Brooks v. County School Board of Arlington County, Virginia Appendix to Appellants' Brief

    . opinion is subject to formal revision before publication
Et P°5ter '^ -A p p .D .C . Reports. Users axe requested 

to n otify  the Clerk of any iorm al errors in order that corrections m ay be 
Q2&Q6 Dcxors tiiG bound volumes q o  to press.

Hnttpb Elates (Cmrrt of Appeals
FOR THE DISTRICT OF COLUMBIA C 3C UIT

No. 81-1715

Kenneth  Adams, et al., appellants 

v.
Terrel H. Bell, Individually, and as 

Secretary of the Department of Education, et al.

Appeal from the United States District Court 
for the District of Columbia

(D.C. Civil Action No. 70-3095)

Argued January 8, 1982 
Decided August 24, 1982

Joseph L. Rauh, Jr., with whom John Silard, Elliott 
C. Lichtman, Jack Greenberg, James M. Nabrit, III, Bill 
Lann Lee and Brent Simmons were on the brief for ap­
pellants. ’ y

Michael Jay Singer, Attorney, Department of Justice 
with whom Charles F. C. Ruff, United States Attorney at

Bills of costs m ust be filed w ithin 14 days a f te r  en try  of iudvm ent T t,. 
court loess w ith d isfavor upon motions to  file b ill, cosL <£?“  t S £



2

the time the brief was filed, and William Ranter, Attor­
ney, Department of Justice, were on the brief, for ap* 
pellees.

Before: Wright and Tamm , Circuit Judges, and 
Markey," Chief Judge, United States Court of Customs 
and Patent Appeals.

Opinion for the Court filed by Chief Judge Markey.

Dissenting opinion filed by Circuit Judge Wright.

Markey, Chief Judge: Appeal from the district 
court's denial of motions for a temporary restraining 
order and preliminary injunction to prevent the Depart­
ment of Education (DE) from entering a settlement 
of its Title VI administrative enforcement proceeding 
against the state university system of North Carolina. 
We dismiss the appeal.

Background

Beginning in 1970, Adams has brought a series of suits 
in this circuit, seeking to force the Department of Health, 
Education, and Welfare (HEW ), now the Department of 
Education (D E),1 to carry out its statutory duty under 
Title VI.a In Adams v. Richardson, 351 F. Supp. 636

♦ Sitting by designation pursuant to 28 U.S.C. § 293 (a).
1 Responsibility for the matters involved has been trans­

ferred to the Department of Education under the terms of 
the Department of Education Organization Act, Pub. L. No. 
96-88 (Oct. 17, 1979), 93 Stat. 669-695. See 20 U.S.C. § 3401 
et seq. (Supp. Ill, 1979).

2 Title VI concerns discrimination in federally assisted pro­
grams. The basic prohibition established under that title is 
set forth at 42 U.S.C. § 2000d which provides:

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

3
(D.D.C. 1972), Adams v. Richardson, 356 F. Supp. 92 
(D.D.C. 1973), Adams v. Richardson, 480 F.2d 1159 
(D.C. Cir. 1973), and Adams v. Califano, 430 F. Supp. 
118, the courts of this circuit issued orders requiring 
HEW /DE to establish criteria, to accept or reject state 
plans for desegregation of their higher education systems 
in light of the criteria, and to initiate enforcement pro­
ceedings when voluntary compliance with Title VI was 
not forthcoming.

North Carolina’s 1974 desegregation plan, along with 
those of other states, was accepted by HEW, but HEW 
was ordered to revoke its acceptance in Adams v. Cali­
fano, 480 F . Supp. at 121. Concluding that compliance 
with Title VI was wanting in North Carolina, HEW 
served that state in March, 1979 with a Notice of Op­
portunity for Hearing in accordance with 42 U.S.C 
§ 2000d-l.»

North Carolina then filed suit against HEW in the 
United States District Court for the Eastern District of 
North Carolina, challenging HEW’s effort to enforce 
Title VI, and seeking to enjoin the hearing and HEW’s 
deferral of federal aid during its progress. HEW sought 
to transfer the action to the District of Columbia under 
28 U.S.C. § 1404(a) (1976).

* Section 2000d-l provides in pertinent part:
Each Federal department and agency which is empowered 
to extend Federal financial assistance to any program or 
activity . . .  is authorized and directed to effectuate the 
provisions of section 2000d. . . . Compliance with any 
requirement adopted pursuant to this section may be 
effected (1) by the termination of or refusal to grant or 
to continue assistance under such program or activity to 
any recipient as to whom there has been an express find­
ing on the record, after opportunity for hearing, of a 
failure to comply roith such requirement . . . .  or (2) by 
any other means authorized by law: Provided, however, 
That no such action shall be taken until the department 
or agency . . . has determined thnt compliance cannot be 
secured by voluntary means. (Emphasis added.)



4

The North Carolina district court, per Judge Dupree, 
denied HEW’s motion for a change of venue and the 
State’s motion to enjoin the Title YI administrative hear­
ing, enjoined the deferral of aid during the hearing, re­
tained jurisdiction over the action, and stayed judicial 
proceedings pending completion of the hearing. North 
Carolina v. Department of Health, Education and Wel­
fare, 480 F. Supp. 929 (E.D.N.C. 1979).'1

In July 1980, a formal hearing in which Adams was 
allowed a limited right to intervene, In the Matter of 
the State of North Carolina, E.D. Docket No. 79-VI-l 
and HUD Docket No. 79-4 (Order of August 13, 1979, 
Permitting Adams Plaintiffs to Intervene), commenced 
at DE before an administrative law judge. Over a period 
of nine months the parties presented their affirmative 
cases, creating a record of 15,000 pages and 500 exhibits. 
Part of North Carolina’s case rested on constitutional 
challenges. On June 22, 1981, DE notified Adams that a 
settlement between DE and North Carolina had been pro­
posed which, if accepted by Secretary of Education Bell, 
would be filed in the North Carolina district court in the 
form of a consent decree.

Three days later, on June 25, 1981, Adams moved in 
the District of Columbia district court, before Judge 
Pratt, for a temporary restraining order and preliminary 
injunction against DE’s entering the proposed settlement. 
Ruling from the bench, Judge P ra tt denied the motion. 
On the following day, Adams filed this appeal.®

* Adams applied to the district court for the District of 
Columbia for a mandatory injunction requiring the deferral 
of aid enjoined by Judge Dupree. Noting the "basic principles 
of comity” and the need to avoid “irreconcilable judicial man­
dates", Judge Pratt denied the request. Adams V. Harris, No. 
70-3095, slip. op. at 3 (D.D.C., mem. opinion Oct. 18, 1979).

® On June 29, 1981, Adams fded in this court an Emergency 
Motion for Injunction Pending Appeal. This Court denied the

5

DE joined with North Carolina in presenting the pro­
posed consent decree to the Eastern District of North 
Carolina district court for approval. Judge Dupree sched­
uled a hearing for July 13, 1981, giving Adams notice 
and opportunity to appear as amicus curiae. Judge 
Dupree noted that Adams never sought to intervene as 
a party in the action before him. DE and North Carolina 
filed memoranda in support of the consent decree, and 
Adams filed an opposition. The parties submitted to the 
court the entire record of the administrative hearing.

On July 17, 1981, "unpersuaded that the settlement 
reached is in any way violative of either the [D.C.J dis­
trict court or circuit court orders” discussed above, and 
finding that “ [t] he plan which the decree embodies com­
plies substantially with the criteria promulgated by HEW 
in 1977,” Judge Dupree approved the consent decree. 
North Carolina v. Department of Education, No. 79-217- 
CIV-5 (E.D.N.C., mem. dec. July 17, 1981). In accord­
ance with the terms of the consent decree, the North Car­
olina district court will “retain jurisdiction over the case 
until December 31, 1988, to monitor continued compliance 
by . . . [North Carolina] with Title VI and the four­
teenth amendment.” ®

motion by order of June 30, 1981, and later denied Adams’ 
motions for an expedited appeal.

8 A provision of the consent decree obligates the govern­
ment to dismiss the administrative enforcement proceeding 
against North Carolina without prejudice. On July 27, 1981, 
DE’r General Counsel moved the administrative law judge to 
dismiss the proceeding, and Adams opposed the dismissal. 
The administrative law judge certified the question of dis­
missal to DE’s Reviewing Authority for a ruling. In the Mat­
ter of the State of North Carolina, E.D. Docket No. 79-VI-l 
and HUD Docket 79-4 (Order of August 17, 1981, Certifying 
Motion to Dismiss to the Reviewing Authority). The motion 
is pending, so far as the present record reflects.



6
Opinion

Though not argued by the parties, the threshold issue 
on this appeal is whether the case is moot.7 Adams’ mo­
tion requested relief in the form of an order prohibiting 
DE’s entry into a settlement to be submitted to Judge 
Dupree in the form of consent decree. The action sought 
to be prohibited has now been consummated, State of 
North Carolina V. Department of Education, No. 79-217- 
CIV-5 (E.D.N.C., July 17, 1981), rendering the case 
moot. Mills v. Green, 159 U.S. 651 (1895); Jones v. 
Montague, 194 U.S. 147 (1904); Oil Workers Unions v. 
Missouri, 361 U.S. 363 (1960); Hall V. Beals, 396 U.S. 
45 (1969)."

7 The mootness concept has been subjected to erosion and 
confusion. See Note, Mootness on Appeal in the Supreme 
Court, 83 Harv. L. Rev. 1672 (1970). That courts of equity 
may grant relief not prayed for is established. Fed. R. Civ. P. 
54(c). A basis for unrequested declaratory relief can be 
visualized in virtually every case, making it possible for state 
and federal declaratory judgment acts to virtually swallow 
the mootness concept. Whatever may be the appropriate view 
respecting a sua sponte grant of a declaratory judgment af­
fecting tho rights and duties of the parties in a particular 
case, tho day has not yet come when courts of one circuit 
should issue declaratory judgments evaluating actions taken 
by courts of another circuit.

* Mootness precluding justiciability, matters such as the 
correspondence of the settlement/consent decree with the 
criteria, the status of desegregation in the higher education 
system of North Carolina, and Judge Pratt’s denial of Adams' 
motion, are matters not before us. Our decision in this case 
casts no reflection on the substance of any criteria, or on any 
earlier court decision requiring HEW/DE to adopt and em­
ploy some criteria in its administrative evaluation of desegre­
gation plans submitted by the states. Indeed, such court deci­
sions have been a major factor in stimulating the agency to 
fulfill its statutory obligations under Title VI. As important 
ns such matters may be, they are not involved in any determi­
nation of whether a district court of this circuit may properly 
enjoin DE’s conduct in an enforcement proceeding in a court 
of another circuit, nor are such matters involved in this court’s 
recognition of the fact of mootness on this appeal.

7

For this court to order revocation of DE’s settlement 
of the North Carolina enforcement litigation would run 
counter to the court-approved consent decree of a court of 
another circuit, would be contrary to the principles of 
comity, and would erect an unseemly and irreconcilable 
conflict between federal courts.

