words of 
section 601 make no exception for color-conscious action 
under a judicial decree or to correct one’s own previous 
racial discrimination. On the other hand, the words of sec­
tion 601 in their most natural sense condemn only the 
“invidious” use of race or color and thus permit remedial 
action not only to correct one’s own misconduct but to

12. Even if the cases of race-conscious pupil assignment could 
he taken out from a mandate of color-blindness by a forced inter­
pretation holding that pupils assigned by race are not excluded 
from participation in, . . . denied the benefits of, or . . . subjected 
to discrimination under” an educational program, that escape is not 
available where the order requires desegregation of the faculty by 
established specified ratios by hiring, assignment and promotion 
as in the last three cases cited in the text above.

33
alleviate the consequences of pervasive societal discrimi­
nation. Congress has used language essentially indis­
tinguishable from that in section 601 in other statutes, such 
as the Voting Rights Act of 1965, 42 U.S.C. § 1973, et seq., 
which prohibits voting practices that deny or abridge the 
right of any citizen to vote “on account of race or color.” 
This Court has recognized that the use of such language 
does not prohibit race-conscious action designed to remedy 
the effects of prior societal discrimination that impaired 
minority participation. United Jewish Organizations of 
Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977).

C. The applicable administrative regulations permit educational 
institutions receiving federal funds to provide more nearly 
equal educational opportunities to minority groups.

Title VI, Section 602, 42 U.S.C. § 2000d-l, directs each 
funding agency “to effectuate the provisions of Section 601 
. . .  by issuing rules, regulations, or orders of general 
applicability. . . .”

The HEW regulations, 45 C.F.R. pt. 80, Appendix B, 
infra, explicitly permit affirmative action to increase the 
educational opportunities available to minority groups not 
only to correct the consequences of an institution’s past 
racial discrimination but to “overcome the effects of con­
ditions which resulted in limiting participation by persons 
of a particular race, color, or national origin.” 45 C.F.R. 
§ 80.3(b) (6) (ii).

The regulations, expressly authorized and reasonably 
related to the purposes of the legislation, are entitled to 
great weight. Lau v. Nichols, 414 U.S. 563 (1974); Mourn­
ing v. Family Publications Service, Inc., 411 U.S. 356, 369 
(1973).

1. Section 80.3(a) of the HEW regulations repeats the 
language of section 601. Section 80.3(b)(1) prohibits cer-



34
tain specific actions “on ground of race, color or national 
origin.” Manifestly tlie quoted phrase is taken from section 
G01 and has the same meaning. An example in section 
80.5(c) shows the regulations to apply to the admission of 
students to a graduate school which, like the Davis Medi­
cal School, receives federal grants for its general purposes.

2. New subdivisions added in 1973, 38 Fed.Reg. 17978-84, 
reflect the growing awareness that ending the legacy of 
racial repression requires affirmative race-conscious meas­
ures. A common theme—the assurance of racial equality 
not as a theory but as a fact—runs through the Equal Pro­
tection Clause, the Civil Eights Act of 1964, the new pro­
visions of the HEW regulations, and also a wealth of 
executive and legislative action from 1964 to the present 
day (pp. 44-56 infra.) The unity of purpose is further evi­
dence that the antidiscrimination principle of the Equal 
Protection Clause and Title VI is not violated by remedial 
race-conscious measures.

One subdivision new in 1973, Section 80.3(b)(6) (i), pro­
vides that a recipient which has previously engaged in 
racial discrimination

must take affirmative action to overcome the effects 
of prior discrimination.

Section 80.5 (i) specifies that in some circumstances the 
required affirmative action may be

making selections which will insure that groups pre­
viously subjected to discrimination are adequately 
served.

These provisions are utterly inconsistent with any inter­
pretation of Title VI requiring a recipient of federal finan­
cial aid to refrain from race-conscious admissions prac­
tices designed to provide more nearly equal educational

35
opportunities to minority groups still suffering the con­
sequences of prior discrimination.

But there is no need to rely upon inference. Section 
80.3(b) (6) (ii) gives express permission for such volun­
tary race-conscious action even though the recipient has 
never engaged in racial discrimination:

Even in the absence of such prior discrimination, a 
recipient in administering a program may take affir­
mative action to overcome the effects of conditions 
which resulted in limiting participation by persons 
of a particular race, color, or national origin.

Section 80.5(.i) adds by way of example:
Even though an applicant or recipient has never 

used discriminatory policies, the services and benefits 
of the program or activity it administers may not in 
fact be equally available to some racial or nationality 
groups. In such circumstances, an applicant or recipi­
ent may properly give special consideration to race, 
color, or national origin to make the benefits of its 
program more widely available to such groups, not then 
being adequately served. For example, where a univer­
sity is not adequately serving members of a particular 
racial or nationality group, it may establish special 
recruitment policies to make its program better known 
and more readily available to such group, and take 
other steps to provide that group with more adequate 
service. (Emphasis supplied)

Sections 80.3(b) (6) (ii) and 80.5(j) describe precisely the 
condition facing the nation’s medical schools, including 
Davis, when in 1968 the Association of American Medical 
Colleges established a special Task Force to expand the 
educational opportunities of “Blacks and Other Minorities,” 
and resolved that “Medical Schools must admit increased 
numbers of students from geographic areas, economic



36
backgrounds and ethnic groups that arc now inadequately 
represented.” The only way for a medical school “to make 
the benefits of its program more widely available to such 
groups” 45 C.F.R. § 80.3(b)(6), was and still is to take 
minority status into account in selecting among qualified 
applicants for admissions (Brief for Petitioner at 26-35). 
Such action must therefore be one of the “other steps to 
provide that group with more adequate service” contem­
plated by section 80.5 (j).13

It is important to observe that although sections 80.3(b) 
(6)(i) and 80.5(i) require racial awareness in admission 
to an institution which has itself engaged in racial dis­
crimination, nothing in the HEW regulations mandates

13 The interpretation is confirmed by the dilemma with which 
the HEW regulations would otherwise confront educational insti­
tutions. Section 80.3(b)(2) provides:

A recipient in determining . . . the class of individuals to 
be afforded an opportunity to participate in any such pro­
gram may not . . . utilize criteria or methods of administra­
tion which have the effect of subjecting individuals to dis­
crimination because of their race, color, or national origin, or 
have the effect, of defeating or substantially impairing accom­
plishment of the objectives of the program as respect indi­
viduals of a particular race, color, or national origin.

The exclusive use of traditional admissions criteria placing heavy 
weight upon aptitude test scores and undergraduate grade point 
averages “have the effect of” excluding a disproportionate number 
of minority applicants. The more selective the institution the 
harsher the disproportion. See Brief for Petitioner at 21-32; Brief 
for Association of American Law Schools at 27-38; Brief for Asso­
ciation of American Medical Colleges at 10-15. Whether the exclu­
sive use of conventional criteria with these effects violates section 
80.3(h)(2) may depend upon the respondent’s ability to show 
that the tests are not racially biased and that the tests and grades 
sufficiently correlate with performance in professional school. 
There is debate upon both points, as the voluminous briefs in this 
case indicate. The Davis Task Force program may fairly be de­
scribed as a measure avoiding the disproportionate impact upon 
minorities while retaining the use of the criteria which the facul­
ties deem to be fairest and most workable in other respects. Brief 
for Petitioner at 51-54.

37
affirmative action by an institution which has not engaged 
in racial discrimination. A fortiori nothing sets “quotas” 
or “targets.” Sections 80.3(b) (6) (ii) and 80.5(j) speak only 
of purely voluntary action. Consequently, this case raises 
no question about the validity under Title VI of a race­
conscious program imposed by HEW, much less of a quota 
so imposed.

The distinction has critical importance. To hold that 
Title VI allows States and private universities to adopt 
their oivn voluntary remedial admissions.policies consistent 
with the mandate of the Equal Protection Clause does not 
mean reading the title to compel or authorize HEW to 
compel the mandatory establishment of preferential admis­
sions. Nothing in the language of Title VI permits, much 
less suggests, the latter interpretation; and the Court could 
appropriately disclaim it. Any such reading would cut 
wide and deep into the freedom of States to manage the 
affairs of their institutions, and also into the academic free­
dom of all colleges and universities whether privately 
endowed or State supported. The very same concerns which 
caution against reading into Title VI a monolithic national 
barrier against voluntary efforts to find fair and workable 
means of providing equal educational opportunities to 
minorities also caution against interpreting Title VI to 
authorize HEW to establish a monolithic national rule re­
quiring quotas, targets or like affirmative action.

Special recruitment and admissions programs designed 
specifically to enhance minority access to medical schools 
were instituted by public and private medical schools across 
the country beginning in the late 1960s. These race-con­
scious programs have been supported and encouraged by 
national associations such as the Association of American 
Medical Colleges (AAMC). Such programs have been



38
widely publicized.14 The standard application form pre­
scribed by the American Medical Colleges Application

14 For the early years of these programs, descriptions of them 
were collected in the AAMC booklet Minority Student Opportu­
nities in United States Medicae Schools 1969-70 and subsequent 
annual editions through 1971-72. Since that time such descriptions 
of the programs of individual medical schools have been incorpo­
rated into the annual publication of the AAMC Medical School 
Admission Requirements U.S.A. and Canada. See id. (23d ed., 
1973-74) at 52. Examples of minority admissions programs of 
medical schools referred to in that publication (current as of the 
time of respondent’s applications to several medical schools) are 
the following:
Stanford University School of Medicine:

In 1969 the faculty of the medical school instituted a spe­
cial program for minority students from disadvantaged edu­
cational and social backgrounds. Under this program, 12 
students [out of a class of 86] of American citizenship are 
admitted to the M.D. program annually.

Id. at 103
Harvard Medical School:

Special consideration is given to minority group students 
who demonstrate the potential for successful completion of 
the medical school curriculum. Extra help is available for 
those who have difficulty in reading and math skills.

Id. at 165.
The University of Minnesota Medical School, Minneapolis:

The University of Minnesota has recently established 
a special program in medical education for minority students. 

Id. at 181.
The recent annual editions of this standard reference contain, in 
addition to the summary descriptions of programs at individual 
schools, an entire chapter devoted to “Information for Minority 
Group Students,” the current version being the 28th Edition, 
1978-79, Chapter 7, at 45-58. Among other things, this chapter 
contains the AAMC Statement on Medical Education of Minority 
Group Students adopted December 16, 1970 and information about 
the Medical Minority Applicant Registry (Med-MAR), a service 
which

. . . provides the opportunity for any medical school appli­
cant belonging to a minority group to have basic biographical 
information circulated automatically at no cost to the admis­
sions offices of all U.S. medical schools. . . .

Id. at 46.

39
Service (AMCAS) and used by most medical schools asks: 

15. Do you wish to be considered as a minority 
group applicant? R. 236.

Certainly HEW, the major federal granting agency as to 
higher education in general and medical schools in partic­
ular has been aware of these minority admissions programs 
at schools across the nation.15

The fact that HEW has never taken action directed 
against race-conscious admissions programs designed to 
enhance minority access to medical education in the face 
of knowledge of the existence of such programs in schools 
across the nation, while being responsible for administering 
large sums of federal funds granted to these schools,18 
forcefully points up that the responsible enforcement agency 
deems such programs to be consistent with Title VI and 
its regulations thereunder.

The Congress has also legislated in terms which suggest 
the absence of any intention to outlaw minority admissions 
programs or disapprove the permissive aspects of 45 C.F.R. 
§§ 80.3(a) (6) (ii) and 80.5(j). In 1076 Congress amended 
Section 440 of the General Education Provisions, 20 IT.S.C. 
§ 12321, by adding the following subsection:

(c) It shall be unlawful for the Secretary to defer or 
limit any Federal financial assistance on the basis of 
any failure to comply Avitb the imposition of quotas

15. Respondent’s November 9, 1973 complaint to HEW  was 
directed against the Davis Medical School and another medical 
school, the name of which was deleted from the copy of the com­
plaint furnished by HEW  to Petitioner (R. 281). Petitioner is 
informed that the other school named in that complaint was the 
Stanford University School of Medicine. Respondent indicated, 
prior to bringing this action, that he ivas contemplating filing suit 
against Stanford. (R. 268-69).

16. As one example, HEW makes annual “capitation” grants 
based upon enrollments to schools of medicine and certain other 
health sciences “for the support of the education programs of 
such schools.” 42 U.S.C. § 295f (a).



40
(or any other numerical requirements which have the 
effect of imposing quotas) on the student admission 
practices of an institution of higher education or 
community college receiving Federal financial assist­
ance.

Pub. L. No. 94-482, §§407, 408, 90 Stat. 2232, 2233 (1976).