Nor is there another form of effectual relief which this 
court might grant. The case before us relates to North 
Carolina, which is not a party and not in this case subject 
to this court’s jurisdiction.8 A declaratory judgment on 
the extent to which DE may or may not have met its 
statutory obligations in submitting the consent decree to 
Judge Dupree, for example, would be merely an advisory 
opinion, having no effect on the parties or the situation 
in the North Carolina litigation. It would, moreover, en­
tail an inappropriate review of, and an advisory pro­
nouncement on, Judge Dupree’s action in approving the 
settlement and decree.10

8 Adams says the criteria "are of national significance” and 
that it is “highly appropriate for courts in Washington, D.C. 
to rule upon the necessity for, and the propriety of, these 
desegregation criteria applicable to many states.” That action 
would be highly convenient. It would not be highly appro­
priate in this case under the rules governing our judicial 
system. Moreover, this court has rejected the notion that it 
is alone suited to review issues of national importance. See 
Starnes V. McGuire, 512 F.2d 918, 928 (D.C. Cir. 1974) (en 
banc). This court is not a national court of appeals, nor a 
judicial panel on multi-district litigation. See 28 U.S.C. § 1407 
(1976). It plays not the role of the Supreme Court. Its loca­
tion renders it neither more nor less appropriate that it rule 
on matters of "national significance.”

10 Whether DE should in general be declared to be disre­
garding the criteria may be considered in connection with 
Adams’ Motion for Further Relief pending in the district 
court. Adams V. Bell, Civ. Action No. 70-3095 (D.D.C.), copy 
filed with this court on May 18, 1982. In that Motion, Adams 
includes a 35-page statistical compilation purporting to show 
disregard of the criteria by DE in 11 states, (not including



8

Accordingly, the case is moot and the appeal is dis­
missed.

Appeal Dismissed

North Carolina), and seeks an order requiring every previ­
ously de jure segregated state to comply with the criteiia. 
Unlike the present case, jurisdiction to determine whether a 
federal agency is fulfilling its legal obligations may be impli­
cated in considering the Motion for Further Relief. Consid­
erations of case or controversy, private cause of action, stand­
ing, ripeness, and the authority of courts in this circuit to 
issue orders to the states, need not be treated here, where as 
in other states, DE’s enforcement efforts are before other 
courts. See, e.g., United States V. Louisiana, 527 F. Supp. 509 
(E.D. La 1981) (order of three-judge court approving con­
sent decree in settlement of government s Title VI desegrega­
tion case). Whether DE is shirking its duty by entering par­
ticular consent decrees is for tbe particular courts considering 
those decrees, not this court, to consider. We are not .author­
ized to substitute our views of those decrees for the views of 
other courts, whose dedication to enforcement of Title VI and 
constitutional rights must be presumed equal to our own.

1

Wright, Circuit Judge, dissenting: For over a decade 
appellants' have patiently sought to compel the Depart­
ment of Education 2 to fulfill its legal obligation * to as­
sure desegregation of higher education. On at least three 
occasions—twice in the.District Court of this circuit4 and 
once in this court8—appellants’ efforts were vindicated. 
On June 22, 1981 the Department notified appellants’ 
counsel that it intended to enter into an agreement ac­
cepting a desegregation plan submitted by North Carolina 
for its university system.8 Prior court orders had man­
dated this notification.7 Appellants immediately returned

1 Plaintiffs-appellants are certain black students, citizens, 
and taxpayers.

2 This action was originally brought against the Secretary 
of Health, Education and Welfare (IIEW) ; responsibility for 
the matters involved in this suit was transferred to the Sec­
retary of Education in 1979. See 20 U.S.C. § 3401 et scq. 
(Supp. IV 1980). The current defendants nre Secretary of 
Education Terrel II. Bell and the director of the Department 
of Education’s Office of Civil Rights.

»See Title VI of the Civil Rights Act of 19G4, 42 U.S.C. 
§§ 2000d et seq. (1976 & Supp. IV 1980).

4 Adams v. Richardson, 351 F.Supp. 636 (D. D.C. 1972) 
(Memorandum Opinion), 356 F.Supp. 92 (D. D.C. 1972) (De­
claratory Judgment and Injunction Order) ; Adams v. Cali- 
fano, 430 F.Supp. 118 (D. D.C. 1977) (Second Supplemental 
Order).

5 Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) 
(enhanc) (per curiam).

8 See Letter from Frank K. Krueger to Joseph Rauh, Juno 
22, 1981, Appendix A to Points and Authorities in Support 
of Issuance of a Temporary Restraining Order and Pre­
liminary Injunction, Adams v. Bell, D. D.C. Civil Action No. 
70-3095 (filed June 25,1981).

7 See Adams v. Califano, supra note 4, 430 F.Supp. at 121 
(ordering that plaintiffs be afforded “timely access’’to revised 
desegregation plans). In a subsequent order issued July 14, 
1978, the court defined “timely access” as 72 hours for prior



2

to the District Court of this circuit (hereafter referred 
to as the District Court) seeking to enjoin the Secretary 
of Education from approving the proposed agreement. 
They claimed that it conflicted with the Department’s 
legal obligation that the courts of this circuit had previ­
ously elaborated.

On June 25, 1981 the District Court here denied the 
request for relief on the ground that it “wholly lackfed] 
jurisdiction.” 8 The Secretary of Education subse­
quently approved North Carolina’s desegregation plan. 
On July 13, 1981 the Department and the State 
of North Carolina submitted a consent decree em­
bodying the plan to the District Court for the Eastern 
District of North Carolina (hereafter referred to as the 
North Carolina court). Within four days the North Car­
olina court approved the consent decree. North Carolina 
v. Dep't of Education, E.D. N.C. No. 79-217-CIV-5 
(Memorandum Decision July 17, 1981). The majority, 
without assessing the District Court’s conclusion as to the 
jurisdiction issue, affirms because, in its opinion, the De­
partment’s entrance into the consent decree in the North 
Carolina court moots this lawsuit.

I respectfully dissent. This case is not moot. While I 
agree that the primary issue at stake is the adequacy of 
the consent decree, I believe that additional relief can 
still be granted to plaintiffs. The District Court had not 
only the jurisdiction to enforce its previously issued in­
junction, but also the duty to determine whether the De­
partment had fulfilled its legal obligation. The Secre­
tary's approval of the consent agreement ignored the ear­
lier judgment of the District Court; in my opinion, only

review and comment upon any new, amended, or supplemental 
desegregation plan.

" Transcript of June 25, 1981 Hearing at 25 (Finding of the 
Court), Appendix of Plaintiffs-Appellants (App.) 80.

3

that court—the rendering court—has the authority to de­
termine whether the Department has complied with its 
prior orders. Conversely, the North Carolina court had 
no business usurping the continuing authority of the Dis­
trict Court to supervise its earlier-issued decree. The ma­
jority is correct in asserting that the Secretary’s approval 
of the consent decree prevents the District Court from 
awarding the plaintiffs the relief they requested: to en­
join the Secretary from approving the consent decree. 
But since unrequested relief is available that would grant 
plaintiffs the ultimate remedy they sought—to require the 
Department to abide by the earlier orders of the District 
Court—this case is not moot. The District Court should 
order the Department to petition the North Carolina 
court to allow it to withdraw from the consent order. If 
the Secretary cannot withdraw, then the Department 
should be cited for contempt for not complying with the 
injunction the District Court issued in 1977. Since either 
of these remedies would further the Department’s com­
pliance with the earlier orders of the District Court, ef­
fectual relief is available and this case is not moot. 
Therefore, in my judgment, the majority incorrectly af­
firms the result reached below.

I. Background

Before addressing the holdings of the District Court 
and the majority, it is imperative to understand the ori­
gins of the controversy in this case. A review of the his- 
toiy of segregation in Southern higher education, of Title 
VI of the Civil Rights Act of 1964 and its implementa­
tion, of the Adams litigation, and of the specific events 
precipitating this suit is essential to exposing the fail­
ings of the holdings of the District Court and the ma­
jority.

A. Segregation in Southern Higher Education
After the Civil War states throughout the South en­

acted statutes or constitutional provisions requiring seg-



4

regation of the races in elementary and secondaiy 
schools.0 E.g., North Carolina Laws 1868-G9, ch. 184, 
§ 50, p. 471; North Carolina Const. 1875, Art. IX, §2. 
Initially, these provisions did not apply to colleges or uni­
versities. Nonetheless, state legislatures created a pattern 
of segregation through individual enactments establishing 
institutions intended for only one race, and thereafter 
Southern states confirmed this pattern by passing stat­
utes extending compulsory racial segregation to higher 
education.10

With the Supreme Court’s implicit sanction in Plessy v. 
Ferguson, 163 U.S. 537 (1896), the states for decades 
maintained separate institutions of public education. 
However, in a series of higher education cases starting 
in 1938, the Court ordered admission of black students 
to white-only graduate schools after finding inequalities 
between the opportunities offered to blacks and whites 
with the same educational qualifications. Missouri ex rel. 
Gaine3 v. Canada, 305 U.S. 337 (1938); Sipuel v. Board 
of Regents of University of Oklahoma, 332 U.S. 631 
(1948); Siveatt v. Painter, 339 U.S. 629 (1950); Mc- 
Laurin v. Oklahoma State Regents, 339 U.S. 637 (1950).

These suits had their counterpart in North Carolina in 
McKissick v. Carmichael, 187 F.2d 949 (4th Cir.), cert, 
denied, 341 U.S. 951 (1951). In 1939, after Missouri ex 
rel. Gaines v. Canada, supra, North Carolina had added 
a Law School for Negroes to the North Carolina College 
for Negroes at Durham.11 Subsequently, four qualified 
black students applied for admission to the School of Law 
at the University of North Carolina. They were rejected 
solely because of their race. The students brought suit

0 U.S. Comm’n on Civil Rights, Equal Protection op the 
Laws in Public Higher Education 9 & n.46 (1960).

10 Id. at 9 & n.47.
11 See McKissick v. Carmichael, 187 F.2d 949, 951 (4th 

Cir.), cert, denied, 341 U.S. 951 (1951).

against the school authorities under the Equal Protection 
Clause of the Fourteenth Amendment. The State argued 
that the Law School for Negroes afforded an education 
substantially equivalent to that offered at the University’s 
law school. The federal district judge dismissed the com­
plaint. On appeal the Fourth Circuit concluded “that the 
Negro School is clearly inferior to the white’’ and re­
versed the lower court’s decision on the basis of Siveatt 
v. Painter, supra, 187 F.2d at 950.