Whatever may he the extent of the restriction upon the 
Secretary,17 two points are clear. One is that Congress was 
well aware of race-conscious minority admissions programs. 
The second is that Congress legislated in the area and 
carefully restricted the measure to a prohibition against 
the imposition of sanctions for failure to comply with 
governmentally imposed quotas. The conclusion is inescap­
able that Congress did not intend to interfere with voluntary 
programs to increase minority access to professional 
education.

D. Judicial and administrative interpretation of the parallel pro­
visions of Title VII further confirms the view that Title VI 
permits voluntary race-conscious affirmative action consistent 
with the Equal Protection Clause.

Title VII, section 703, of the Civil Bights Act of 1964, 
42 U.S.C. § 2000e-2 provides in part:

(a) It shall be an unlawful employment practice for 
an employer—

17. Section 440(c), 20 TT.S.C. § 1232i (a), is much narrower 
than the so-called Eshlemail Amendment, which would have barred 
“the imposition of quotas, goals or any other numerical require­
ments.” 122 Cong. Rec. H 4316 (daily cd. May 12, 1076). The 
amendment was cut hack to “quotas in the Conference Committee 
with the caveat that

The conferees wish to state that this language, by its adop­
tion, does not imply, one way or the other, that the Secretary 
does or does not possess the authority to defer or limit Fed­
eral financial assistance to institutions of higher education or 
community colleges on other grounds. 

H.R.Conf.Rep.No.94-1701, 94th Cong., 2d Sess. 177, 243, reprinted 
in [1976] U.S. Code Cong. & Ad. News 4877, 4944.

41
(1) to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin;

There are marked differences between Title VI and 
Title VII. Other subdivisions of Section 703 impose addi­
tional duties upon an employer not implicit in the language 
quoted and going beyond the obligations resting upon a 
government employer under the Fifth and Fourteenth 
Amendments. Section 703(a) (2) and (h), 42 U.S.C. § 2000e- 
2(a)(2) and (li). Compare Griggs v. Duke Power Co., 401 
U.S. 424 (1971) with Washington v. Davis, 426 U.S. 229 
(1976). Title VII also contains a proviso having no parallel 
in Title VI, which enacts.that nothing in Title VII shall be 
interpreted to require any employer to grant preferential 
treatment because of race on account of an existing imbal­
ance in its work force. Section 703(j), 42 U.S.C. § 2000e-2(j).

These differences limit the conclusions which can be 
drawn from Title VII with respect to Title VI. The words 
of section 601 and section 703(a)(1) taken by itself are 
so alike in their prohibition of racial discrimination, how­
ever, that the interpretation of section 703(a)(1) provides 
helpful guidance with respect to the extent of the prohibi­
tion imposed upon discrimination “because of . . . race” 
in section 601. Both courts and executive agencies have 
consistently interpreted section 703(a)(1) not to bar a 
variety of race-conscious employment practices designed 
to remedy the effects of previous discrimination. The con­
sistent administrative and judicial interpretation of Section 
703(a)(1) thus confirms our interpretation of similar 
language in Section 601.



42
One line of authority constnies Title VII to permit orders 

setting targets and requiring preferential hiring as a 
remedy for unlawful discrimination. At least nine circuits 
have approved such decrees. In addition to the cases cited 
on pages 67-G8 of our opening brief, see Rios v. Enterprise 
Ass’n Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974), 
collecting earlier cases. The decisions are consistent with 
the words of Section 703(a)(1) only when the words are 
read to prohibit selection involving “invidious” reliance 
upon race, or in other words, selection “because of . . . 
race” as such rather than because of the need to remedy 
previous discrimination.

A second line of authority grew out of Executive Order 
11246, 30 Fed.Reg. 12319, as amended, 32 Fed.Reg. 14303, 34 
Fed.Reg. 12985, requiring federal contractors to take affirm­
ative action to recruit and employ racial minorities even in 
the absence of a determination that the employer had pre­
viously engaged in unlawful discrimination. The order led to 
the development of specific plans for local areas under the 
auspices of the Department of Labor setting percentage 
targets for the employment of minority journeymen and 
apprentices in the construction industry; the “Philadelphia 
Plan,” for example. The executive order and ensuing admin­
istrative activity represent a nearly contemporary interpre­
tation of both Title VI and VII because an appreciable part 
of the construction work would have been covered by Title 
VI. The lower federal courts have consistently upheld Ex­
ecutive Order 11246 and its implementation in local plans 
for the construction industry, despite the argument that 
they required race-conscious hiring in violation of Sections 
601 and 703(a)(1). Contractors Ass’n of Eastern Pa. v. 
Secretary of Labor, 442 F.2d 159 (3d Cir. 1971), cert, 
denied, 404 U.S. 854 (1971): Southern Illinois Builders

43
Ass’n v. Ogilvie, 471 F.2d 680 (7th Cir. 1972); Joyce v. 
McCrane, 320 F.Supp. 1284 (D.N.J. 1970); Weiner v. Cuya­
hoga Community College District, 19 Ohio St. 2d 35, 48 Ohio 
Ops.2d 48, 249 N.E. 2d 907, cert, denied, 396 U.S. 1004 
(1970). See also Associated General Contractors of Massa­
chusetts v. Altshuler, 409 F.2d 9 (1st Cir. 1973), cert, denied 
416 U.S. 957 (1974). In Contractor’s Ass’n of Eastern Pa. v. 
Secretary of Labor, 442 F.2d at 173, the court observed:

To read § 703(a) in the manner suggested by the 
plaintiffs we would have to attribute to Congress the 
intention to freeze the status quo and to foreclose 
remedial action under other authority designed to over­
come existing evils. We discern no such intention either 
from the language of the statute or from its legislative 
history. Clearly the Philadelphia Plan is color-con­
scious. Indeed the only meaning which can be attribut­
ed to the “affirmative action” language in successive 
Executive Orders is that Government contractors must 
be color-conscious.

• # •
We reject the contention that Title VII prevents the 
President acting through the Executive Order pro­
gram from attempting to remedy the absence from the 
Philadelphia construction labor [force] of minority 
tradesmen in key trades.

What we have said about Title VII applies with equal 
force to Title VT of the Civil Rights Act of 1964, 42 
U.S.C. § 2000d et seq.

In 1972 Congress reviewed Title VII and rejected amend­
ments to invalidate Executive Order 11246 and the local 
plans for the construction industry. See Part IE, infra.

The decisions cited above require the conclusion that, to 
effectuate the basic statutory goals, Sections 601 and 
703(a)(1) are not to be read as barriers to affirmative



44
action. Just as this case raises no question of HEW’s power 
to require a minority preference in admissions—much less 
to set quotas—so we need not be concerned here with the 
further questions of statutory authority and constitution­
ality raised in Title VII cases by orders requiring employ­
ers to take affirmative action. The latter questions are so 
controversial and so different from questions concerning 
the permissibility of voluntary steps in the field of educa­
tion, for reasons pointed out at pp. 13-15 of our reply brief, 
as to suggest that the Court should neither decide nor com­
ment upon them here. For the Court to hold that voluntary 
remedial affirmative action is permissible when consistent 
with the Fourteenth Amendment would not endorse decis­
ions upholding or imposing a requirement of affirmative 
action. The difference between voluntary and mandatory 
action and the presence of the Section 703(j) proviso in 
Title VII without analogue in Title VI provide two major 
points of distinction. On the other hand, to hold that Title 
VI forbids race-conscious remedial action even when vol­
untary would logically repudiate previous interpretation of 
Title VII.

E. Subsequent legislative and executive practice shows that the 
purpose and provisions of Title VI are advanced by race­
conscious programs to counter the effects of generations of 
racial discrimination and increase minority participation in 
the opportunities of American life.

Title VI of the Civil Rights Act of 1964 was only one 
step in a continuing national effort not merely to halt 
racial discrimination but to relieve the isolation and dis­
advantage still suffered by minorities because of past 
discrimination even after the aggressive violations were 
ended. This Court lighted the first bright beacon of hope 
in Brown v. Board of Education. An important aim—in

45
shaping the Civil Rights Act of 1964 and later legislative 
and executive actions—was to draw the minority groups 
into the mainstream of American life by race-conscious 
measures designed to offset the inequality of opportunity 
resulting from previous discrimination. This national 
policy is reflected in a long series of executive and legis­
lative measures extending from 1964 until the present day 
all designed to effectuate the ideal of Equal Protection. 
All, including Title VI, must be read together. So read, 
they further demonstrate that race conscious affirmative 
action such as the Task Force program is fully consistent 
with the antidiscrimination principle in Title VI.

1. The policy of using federal funds in education to 
reduce the isolation of minority groups and offset the 
resulting disadvantage is plainly stated in the Emergency 
School Aid Act of 1972, Pub. L. No. 92-318, 86 Stat. 354, 
20 U.S.C. §1601 et seq. Section 702, 20 U.S.C. § 1601(a), 
declares the purpose of providing financial assistance to 
“the process of eliminating or preventing minority group 
isolation and improving the quality of education for all 
children.” Section 707, 20 U.S.C. § 1606(b), provides for 
expenditures for the specific purpose of “overcoming the 
adverse effects of minority group isolation, by improving 
the educational achievement of children in minority group 
isolated schools.”

2. The national policy of encouraging race-conscious 
action to draw students from minority groups into higher 
education and give them special assistance is found in 
section 7 of the National Science Foundation Authoriza­
tion Act, 1977, Pub. L. No. 94-471, 90 Stat. 2053 (1976). 
The Director of the National Science Foundation is 
required to “initiate an intensive search for qualified 
women, members of minority groups, and handicapped



4G
individuals to fill executive-level positions” in the Founda­
tion. The Director is also to make grants looking toward 
the establishment of Minority Centers for Graduate 
Education in Science and Engineering at educational 
institutions which, among other requirements, “demon­
strate a commitment to encouraging and assisting minor­
ity students, researchers, faculty . . These race-con­
scious grants can be reconciled with Title VI of the Civil 
Rights Act of 1964 only upon the understanding that Title 
VI does not bar recipients of grants from race-conscious 
remedial action designed to effectuate the over-all policy 
of the Act.

3. Congress also gave evidence of its intent in creating 
the Program for Graduate and Professional Student Fel­
lowships and Institutional Grants, 20 U.S.C. § 1134 et seq. 
Section 1134f(b) provides that in awarding fellowships 
the Commissioner of Education shall

consider the need to prepare a larger number of 
teachers and other academic leaders from minority 
groups, especially from among such groups who have 
been traditionally underrepresented in colleges and 
universities. . . .

The subdivision then goes on to state that nothing in the 
quoted Avords shall “require” any educational institution 
to grant preferential treatment to members of a minority 
group because of an existing racial imbalance. Note that 
here, again, Congress proscribed compulsion upon educa­
tional institutions but did not forbid appropriate voluntary 
action.

The regulations proposed to govern the administration 
of the program were published on October 11,1977, 42 Fed. 
Reg. 54926-930. Section 179.42(b)(1) provides for approval 
of a program if the college or university

47
(1) Gives consideration, in accepting persons into the 
program, to meeting the need to prepare a larger 
number of individuals from minority groups, especially 
from among such groups who have been traditionally 
underrepresented in colleges and universities. . . .

In validating applications the Commission is to give weight 
to the extent to which the institution seeks “to prepare a 
larger number of individuals from minorities. . . .” 42 Fed. 
Reg. 54929 (1977), § 179.44(c)(6). This factor is one of ten 
listed in the proposed regulations and represents the maxi­
mum weight—15 points. Id. The effort to draw minorities 
into higher education is further underscored by one other 
factor receiving the maximum weight which refers back to 
the same goal.

4. Executive Order 11246, discussed at pp. 42-43, re­
flects the national policy of encouraging race-conscious 
affirmative action for the benefit of underrepresented mi­
norities, especially in the detailed plans for the construction 
industry worked out by the Department of Labor. These 
activities and the decisions approving their legality demon­
strate the extent of the executive and judicial understand­
ing that race-conscious action to provide minorities with 
more nearly equal opportunities to participate in American 
life does not violate Title VI of the Civil Rights Act of 
1964 or any other statute of the United States.

Congress demonstrated the same understanding when it 
amended Title VII in 1972 after thorough review of its 
administration and also of the Office of Federal Contract 
Compliance, which administered Executive Order 11246. 
The section-by-section analysis of the amendatory legisla­
tion in the House Committee Report stated that “it was 
assumed that the present case law as developed by the 
courts would continue to govern the applicability and con­
struction of Title VII.” Legislative History of Equal Em-



48
ployment Opportunity Act of 1972 (G.P.O. 1972) 1844. 
While the bill was on the floor of the House, Congressman 
Dent offered an amendment which would have transferred 
all the functions of OFCC to the Equal Employment Oppoi- 
tunity Commission, and prohibited the Commission from 
imposing or requiring a quota or preferential treatment 
with respect to number of employees or percentages of 
employees of any race, color, religion, sex, or national 
origin. 117 Cong. Rcc. 31981, 31984 (1971). The amendment 
was defeated. Id. at 32111-12.

In the upper chamber Senator Ervin offered a series of 
four amendments attacking the executive order program 
and also the Philadelphia Plan and its counterparts. Three 
of the amendments combined this and other issues but the 
fourth was limited to proscribing the OFCC affirmative 
action programs. All four amendments were defeated. Con­
gress thereby “unequivocally approved the affirmative ac­
tion program of the executive.” Comment: The Philadel­
phia Plan, 39 U.Chi.L.Rev. 723, 757 (1972).18 The action also 
demonstrates that Congress understood there to be no in­
consistency between the thrust of the OFCC affirmative 
action programs and the policy of the United States de­
clared in the Civil Rights Act of 1964. United States v. 
Local Union N-a etc 47?LF.2d 634, 636 (6th Cir. 1973); 
Patterson v. American Tobacco Co., 535 F.2d 2o7, 267 n.5 
(4th Cir. 1976).

5. Many federal programs are specially designed to as­
sist minority groups to escape from the isolation and dis­
advantage still resulting from past discrimination. Some 
programs avoid the explicit language of race; othei s are 
explicitly limited to members of racial groups. A repre-

18. The article cited in the text contains a useful history of 
congressional debates concerning the Philadelphia Plan at 747-757.

49
sentative number are listed in Appendix A to the Brief 
for the United States on the merits. As the Solicitor Gen­
eral pointed out (p. 33), many have been funded by Con­
gress. Here again one finds a clear indication that properly 
targeted remedial programs consistent with the Equal Pro­
tection Clause do not violate the policy of the United States 
merely because their scope is defined in terms of race or 
color.

6. The administration and amendment of the Small Busi­
ness Act, 15 U.S.C. § 631 et seq., give further evidence 
that conscious assistance to members of minority groups 
in order to open opportunities denied by the consequences 
of earlier discrimination is entirely consistent with the 
policy declared in Title VI of the Civil Rights Act of 1964. 
Section 8(a) of the Small Business Act, 15 U.S.C. §637, 
as enacted in 1958, authorizes the Administration to enter 
into contracts with other departments or agencies for the 
furnishing of supplies or materials, and then to let sub­
contracts to small-business concerns for the furnishing of 
such supplies or materials, or some part thereof. In 1973 
SBA issued regulations making the program chiefly one 
for enabling minority-owned businesses to participate in 
government contracts without competitive bidding. 13
C.F.R. 124.8-l(c) (1) (1976) defines the firms eligible for 
section 8(a) subcontracts:

(c) Eligibility. To be eligible for an 8(a) subcon­
tract, a concern must be owned or destined to be owned 
by socially or economically disadvantaged persons. 
This category often includes, but is not restricted to, 
Black Americans, American Indians, Spanish Ameri­
cans, Oriental Americans, Eskimos and Aleuts.

Although the words are broader, the primary criterion 
for the program, as signaled by the regulation, apparently 
became race. See Ray Baillie Trash TTonline, Inc. v. Kleppe,



50
477 F.2d 696, 700 (5th Cir. 1973). Congress has continued 
to fund the programs.

On October 13, 1971, the President issued Executive 
Order 11625, 36 Fed. Reg. 19967-970 establishing a National 
Program for Minority Business Enterprise. Section 6(a) 
defined “minority business enterprise” to mean

a business enterprise that is owned or controlled by 
one or more socially or economically disadvantaged 
persons. Such disadvantage may arise from cultural, 
racial, chronic economic circumstances or background 
or other similar cause. Such persons include, hut are 
not limited to, Negroes, Puerto Ricans, Spanish-speak­
ing Americans, American Indians, Eskimos, and 
Aleuts.

In 1974, after full oversight hearings, Congress amended 
the Small Business Act, Pub. L. No. 93-386, 93 Cong., 2d 
Sess., 88 Stat. 742 (1974). There was no criticism of the 
administration of Section 8(a) for racial or ethnic prefer­
ence. No legislative action was taken to force a change in 
the regulations. Nor can one suppose that Congress was 
not sufficiently informed. In a separate statement accom­
panying House Report 93-1178, Congressman Mitchell said: 

. . .  I am grateful for the Committee’s action because 
it is meaningful for many minority businessmen whose 
survival depends on the Small Business Administra­
tion. The structure, policies and program delivery of 
the Small Business Administration are deficient in 
many respects, hut deficient though they may he, SBA 
is still the backbone support for minority business 
enterprise.

Reprinted in [1974] U.S. Code Cong. & Ad. News 4500, 
4512-13.

7. The Railroad Revitalization Act of 1976, Pub. L. 
No. 94-210, 90 Stat. 33 (1976), 45 U.S.C. §801 et seq., 49

51
U.S.C. § 1657a, also contains evidence of the compatibility 
of affirmative, race-conscious assistance to minorities and 
a general prohibition against exclusion or discrimination 
“on the ground of race or color.” Section 905 of that Act, 
45 U.S.C. § 803, prohibits such discrimination in terms 
identical for present purposes to Section 601 of Title VI. 
Section 906 of the Revitalization Act, 49 U.S.C. § 1657a, 
directs the Secretary of Transportation to establish a 
Minority Resource Center with authority to assist “minority 
entrepreneurs and businesses” in various ways, including 
to:

(2) assist minority entrepreneurs and businesses in 
obtaining investment capital and debt financing;

*  *  *

(4) design and conduct programs to encourage, 
promote, and assist minority entrepreneurs and busi­
nesses to secure contracts, subcontracts, and projects 
related to . . . revitalization of the Nation’s railroads;

# *  *

(7) participate in, and cooperate Avitli, all Federal 
programs and other programs designed to provide 
financial, management and other forms of support and 
assistance to minority entrepreneurs and businesses.

Such preferential assistance to minority businessmen is 
consistent with the constitutional guarantees of equality 
and the general statutory policy against discrimination “on 
the ground of race [or] color” for the same reasons that 
minority status may be made a factor in selecting applicants 
for admission. Neither is invidious in purpose or effect. 
Neither excludes nor gives a preference based upon race or 
color as such. Both serve a larger and more general public 
interest hv drawing minorities into opportunities and activi­
ties in the mainstream of American life, thus helping to



52
eliminate the isolation and inequality flowing from earlier 
societal discrimination.

8. The 1977 amendments to the Public Works Employ­
ment Act of 1976 [the 1977-PWE Act], Pub.L. No. 95-28, 91 
Stat. 116 (1977), 42 U.S.C. § 6701 et seq., provide an explicit 
recent confirmation of the congressional view that opening 
opportunities to racial minorities previously victimized by 
hostile discrimination is not inconsistent with Title VI.

The Public Works Employment Act of 1976, Pub.L. No. 
94-369, 90 Stat. 999 (1976), 42 U.S.C. § 6701, established 
federal grants for local public works which clearly are sub­
ject to Title VI of the Civil Rights Act of 1964. Section 110, 
42 U.S.C. § 6709, providing that no person should he ex­
cluded from participation in, or subjected to discrimination 
under, any project receiving federal assistance under the 
Act “on the ground of sex,” and explicitly refers to Title VI 
of the Civil Rights Act of 1964 for its enforcement.19 Obvi­
ously, Congress understood that exclusion or discrimination 
on the ground of race or color was already prohibited by 
Title VI.

When it increased the authorization by the 1977 PWE 
Act, Congress added a new section 103(f)(2), 42 U.S.C. 
§ 6705(f) (2), setting aside at least 10 percent of each grant 
for “minority business enterprises.” It specifies:

Except to the extent that the Secretary determines 
otherwise, no grant shall he made under this Act for 
any local public works project unless the applicant 
gives satisfactory assurance to the Secretary that at 
least 10 per centum of the amount of each grant shall 
he expended for minority business enterprises. For 
purposes of this paragraph, the term “minority busi-

10. Tn addition, section 207, 42 U.S.C. G726, prohibited discrim­
ination “on the grounds of race, religion, color, national origin, or 
sex” in any program funded under Title II  of the Public Works 
Employment Act, and also made reference to Title VI of the Civil 
Rights Act of 1964 for enforcement.

53

ness enterprise” means a business at least 50 per 
centum of which is owned by minority group members 
or, in case of a publicly OAvned business, at least 51 
per centum of the stock of Avhieh is owned by minority 
group members. For the purposes of the preceding 
sentence, minority group members are citizens of the 
United States Avho are Negroes, Spanish-speaking, 
Orientals, Indians, Eskimos, and Aleuts.

This proA-ision came into the bill by amendment on the 
House floor. 123 Cong.Rec. 111436-441 (daily ed. Feb. 24, 
1977). Congressman Mitchell, Avho offered the amendment, 
explained its policy and constitutional justification in Avords 
equally applicable to minority admissions:

We are targeting for various groups of people. We are 
targeting for the Indians, that is a set-aside. All that I  
am asking is that Ave set aside also for minority con­
tractors.

I Avould point out also that this concept of a set-aside 
is becoming increasingly popular. Many States and 
many local subdivisions have moved into the process of 
setting aside contracts for minorities. That is because 
that is the only wav Ave are going to get the minority
enterprises into our system.

# *  •

The other objection that Avill he raised is the objection 
that everybody else is going to go on a competitive bid 
basis; Avhv should not the minority enterprise people 
go on a competitive bid basis? The ansAver is very 
simple: Ave cannot. We are so neAV on the scene, Ave are 
so relatively small that every time Ave go out for a 
competitive bid, the larger, older, more established 
companies are always going to be successful in under­
bidding us. That is an absolute truism.

Id. at H1437.

Plainly, Congress saAv no inconsistency between the gen­
eral condemnation of racial discrimination in Title VI and



54
specific affirmative action programs designed to afford 
minorities greater access to opportunities which they would 
otherwise lack because of the isolation and disadvantage 
long imposed by invidious discrimination. In upholding the 
constitutionality of section 103(f)(2) of the 1977 PWE 
Act, the minority set-aside provision, in Constructors 
Ass’n of Western Fa. v. Kreps, No. 77-1035 (W.D.Pa. de­
cided Oct. 13, 1977), Judge Snyder observed:

* * * there is no inherent inconsistency between a 
requirement that contracting be done without dis­
criminatory consideration of race and a requirement 
that every good faith effort be used to achieve minority 
participation pursuant to Legislative mandate in grant 
funds.20 (Slip op. p. 26.)

The executive orders and acts of Congress from 1964 to 
the present reveal continual understanding that affirmative 
action designed to provide better opportunities for minor­
ity participation is not inconsistent •with, but constructively 
supplements the policy of prohibiting discrimination on the 
ground of race. “It is clear that ‘all acts are to be taken 
together, as if they were one law.’ United States v. Free­
man, 3 How. 556, 564.” United States v. Stewart, 311 U.S. 
60, 64 (1940).

20. District Judge Ilauk of the Central District of California 
in Associated General Contractors of Cal. v. Secretary of Com­
merce, No. 77-3738-AAII (C.D. Cal. 1977) on November 2, 1977 
issued a summary judgment declaring section 103(f)(2) and the 
regulations issued thereunder unconstitutional and invalid under 
Title VI. The permanent injunction accompanying the declaratory 
judgment by its own terms does not apply to any pending projects 
although it expressly recognizes that all authorized funds have been 
allocated. Thus, this decision is in the nature of an expression of 
views not binding on the parties as to any current projects. Of 
greater immediate significance is Judge Ilauk’s determination that 
Title VI, and in particular sections 601 and 602, “codify into statu­
tory formula the equal protection and non-discrimination guaran­
tees of the Federal Constitution.” (Slip. Op. p. 23.)

55
A later act is helpful as a legislative interpretation of 

the earlier in the sense that it aids in understanding the 
meaning of the words used in their earlier setting because 
a “legislative body generally uses a particular word with 
a consistent meaning in a given context.” Erlenbaugh v. 
United States, 409 U.S. 239, 243 (1972). See also ICokoszka 
v. Belford, 417 U.S. 642, 650 (1974).

The weakness of any claim that Title VT forbids volun­
tary remedial measures permitted by the Equal Protection 
Clause is overwhelmingly demonstrated by the basic policy 
of the Civil Rights Act of 1964, its legislative history, the 
choice of words, the administrative regulations and the 
further development of national policy in related fields. We 
see no room for doubt that Title VI states the antidiscrim­
ination principle of the Equal Protection Clause, and that 
the Task Force program is therefore fully consistent with 
Title VT.

But if there could be room for doubt—if the evidence 
showing that Title VI sets forth only the antidiscrimination 
principle could be swept aside—still the title should not 
be construed to prohibit race-conscious remedial action. It 
is clear beyond a peradventure of a doubt that Congress 
did not resolve to prohibit voluntary affirmative action 
programs in 1964. The subtlety and difficulty of the prob­
lems of affirmative action are exceeded only by its im­
portance. To read a restriction into Title VT would be a 
judicial innovation unsupported by evidence of legislative 
intent. Yet both wisdom and inherited tradition caution 
against substituting a nationwide judge-made rule for 
pluralistic decision-maldng through the educational self- 
government of both State and private institutions, subject 
to revision by the political process if the people deem their 
interest to require such revision.