Such cases laid the groundwork for Brown v. Board of 
Education, 347 U.S. 483 (1954). In Brown the Court 
rejected “separate but equal” public education as violative 
of equal protection of the laws, finding that separate edu­
cational facilities were inherently unequal. Id. at 495. 
Nonetheless, many Southern states displayed immediate 
intransigence in the face of Brown. For instance, on 
May 23, 1955 the Board of Trustees of the University of 
North Carolina passed a resolution reaffirming its policy 
against admission of blacks to the all-white undergraduate 
schools of the University system.”  In Frasier v. Board, 
of Trustees, 134 F.Supp. 589 (M.D. N.C. 1955) (three- 
judge court), ajf’d, 350 U.S. 979 (1956), this policy was 
held to violate the Equal Protection Clause of the Four­
teenth Amendment. The court flatly rejected the Uni­
versity’s argument that Brown applied only to lower pub­
lic schools and not to segregataion at the college or uni-

12 The resolution stated:
The State of North Carolina having spent millions of 

dollars in providing adequate and equal education facili­
ties in the undergraduate departments of its institutions 
of higher learning for all races, it is hereby declared to 
be the policy of the Board of Trustees of the Consolidated 
University of North Carolina that applications of Negroes 
to the undergraduate schools of the three branches of the 
Consolidated University be not accepted.

Quoted in Frasier v. Board of Trustees, 134 F.Supp. 589, 590 
(M.D. N.C. 1955) (3-judge court), aff’d, 350 U.S. 979 (1956).



6

vcrsity level. 134 F.Supp. at 592 (University’s conten­
tion was “without merit” ).

Even with the passage of time, resistance in the Deep 
South to desegregation of higher education remained in­
tense, while other Southern states exhibited only “token 
compliance” with the mandate to desegregate.1B In North 
Carolina, for example, by 1964 the traditionally white in­
stitutions of public higher education remained 99 percent 
white; the traditionally black institutions remained 99.9 
percent black.14

B. Enactment of Title VI
Spurred by the general lack of progress that had been 

achieved by constitutional litigation, Congress adopted a 
federal solution to the problems e f segregation and racial 
discrimination in Title VI of the Civil Rights Act of 
1964, 42 U.S.C. § 2000d et seq. (1976 & Supp. IV 1980). 
Title VI declares that “ [n]o person in the United States 
shall, on the ground of race, color, or national origin,
• * * be subjected to discrimination under any program 
or activity receiving Federal financial assistance.” Id. 
§ 2000d. Each federal agency empowered to extend fed­
eral aid is both “authorized and directed" to effectuate the 
law with respect to the particular programs it admin­
isters. Id. § 2000d-l (emphasis added).15 The ultimate

'»U.S. Comm’n on Civil Rights, supra note 9, at 56, 69.
14 H. Edwards & V. Nordin, Higher Education and the 

Law 515 n.5 (1979).
lB As originally proposed by the Administration, Title VI 

would simply have granted each agency discretion to withhold 
federal funds from public agencies that discriminated. House 
Doc. 124, 88th Cong., 1st Sess., Message from the President 
of the United States Relative to Civil Rights at 24 (June 19, 
1963). However, the House Judiciary Committee reported 
out a bill close to the ultimately enacted statute that declared 
unequivocal rights and made their agency vindication manda­
tory. Thus the reported bill made it "the mandatory duty of 
every Federal department or agency to utilize the funds pro­

7

sanction for violation of the Act is termination of federal 
funds. Id. The Department of Health, Education and 
Welfare (HEW) was the original enforcement agency in 
the field of higher education. The Department of Educa­
tion assumed this responsibility in 1979.15

Unfortunately, because of the problem of lax enforce­
ment, enactment of Title VI produced little change at the 
college or university level. As late as 1969 HEW had 
taken virtually no action to effectuate the law with re­
spect to institutions of higher education. Thus in North 
Carolina the traditionally white institutions remained 
98 percent white.” Between January 1969 and February 
1970 HEW finally undertook its first enforcement efforts. 
Having concluded that ten states,’8 including North Caro­
lina, were operating segregated systems of higher educa­
tion in violation of Title VI,19 the Department sent letters 
of noncompliance to each of these states.20 HEW re­
quested each state to submit a desegregation plan within

vided for Federal financial assistance in every program or 
activity to enforce civil rights requirements (sec. 602).” H.R. 
Rep. No. 914, 88th Cong., 1st Sess., Pt. 1 at 76 (1963) (Mi­
nority report's characterization) (emphasis added).

16 See note 2 supra.
17 H. Edwards & V. Nordin, supra note 14, at 515-516 n.5.
18 Louisiana, Mississippi, Oklahoma, North Carolina, Flor­

ida, Arkansas, Pennsylvania, Georgia, Maryland, and Vir­
ginia.

19 Adams v. Richardson, supra note 4, 351 F.Supp. at 637- 
638.

20 The letter to North Carolina characterized the State’s 
system of higher education as one “in which certain institu­
tions are clearly identifiable as serving students on the basis 
of race.” Letter from Leon Panetta, Director, Office of Civil 
Rights, HEW, to Governor Robert W. Scott, February 16, 
1970, quoted in Rentschler, Courts and Politics: Integrating 
Higher Education in North Carolina, 7 NOLPE Sen. L. J. 1, 
2 (1977).



8

120 days. North Carolina and four other states21 totally 
ignored the request. The other five s ta tes22 submitted 
plans that were unacceptable to HEW. Nonetheless, HEW 
took no further action against any state.2'’ Thus the ma­
laise of indecisive enforcement efforts continued.

C. The Adams Litigation
In late 1970 appellants sued senior HEW officials, al­

leging defaults in the administration of their Title VI 
responsibilities. The lower court agreed. Finding the De­
partment’s policy to be one of “benign neglect,” 24 the 
District Court concluded that HEW had “not properly 
fulfilled its obligation under Title VI to effectuate the 
provisions of Section 2000d of such Title and thereby to 
eliminate the vestiges of past policies and practices of 
segregation in programs receiving federal financial as­
sistance.” Adams v. Richardson, 351 F.Supp. 636, 637 
(D. D.C. 1972) (Memorandum Opinion). The court then 
declared that the time for securing voluntary compliance 
had “long since passed” and that HEW’s continued fi­
nancial assistance to segregated systems of higher educa­
tion in the ten states violated plaintiffs’ rights under 
Title VI. Adams v. Richardson, 356 F.Supp. 92, 94 (D.
D.C. 1973) (Declaratory Judgment and Injunction Or­
der). Therefore, the court ordered HEW to institute 
compliance proceedings within 120 days against those 
states that had not submitted acceptable plans. Id.

On appeal the government argued that the District 
Court lacked jurisdiction to review the Department’s ac­
tions 2" and asserted that the lower court’s order “virtu-

21 Louisiana, Mississippi, Oklahoma, and Florida.
25 Arkansas, Pennsylvania, Georgia, Maryland, and Vir­

ginia.
22 Adams v. Richardson, supra note 4, 351 F.Supp. at G38.
2< Id. at 642.
n Brief for Appellants at 11-16 in Adams v. Richardson, 

supra note 5.

9

ally transferred ] the responsibility for the administra­
tion of Title VI to a single district judge.” 28 Nonethe­
less, a unanimous Court of Appeals affirmed, Adams v. 
Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en banc) 
(per curiam),2'' although it gave HEW an additional pe­
riod of 180 days to secure acceptable plans, id. a t 1165. 
The court explicitly rejected HEW’s argument that en­
forcement of Titlp VI was committed to agency discre­
tion and that review of such action was not within the 
jurisdiction of the court. Id. at 1161-1163. Instead, the 
court’s purpose was “to assure that the agency properly 
construes its statutory obligations, and that the policies 
it adopts and implements are consistent with those duties 
and not a negation of them.” Id. at 1163-1164 (footnote 
omitted).

HEW then sent individual communications to each of 
the ten states and identified the critical requirements of 
acceptable desegregation plans. Thereafter North Caro­
lina and seven other states 28 submitted higher education 
plans. In June of 1974 HEW found these plans accepta­
ble and approved them.28 In 1975 appellants moved for 
further relief, emphasizing numerous deficiencies in the 
approved plans. The appellants focused their attack on 
the plan that North Carolina submitted in 1974 89 (“the

28 Id. at 10.
27 The court sua sponte decided to hear the case en banc 

because of the exceptional importance of the issues involved.
28 Oklahoma, Florida, Arkansas, Pennsylvania, Georgia, 

Maryland, nnd Virginia.
29 The remaining two states, Louisiana and Mississippi, 

were referred to the Department of Justice for enforcement 
proceedings.

50 See Motion for Further Relief and Points and Authorities 
in Support Thereof, Adams v. Weinberger, D. D.C. Civil Ac­
tion No. 3095-70 (filed 1975).



'W PSWW NMW.

10

1974 Plan” )."1 Appellants requested that HEW be re­
quired to revoke its approval of the desegregation plans 
of North Carolina and the other states, and that the 
states be directed to submit new plans.

In 1977 the lower court once again ruled in favor of 
appellants. Adams v. Califano, 430 F.Supp. 118 (D. D.C. 
1977) (Second Supplemental Order). The court found 
that the desegregation plans submitted by North Carolina 
and five other Btates "2 “did not meet important desegre­
gation requirements” earlier specified by HEW and “have 
failed to achieve significant progress toward higher edu­
cation desegregation.” Id. at 119. The court therefore 
ordered HEW to notify the Bix states, including North 
Carolina, that the plans submitted by them were not ade­
quate to comply with Title VI. Id. at 121.

Moreover, the court ordered HEW to transmit to the 
states and to serve upon appellants and file with the court 
“final guidelines or criteria specifying the ingredients of 
an acceptable higher education desegregation plan.” Id. 
In particular, the court recognized

the need to obtain specific commitments necessary 
for a workable higher education desegregation plan

11 The Revised North Carolina State Plan for the Further 
Elimination of Racial Duality in the Public Post-Secondary 
Education Systems (May 31, 1974). A copy of the plan was 
filed with the District Court in 1974 as Appendix XIV (e), and 
is part of the record on appeal in the case at hand.

« The other states were Arkansas, Florida, Georgia, Okla­
homa, and Virginia. The court deferred action with respect 
to Louisiana and Mississippi, which were the subject of judi­
cial enforcement proceedings elsewhere; Maryland, whose 
claim that HEW failed adequately to engage in voluntary 
compliance was pending before another Court of Appeals; and 
Pennsylvania, which was in the midst of settlement negotia­
tions. Thus, where the Department was fulfilling its legal 
obligations, the court deferred action. On the other hand, 
with respect to the six states where the Department had failed 
to do so, the court intervened.

11

* * * concerning admission, recruitment, and reten­
tion of students * * *, concerning the placement and 
duplication of program offerings among institutions
* * ", the role and the enhancement of Black institu­
tions * * *, and concerning changes in the racial 
composition of the faculties involved * * *.

Id. at 120.
In directing the parties to draft the order the District 

Judge had made clear that he wanted the Department to 
be “under the compulsion of a Court Order to submit to 
the Btates certain specific requirements which the states 
must respond to * * *.” "* This mandate was directly in 
line with the concern of this court en banc that HEW 
had “not yet formulated guidelines for desegregating 
state-wide systems of higher learning * * *.” 480 F.2d 
at 1164 (footnote omitted).*4 HEW was ordered to re­
quire each state to submit revised desegregation plans 
within 60 days of receipt of the criteria and to accept or 
reject such submissions within 120 days thereafter. 430 
F.Supp. at 121.