5G
II

The Cause Should Not be Remanded to Take Additional 
Evidence Under Title VI.

Throughout this litigation respondent lias presented a 
single contention: that petitioner violated his legal rights, 
in selecting students for admissions, by taking the minority 
status of some qualified applicants into account to his dis­
advantage as a non-minority applicant. Respondent made 
no claim based upon other details of the Task Force pro­
gram. In this Court, for example, counsel for respondent 
asserted that lie placed no reliance upon the fact that the 
faculty looked to the admission of a stated number of 
disadvantaged minority students, provided that they are 
qualified to matriculate.

The ability of the Solicitor Ceneral or another amicus 
to imagine facts of which they might have offered proof in 
the trial court under legal theories which they might then 
have presented should not be used to present new ques­
tions, requiring new evidence, never litigated between peti­
tioner and respondent and never decided by the California 
courts. We cannot think of alternative theories under Title 
VI or the Fourteenth Amendment which might be sub­
mitted. but if any are plausible, they can be adjudicated 
when a party in interest chooses to present them. Respond­
ent has had his day in the trial court. Nothing he offered 
was rejected. Having staked his claim, he is bound by it. 
To invite him to prove different facts in support of a dif­
ferent legal theory which his counsel has never asserted 
would unfairly protract the litigation in this case and set 
a bad precedent for others.

No additional evidence or findings of fact are necessary 
to adjudicate the only claim which the plaintiff-respondent

57
lias presented.21 The background facts determining the con­
stitutionality of programs whose validity depends upon 
their functions and effects in a social, economic or political 
context are properly presented by the briefs of counsel 
referring to data disclosed by investigations and the writ­
ings of informed persons. This material has been fully 
developed.

Nor is the issue presented feigned or otherwise artificial. 
It is raised by the Task Force program. It affects countless 
law schools, medical schools and other institutions of 
higher education. To delay a decision would require univer­
sities to reappraise their minority admissions programs in 
a climate of legal hostility, facing a virtual certainty of 
litigation. The consequence could only delay the elimination 
of racial injustice.

In our reply brief Ave stated other, substantive reasons 
why the Court, upon upholding the constitutionality of 
race-conscious affirmative action programs for the admis­
sion of reasonable numbers of qualified minority students, 
should not go further and lay down subordinate rules 
“constitutionalizing” and thus “judioializing” the details 
of the admission practices of State colleges and univer­
sities.22 To pursue that course would not merely invite

21. Tt is immaterial that Dean Low rev’s testimony was partly 
hearsay. The testimony was admitted without objection and there­
fore should be accorded its material probative effect. Cf. Opp Cot­
ton Mills, Tnc. v. Administrator, 312 U.S. 126, 155 (1941). The 
facts with respect to the merits have never been disputed in this 
case.

22. There is an additional reason for not “judicializing” sub­
sidiary questions under Title VI of the Civil Rights Act of 1964. 
Section 602 makes plain that Congress intended any subordinate 
rules to be developed through regulations by the administrative 
agency empowered to extend the federal financial assistance—in 
this instance, by the Department of Health, Education and Wel­
fare—subject to judicial review. Section 602 directs each agency 
“to effectuate the provisions of section 601 . . .  by issuing rules,



58
litigation burdening the federal courts; it would curtail 
the freedom of States to manage their local institutions 
and also impair the autonomy of both public and privately- 
endowed institutions of higher education, thereby elimina­
ting one of the great virtues of federalism and sources of 
creativity in dealing with a complex and subtle problem 
to which no perfect answer has been found.

I l l
Respondent Is Barred From Pressing An Independent 

Claim Under Title VI By His Previous Conduct of 
This Action.

A. Respondent should not be heard to press a new, independent 
claim under Title VI for the first time in oral argument in this 
Court.

The course pursued by the respondent in the California 
courts leaves him no right to press this Court to decide 
now whether Title VI imposes more severe statutory 
restrictions upon the educational freedom of State and 
privately endowed universities than the standards developed 
under the Equal Protection Clause.23 Although respondent’s 
papers below made formal reference to Title VI, along 
with the Fourteenth Amendment, the substance of his
regulations, or orders of general applicability.” 42 U.S.C. 2000d-l. 
HEW  lias issued no rules or regulations governing the details of 
admission to professional schools which receive federal financial 
assistance. For the Court to read subordinate requirements relat­
ing to the details of admissions programs into section 601 would 
usurp the administrative function plainly reserved by section 602.

23. We do not know even now whether respondent is actually 
taking this position. Since he never addressed any argument to 
Title VI as such throughout the proceedings in the courts below 
or in any previous briefs in this Court, there has been no adversary 
development of issues under that statute. Since the present sup­
plemental briefs are being filed simultaneously, we do not know 
what contentions respondent will now press. This posture reflects 
the _ soundness of the Court’s jurisdictional rules and practices 
against considering as present here novel claims not pressed or 
decided below.

59
presentation consistently drained the recitals of significance. 
In the trial court, as that court pointed out, “all of plain­
tiff’s oral argument and written memoranda were directed 
to a consideration of the Fourteenth Amendment to the 
U.S. Constitution” (R. 384). In the California Supreme 
Court, respondent disclaimed any reliance upon the view 
that Title VI might have independent significance over and 
above the Equal Protection Clause:

Because those provisions [Title VI] parallel the four­
teenth amendment, we do not separately discuss them. 
We confine our discussion herein to the scope of the 
equal protection clause. (Resp. Rep. Brief at p. 2)

Respondent’s passing references to the statute in the 
courts below may have been initially sufficient technically 
to “raise” the issue. But when he thereafter proceeded not 
only to focus attention exclusively upon the constitutional 
question but affirmatively to deny any claim of independent 
significance for Title VT, he effectively nullified his statutory 
reference. On these facts, it cannot be said that “any 
title, right, privilege or immunity . . . under” Title VI 
was “specially set up or claimed” as required by this Court’s 
jurisdictional statute, 28 U.S.C. § 1257(3), unless that 
requirement is to be robbed of meaning.

To hold otherwise would disserve the considerations of 
judicial administration and of sound relations between this 
Court and state courts which underlie the basic require­
ment that no federal question may be presented here which 
was not pressed or passed upon below.24 To allow a party

24. See, e.g., Blair v. Oesterlein Mach. Co., 275 U.S. 220, 225 
(1927):

This Court sits as a court of review. I t  is only in exceptional 
cases, and then only in cases from the federal courts, that 
questions not pressed or passed upon below are considered 
here.



60
to lead State courts not to address an issue, thus bypassing 
them, and then present it here for the first time as a viable 
ground for decision would undermine the role and status of 
those courts and deprive this Court of the benefit of in­
sights gained by successive adversary presentations and 
decisions upon complex questions.

Even if there is jurisdiction, the question is not properly 
presented for decision by this Court.25 The Court confronted 
a closely similar situation in McGoldrich v. Compagnie 
General Transatlantique, 309 U.S. 430 (1940). In that case, 
also, the respondent sought to support the judgment below 
by new contentions in this Court which might technically 
have been raised below but which respondent had not argued 
in the highest State court and which were not passed upon 
by that court. Respondent had stated in its brief to the 
intermediate appellate court that “The court need give no 
attention to them.” Its brief in the highest State court ex­
plicitly limited its presentation to the issue on which that 
court ruled. This Court refused to entertain the newlv urged 
contentions and passed upon the constitutional question de­
cided below, although its mandate allowed for the possibility 
that the tardily-adopted claim might still thereafter be 
passed upon by the state courts on remand. The Court said:

25. Respondent continued the effect of the course he pursued 
in the California courts when he failed to present the Title VI 
issue to this Court, as required by this Court’s rules and practices. 
The petition for certiorari and petitioner’s brief on the merits set 
forth one question presented, that under the Fourteenth Amend­
ment. Respondent set forth in his briefs in opposition to certiorari 
and on the merits a restatement of the same question, again only 
under the Constitution, and did not in any wav urge the statutory 
contention. See Revised Rules of the Supreme Court of the United 
States 23(1) (c), 24(1) and (4), 40(1) (d)(2) and 40(3); Wiener 
v. United States, 357 U.S. 349, 351 ti. 1 (1958). Respondent also 
failed to file any cross-petition for certiorari. Strunk v. United 
States, 412 U.S. 434, 437 (1973); NLRB v. International Van 
Lines, 409 U.S. 48, 52 & n.4 (1972).

61
. . .  In the exercise of our appellate jurisdiction to 

review the action of state courts we should hold our 
selves free to set aside or revise their determinations 
only so far as they are erroneous and error is not to 
be predicated upon their failure to decide questions 
not presented. Similarly their erroneous judgments of 
unconstitutionality should not be affirmed here on con­
stitutional grounds which suitors have failed to urge 
before them, or which, in the course of proceedings 
there, have been abandoned. Id., at 435.

Respondent’s belatedly-embraced claim in McGoldrich was 
constitutional while in this case it is statutory, but the 
source of a claim makes no significant difference as to 
whether it is properly present. See, e.g., Branzburg v. 
Ilayes, 408 U.S. 665, 708 (1972); Wiener v. United States, 
357 U.S. 349, 351 n.l (1958).

The only argument for a last minute conversion of this 
case into a dispute over the requirements of Title VI would 
have to be based upon the general principle, given classic 
formulation by Justice Brandeis, that “The Court will not 
pass upon a constitutional question although properly pre­
sented by the record, if there is also present some other 
ground upon which the case may be disposed of.” Ashwander 
v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936). The 
general validity of the Ashwander principle is unques­
tioned. By its very terms, however, the principle is not 
applicable in this case, since the alternative nonconstitu­
tional ground is not “also present.” See Mayor of Philadel­
phia v. Educational Equality League, 415 U.S. 605, 629 
(1974) (Equal Protection issue decided; issue of state law 
“abandoned by the parties” and held not present); see 
also McGoldrich, supra.

In any event, as this Court has pointed out, the Ash­
wander standard is “susceptible of misuse.” Mayor of 
Philadelphia v. Educational Equality League, supra, at



62
629. Its proper force does not foreclose other considera­
tions of sound judicial administration. And for the reasons 
noted above with regard to appropriate relations between 
this Court and lower courts, particularly state courts, it 
would be a misuse of the Ashwander principle to consider 
it governing in this case. That principle has never been a 
rigid rule universally adhered to. See, e.g., Village of Ar­
lington Heights v. Metropolitan Housing Development 
Corp., 429 U.S. 252 (1977); Hostetter v. Idlewild Bon Voy­
age Liquor Corp., 377 U.S. 324 (1964); Staub v. Baxley, 
355 U.S. 313 (1958).

By his disclaimer of reliance upon Title VI as having any 
independent significance, respondent has brought about a 
situation in which none of the complex and ramifying as­
pects of the statutory issues have been developed in the 
courts below or even in this Court, prior to the order of 
October 17, 1977. The result is to deprive this Court not 
merely of the successive adversary presentations which 
sharpen analysis but also of the insights and wisdom which 
might be contributed by the lower courts.

At the same time, the constitutional issues have been fully 
litigated, not only in this case but once before in this Court. 
De Funis v. Odegaard, 416 U.S. 312 (1974).

B. Respondent's failure to exhaust administrative remedies bars 
the separate presentation of a Title VI claim in this action.

Consistent with his position that his rights under Title 
VI were not larger or different in any respect from his 
rights under the Fourteenth Amendment, respondent neith­
er pleaded nor proved exhaustion of his administrative 
remedies under Title VI. The record casually reveals that a 
complaint was made to HEW but there is no record of its 
disposition (Statement, supra).

63
The failure to exhaust administrative remedies furnishes 

a short and simple ground for dismissing any new and inde­
pendent claim which respondent may now seek to press. 
Even if Title VI gives rise to an implied private right of 
action, a duty to exhaust administrative remedies before 
judicial action must also be implied. North Philadelphia 
Community Board v. Temple University, 330 F. Supp. 1107 
(E.D. Pa. 1971); Dupree v. City of Chattanooga, 362 F. 
Supp. 1136 (E.D. Tenn. 1973); Mendoza v. Lavine, 412 F. 
Supp. 1105 (S.D. N.Y. 1976); Johnson v. County of Chester, 
413 F. Supp. 1299 (E.D. Pa. 1976); NAACP v. Wilmington 
Medical Center, Inc., 426 F. Supp. 919 (D. Del. 1977).

Section 80.7 of the HEW regulations promulgated under 
section 602 provides such a remedy (45 C.F.K. § 80.7):

§ 80.7 Conduct of investigations.
*  *  #

(b) Complaints. Any person who believes himself 
or any specific class of individuals to be subjected to 
discrimination prohibited by this part may by himself 
or by a representative file with the responsible Depart­
ment official or his designee a written complaint.

*  *  #

(d) Resolution of matters. (1) If an investigation 
pursuant to paragraph (c) of this section indicates a 
failure to comply with this part, the responsible De­
partment official or his designee will so inform the 
recipient and the matter will be resolved by informal 
means whenever possible. If it has been determined 
that the matter cannot be resolved by informal means, 
action will be taken as provided for in § 80.8.

(2) If an investigation does not warrant action pur­
suant to subparagraph (1) of this paragraph the re­
sponsible Department official or his designee will so 
inform the recipient and the complainant, if any, in 
writing.



64
The record does not show the completion of the steps 

required by this section of the regulations.26
The regulations conform to the congressional intention to 

put primary reliance upon administrative action and volun­
tary compliance. Section 602 authorizes enforcement by 
termination of funding or “by any other means authorized 
by law,” but it specifically limits the use of sanctions:

Provided, however, That no such action shall be 
taken until the department or agency concerned has 
advised the appropriate person or persons of the fail­
ure to comply with the requirement and has deter­
mined that compliance cannot be secured by voluntary 
means.

The legislative history demonstrates the great impor­
tance which sponsors of the measure attached to negotia­
tions and voluntary compliance. II. Rep. 914, 88tli Cong., 
2d Sess., reprinted [1964] U.S. Code, Cong. & Ad. News, 
2391, 2401; 110 Cong. Rec. 6546, 13, 700.

The scheme of Title VI and the legislative history thus 
plainly require that any private right of action assumed 
to flow from Title VI be conditioned upon the complainant’s 
exhaustion of administrative remedies.

We raise this point for the first time now. Respondent 
may seek to respond that, having failed to present it below, 
we should be tarred with our own brush and foreclosed 
from belated presentation. But the omission was induced 
by respondent. So long as respondent presented his case 
upon the theory that Title VI and the Equal Protection 
Clause have the same meaning, a plea to the Title VI claim 
alone would serve no purpose because the failure to exhaust

26. Petitioner has received no later notice of disposition. It 
seems quite possible that administrative proceedings were halted 
by the prosecution of this action.

65
administrative remedies would not affect the Equal Pro­
tection aspect. Respondent should not be heard to argue a 
“new” legal theory yet to shut off the “new” defenses.

CONCLUSION
The heart of our submission is that the kinds of racial 

discrimination forbidden by Title VI are those condemned 
by the Fourteenth Amendment. This is the only reading 
which gives effect to the words, the legislative history, the 
administrative regulations, and above all the spirit of the 
Civil Rights Act of 1964.

The Fourteenth Amendment dedicated the Nation to the 
ideal of equality of opportunity regardless of race, not as a 
philosophical abstraction but as a vital human condition. 
Individuals belonging to minorities long victimized by 
racial discrimination did not have this kind of equality in 
1964, and in many phases of American life they do not 
have it today. The Civil Rights Act of 1964 sought to lower 
the barriers—to give minorities true equality of access— 
to voting, to public accommodations, to employment, to 
federally-assisted programs, and to education. The purpose 
and effect of the Task Force program at Davis and of 
minority admissions programs at other universities like­
wise is to lower the still-existing barriers to full partici­
pation.

By taking minority status into account as one factor in 
filling the limited number of places available—not for the 
sake of race but to achieve educational, professional and 
social purposes—universities have begun to demonstrate 
that the doors to higher education and the professions are 
in fact open to members of minorities previously denied 
equality of opportunity because of racial discrimination. 
The competition for places is so great that a return to once-



66
conventional standards of selection would severely limit tlie 
access of qualified minority students to higher education 
and virtually bar them from the most highly regarded pro­
fessional schools. The Fourteenth Amendment permitted— 
and permits—such voluntary affirmative action. It would 
indeed “turn the blade inward” to read Title VI of an act 
designed to give practical effect to the ideal of equal oppor­
tunity to require universities to close and lock those once- 
opened doors.

Respectfully submitted,

A rchibald Cox 
P aul J . Mishkin  
J ack B. Owens 
D onald L. R etdhaar

Counsel for Petitioner
November 1977



Appendix A

Title VI of the Civil Rights Act of 1964, as Amended 
(42 U.S.C. §§ 2000d-2000d-6)

§ 2000d. Prohibition against exclusion from participation 
in, denial of benefits of, and discrimination under Fed­
erally assisted programs on ground of race, color, or 
national origin

No person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participa­
tion in, be denied the benefits of, or be subjected to discrim­
ination under any program or activity receiving Federal 
financial assistance.

§ 2000d-l. Federal authority and financial assistance to 
programs or activities by way of grant, loan, or con­
tract other than contract of insurance or guaranty; 
rides and regulations; approval by President; compli­
ance with requirements; reports to Congressional com­
mittees; effective date of administrative action

Each Federal department and agency which is empow­
ered to extend Federal financial assistance to any program 
or activity, by way of grant, loan, or contract other than a 
contract of insurance or guaranty, is authorized and di­
rected 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 which 
shall be consistent with achievement of the objectives of 
the statute authorizing the financial assistance in connec­
tion with which the action is taken. No such rule, regula­
tion, or order shall become effective unless and until 
approved by the President. Compliance with any require­
ment adopted pursuant to this section may be effected (1)



2a Appendix
by the termination of or refusal to grant or to continue as­
sistance 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, but such termination or refusal shall be 
limited to the particular political entity, or part thereof, 
or other recipient as to whom such a finding has been made 
and, shall be limited in its effect to the particular program, 
or part thereof, in which such noncompliance has been so 
found, or (2) by any other means authorized by law: Pro­
vided, however, That no such action shall be taken until 
the department or agency concerned has advised the appro­
priate person or persons of the failure to comply with the 
requirement and has determined that compliance cannot be 
secured by voluntary means. In the case of any action ter­
minating, or refusing to grant or continue, assistance be­
cause of failure to comply with a requirement imposed 
pursuant to this section, the head of the Federal depart­
ment or agency shall file with the committees of the House 
and Senate having legislative jurisdiction over the program 
or activity involved a full written report of the circum­
stances and the grounds for such action. No such action 
shall become effective until thirty days have elapsed after 
the filing of such report.

§ 2000d-2. Judicial review; Administrative Procedure Act
Any department or agency action taken pursuant to sec­

tion 2000d-l of this title shall be subject to such judicial 
review as may otherwise be provided by laiv for similar 
action taken by such department or agency on other 
grounds. In the case of action, not otherwise subject to 
judicial review, terminating or refusing to grant or to con­
tinue financial assistance upon a finding of failure to com-

Appendix 3a
ply with any requirement imposed pursuant to section 
2000d-l of this title, any person aggrieved (including any 
State or political subdivision thereof and any agency of 
either) may obtain judicial review of such action in accord­
ance with section 1009 of Title 5, and such action shall not 
be deemed committed to unreviewable agency discretion 
within the meaning of that section.

§ 2000d-3. Construction of provisions not to authorize ad- 
ministi ative action with respect to employment prac­
tices except where primary objective of Federal finan­
cial assistance is to provide employment

Nothing contained in this subchapter shall be construed 
to authorize action under this subchapter by any depart­
ment or agency with respect to any employment practice 
of any employer, employment agency, or labor organization 
except where a primary objective of the Federal financial 
assistance is to provide employment.

§ 2000d-4. Federal authority and- financial assistance to 
programs or activities by way of contract of insurance 
or guaranty

Nothing in this subchapter shall add to or detract from 
any existing authority with respect to any program or 
activity under which Federal financial assistance is ex­
tended by way of a contract of insurance or guaranty.
§ 2000d-5. Prohibited deferral of action on applications by 

local educational agencies seeking federal funds for 
alleged noncompliance with Civil Rights Act

The Commissioner of Education shall not defer action or 
order action deferred on any application by a local edu­
cational agency for funds authorized to be appropriated



4a Appendix
by this Act, by the Elementary and Secondary Education 
Act of 1965, by the Act of September 30, 1950 (Public Law 
874, Eighty-first Congress), by the Act of September 23, 
1950 (Public Law 815, Eighty-first Congress), or by the 
Cooperative Besearch Act, on the basis of alleged non- 
compliance with the provisions of this subchapter for more 
than sixty days after notice is given to such local agency 
of such deferral unless such local agency is given the oppor­
tunity for a hearing as provided in section 2000d-l of this 
title, such hearing to be held within sixty days of such notice, 
unless the time for such hearing is extended by mutual 
consent of such local agency and the Commissioner, and 
such deferral shall not continue for more than thirty days 
after the close of any such hearing unless there has been 
an express finding on the record of such hearing that such 
local educational agency has failed to comply with the pro­
visions of this subchapter: Provided, That, for the purpose 
of determining whether a local educational agency is in 
compliance with this subchapter, compliance by such agency 
with a final order or judgment of a Federal court for the 
desegregation of the school or school system operated by 
such agency shall be deemed to be compliance with this sub- 
chapter, insofar as the matters covered in the order or judg­
ment are concerned.

S 2000(1-6. Policy of United States as to application of non­
discrimination provisions in schools of local educational 
agencies—Declaration of uniform policy

(a) It is the policy of the United States that guidelines 
and criteria established pursuant to title VI of the Civil 
Bights Act of 1964 and section 182 of the Elementary and 
Secondary Education Amendments of 1966 dealing with 
conditions of segregation by race, whether de jure or de 
facto, in the schools of the local educational agencies of

Appendix 5a
any State shall be applied uniformly in all regions of the 
United States whatever the origin or cause of such segre­
gation.

Nature of uniformity
(b) Such uniformity refers to one policy applied uni­

formly to de jure segregation wherever found and such 
other policy as may be provided pursuant to law applied 
uniformly to de facto segregation wherever found.

Prohibition of construction for diminution of obligation
for enforcement or compliance with nondiscrimination 

requirements
(c) Nothing in this section shall be construed to diminish 

the obligation of responsible officials to enforce or comply 
with such guidelines and criteria in order to eliminate dis­
crimination in federally-assisted programs and activities as 
required by title VI of the Civil Bights Act of 1964.

Additional funds
(d) It is the sense of the Congress that the Department 

of Justice and the Department of Health, Education, and 
Welfare should request such additional funds as may he 
necessary to apply the policy set forth in this section 
throughout the United States.



6a Appendix

Appendix B

Regulations of Department of Health, Education and Welfare Pur­
suant to Title VI of the Civil Rights Act of 1964 (45 C.F.R., Part
80, §§ 80.1-80.13)

§ 80.1 Purpose.
The purpose of this part is to effectuate the provisions 

of title VI of the Civil Rights Act of 1964 (hereafter re­
ferred to as the “Act”) to the end that no person in the 
United States shall: on the ground of race, color, or na­
tional origin, be excluded from participation in, he denied 
the benefits of, or be otherwise subjected to discrimination 
under any program or activity receiving Federal financial 
assistance from the Department of Health, Education, and 
Welfare.

§ 80.2 Application of this regulation.
This regulation applies to any program for which Fed­

eral financial assistance is authorized to be extended to a 
recipient under a law administered by the Department, in­
cluding the Federal assisted programs and activities listed 
in Appendix A of this regulation. It applies to money paid, 
property transferred, or other Federal financial assistance 
extended after the effective date of the regulation pursuant 
to an application approved prior to such effective date. 
This regulation does not apply to (a) any Federal financial 
assistance by way of insurance or guaranty contracts, (b) 
money paid, property transferred, or other assistance ex­
tended before the effective date of this regulation, (c) the 
use of any assistance by any individual who is the ultimate 
beneficiary under any such program, or (d) any employ­
ment practice, under any such program, or any employer, 
employment agency, or labor organization, except to the 
extent described in § 80.3. The fact that a type of Federal 
assistance is not listed in Appendix A shall not mean, if

Appendix 7 a
Title VI of the Act is otherwise applicable, that a program 
is not covered. Federal financial assistance under statutes 
now in force or hereinafter enacted may be added to this 
list by notice published in the F ederal R egister.

§ 80.3 Discrimination prohibited.
(a) General. No person in the United States shall, on 

the ground of race, color, or national origin be excluded 
from participation in, be denied the benefits of, or be other­
wise subjected to discrimination under any program to 
which this part applies.