Pursuant to the “specific direction” of the District 
Court, HEW issued “Amended Criteria Specifying In­
gredients of Acceptable Plans to Desegregate State Sys­
tems of Public Higher Education,” 42 Fed. Reg. 40780 
(1977) (hereafter Amended Criteria), Appendix of 
Plaintiffs-Appellants (App.) 102. According to the court,

811 Transcript of January 17, 1977 Hearing at 54 (emphasis 
added).

84 This court, 480 F.2d at 11G4 n.9, had cited Alabama 
NAACP State Conference of Branches v. Wallace, 269 F. 
Supp. 346 (M.D. Ala. 1967). In that case a three-judge court 
had stressed the importance of “explicit, certain and definite” 
guidelines for assuring compliance with the law. Id. at 352. 
As the court stated, “In the absence of judicial review, the 
school authorities may and should respect the Guidelines as a 
reliable guide to what the Department's enforcement action 
should be.” Id. at 351.



12

wth the statute 88 and the Constitution *• imposed an af­
firmative duty on the states to devise and implement 
plans that would be effective in desegregating higher edu-

”  IIEW regulations implementing Title VI provided that
8 r r nt ° f,  federal funds had previously discrimi- 

S  d °r thf  baS'8 ° f raCe’ “tho rec'P»ent must take affirm a- tive action to overcome the effects of prior discrimination.”
45C .F R. § 80 3(b) ( 6 ) 0 )  (1977) (emphasis added). These
n o f i m ' ° T h  8tl ex! ? ' See 34 C F R ' § 100.3(b) (6) (i) 
L  8i° 1' ,Thus’. acc°rdmg to the Department, the states had 
a statutory obligation to devise and implement plans that

Am .ach,evin2 the desegregation of the system.”
Amended Criteria specifying Ingredients of Acceptable Plans 
to Desegregate State Systems of Public Higher Education 44
App. 102 10380’ 40781 (1977) (hereafter Amended Criteria),

80 Relying on the 14th Amendment, the Supreme Court long 
go made clear that public school officials have “the affirma­

tive duty to take whatever steps might be necessary to convert 
to a unitary system in which racial discrimination would be 
c lminated root and branch.” Green v. County School Board 
of New Kent County, 391 U.S. 430, 437-438 (1968). This 
2 ™  to be implemented “now," id. at 439 (emphasis in 
^  a,);,and,the obJ?ctlve waa “to eliminate from the public 
rhn?  8 ®Ij e8fjget  °f s^te-imposed segregation.” Swann v. 
/in-TiV *Mecklenburg Board of Education, 402 U.S. 1 15 
(1071). While the Supreme Court has not made clear’the 
precise application of its desegregation doctrines to institu­
tions of higher education, the weight of precedent at the lower 
court level confirms the application of the duty to integrate

f  h‘3n°r adl,cation' See- e-9-. Morris v. State Conned of Higher Education, 327 F.Supp. 1368, 1373 (E.D.
Va.) (3-judge court), aff’d per curiam, 404 U.S 907(1971)-

Ellin^ 1’ 2̂  FSupp- 937- 942 (M.D. Tenn.’ 1968). These cases hold that, while “ [t]he means of eliminat- 
lng discrimination in public schools necessarily differ from its 
elimination in colleges, * * * the state’s duty is as exacting." 
Norris, supra, 327 F.Supp. at 1373 (emphasis added). In 
issuing the Criteria the Department concluded that “ ftlhe 
affinnative duty to desegregate applies with equal force to 
higher education.” Amended Criteria, supra note 35, nt 40780 
App. 102 (citing Norris, supra; Lee v. Macon County Board 
of Education, 267 F.Supp. 458 (M.D. Ala.) (3-judge court),

13

cation systems.37 The Department recognized that the 
court had directed it “to prepare criteria which would 
i entity for the states the specific elements to be included
l h Tri.reVi? 1(,eSegregatio11 pIans-” I d ■ at 40781, App.

• Taus> [cjonsistent with the requirements of Title 
VI these criteria set forth the elements of a desegrega­
tion plan which would eliminate the effects of past dis-
Z Z nat'0no The detai,ed sefc of criteria issued by 
HEW specified the ingredients of acceptable plans, as re- 
qinred by this court’s order.™ HEW subsequently prom­
ulgated Revised Criteria” to serve as guidelines for 
desegregation plans in all states. See 43 Fed. Reg. 6658

HEW then attempted to secure revised plans under the 
new Desegregation Criteria. By early 1979, the Depart­
ment had obtained compliance in five of the six states 
covered by the District Court’s Second Supplemental Or­
der. HEW s efforts proved fruitless, however, with re­
spect to North Carolina. First, the Department found 
as a matter of substance that the measures proposed by 
the State offered “no realistic promise * * * of desegre- 
gating the UNC [University of North Carolina] system 
in the foreseeable future, as the law requires.” 80 Second,

(M.D.Tenml9722)5 (1%7) J ^  ** ° Unn’ 337 RSuPP- 573

102 10™end*d Eriteria' ™pra note 35, at 40780-40781, App. 
102-103. See Comment, Integrating Higher Education' De
L b U  m l l 9 7 2 ) tkC Afflrmf l C DutV ^  Integrate, 57 IOWA U ilKV. 898 (1972) ; Comment, Racially Identifiable Dual Sys­
tems of Higher Education: The 1071 Affirmative Duty to 
Desegregate, 18 Wayne  L. Rev. 1069 (1972) • Note The A t 

t0 integrate in Higher Education, 79 Y a i .e U

88 See Amended Criteria, supra note 35, at 40780, App. 102 • 
Adams v. Cahfano, supra note 4, 430 F.Supp. at 121.

r /°.ILEt.te^ ,fr1oai Albert T. Hamlin, Ass’t General Counsel
m M p p ! m HEW' ta ,08°ph Uvin’ Es’ - D“ - «



14

as to the form of the State’s settlement offers—a consent 
decree to be submitted to a court—the government ex­
plained that “IIEW’s enforcement of Title VI would be 
irreparably undermined if a recipient of funds could 
routinely by-pass statutorily-mandated administrative 
compliance procedures by the expedient of filing a law­
suit and then obtaining a substantive consent decree
* * * >> 40

As a result, in April 1979 HEW filed a Notice of Op­
portunity for Hearing to determine whether federal funds 
to assist higher education in North Carolina should be 
terminated. See 42 U.S.C. § 2000d-l (1976) (mandating 
hearing before fund termination). North Carolina re­
sponded by filing suit against HEW in the Eastern Dis­
trict of North Carolina, seeking, inter alia, to enjoin the 
administrative proceeding and to enjoin enforcement of 
HEW’s Amended Criteria. State v. Dep't of Health, Edu­
cation & Welfare, 480 F.Supp. 929 (E.D. N.C. 1979). 
The government, in’ turn, requested that the action be 
removed to the District Court for the District of Colum­
bia because of comity principles and because North Caro­
lina’s suit collaterally attacked the Adams orders. Judge 
Dupree rejected the government’s motion, id. at 931, but 
also denied North Carolina its requested relief, id. at 937- 
938.4‘ Thus a formal hearing commenced in July 1980 
before an administrative law judge, and the Adams plain­
tiffs were allowed to participate in that hearing. The 
parties eventually completed presentation of their affirma­
tive cases, and the record already includes 16,000 pages 
of testimony and over 600 exhibits.

40 Letter from James P. Turner, Deputy Ass’t Att’y Gen., 
Civil Rights Div., Dep’t of Justice, to Joseph J. Levin, Esq., 
July 23,1979, at 1, App. 108.

41 However, the court did rostrain HEW from imposing 
limited deferral of funds. 480 F.Supp. at 930.

16

D. Events Precipitating This Suit

While the administrative hearing was in progress the 
Department began secret negotiations with North Caro­
lina. The new Secretary of Education subsequently cred­
ited United States Senator Jesse Helms with helping to 
get the talks started.42 On June 20, 1981 Secretary Bell 
publicly announced the government’s intention to settle 
its dispute with the North Carolina University System. 
Brief for appellees at 7. On June 22 appellants were noti­
fied of the proposed agreement and were served with a 
copy of the proposed consent decree.4" The Department 
indicated, astonishing as it may seem given both the con­
tinuing injunctive order of the District Court and the 
government’s previous attempts to remove the North Car­
olina litigation to the court here,44 that it might submit 
the proposed agreement to the North Carolina court as 
soon as June 25, 1981,45 the expiration date of the 72- 
hour comment period mandated by Judge P ratt’s previous 
court order.49

On June 25, 1981 appellants went to the District Court 
seeking a temporary restraining order and a preliminary 
injunction to stop the Secretary from entering the pro­
posed agreement and thereby to prevent the Secretary 
from violating the prior injunctive decree. The District 
Court’s denial of relief resulted in this appeal.

42 Washington Post, June 21, 1981, p. A ll, cols. 1-2. This 
article was brought to the court’s attention by the govern­
ment. See brief for appellees at 7.

4* See Letter, supra note 6. The consent decree appears in 
the record at App. 32.

44 See State v. Dep’t of Health, Education & Welfare, 480 
F.Supp. 929 (E.D. N.C. 1979) (motion denied).

49 Letter, supra note 6.
49 See note 7 supra.



16
II. T he Ruling of the D istrict Court

Appellants Bought to restrain the Secretary of Educa­
tion from entering into the proposed agreement with the 
State of North Carolina.47 On June 25, 1981, in an opin­
ion delivered from the bench, Judge P ra tt denied the re­
quested relief for lack of jurisdiction. Adams v. Bell, 
D. D.C. Civil Action No. 70-3095 (June 25, 1981), App. 
26-30. The court reasoned as follows: First, the court 
stated that its jurisdiction “was directed against the 
agency to see that the agency complied with its statutory 
[and] constitutional responsibilities.” 48 Second, the court 
found that “ [t] he Agency has carried out its function.” 48 
Therefore, the court concluded, “we would wholly lack 
jurisdiction.” 80

In my opinion, the lower court’s reasoning is not in­
ternally consistent. Plaintiffs alleged that the Department 
was not complying with its legal obligations. The Dis­
trict Court clearly reached this issue and concluded that 
the agency had complied. But to make Buch a determina­
tion, the District Court must have had jurisdiction, for 
“ [jurisd iction  is authority to decide the case either 
way.” The Fair v. Kohler Die cfe Specialty Co., 228 U.S. 
22, 25 (1913). As the Supreme Court long ago stated: 
"To determine whether [a] claim is well founded, the 
District Court must take jurisdiction whether its ultimate 
resolution is to be in the affirmative or the negative.” 
Montana-Dakota Utilities Co. v. North-Western Public 
Service Co., 341 U.S. 246, 249 (1951) (emphasis added). 
Thus the court’s conclusion that it wholly lacked jurisdic­
tion cannot logically coexist with its determination that 
the agency complied with its legal obligations.