(b) Specific discriminatory actions prohibited. (1) A 
recipient under any program to which this part applies may 
not, directly or through contractual or other arrangements, 
on ground of race, color, or national origin:

(i) Deny an individual any service, financial aid, or other 
benefit provided under the program;

(ii) Provide any service, financial aid, or other benefit 
to an individual which is different, or is provided in a dif­
ferent manner, from that provided to others under the 
program;

(iii) Subject an individual to segregation or separate 
treatment in any matter related to his receipt of any serv­
ice, financial aid, or other benefit under the program;

(iv) Restrict an individual in any way in the enjoyment 
of any advantage or privilege enjoyed by others receiving 
any service, financial aid, or other benefit under the pro­
gram;

(v) Treat an individual differently from others in deter­
mining whether he satisfies any admission, enrollment, 
quota, eligibility, membership or other requirement or con­
dition which individuals must meet in order to be provided 
any service, financial aid, or other benefit provided under 
the program;

(vi) Deny an individual an opportunity to participate



ga Appendix
in the program through the provision of services or other­
wise or afford him an opportunity to do so which is differ­
ent from that afforded others under the program (including 
the opportunity to participate in the program as an em­
ployee but only to the extent set forth in paragraph (c) of 
this section).

(vii) Deny a person the opportunity to participate as a 
member of a planning or advisory body which is an integral 
part of the program.

(2) A recipient, in determining the types of services, 
financial aid, or other benefits, or facilities which will be 
provided under any such program, or the class of individ­
uals to whom, or the situations in which, such services, fi­
nancial aid, other benefits, or facilities will be provided 
under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such pro­
gram, may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration 
which have the effect of subjecting individuals to discrimi­
nation because of their race, color, or national origin, or 
have the effect of defeating or substantially impairing ac­
complishment of the objectives of the program as respect 
individuals of a particular race, color, or national origin.

(B) In determining the site or location of a facilities, an 
applicant or recipient may not make selections with the 
effect of excluding individuals from, denying them the ben­
efits of, or subjecting them to discrimination under any 
programs to which this regulation applies, on the ground 
of race, color or national origin; or with the purpose or 
effect of defeating or substantially impairing the accom­
plishment of the objectives of the Act or this regulation.

(4) As used in this section, the services, financial aid, 
or other benefits provided under a program receiving Fed-

Appendix
eral financial assistance shall be deemed to include any 
service, financial aid, or other benefits provided in or 
through a facility provided with the aid of Federal finan­
cial assistance.

(5) The enumeration of specific forms of prohibited dis­
crimination in this paragraph and paragraph (c) of this 
section does not limit the generality of the prohibition in 
paragraph (a) of this section.

(6) (i) In administering a program regarding which the 
recipient has previously discriminated against persons on 
the ground of race, color, or national origin, the recipient 
must take affirmative action to overcome the effects of prior 
discrimination.

(ii) Even in the absence of such prior discrimination, a 
recipient in administering a program may take affirmative 
action to overcome the effects of conditions which resulted 
in limiting participation by persons of a particular race, 
color, or national origin.

(c) Employment practices. (1) Where a primary ob­
jective of the Federal financial assistance to a program to 
which this regulation applies is to provide employment, a 
recipient may not (directly or through contractual or other 
arrangements) subject an individual to discrimination on 
the ground of race, color, or national origin in its employ­
ment practices under such program (including recruitment 
or recruitment advertising, employment, layoff or termina­
tion, upgrading, demotion, or transfer, rates of pay or 
other forms of compensation, and use of facilities), includ­
ing programs where a primary objective of the Federal 
financial assistance is (i) to reduce the employment of such 
individuals or to help them through employment to meet 
subsistence needs, (ii) to assist such individuals through 
employment to meet expenses incident to the commence-



10a Appendix
ment or continuation of their education or training, (iii) 
to provide work experience which contributes to the educa­
tion or training of such individuals, or (iv) to provide re­
munerative activity to such individuals who because of 
handicaps cannot be readily absorbed in the competitive 
labor market. The following, under existing laws, have one 
of the above objectives as a primary objective:

{■a) Projects under the Public Works Acceleration Act, 
Public Law 87-C58, 42 U.S.C. 2641-2643.

(b) Work-study under the Vocational Education Act of 
1963, as amended, 20 U.S.C. 1371-1374.

(c) Programs assisted under laws listed in Appendix A 
as respects employment opportunities provided thereunder, 
or in facilities provided thereunder, which are limited, or 
for which preference is given, to students, fellows, or other 
persons in training for the same or related employments.

(d) Assistance to rehabilitation facilities under the Vo­
cational Rehabilitation Act, 29 U.S.C. 32-34, 41a and 41b.

(2) The requirements applicable to construction employ­
ment under any such program shall be those specified in 
or pursuant to Part III of Executive Order 11246 or any 
Executive order which supersedes it.

(3) AVliere a primary objective of the Federal financial 
assistance is not to provide employment, but discrimination 
on the ground of race, color, or national origin in the em­
ployment practices of the recipient or other persons sub­
ject to the regulation tends, on the ground of race, color, 
or national origin, to exclude individuals from participa­
tion in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this regulation 
applies, the foregoing provisions of this paragraph (c) 
shall apply to the employment practices of the recipient or

Appendix 11a
other persons subject to the regulation, to the extent neces­
sary to assure equality of opportunity to, and nondiscrim- 
inatory treatment of, beneficiaries.

(d) Indian Tlealth and Cuban Refugee Services. An in­
dividual shall not be deemed subjected to discrimination by 
reason of his exclusion from the benefits of a program lim­
ited by Federal law to individuals of a particular race, 
color, or national origin different from his.

(e) Medical emergencies. Notwithstanding the forego­
ing provisions of this section, a recipient of Federal finan­
cial assistance shall not be deemed to have failed to comply 
with paragraph (a) of this section if immediate provision 
of a service or other benefit to an individual is necessary 
to prevent his death or serious impairment of his health, 
and such service or other benefit cannot be provided except 
by or through a medical institution which refuses or fails 
to comply with paragraphs (a) of this section.

§ 80.4. Assurances required.
(a) General. (1) Every application for Federal finan­

cial assistance to carry out a program to which this part 
applies, except a program to which paragraph-(b) of this 
section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its 
approval and the extension of any Federal financial assist­
ance pursuant to the application, contain or be accom­
panied by an assurance that the program will be conducted 
or the facility operated in compliance with all requirements 
imposed by or pursuant to this part. In the case of an 
application for Federal financial assistance to provide real 
property or structures thereon, the assurance shall obligate 
the recipient, or, in the case of a subsequent transfer, the 
transferee, for the period during which the real property



12a Appendix
or structures are used for a purpose for which the Federal 
financial assistance is extended or for another purpose in­
volving the provision of similar services or benefits. In the 
case of personal property the assurance shall obligate the 
recipient for the period during which he retains oivnership 
or possession of the property. In all other cases the assur­
ance shall obligate the recipient for the period during which 
Federal financial assistance is extended pursuant to the 
application. The responsible Department official shall spe­
cify the form of the foregoing assurances for each program, 
and the extent to which like assurances will be required 
of subgrantees, contractors and subcontractors, transferees, 
successors in interest, and other participants in the pro­
gram. Any such assurance shall include provisions which 
give the United States a right to seek its judicial enforce­
ment.

(2) Where Federal financial assistance is provided in the 
form of a transfer of real property or interest therein from 
the Federal Government the instrument effecting or re­
cording the transfer shall contain a covenant running with 
the land to assure nondiscrimination for the period during 
which the real property is used for a purpose for which the 
Federal financial assistance is extended or for another pur­
pose involving the provision of similar services or benefits. 
Where no transfer of property is involved but property 
is improved Avitli Federal financial assistance, the recipient 
shall agree to include such a covenant to any subsequent 
transfer of the property. Where the property is obtained 
from the Federal Government, such covenant may also 
include a condition coupled Avith a right to be reserved by 
the Department to revert title to the property in the event 
of a breach of the covenant where, in the discretion of the 
responsible Department official, such a condition and right of

Appendix 13a
reverter is appropriate to the statute under which the real 
property is obtained and to the nature of the grant and the 
grantee. In the event a transferee of real property proposes 
to mortgage or otlienvise encumber the real property as 
security for financing construction of new, or improvement 
of existing, facilities on such property for the purposes for 
which the property was transferred, the responsible Depart­
ment official may agree, upon request of the transferee and 
if necessary to accomplish such financing, and upon such 
conditions as he deems appropriate, to forbear the exercise 
of such right to revert title for so long as the lien of such 
mortgage or other encumbrance remains effective.

(b) Continuing State programs. Every application by 
a State or a State agency to carry out a program involving 
continuing Federal financial assistance to Avhich this regu­
lation applies (including the Federal financial assistance 
listed in Part 2 of Appendix A) shall as a condition to its 
approval and the extension of any Federal financial assist­
ance pursuant to the application (1) contain or be accom­
panied by a statement that the program is (or, in the case 
of a neAv program, Avill be) conducted in compliance with all 
requirements imposed by or pursuant to this regulation, 
and (2) proAude or he accompanied by provision for such 
methods of administration for the program as are found 
by the responsible Department official to give reasonable 
assurance that the applicant and all recipients of Federal 
financial assistance under such program will comply Avith all 
requirements imposed by or pursuant to this regulation.

(c) Elementary and secondary schools. The require­
ments of paragraph (a) or (b) of this section Avith respect 
to any elementary or secondary school or school system 
shall be deemed to be satisfied if such school or school sys­
tem (1) is subject to a final order of a court of the United



14a Appendix
States for the desegregation of sncli school or school system, 
and provides an assurance that it will comply with such 
order, including any future modification of such order, or 
(2) submits a plan for the desegregation of such school or 
school system which the responsible Department official de­
termines is adequate to accomplish the purposes of the Act 
and this part, at the earliest practicable time, and provides 
reasonable assurance that it will carry out such plan; in any 
case of continuing Federal financial assistance the re­
sponsible Department official may reserve the right to rede­
termine, after such period as may be specified by him, the 
adequacy of the plan to accomplish the purposes of the Act 
and the regulations in this part. In any case in which a final 
order of a court of the United States for the desegregation 
of such school or school system is entered after submission 
of such a plan, such plan shall be revised to conform to 
such final order, including any future modification of such 
order.

(d) Assurance from, institutions. (1) In the case of any 
application for Federal financial assistance to an institution 
of higher education (including assistance for construction, 
for research, for special training project, for student loans 
or for any other purpose), the assurance required by this 
section shall extend to admission practices and to all other 
practices relating to the treatment of students.

(2) The assurance required with respect to an institution 
of higher education, hospital, or any other institution, inso­
far as the assurance relates to the institution’s practices 
with respect to admission or other treatment of individuals 
as students, patients, or clients of the institution or to the 
opportunity to participate in the provision of services or 
other benefits to such individuals, shall be applicable to the 
entire institution unless the applicant establishes, to the

Appendix 15a
satisfaction of the responsible Department official, that the 
institution’s practices in designated parts or programs of 
the institution will in no way affect its practices in the 
program of the institution for which Federal financial 
assistance is sought, or the beneficiaries of or participants 
in such program. If in any such case the assistance sought 
is for the construction of a facility or part of a facility, the 
assurance shall in any event extend to the entire facility and 
to facilities operated in connection therewith.

§ 80.5 Illustrative application.
The following examples will illustrate the programs aided 

by Federal financial assistance of the Department. (In all 
cases the discrimination prohibited is discrimination on the 
ground of race, color, or national origin prohibited by Title 
VI of the Act and this regulation, as a condition of the 
receipt of Federal financial assistance).

(a) In Federally assisted programs for the provision of 
health or welfare services, discrimination in the selection or 
eligibility of individuals to receive the services, and segre­
gation or other discriminatory practices in the manner of 
providing them, are prohibited. This prohibition extends to 
all facilities and services provided by the grantee under the 
program or, if the grantee is a State, by a political subdivi­
sion of the State. It extends also to services purchased or 
otherwise obtained by the grantee (or political subdivision) 
from hospitals, nursing homes, schools, and similar insti­
tutions for beneficiaries of the program, and to the facilities 
in which such services are provided, subject, however, to 
the provisions of § 80.3(e).

(b) In federally-affected area assistance (P.L. 815 and 
P.L. 874) for construction aid and for general support of 
the operation of elementary or secondary schools, or in more



16a Appendix
limited support to sucli schools such as for the acquisition 
of equipment, the provision of vocational education, or the 
provision of guidance and counseling services, discrimina­
tion by the recipient school district in any of its elementary 
or secondary schools in the admission of students, or in 
the treatment of its students in any aspect of the educa­
tional process, is prohibited. In this and the following illus­
trations the prohibition of discrimination in the treatment 
of students or other trainees includes the prohibition of 
discrimination among the students or trainees in the avail­
ability or use of any academic, dormitory, eating, recrea­
tional, or other facilities of the grantee or other recipient.

(c) In a research, training, demonstration, or other grant 
to a university for activities to be conducted in a graduate 
school, discrimination in the admission and treatment of 
students in the graduate school is prohibited, and the pro­
hibition extends to the entire university unless it satisfies 
the responsible Department official that practices with re­
spect to other parts or programs of the university will not 
interfere, directly or indirectly, with fulfillment of the assur­
ance required with respect to the graduate school.