47 See Motion for Temporary Restraining Order and Motion 
for Preliminary Injunction, Adams v. Bell, D. D.C. Civil Ac­
tion No. 70-3095 (filed June 25,1981), App. 4-5.

4B Transcript of June 25, 1981 Proceeding at 25, App. 30.
40 Id. at 24, App. 29.
1,0 Id. at 25, App. 30.

17

The majority opinion on appeal, choosing to ignore the 
ground on which the case was argued and decided below, 
commits a different, though similarly inexcusable, error. 
The court properly asks whether the case is mooted by 
the North Carolina court’s acceptance of the consent 
decree. But the majority incorrectly asserts that it is, 
arguing that appellants requested only that the Secretary 
be enjoined from entering into that decree. “The action 
sought to be prohibited has now been consummated.” Ma­
jority opinion (Maj. op.) at 6. This argument confuses 
the ultimate relief which appellants’ were pursuing—to 
keep the Department from shirking its statutory obliga­
tion and from evading the prior decrees of this court— 
with the specific relief which appellants requested in their 
petition—to enjoin the Secretary from entering into that 
decree. Because the District Court can devise relief that 
will prevent the Department from violating the court’s 
earlier orders, the relief sought can be granted and this 
case is not moot.81

III. T he District Court Had Jurisdiction Over 
T his Action

In 1972 the District Court identified six separate statu­
tory bases for jurisdiction over appellants’ original law­
suit.82 Adams v. Richardson, supra, 351 F.Supp. at 640.

81 Accordingly, I believe that comity principles do not bar 
the District Court from requiring that the Department peti­
tion to withdraw from its consent decree. See Part V infra. 
Indeed, I believe that the North Carolina court should not have 
entertained either the earlier litigation or the consent decree 
because of these same comity principles. A District Court 
should never entertain a suit which impinges upon the order 
of another court. See Gregory-Portland Independent School 
District v. Texas Education Agency, 576 F.2d 81 (6th Cir. 
1978), cert, denied, 440 U.S. 946 (1979) ; Lapin v. Shulton, 
Inc., 333 F.2d 169 (9th Cir.), cert, denied, 379 U.S. 904 
(1964).

82 Those statutory provisions were: 6 U.S.C. §§ 702-704 
(review of agency action under the Administrative Procedure 
A ct); 28 U.S.C. § 1331 (general federal question jurisdic-



18

At no point in the subsequent history of the lawsuit did 
anyone question the lower court’s jurisdiction. On June 
25, 1981, in argument before the District Court, appel­
lants naturally asserted that jurisdiction over their mo­
tion for injunction was identical with the jurisdiction 
that obtained at the start of the case.0* The lower court 
now holds that jurisdiction no longer exists, and the ma- 
joiity of this panel affirms by finding that the case is 
moot. Yet the lower court did not address any of the 
specific jurisdictional bases identified in 1972. This was 
a remarkable omission. Moreover, had the majority ana­
lyzed these specific jurisdictional bases they would have 
seen why the District Court must have continuing au­
thority to supervise its prior decree (and, therefore, why 
the Secretary s acceptance of the consent decree does not 
moot this case).

Rather than belabor all the jurisdictional grounds, I 
will focus on two of the most significant and obvious bases 
on which the District Court should have acted.®1 Either

tion); id. § 1343(4) (jurisdiction over actions to protect civil 
rights) ; id. § 1361 (jurisdiction over action to compel officer 
of the United States to perform his duty) ; id. § 2201 (de- 
clnratory judgment authority) ; id. 2202 (granting of further 
necessary relief).

'"Transcript of June 25, 1981 Proceeding at 18, App. 23 
(statement of Mr. Lichtman) ("the jurisdiction is the very 
same jurisdiction that began this case”) ; id. nt 19, App. 24.

81 In determining the existence of jurisdiction, it is impor­
tant to distinguish a dismissal for lack of jurisdiction from a 
dismissal for failure to state a claim. 5 C. Wright & A. 
Miller, Federal Practice and Procedure § 1350 at 543 
(19G9). To determine subject matter jurisdiction, a court 
must examine whether a plaintiff purports to state a federal 
claim regardless of the actual validity of the claim. See 
Wheeldin v. Wheeler, 373 U.S. 647, 649 (1963). Thus, with 
respect to jurisdiction over federal questions, the only inquiry 
is whether the claim is either wholly insubstantinl and frivo­
lous or immaterial and made solely for the purpose of obtain-

.19

one of these grounds would have established jurisdiction 
and formed a basis for structuring appropriate relief. 
The first ground is jurisdiction to enforce prior decisions 
and orders; the second ground is jurisdiction to determine 
whether the Department is fulfilling its legal obligations.

A. Jurisdiction to Enforce Prior Decisions and Orders
There can be "no doubt that federal courts have con­

tinuing jurisdiction to protect and enforce their judg­
ments.” Central of Georgia R. Co. v. United States, 410 
F.Supp. 354, 357 (D. D.C.) (3-judge court), afj’d, 429 
U.S. 968 (1976). This continuing jurisdiction after ren­
dition of a judgment must be broadly construed, or else 
the judicial power "would be incomplete and entirely in­
adequate to the purposes for which it was conferred by 
the Constitution.” Riggs v. Johnson County, 73 U.S. (6 
Wall.) 166, 187 (1867). As a result, such jurisdiction 
clearly extends to efforts to assure that a prior judgment 
“may be carried fully into execution or that it may be 
given fuller effect * * Dugas v. American Surety Co 
300 U.S. 414, 428 (1937).

In this case plaintiffs sought to enjoin the Department 
from entering into an agreement that would have al­
legedly undermined the Second Supplemental Order of the 
District Court,88 and other court orders, in two distinct 
ways.

First, in 1977, the District Court had ordered the De­
partment to transmit “final guidelines” ®* that would con­
stitute “specific requirements which the states must re-

ing jurisdiction. See Dell v. Hood, 327 U.S. 678, 682-683 
(1946) ; Harper v. McDonald, 679 F.2d 955 (D.C. Cir. 1982).

88 Adams v. Califano, supra note 4.
80 4 3 0 F.Supp. at 121.



20

spond to * * * ” 87 The District Court had ruled that it 
was HEW's responsibility to devise those criteria and ob­
tain "specific commitments,” 88 and pursuant to the court’s 
"specific direction” 80 the Department had promulgated 
the Amended Criteria, supra. Yet, according to the plain­
tiffs’ motion below, the Department had abandoned the 
court-mandated Criteria in its proposed agreement with 
North Carolina.00 Surely the District Court had jurisdic­
tion over such a claim in order to carry “fully into execu­
tion” and into “fuller effect” its prior judgment. Ju ris­
diction in this respect is entirely analogous to that exer­
cised in 1977. At that time the District Court had juris­
diction because the Department had accepted state plans 
that “failed to meet the requirements earlier specified” 
by HEW in letters to the states.01 Here, the court nec­
essarily had jurisdiction because North Carolina’s plan 
allegedly failed to meet the requirements specified by 
HEW pursuant to court order.

87 Transcript, supra note 33, at 54. (Another federal District 
Court had also specifically ordered adoption of such criteria.) 
See Mayor & City Council of Baltimore v. Mathews, 571 F.2d 
1273,1276 (4tli Cir.) (Winter, J., concurring and dissenting) 
(District Court enjoined Secretary of HEW to "adopt specific 
standards for compliance with Title VI by institutions of 
higher education”), cert, denied, 439 U.S. 862 (1978), aff'g 
by equally divided coxirt Mandel v. HEW, 411 F.Supp. 542 
(D. Md. 1976). See also Alabama NAACP State Conference 
of Branches v. Wallace, 269 F.Supp. 346, 351 (M.D. Ala. 
1967) (Civil Rights Act of 1964 requires Department to act 
pursuant to guidelines of general applicability).

88 4 30 F.Supp. at 120.

80 Amended Criteria, supra note 35, 42 Fed. Reg. at 40780, 
App. 102.

00 See Points and Authorities, supra note 6, at 5-10 (argu­
ment that proposed agreement constitutes a total abandon­
ment of Criteria).

01 430 F.Supp. at 119.

21

Second, in 1977 the District Court had also specifically 
ordered the Department to revoke its acceptance of North 
Carolina’s 1974 Desegregation Plan and the plans of five 
other states because they were “not adequate to comply 
with Title VI of the 1964 Civil Rights Act.” 02 Yet, ac­
cording to the plaintiffs’ motion below, the 1981 proposed 
agreement contained the same infirmities as the 1974 
Plan whose approval was revoked by court order.08 The 
District Court must have jurisdiction over such a claim if 
it is to execute fully its prior judgments. Otherwise, the 
agency could circumvent a court order with impunity.

B. Jxirisdiction to Determine Whether the Departmexit 
is Fulfilling its Legal Obligations

A District Court indisputably has jurisdiction to deter­
mine whether a federal department is fulfilling its legal 
obligations. See Hill v. Gautreaux, 425 U.S. 284, 289 
(1976) (affirming District Court’s jurisdiction to remedy 
department’s violation of the Civil Rights Act of 1964 
and the Fifth Amendment). Indeed, the whole thrust of 
the Adams litigation has centered on the court’s jurisdic­
tion to determine whether the Department has properly 
fulfilled its obligations under Title VI. As this court 
stated in 1973, our role is “to assure that the agency 
properly construes its statutory obligations, and that the 
policies it adopts and implements are consistent with 
those duties and not a negation of them.” Adams v. 
Richardson, supra, 480 F.2d at 1163-64.

In the lower court, the crux of plaintiffs’ argument was 
that by entering the proposed agreement the Department 
would be defaulting on its legal obligations under Title 
VI.04 Thus, as in 1972, the Department has "not prop­
erly fulfilled its obligation under Title VI to effectuate

02 Id. at 121.
03 See Points nnd Authorities, supra note 6, at 10-11.
04 Sec brief for plaintiffs-appellants at 17.



22

the provisions of Section 2000d of such Title and thereby 
to eliminate the vestiges of past policies and practices of 
segregation in programs receiving federal financial as­
sistance.” Adams v. Richardson, supra, 351 F.Supp. at 
637. And, as in 1977, the Department was "continuing 
to grant federal aid to public higher education systems 
which have not achieved desegregation or submitted ac­
ceptable and adequate desegregation plans * * Adams 
P. Calif ano, supra, 430 F.Supp. a t 120.

For over a decade the Department’s performance in ef­
fectuating its legal obligations under Title VI had been 
abysmal. Only through, repeated intervention by the 
courts of this circuit had progress been stimulated. But 
suddenly, when faced once again with allegations that 
the Department was falling down on the job, the District 
Court held that it had no jurisdiction. The court thus 
adopted the position argued by the government a decade 
ago which the Court of Appeals en banc 88 unanimously 
rejected. Because a court always has jurisdiction to de­
termine whether a Department has fulfilled its legal obli­
gations, the District Court’s dismissal for lack of juris­
diction was, in my view, reversible error.

C. Erroneous View of the Court’s Jurisdiction
The District Judge relied heavily on dicta contained 

in a footnote in the 1973 Adams en banc decision to pre­
scribe narrowly the lower court’s jurisdiction.'8 The 
Court of Appeals stated in part:

F ar from dictating the final result with regard to 
any of these districts, the order [of the District 
Court issued in 1972] merely requires initiation of a 
process which, excepting contemptuous conduct, will 
then pass beyond the District Court’s continuing con­
trol and supervision. * * *

85 See text at p. 10 & nn.29-30 supra.
88 See Transcript, supra note 8, at 23, App. 28.

23

Adams v. Richardson, supra, 480 F.2d at 1163 n.5 (em­
phasis added).

The District Judge misconstrued what the Court of Ap­
peals intended by this language. To begin with, the Court 
of Appeals was discussing a portion of the 1972 District 
Court order that concerned primary and secondary school 
districts, not state-operated systems of higher education.87 
That is why the footnote refers to school “districts,” a 
term inapposite to a discussion of state higher education 
systems. Cf. id. at 1164 ("The problem of integrating 
higher education must be dealt with on a state-wide 
rather than a school-by-school basis.” ) (footnote omitted).

More importantly, although the enforcement process 
was temporarily to pass beyond the District Court’s con­
trol, it was not to do so permanently or irrevocably. In­
deed, after further actions by HEW in accord with the 
original District Court order, this case most definitely did 
return to the "control and supervision” of the District 
Court in 1977. In its Second Supplemental Order the 
District Court once again examined HEW’s activities. 
Adams v. Califano, supra, 430 F.Supp. 118. The District 
Court’s assertion of jurisdiction in 1977 directly conflicts 
with the attempt to narrow its authority here. At that 
time plaintiffs argued that the Department had accepted 
desegregation plans tha t failed to meet "the requirements 
of [HEW’s]own detailed letters, or the ruling in this case 
and other judicial authorities, or of Title VI and the 
Constitution.” 88 The District Court reviewed HEW’s ac-

81 In Adams v. Richardson, supra note 4, 356 F.Supp. 92, 
only one portion of the lower court’s order concerned higher 
education. Id. at 94-95. The remainder of the decision in­
volved elementary and secondary school districts and also 
vocational and other schools. Id. at 95-100.

08 See Motion for Further Relief and Points and Authorities 
in Support Thereof, Adams v. Weinberger, D. D.C. Civil Ac­
tion No. 3095-70 filed in 1975 (motion leading to Adams v. 
Califano, supra note 4).



24
ceptance of desegregation plans, ordered that the accept­
ances be revolced, and ordered additional relief in several 
areas. In 1981, plaintiffs returned to the District Court 
and once again attempted to remedy the Department’s 
failure in the proposed agreement to enforce its own Title 
VI compliance standards, i.e., the Amended Criteria, 
supra. The two cases are simply indistinguishable; if ju­
risdiction existed in 1977, it still existed in 1981.

Both the lower court and the majority here, through 
their holdings, display fundamental misunderstandings 
about the Title VI enforcement process and about the 
lower court’s authority to supervise its earlier decrees. 
The Title VI enforcement process was first discussed in 
footnote 5 of the en banc decision. See 480 F.2d at 1163- 
64 n.5. As the Court of Appeals explained, federal funds 
recipients must be given notice and a hearing to be found 
formally out of compliance with Title VI.68 A hearing 
examiner must then make a specific finding of non-com­
pliance if statutory sanctions are to be imposed.70 The 
examiner’s decision can be appealed to a reviewing au­
thority, then to the Secretary, and finally to the courts.71 
At that point, and only a t that point, a state has a right 
to seek judicial review in the venue of its choice.72.

In this case, the individual enforcement process was 
aborted. Unable to secure voluntary compliance, the De­
partment had commenced an administrative enforcement 
proceeding. However, instead of allowing the hearing to 
be completed, the Department terminated it as part of 
the proposed agreement.7* Thus, the hearing examiner

42 U.S.C. § 2000(1-1 (1976). See 34 C.F.R. § 100.8-100.9 
(1980).

70 42 U.S.C. §2000d-l (1976). See 34 C.F.R. §100.10 
(1980).

71 Id. ; see 42 U.S.C. § 2000d-2 (1976).
72 Adams v. Richardson, supra note 6, 480 F.2d at 1164 n.5.
78 See text at p. 16 supra.

25

never reached an initial decision, and the state’s right 
to judicial review never accrued.

Yet the District Judge apparently was under the mis­
taken belief that the state “got an adverse decision out of 
the Hearing Examiner or the Administrative Law 
Judge.” 74 As a result of this erroneous assumption, the 
lower court felt that the state “had a right to appeal to 
any court that they wanted to * * 78 This conclusion
is incorrect. The right of the state to appeal under Title 
VI applies to a final administrative decision, and the ex­
aminer in this case never even reached an initial deci­
sion. Thus the state had no right to determine which 
court would scrutinize the consent decree. Moreover, be­
cause the Department did not allow the formal admin­
istrative enforcement proceeding to run its course, it 
was once again under the supervision of the rendering 
court when the hearing was aborted.

The majority reinforces the District Court’s error by 
broadly holding that the courts of this circuit cannot con­
sider whether the Department is avoiding its Title VI 
obligations by entering into particular consent decrees. 
Maj. op. at 8 n.10. Instead, the majority asserts that 
courts of other jurisdictions are the appropriate judicial 
bodies for determining whether the Department is ful­
filling its Title VI obligations. But this broad holding 
misses the narrower, more fundamental issue that is at 
Btake in this case: Does another court have the authority 
to supervise an outstanding judicial decree that the Dis­
trict Court previously rendered to compel the Department 
to fulfill its legal obligations?78 The answer to this

74 Transcript, infra note 78, at 24, App. 29.
78 Id.
70 Because the issue in this case is whether a nonrendering 

court can usurp the authority of a rendering court in the 
supervision of a previously issued injunction, there is no rea­
son to decide the more complex question concerning whether



26

question is obvious: only the rendering court can super­
vise its continuing injunction, and a nonrendering court 
should decline jurisdiction so long as the rendering court 
can still provide a remedy. Since the District Court can 
still provide effectual relief, see Part V infra, only it can 
determine whether the Department is abiding by its 
earlier order.

Because of their misunderstanding about the issue at 
stake in this case, the lower court and the majority fail 
to stand behind the effective enforcement of Title VI and 
appellants’ constitutional rights. Just as the District 
Court had jurisdiction in 1977 to order the Department 
to revoke its approval of North Carolina’s 1974 Plan, so 
the District Court had jurisdiction in 1981 to enjoin the 
Department from approving a warmed-over version of 
that same hopelessly inadequate plan.77 For roughly a dec­
ade, the court’s jurisdiction focused on the Department’s 
actions, and that is where and why jurisdiction had re­
mained.

IV. T he Department Did N ot F ulfill Its Legal 
Obligation

Although the District Court found that it lacked juris­
diction, it nevertheless reached the merits when it found 
that the Department "has carried out its function” 78 and 
had thus complied with its statutory and constitutional

this court or courts of particular localities should determine 
whether the Department is adequately enforcing Title VI. 
Thus, the majority decides an issue that it need not reach, and 
misses the narrower, threshold issue that this case presents. 
See Maj. op. at 7 n.9 ("This court is not a national court of 
appeals, not a judicial panel on multi-district litigation”) and 
Maj. op. at 8 n.10 (courts of particular jurisdictions can de­
termine whether the Department is shirking its enforcement 
duty).

77 See Part IV infra.
78 Transcript of June 26, 1981 Hearing at 24, App. 29.

27

responsibilities.7® In my view, a careful examination of 
the record demonstrates that the District Court seriously 
erred when it reached this conclusion. First, in approv­
ing North Carolina’s plan the Department was abandon­
ing its own desegregation criteria, implementation of 
which was judicially mandated. Second, the Department 
was approving a plan with the same basic infirmities as 
the 1974 Plan, which had already been judicially deter­
mined to be inadequate under the law.

A. Abandonment of the Desegregation Criteria
In promulgating desegregation criteria pursuant to the 

District Court’s order, the Department found specific 
guidance in the prior opinions in the Adams litigation.80 
Accordingly, the Amended Criteria, supra, provided nu­
merous specific steps to be taken under three broad 
rubrics: I. Disestablishment of the Structure of the Dual 
System;81II. Desegregation of Student Enrollment;87 and 
III. Desegregation of Faculty, Administrative Staffs, Non- 
Academic Personnel, and Governing Boards.88

A comparison of the North Carolina plan 84 with the 
Amended Critei-ia reveals innumerable, fundamental dis-

70 Id. at 25, App. 80.
80 For instance, the District Court had found that "specific 

comments [were] necessary * * * concerning admission, re­
cruitment, and retention of students * * *, concerning the 
placement and duplication of program offerings among in­
stitutions * * *, the role and the enhancement of Black in­
stitutions * * *, and concerning changes in the racial composi­
tion of the faculties involved * * V ’ Adams v. Califano, supra 
note 4,430 F.Supp. at 120.

81 Amended Criteria, supra note 85, 42 Fed. Reg. at 40782- 
40783, App. 104-105.

82 Id. at 40783-40784, App. 105-106.
88 Id. at 40784, App. 106.
84 Consent Decree, App. 82.



28

crepancies. Several examples suffice to show a common 
pattern. For instance, part I-C of the Criteria requires 
the state to "take specific steps to eliminate educationally 
unnecessary program duplication among traditionally 
black and traditionally white institutions in the same 
service area.” 85 This requirement reflected the District 
Court’s concern that “specific commitments” were neces­
sary in the area of "duplication of program offerings 
among institutions.” 88 This was a crucial area for re­
form because, as the Department hgd explained to North 
Carolina’s counsel late in 1979, "[p]rogram duplication 
is the most obvious vestige of past state-sanctioned segre­
gation, and modifying the structure of non-core dupli­
cated programs is the least intrusive, least disruptive 
method which would promise to eliminate the vestiges of 
discrimination in the UNC system.” 87 Nonetheless, the 
new state plan approved by the Department is totally 
silent on the subject of program duplication.88

P art II-C of the Criteria requires each state plan to 
adopt the goal that "the proportion of black state resi­
dents who graduate from undergraduate institutions in 
the state system and enter graduate study or professional 
schools in the state system shall be at least equal to the 
proportion of white state residents who graduate from 
undergraduate institutions in the state system and enter

88 Amended Criteria, supra note 35, 42 Fed. Reg. at 40783, 
App. 105 (emphasis deleted).

88 Adams v. Califano, supra note 4, 430 F.Supp. at 120.
87 Letter, supra note 39, at 3, App. 113. By consolidating 

identical programs at neighboring schools into a single school, 
the result should be a larger and stronger program more likely 
to attract students of all races.

88 This actually confirms a step backward. In 1978 the UNC 
Board of Governors had committed itself to reduce program 
duplication, though the University subsequently renounced 
this goal. See Letter, supra note 39, at 3, App. 113.