(d) In a training grant to a hospital or other nonaca­
demic institution, discrimination is prohibited in the selec­
tion of individuals to be trained and in their treatment by 
the grantee during their training. In a research or demon­
stration grant to such an institution discrimination is 
prohibited with respect to any educational activity and any 
provision of medical or other services and any financial aid 
to individuals incident to the program.

(e) In grants to assist in the construction of facilities for 
the provision of health, educational or welfare services,

Appendix 17a
assurances will be required that services will be provided 
without discrimination, to the same extent that discrimina­
tion wrnuld be prohibited as a condition of Federal operating 
grants for the support of such services. Thus, as a condition 
of grants for the construction of academic, research, or 
other facilities at institutions of higher education, assur­
ances will be required that there will be no discrimination 
in the admission or treatment of students. In case of hospital 
construction grants the assurance will apply to patients, to 
interns, residents, student nurses, and other trainees, and 
to the privilege of physicians, dentists, and other profes­
sionally qualified persons to practice in the hospital, and 
will apply to the entire facility for which, or for a part of 
which, the grant is made, and to facilities operated in con­
nection therewith. In other construction grants the assur­
ances required will similarly be adapted to the nature of 
the activities to be conducted in the facilities for construc­
tion of which the grants have been authorized by Congress.

(f) Upon transfers of real or personal surplus property 
for health or educational uses, discrimination is prohibited 
to the same extent as in the case of grants for the construc­
tion of facilities or the provision of equipment for like 
purposes.

(g) Each applicant for a grant for the construction of 
educational television facilities is required to provide an as­
surance that it will, in its broadcast services, give due con­
sideration to the interests of all significant racial or ethnic 
groups within the population to be served by the applicant.

(h) A recipient may not take action that is calculated to 
bring about indirectly what this regulation forbids it to 
accomplish directly. Thus, a State, in selecting or approving 
projects or sites for the construction of public libraries 
which will receive Federal financial assistance, may not



18a Appendix
base its selections or approvals on criteria which have the 
effect of defeating or of substantially impairing accomplish­
ments of the objectives of the Federal assistance as respects 
individuals of a particular race, color or national origin.

(i) In some situations, even though past discriminatory 
practices attributable to a recipient or applicant have been 
abandoned, the consequences of such practices continue to 
impede the full availability of a benefit. If the efforts re­
quired of the applicant or recipient under § 80.6(d), to 
provide information as to the availability of the program or 
activity and the rights of beneficiaries under this regula­
tion, have failed to overcome these consequences, it will 
become necessary under the requirement stated in (i) of 
§ 80.3(b) (6) for such applicant or recipient to take addi­
tional steps to make the benefits fully available to racial 
and nationality groups previously subject to discrimination. 
This action might take the form, for example, of special 
arrangements for obtaining referrals or making selections 
which will insure that groups previously subjected to dis­
crimination are adequately served.

(j) Even though an applicant or recipient has never used 
discriminatory policies, the services and benefits of the 
program or activity it administers may not in fact be 
equally available to some racial or nationality groups. In 
such circumstances, an applicant or recipient may properly 
give special consideration to race, color, or national origin 
to make the benefits of its program more widely available 
to such groups, not then being adequately served. For ex­
ample, where a university is not adequately serving mem­
bers of a particular racial or nationality group, it may 
establish special recruitment policies to make its program 
better known and more readily available to such group, and 
take other steps to provide that group 'with more adequate 
service.

Appendix 19a
§ 80.6 Compliance information.

(a) Cooperation and assistance. The responsible De­
partment official shall to the fullest extent practicable seek 
the cooperation of recipients in obtaining compliance with 
this part and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this part.

(b) Compliance reports. Each recipient shall keep such 
records and submit to the responsible Department official 
or his designee timely, complete and accurate compliance 
reports at such times, and in such form and containing 
such information, as the responsible Department official 
or his designee may determine to be necessary to enable 
him to ascertain whether the recipient has complied or is 
complying with this part. For example, recipients should 
have available for the Department racial and ethnic data 
showing the extent to which members of minority groups 
are beneficiaries of and participants in federally-assisted 
programs. In the case of any program under which a 
primary recipient extends Federal financial assistance to 
any other recipient, such other recipient shall also submit 
such compliance reports to the primary recipient as may 
be necessary to enable the primary recipient to carry out 
its obligations under this part.

(c) Access to sources of information. Each recipient 
shall permit access by the responsible Department official 
or his designee during normal business hours to such of 
its books, records, accounts, and other sources of informa­
tion, and its facilities as may be pertinent to ascertain com­
pliance with this part. Where any information required 
of a recipient is in the exclusive possession of any other 
agency, institution or person and this agency, institution 
or person shall fail or refuse to furnish this information 
the recipient shall so certify in its report and shall set



20a Appendix
forth what efforts it has made to obtain the information. 
Asserted considerations of privacy or confidentiality may 
not operate to bar the Department from evaulating or 
seeking to enforce compliance with this Part. Information 
of a confidential nature obtained in connection with com­
pliance evaluation or enforcement shall not be disclosed 
except where necessary in formal enforcement proceedings 
or where otherwise required by law.

(d) Information to beneficiaries and participants. Each 
recipient shall make available to participants, beneficiaries, 
and other interested persons such information regarding 
the provisions of this regulation and its applicability to the 
program for which the recipient receives Federal financial 
assistance, and make such information available to them 
in such manner, as the responsible Department oflicial finds 
necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this regula­
tion. (Sec. G01, 602, Civil Rights Act of 1964; 78 Stat. 252; 
42 U.S.C. 2000d, 2000d-l) [29 FR 16298, Dec. 4, 1964, as 
amended at 32 FR 14555, Oct. 19,1967; 38 FR 17981,17982, 
July 5, 1973]

§ 80.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible De­

partment official or his designee shall from time to time 
review the practices of recipients to determine whether 
they are complying with this part.

(b) Complaints. Any person who believes himself or 
any specific class of individuals to be subjected to dis­
crimination prohibited by this part may by himself or by 
a representative file with the responsible Department official 
or his designee a written complaint. A complaint must be 
filed not later than 180 days from the date of the alleged

Appendix 21a
discrimination, unless the time for filing is extended by the 
responsible Department official or his designee.

(c) Investigations. The responsible Department official 
or his designee will make a prompt investigation whenever 
a compliance review, report, complaint, or any other in­
formation indicates a possible failure to comply with this 
part. The investigation should include, where appropriate, 
a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible non- 
compliance with this part occurred, and other factors rele­
vant to a determination as to whether the recipient has 
failed to comply with this part.

(d) Resolution of matters. (1) If an investigation pur­
suant to paragraph (c) of this section indicates a failure 
to comply with this part, the responsible Department official 
or his designee will so inform the recipient and the matter 
•will be resolved by informal means whenever possible. If 
it has been determined that the matter cannot be resolved 
by informal means, action will be taken as provided for in 
§ 80.8.

(2) If an investigation does not warrant action pursuant 
to subparagraph (1) of this paragraph the responsible De­
partment official or his designee will so inform the recipient 
and the complainant, if any, in writing.

(e) Intimidatory or retaliatory acts prohibited. No 
recipient or other person shall intimidate, threaten, coerce, 
or discriminate against any individual for the purpose of 
interfering with any right or privilege secured by section 
601 of the Act or this part, or because he has made a com­
plaint, testified, assisted, or participated in any manner 
in an investigation, proceeding or hearing under this part. 
The identity of complainants shall be kept confidenial except



22a Appendix
to the extent necessary to carry out the purposes of this 
part, including the conduct of any investigation, hearing, 
or judicial proceeding arising thereunder.

§ 80.8 Procedure for effecting compliance.
(a) General. Tf there appears to he a failure or threat­

ened failure to comply with this regulation, and if the 
noncompliance or threatened noncompliance cannot be cor­
rected by informal means, compliance with this part may 
be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by 
any other means authorized by law. Such other means may 
include, but are not limited to, (1) a reference to the De­
partment of Justice with a recommendation that appro­
priate proceedings be brought to enforce any rights of the 
United States under any law of the United States (includ­
ing other titles of the Act), or any assurance or other con­
tractual undertaking, and (2) any applicable proceeding 
under State or local law.

(b) Noncompliance with § 80.4. If an applicant fails 
or refuses to furnish an assurance required under § 80.4 
or otherwise fails or refuses to comply with a requirement 
imposed by or pursuant to that section Federal financial 
assistance may be refused in accordance with the procedures 
of paragraph (c) of this section. The Department shall not 
be required to provide assistance in such a case during the 
pendency of the administrative proceedings under such 
paragraph except that the Department shall continue as­
sistance during the pendency of such proceedings where 
such assistance is due and payable pursuant to an applica­
tion therefor approved prior to the effective date of this 
part.

Appendix 23a
(c) Termination of or refusal to grant or to continue 

Federal financial assistance. No order suspending, ter­
minating or refusing to grant or continue Federal financial 
assistance shall become effective until (1) the responsible 
Department official has advised the applicant or recipient 
of his failure to comply and has determined that compliance 
cannot be secured by voluntary means, (2) there has been 
an express finding on the record, after opportunity for hear­
ing, of a failure by the applicant or recipient to comply 
with a requirement imposed by or pursuant to this part, (3) 
the expiration of 30 days after the Secretary has filed with 
the committee of the House and the committee of the Senate 
having legislative jurisdiction over the program involved, 
a full written report of the circumstances and the grounds 
for such action. Any action to suspend or terminate or to 
refuse to grant or to continue Federal financial assistance 
shall be limited to the particular political entity, or part 
thereof, or other applicant or recipient as to whom such a 
finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such non- 
compliance has been so found.

(d) Other means authorized by lain. No action to effect 
compliance by any other means authorized by law shall 
be taken until (1) the responsible Department official has 
determined that compliance cannot be secured by voluntary 
means, (2) the recipient or other person has been notified 
of its failure to comply and of the action to be taken to 
effect compliance, and (3) the expiration of at least 10 
days from the mailing of such notice to the recipient or 
other person. During this period of at least 10 days addi­
tional efforts shall be made to persuade the recipient or 
other person to comply with the regulation and to take such 
corrective action as may be appropriate.



Appendix24a
§ 80.9 Hearings.

(a) Opportunity for hearing. Whenever an opportunity 
for a hearing is required by § 80.8(c), reasonable notice 
shall be given by registered or certified mail, return receipt 
requested, to the affected applicant or recipient. This notice 
shall advise the applicant or recipient of the action proposed 
to be taken, the specific provision under which the proposed 
action against it is to be taken, and the matters of fact 
or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such 
notice within which the applicant or recipient may request 
of the responsible Department official that the matter be 
scheduled for hearing or (2) advise the applicant or recipi­
ent that the matter in question has been set down for hear­
ing at a stated place and time. The time and place so fixed 
shall be reasonable and shall be subject to change for cause. 
The complainant, if any, shall be advised of the time and 
place of the hearing. An applicant or recipient may waive 
a hearing and submit written information and argument 
for the record. The failure of an applicant or recipient to 
request a hearing for which a date has been set shall be 
deemed to be a waiver of the right to a hearing under sec­
tion 602 of the Act and § 80.8(c) of this regulation and con­
sent to the making of a decision on the basis of such informa­
tion as may be filed as the record.

(b) Time and place of hearing. Hearings shall be held 
at the offices of the Department in Washington, D.C., at a 
time fixed by the responsible Department official unless he 
determines that the convenience of the applicant or recipient 
or of the Department requires that another place be selected. 
Hearings shall be held before a hearing examiner desig­
nated in accordance with 5 H.S.C. 3105 and 3344 (section 
11 of the Administrative Procedure Act).

Appendix 25a
(c) Right to counsel. In all proceedings under this sec­

tion, the applicant or recipient and the Department shall 
have the right to be represented by counsel.

(d) Procedures, evidence, and record. (1) The hearing, 
decision, and any administrative review thereof shall be 
conducted in conformity with sections 5-8 of the Adminis­
trative Procedure Act, and in accordance with such rules of 
procedure as are proper (and not inconsistent with this 
section) relating to the conduct of the hearing, giving of 
notices subsequent to those provided for in paragraph (a) 
of this section, taking of testimony, exhibits, arguments and 
briefs, requests for findings, and other related matters. 
Both the Department and the applicant or recipient shall 
be entitled to introduce all relevant evidence on the issues 
as stated in the notice for hearing or as determined by the 
officer conducting the hearing at the outset of or during 
the hearing. Any person (other than a Government em­
ployee considered to be on official business) who, having 
been invited or requested to appear and testify as a wit­
ness on the Government’s behalf, attends at a time and 
place scheduled for a hearing provided for by this part, 
may be reimbursed for his travel and actual expenses of 
attendance in an amount not to exceed the amount payable 
under the standardized travel regulations to a Government 
employee traveling on official business.