29

Such schools.” 80 This criterion responded to a specific 
concern expressed by the en banc Court of Appeals con­
cerning the “lack of state-wide planning to provide more 
and better trained minority group * * * professionals.” 00 
Yet the new state plan approved by the Department does 
not even mention, let alone adopt, this goal.

Similarly, part II-E of the Criteria mandated a com­
mitment to take all reasonable steps to reduce the dis­
parity between the proportion of black and white students 
graduating from public institutions of higher education.81 
This requirement wa‘s directly in line with the District 
Court’s finding that specific commitments were necessary 
concerning retention of students.02 Once again, the new 
state plan ignores the requirement. As for admission of 
students, also mentioned by the District Court,08 states 
were required to adopt the goal that the proportion of 
black high school graduates who enter public higher edu­
cation equal the proportion of white high school graduates 
who do so.04 The new plan does little more than docu­
ment the existing disparity: 20.5 percent of all black 
high school graduates entering university institutions as 
opposed to 25.5 percent of white high school graduates.08

P art III of the Criteria identified a number of specific 
measures to be taken to assure desegregation of faculty

80 Amended Criteria, supra note 35, 42 Fed. Reg. at 40783, 
App. 105 (emphasis deleted).

00 Adams v. Richardson, supra note 5, 480 F.2d at 1165. 
See Amended Criteria, supra note 35, 42 Fed. Reg. at 40783, 
App. 105.

01 Id. at 40784, App. 106.
02 Adams v. Calif ano, supra note 4, 430 F.Supp. at 120.
08 Id.
04 Part II-A of Amended Criteria, supra note 35, 42 Fed. 

Reg. at 40783, App. 105.
08 Consent Decree, Appendix I at 1, App. 69.



30

and non-academic employees."'* With respect to employ­
ment, however, the new state plan fails to respond to any 
of the requirements identified in the Criteria; instead, the 
plan merely incorporates each constituted institution’s 
individual affirmative action plan.87 This approach, does 
not comport with the Court of Appeals’ guidance that 
“ [t] he problem of integrating higher education must be 
dealt with on a state-wide rather than a school-by-school 
basis.” 88 Moreover, the inadequacies of the existing af­
firmative action plans had already been explained in some 
detail by the Department itself.88 For instance, under the 
existing programs the faculties of the traditionally white 
institutions in the UNC system will be no more than 3 
percent black in 1985.100 Yet the Department has already 
indicated that “ fujntil there are substantial numbers of 
black faculty and administrators at the [traditionally 
white institutions], those institutions will continue to 
have difficulty attracting and keeping black students, and 
will retain their historic racial identity.” 101

Overall, of the 25 specific requirements identified in 
the Amended Criteria, the North Carolina plan approved 
by the Department incorporates none}01 At most, the plan 
responds weakly to some of the general concerns under­
lying the Criteria, but a comparison of the plan with the 
Criteria demonstrates a failure to comply with any spe­
cific mandates. Nonetheless, the District Court believes

88 Amended Criteria, supra note 35, 42 Fed. Reg. at 40784, 
App. 106.

87 Consent Decree at 22, App. 55.
88 Adams v. Richardson, supra note 5, 480 F.2d at 1164 

(footnote omitted).
88 See Letter, supra note 39, at 5, App. 115.
180 Id.

Id.
,0J See brief of plaintiffs-appellants at 28 (tabular analysis 

of compliance).

31

that the Department had fulfilled its legal responsibili­
ties.108 Actually, the record shows that HEW did en­
deavor to apply the criteria during the negotiations that 
took place shortly after the Second Supplemental Order 
and during 1979.104 However, as the above examples indi­
cate, the Department suddenly reversed its prior dis­
approval of North Carolina’s proposals and abandoned the 
criteria in 1981 when it approved the North Carolina 
plan.

The government does not appear to deny the existence 
of significant divergences between the Criteria and the 
approved plan. Rather, the government’s argument is one 
of avowal and justification. To begin with, the govern­
ment argues that the Criteria are not “immutable stand­
ards” but rather are guidelines that can be flexibly ad­
justed as part of a settlement process.108 But this is not 
a case where the guidelines were merely adjusted. Rather, 
the Department virtually discarded the Criteria in the 
proposed agreement. The District Court had ordered pro­
mulgation of “certain specific requirements which the 
states must respond to” 108 in formulating their desegre­
gation plans. The criteria described the requirements for 
states to meet their “statutory obligation to devise and 
implement plans that are effective in achieving the deseg­
regation of the system.” 107 Indeed, the Department had 
stated in 1977 that “ [e]ach plan shall commit the state 
to substantial progress toward each of the goals in the

108 See note 8 supra.
104 Correspondence between counsel for the government and 

North Carolina during 1971 illustrates this fact. See App. 
108-118.

108 Brief for appellees at 32-34.
108Transcript, supra note 33, at 25 (emphasis added).
107 Amended Criteria, supra note 85, 42 Fed. Reg. at 40781, 

App. 103.



32

first two years of the plan.” 108 Under these circum­
stances, the Department can hardly waive application of 
the Criteria. Indeed, if the Department is now allowed 
to ignore the Criteria, then we have reverted to a situa­
tion where the Department is acting without any public 
guidelines, a situation specifically prohibited by prior 
court orders.10*

The government also argues against application of the 
Criteria because “there has been substantial progress in 
North Carolina since this litigation was commenced back 
in 1970.” 1,0 This argument makes little . sense. If prog­
ress had truly been achieved, it should be easier to secure 
compliance with the Criteria and the requirements should 
not be loosened. Moreover, available evidence hardly sup­
ports assertions of substantial progress. Consider merely 
one prominent indicator of progress. In 1972 enrollments 
in the five traditionally black institutions in the Univer­
sity of North Carolina were 95 percent black; in 1980 
these student bodies were still 89 percent black.111 The 
eleven traditionally white institutions with student 
bodies that were 97 percent white in 1972 are still 93 
percent white in 1980.112 In any event, the government’s 
reference to progress made since 1970 has little meaning 
since the Criteria were formulated, in 1977 and presum­
ably accounted for progress made by that date.

The majority, by relying on its mootness argument, 
does not indicate what role it thinks the Criteria should 
play in the enforcement of Title VI. But the majority 
does hold that it is beyond this circuit’s authority to de­
termine if the Department has faithfully followed the

108 Id. at 40784, App. 10G (emphasis added).
109 See text at pp. 12-13 & 22 n.60 supra.
110 Brief for appellees at 34.
111 See Consent Decree, Appendix II, Table 8, App. 97-98.
112 See id.

33

Criteria in any particular enforcement action. Instead, 
the majority asserts that, a t most, the District Court can 
determine, under a separate motion, whether the Depart­
ment should “in general be declared to be disregarding 
the Criteria.” Maj. op. a t 8 n.10 (emphasis added). This 
alternative avenue of relief is, of course, an empty prom­
ise. First, the District Court has already issued an in­
junction requiring the Department to apply the Criteria 
in the enforcement of Title VI. Issuing a general declar­
ation would simply be a repetition of the court's earlier 
order. Second, by denying the District Court the author­
ity to supervise its earlier injunction, while a t the same 
time limiting its authority to general declarations, the 
majority takes all of the force out of the earlier decree. 
Leaving to other courts the task of determining whether 
the Department is complying with the injunction is, to 
my knowledge, an unprecedented allocation of judicial au- 
thority.1’8 Third, as the majority concedes, the separate 
motion has no application to North Carolina, which pre­
sumably will continue to follow a plan that fails both the 
letter and spirit of Title VI. See Maj. op. a t 8 n.10. 
Fourth, the majority does not indicate what would follow 
from a general declaration that the Department is dis­
regarding the Criteria. A general declaration which the 
District Court cannot supervise will not force the Depart­
ment into compliance with Title VI. Under the majority’s 
scheme, both the Department and noncomplying states can 
continue to ignore the commands of Title VI and the 
Constitution.

I find the majority’s position concerning the District 
Court’s authority particularly distressing because of the 
prolonged history of diffident enforcement efforts in this

119 What the proper allocation of judicial authority would 
be were there no previously issued injunction outstanding is 
not before this court. See note 76 supra and accompanying 
texts. This case involves only the narrow question of which 
court should supervise the injunction that the District Court 
of this circuit issued in 1977.



34

case. Plaintiffs have been in court for over ten years in 
their efforts to get the government to fulfill its obligations 
under Title VI. And the history of segregated school sys­
tems extends even farther back in time. See P art I, supra. 
It was a District Court of this circuit that originally or­
dered the promulgation of the Criteria and that stressed 
the need for such requirements to assure the proper en­
forcement of Title VI. That court already has determined 
the role those Criteria are to play, and only it has the 
authority to determine whether they have properly been 
applied in a particular case. I do not see how this court 
can tolerate abandonment of the Criteria; nor do I see 
how this court can approve the usurpation of the District 
Court’s injunctive power by the North Carolina court.

B. Failure to Correct Deficiencies of the Prior Plan

In the proposed agreement the Department has also ap­
proved a plan that contains the same basic infirmities as 
a plan already judicially determined to be inadequate. 
Indeed, the new plan is in many ways even weaker than 
North Carolina’s 1974 Plan. As noted earlier,114 HEW 
had initially accepted the 1974 Plan, but in 1977 the Dis­
trict Court ordered the Department to revoke its approval 
of that plan.

A comparison of North Carolina’s new plan 116 with the 
1974 Plan 110 demonstrates little in the way of substantive 
improvement. In particular, the plans can be analyzed in 
the four key areas which the District Court specifically 
identified in 1977 when it ordered the Department to re­
voke its approval: 117

1,4 See text at pp. 11-12 supra.
,,r’ Consent Decree, App. 82.
110 1974 Plan, supra note 81.
1,7 Adams v. Califano, supra note 4, 430 F.Supp. at 120. A 

fifth area identified by the District Court, “desegregation of

35

—desegregation of student bodies;
—desegregation of faculties;
—desegregation of program duplication;
—enhancement of black institutions.

1. Desegregation of student bodies
The new plan proposes a large number of informational 

and recruiting activities to increase the presence of blacks 
at traditionally white institutions and of whites at tradi­
tionally black institutions.11* The 1974 Plan also proposed 
a large number of such activities,110 some of which are 
precisely the same as those included in the proposed 
agreement.120 The goal of such efforts is to increase the 
presence of whites and blacks at traditionally black and 
white institutions, respectively. Along these lines, both 
plans set specific numerical goals for student enrollments.

Amazingly, however, desegregation of student bodies 
under the new plan would actually proceed at a sloiver 
rate than that projected in the 1974 Plan. Indeed, prog­
ress under the new plan would occur at a slower rate 
than that experienced over the past eight years, a time 
during which no approved plan has existed. Specifically, 
for 1980 to 1986 the proposed agreement establishes the 
following goals: 121

the governance of higher education systems,’’ id., does not 
appear to receive any attention in either plan.