(2) Technical rules of evidence shall not apply to hear­
ings conducted pursuant to this part, but rules or principles 
designed to assure production of the most credible evidence 
available and to subject testimony to test by cross-examina­
tion shall be applied where reasonably necessary by the 
officer conducting the hearing. The hearing officer may ex­
clude irrelevant, immaterial, or unduly repetitious evidence. 
All documents and other evidence offered or taken for the



26a Appendix
record shall be open to examination by the parties and 
opportunity shall be given to refute facts and arguments 
advanced on either side of the issues. A transcript shall be 
made of the oral evidence except to the extent the substance 
thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall 
be made.

(e) Consolidated or Joint Hearings. In cases in which 
the same or related facts are asserted to constitute non- 
compliance with this regulation with respect to two or more 
programs to which this part applies, or noncompliance with 
this part and the regulations of one or more other Federal 
departments or agencies issued under Title VI of the Act, 
the responsible Department official may, by agreement 
with such other departments or agencies where applicable, 
provide for the conduct of consolidated or joint hearings, 
and for the application to such hearings of rules of pro­
cedures not inconsistent with this part. Final decisions in 
such cases, insofar as this regulation is concerned, shall be 
made in accordance with § 80.10.

§ 80.10. Decisions and notices.
(a) Decisions by hearing examiners. After a hearing 

is held by a hearing examiner such hearing examiner shall 
either make an initial decision, if so authorized, or certify 
the entire record including his recommended findings and 
proposed decision to the reviewing authority for a final deci­
sion, and a copy of such initial decision or certification shall 
be mailed to the applicant or recipient and to the complain­
ant, if any. Where the initial decision referred to in this 
paragraph or in paragraph (c) of this section is made by 
the hearing examiner, the applicant or recipient or the 
counsel for the Department may, within the period pro-

Appendix 27a
vided for in the rules of procedure issued by the responsible 
Department official, file with the reviewing authority ex­
ceptions to the initial decision, with his reasons therefor. 
Upon the filing of such exceptions the reviewing authority 
shall review the initial decision and issue its own decision 
thereof including the reasons therefor. In the absence of 
exceptions the initial decision shall constitute the final deci­
sion, subject to the provisions of paragraph (e) of this 
section.

(b) Decisions on record or review by the reviewing 
authority. Whenever a record is certified to the reviewing 
authority for decision or it reviews the decision of a hearing 
examiner pursuant to paragraph (a) or (c) of this section, 
the applicant or recipient shall be given reasonable oppor­
tunity to file with it briefs or other written statements of 
its contentions, and a copy of the final decision of the review­
ing authority shall be given in writing to the applicant or 
recipient and to the complainant, if any.

(c) Decisions on record where a hearing is ivaived. 
Whenever a hearing is waived pursuant to § 80.9(a) the 
reviewing authority shall make its final decision on the 
record or refer the matter to a hearing examiner for an 
initial decision to be made on the record. A copy of such 
decision shall be given in writing to the applicant or 
recipient, and to the complainant, if any.

(d) Rulings required. Each decision of a hearing ex­
aminer or reviewing authority shall set forth a ruling on 
each finding, conclusion, or exception presented, and shall 
identify the requirement or requirements imposed by or 
pursuant to this part with which it is found that the appli­
cant or recipient has failed to comply.



28a Appendix
(e) Review in certain cases by the Secretary. If the 

Secretary has not personally made the final decision re­
ferred to in paragraphs (a), (b), or (c) of this section, a 
recipient or applicant or the counsel for the Department 
may request the Secretary to review a decision of the Re­
viewing Authority in accordance with rules of procedure 
issued by the responsible Department official. Such review 
is not a matter of right and shall be granted only where 
the Secretary determines there are special and important 
reasons therefor. The Secretary may grant or deny such 
request, in whole or in part. He may also review such a 
decision upon his own motion in accordance with rules of 
procedure issued by the responsible Department official. In 
the absence of a review under this paragraph, a final deci­
sion referred to in paragraphs (a), (b), (c) of this section 
shall become the final decision of the Department when the 
Secretary transmits it as such to Congressional committees 
with the report required under section 602 of the Act. 
Failure of an applicant or recipient to file an exception with 
the Reviewing Authority or to request review under this 
paragraph shall not be deemed a failure to exhaust ad­
ministrative remedies for the purpose of obtaining judicial 
review.

(f) Content of orders. The final decision may provide 
for suspension or termination of, or refusal to grant or 
continue Federal financial assistance, in whole or in part, 
to which this regulation applies, and may contain such 
terms, conditions, and other provisions as are consistent 
with and will effectuate the purposes of the Act and this 
regulation, including provisions designed to assure that no 
Federal financial assistance to which this regulation applies 
will thereafter be extended under such law or laws to the 
applicant or recipient determined by such decision to be in

Appendix 2'Ja
default in its performance of an assurance given by it 
pursuant to this regulation, or to have otherwise failed to 
comply with this regulation unless and until it corrects its 
noncompliance and satisfies the responsible Department 
official that it will fully comply with this regulation.

(g) Post-termination proceedings. (1) An applicant or 
recipient adversely affected by an order issued under 
paragraph (f) of this section shall be restored to full 
eligibility to receive Federal financial assistance if it satis­
fies the terms and conditions of that order for such eligibil­
ity or if it brings itself into compliance with this part and 
provides reasonable assurance that it will fully comply 
with this part. An elementary or secondary school or school 
system which is unable to file an assurance of compliance 
with § 80.3 shall be restored to full eligibility to receive 
Federal financial assistance, if it files a court order or a 
plan for desegregation which meets the requirements of 
§ 80.4(c), and provides reasonable assurance that it will 
comply with the court order or plan.

(2) Any applicant or recipient adversely affected by an 
order entered pursuant to paragraph (f) of this section 
may at any time request the responsible Department official 
to restore fully its eligibility to receive Federal financial 
assistance. Any such request shall be supported by informa­
tion showing that the applicant or recipient has met the 
requirements of subparagraph (1) of this paragraph. If 
the responsible Department official determines that those 
requirements have been satisfied, he shall restore such 
eligibility.

(3) If the responsible Department official denies any 
such request, the applicant or recipient may submit a re­
quest for a hearing in writing, specifying why it believes 
such official to have been in error. It shall thereupon be 
given an expeditious hearing, with a decision on the record,



30a Appendix
in accordance with rules of procedure issued by the respon­
sible Department official. The applicant or recipient will be 
restored to such eligibility if it proves at such hearing that 
it satisfied the requirements of subparagraph (1) of this 
paragraph. While proceedings under this paragraph are 
ponding, the sanctions imposed by the order issued under 
paragraph (f) of this section shall remain in effect.

§ 80.11 Judicial review.
Action taken pursuant to section 002 of the Act is sub­

ject to judicial review as provided in section 003 of the Act.

§80.12 Effect on other regulations, forms and instruc­
tions.

(a) Effect on other regulations. All regulations, orders, 
or like directions heretofore issued by any officer of the 
Department which impose requirements designed to pro­
hibit any discrimination against individuals on the ground 
of race, color, or national origin under any program to 
which this regulation applies, and which authorize the sus­
pension or termination of or refusal to grant or to continue 
Federal financial assistance to any applicant for or recip­
ient of assistance for failure to comply with such require­
ments, are hereby superseded to the extent that such 
discrimination is prohibited by this regulation, except that 
nothing in this regulation shall be deemed to relieve any 
person of any obligation assumed or imposed under any 
such superseded regulation, order, instruction, or like direc­
tion prior to the effective date of this regulation. Nothing 
in this regulation, however, shall be deemed to supersede 
any of the following (including future amendments there­
of) : (1) The “Standards for a Merit System of Personnel 
Administration,” issued jointly by the Secretaries of De-

Appendix 31a
fense, of Health, Education and Welfare, and of Labor, 45 
CFR Part 70; (2) Executive Order 11063 and regulations 
issued thereunder, or any other regulations or instructions, 
insofar as such Order, regulations, or instructions prohibit 
discrimination on the ground of race, color, or national 
origin in any program or situation to which this regulation 
is inapplicable, or prohibit discrimination on any other 
ground; or (3) requirements for Emergency School Assist­
ance as published in 35 FR 13442 and codified as 45 CFR 
Part 181.

(b) Forms and instructions. The responsible Depart­
ment official shall issue and promptly make available to 
interested persons forms and detailed instructions and pro­
cedures for effectuating this part.

(c) Supervision and coordination. The responsible De­
partment official may from time to time assign to officials 
of the Department, or to officials of other departments or 
agencies of the Government with the consent of such de­
partments or agencies, responsibilities in connection with 
the effectuation of the purposes of Title VI of the Act and 
this regulation (other than responsibility for review as 
provided in § 80.10(e)), including the achievements of effec­
tive coordination and maximum uniformity within the De­
partment and within the Executive Branch of the Govern­
ment in the application of Title VI and this regulation to 
similar programs and in similar situations. Any action 
taken, determination made, or requirement imposed by an 
official of another Department or Agency acting pursuant 
to an assignment of responsibility under this subsection 
shall have the same effect as though such action had been 
taken by the responsible official of this Department.



Appendix32a
§ 80.13 Definitions.

As used in this part—
(a) The term “Department” means the Department of 

Health, Education, and Welfare, and includes each of its 
operating agencies and other organizational units.

(b) The term “Secretary” means the Secretary of Health, 
Education, and Welfare.

(c) The term “responsible Department official” means 
the Secretary or, to the extent of any delegation by the 
Secretary of authority to act in his stead under any one or 
more provisions of this part, any person or persons to whom 
the Secretary has heretofore delegated, or to whom the 
Secretary may hereafter delegate such authority.

(d) The term “reviewing authority” means the Secretary, 
or any person or persons (including a board or other body 
specially created for that purpose and also including the 
responsible Department official) acting pursuant to author­
ity delegated by the Secretary to carry out responsibilities 
under § 80.10(a)-(d).

(e) The term “United States” means the States of the 
United States, the District of Columbia, Puerto Rico, the 
Virgin Islands, American Samoa, Guam, Wake Island, the 
Canal Zone, and the territories and possessions of the 
United States, and the term “State” means any one of the 
foregoing.

(f) The term “Federal financial assistance” includes (1) 
grants and loans of Federal funds, (2) the grant or dona­
tion of Federal property and interests in property, (3) the 
detail of Federal personnel, (4) the sale and lease of, and 
the permission to use (on other than a casual or transient 
basis). Federal property or any interest in such property 
without consideration or at a nominal consideration, or at 
a consideration which is reduced for the purpose of assist­
ing the recipient, or in recognition of the public interest to

Appendix 33a
be served by such sale or lease to the recipient, and (5) any 
Federal agreement, arrangement, or other contract which 
has as one of its purposes the provision of assistance.

(g) The term “program” includes any program, project, 
or activity for the provision of services, financial aid, or 
other benefits to individuals (including education or train­
ing, health, welfare, rehabilitation, housing, or other serv­
ices, whether provided through employees of the recipient 
of Federal financial assistance or provided by others 
through contracts or other arrangements with the recipient, 
and including work opportunities and cash or loan or other 
assistance to individuals), or for the provision of facilities 
for furnishing services, financial aid or other benefits to 
individuals. The services, financial aid, or other benefits 
provided under a program receiving Federal financial assist­
ance shall be deemed to include any services, financial aid, 
or other benefits provided with the aid of Federal financial 
assistance or until the aid of any non-Federal funds, prop­
erty, or other resources required to be expended or made 
available for the program to meet matching requirements 
or other conditions which must be met in order to receive 
the Federal financial assistance, and to include any services, 
financial aid, or other benefits provided in or through a 
facility provided with the aid of Federal financial assist­
ance or such non-Federal resources.

(h) The term “facility” includes all or any portion of 
structures, equipment, or other real or personal property 
or interests therein, and the provision of facilities includes 
the construction, expansion, renovation, remodeling, alter­
ation or acquisition of facilities.



34a Appendix
(i) The term “recipient” means any State, political sub­

division of any State, or instrumentality of any State or 
political subdivision, any public or private agency, institu­
tion, or organization, or other entity, or any individual, in 
any State, to whom Federal financial assistance is extended, 
directly or through another recipient, for any program, in­
cluding any successor, assign, or transferee thereof, but 
such term does not include any ultimate beneficiary under 
any such program.

(j) The term “primary recipient” means any recipient 
which is authorized or required to extend Federal financial 
assistance to another recipient for the purpose of carrying 
out a program.

(k) The term “applicant” means one who submits an 
application, request, or plan required to be approved by a 
Department official, or by a primary recipient, as a condi­
tion to eligibility for Federal financial assistance, and the 
term “application” means such an application, request, or 
plan.*

♦Appendix A to the foregoing regulations, “Federal Financial 
Assistance to Which These Regulations Apply,” omitted in print­
ing. See 45 C.F.R. following § 80.13.