"* Consent Decree at 9-21, App. 42-54.
110 1974 Plan, supra note 81, at 120-134.
120 Compare, e.q., id. at 124-125 (descriptions of two new 

brochures each to contain statement on policy of nondiscrimi­
nation) with Consent Decree at 10, App. 43 (description of 
the same two brochures with each containing a discussion of 
nondiscrimination policies).

121 Consent Decree at 21-22, App. 54-55.



36
Average Annual Increase

Percentage of Whites Enrolled at
Traditionally Black Institutions +  0-633%

Percentage of Blacks Enrolled at
Traditionally White Institutions +  0.533%

By contrast, the 1974 Plan had established the following 
goals for increasing the presence of underrepresented 
groups during the final 1976-1977 period:122

Annual Increase (1976-1977)

Percentage of Whites Enrolled nt 
Traditionally Black Institutions
Percentage of Blacks Enrolled at 
Traditionally White Institutions

+  1-5%

+ 0.6%

Thus, during the most comparable time frames, the 
1974 Plan set much more ambitious goals for desegrega­
tion of student bodies than did the proposed new plan. 
Also, progress under the new plan will actually come at 
a slower pace than that experienced during the past eight 
years, when no approved plan existed. This conclusion is 
evident from the following tab le :128

122 1974 Plan, surra note 31, at 265. The 1974 Tlan actually 
set goala for the 1973-1977 time frame, but the annual in­
crease was not supposed to be constant over time. “ [T]he 
rate will gradually augment over the time frame, with greater 
accomplishment to be realized in 1977 than in 1974.” Id. at 
264. The figures used in text are thus for the 1974 Plan as 
fully implemented. These figures are the most comparable 
with those given for the new plan, since the time frames 
(1976-1977 versus 1980-1986) are the most proximate.

Even if the average annual increase for the entire 1973- 
1977 period is compared to that for the 1980-1986 period, the 
1974 Plan compares favorably. The average annual increase 
for whites at traditionally black institutions is substantially 
larger in the 1974 Plan (1.3% versus 0.633% in the new 
plan), while the average annual increase for blacks at tradi­
tionally white institutions is only slightly lower in the 1974 
Plan (0.35% versus 0.533% in the new plan).

128 Sec Consent Decree, Appendix II, Table 8, App. 97-98 
(historical data).

37

Average Annual Increase

Historical Planned 
1972-1980 1980-1986

Percentage of Whites Enrolled at r
Traditionally Black Institutions +  0-775% +  0.633%
Percentage of Blacks Enrolled at
Traditionally White Institutions +  0.537% +  0.533%

2. Desegregation of faculties
This was a second area in which the District Court 

found the 1974 Plan lacking. With respect to faculty de- 
segregation, the proposed agreement merely incorpo­
rates [e]ach constituent institution's affirmative action 
plan” 124 submitted under Executive Order No. 11246. No 
other action is contemplated. The 1974 Plan also adopted 
each constituent institution’s affirmative action plan.128 
But, in addition, the earlier plan proposed a series of sup­
plemental efforts designed to support the separate institu­
tional commitments.12* While the proposals were other­
wise identical, the 1974 Plan was to this extent even less 
objectionable than the new plan.

3. Reduction of program duplication
The 1974 Plan did not propose any specific steps to­

ward elimination of educationally unnecessary program 
duplication among black and white institutions in the 
same service area. However, the State then a t least ex­
pressed a willingness to identify and eliminate "instances 
of unnecessary and costly duplication of programs within 
The University, taking into account the educational needs 
of the whole State.” 127 This commitment was a qualified 
and cautious one. Nonetheless, even the modest commit­
ment in the 1974 Plan is missing from the new agree-

124 Consent Decree at 22, App. 55.
128 1974 Plan, surra note 31, at 161.
120 Id. at 164-178.
127 Id. at 228.



38

ment, which is totally silent on the entire problem of 
duplicative programs.128

4. Enhancement of black institutions
With respect to efforts to strengthen the five tradition­

ally black institutions in the UNO system, the new plan 
does appear to offer greater promise than the 1974 Plan. 
To this extent the new plan is not so.infirm as the 1974 
proposal. However, the nine-part program outlined in 
the proposed agreement has deceptively little substance.129 
Moreover, the Department had criticized the same sorts 
of commitments in 1979 because they failed to provide 
the traditionally black institutions “with facilities, pro­
grams, degree offerings and faculty comparable to tradi­
tionally white institutions with similar missions.” 1,0 In-

128 See text at 30 & n.85 supra.
120 Six of the nine "commitments” are merely to maintain 

existing funding or other ratios, which either provide for 
parity or are favorable to the traditionally black institutions. 
Consent Decree at 23-25, App. 56-58 (Commitments 1, 2, 3, 5, 
6, 7). As such, the plan represents little that is new. For ex­
ample, the average teaching salary for traditionally black in­
stitutions is now at parity with that for the traditionally 
white institutions. Commitment 8 provides: "The University 
shall maintain this parity * * Id. at 24, App. 57. Such 
commitments do little more than protect against a reversion 
to blatantly discriminatory policies. A seventh commitment 
relating to financial support for libraries has even less content. 
Id. at 24, App. 57 (Commitment 4). It states that the Uni­
versity "shall consider carefully any institutional request for 
funds to address particularized library needs.” Id. at 24-25, 
App. 67-58. Presumably the University already performs this 
function; the commitment hardly appears destined to improve 
the traditionally black institutions. The remaining commit­
ments refer to programs already approved or in planning. 
Id. at 26-32, App. 59-65 (Commitments 8 and 9). These com­
mitments signify nothing new.

180 Letter, supra note 40, at 2, App. 109. See also Letter, 
supra note 39, at 2, App. 112 (“grave doubts persist about the 
adequacy” of the University’s efforts).

39

deed, the new commitments appear to represent substan­
tially less than those previously offered by the University 
but deemed inadequate by the Department.1-11 Nowhere 
has the Department explained its reassessment of the Uni­
versity’s proposal in this area.

To the extent that the new plan does provide limited 
progress in enhancing the traditionally black institutions, 
serious problems arise. For the mere pursuit of improved 
institutions with predominantly black enrollments repre­
sents nothing more than a policy of "separate but equal” 
with an emphasis on equality. Such a plan, particularly 
when compared to the 1974 Plan, cannot survive judicial 
review at least not since 1954. See Drown v. Board of 
Education, supra.

Accordingly, the District Court should have disap­
proved the Department’s acceptance of the new plan, just 
as it ordered the Department to revoke its approval of 
the 1974 proposal. The record in this case makes this 
conclusion unavoidable.

V. Mootness of Appeal

Since the lower court failed to restrain the Secretary 
of Education, the Department was not prevented from 
approving the North Carolina desegregation plan. On 
July 13, 1981 the Department and the State of North 
Carolina submitted a consent decree embodying the plan 
to the North Carolina court. Four days later that court 
approved the decree. North Carolina v. Dep’t of Edu­
cation, E.D. N.C. No. 79-217-CIV-5 (July 17, 1981) 
App. 119.

This consent decree was, of course, what appellants 
originally requested that the Secretary be enjoined from

181Compare Consent Decree nt 10, App. 78 (U0 million in 
special supplemental appropriations allocated for predomi­
nantly black institutions), xoith Letter, supra note 40, at 2, 
App. 109 ("new" proposal to spend $70 million is neither new 
nor adequate).



40

approving. It wag finally approved after the District 
Court’s dismissal for lack of jurisdiction, and before this 
appeal. Since the court concludes that comity principles 
preclude us from ordering revocation of the consent 
decree, it finds that the action sought to be prohibited 
has been consummated and that the case is therefore moot. 
Maj. op. a t 6-7. The court affirms the judgment of the 
District Court here. In my opinion, the majority mis­
applies both the mootness and the comity concepts.

First, this case is in no way moot. It was long ago 
determined that the subsequent occurrence of an action 
sought to be prohibited might cause a case to be moot on 
appeal. E.g., Jones v. Montague, 194 U.S. 147 (1904). 
The Supreme Court has enunciated the precise principle 
as follows:

[W]hen, pending an appeal from the judgment of a 
lower court, and without any fault of the defendant, 
an event occurs which renders it impossible for this 
court, if it should decide the case in favor of the 
plaintiff, to grant him any effectual relief whatever, 
the court will not proceed to a formal judgment, but 
will dismiss the appeal. * * *

Mills v. Green, 159 U.S. 651, 653 (1895) (emphasis 
added).

Thus the proper iss>/e on appeal is whether appellants 
can be granted "any effectual relief whatever.” Here, to 
be sure, the only relief requested was an injunction. 
Nonetheless, it also “has long been established law that, 
in equity, a plaintiff is entitled to any relief appropriate 
to the facts alleged in the bill and supported by the evi­
dence, even where he has not prayed for such relief.” 
Dann v. Studebaker-Paclcard Corp., 288 F.2d 201, 216 
(6th Cir. 1961). E.g., Bemis Brothers Bag Co. v. United 
States, 389 U.S. 28, 34 (1933) ; Lockhart v. Leeds, 195 
U.S. 427, 437 (1904). See Note, Mootness on Appeal in 
the Supreme Court, 83 Harv. L. Rev. 1672, 1676-1677 & 
n.26 (1970). Moreover, the Federal Rules specifically

41

provide that a party is entitled to all appropriate relief, 
whether requested or not. See Fed. R. Civ. P. 54(c).1:12

132 The majority recognizes that Rule 54(c) requires courts 
to provide ail appropriate relief, whether requested or not. 
But the court rejects the application of unrequested relief 
here because it would "virtually swallow the mootness con­
cept.” Maj. op. at 6 n.7. This cursory reasoning would itself 
swallow Rule 54 (c) ; the mootness concept, as the majority 
envisions it, would always preclude a grant of unrequested 
relief. Thus the majority fails to answer why unrequested 
relief is not appropriate on the facts of this case. I do not 
believe that applying unrequested relief in this case would 
eviscerate the mootness concept because the twin rationales 
underlying the doctrine—judicinl economy and sufficient ad­
verseness of litigants—would not be defeated. See Note, 
Mootness on Appeal in the Supreme Court, 83 Harv. L. Rev. 
1G72, 1674-1687 (1970). First, the District Court can more 
economically supervise its own decrees than can any other 
court. Indeed, requiring plaintiffs to challenge particular 
consent decrees in other courts while also allowing them to 
challenge general Department practices in the District Court 
here might well waste the judicial resources that the mootness 
concept seeks to preserve. Cf. Maj. op. at 8 n.10 (suggesting 
that general Department compliance be tested in District 
Court, but specific applications be tested in other courts). 
Second, both Adams and the government remain adverse par­
ties even following entrance of the consent decree. The con­
sent decree was between North Carolina and the government, 
and the insufficiency and impropriety of that decree are the 
very subjects of this suit. Thus judicial economy is furthered 
and adverse parties remain on the facts of this appeal.

The majority also argues that unrequested relief is inappro­
priate since it would require evaluation of the North Carolina 
court’s actions in this case. "[T]he day has not yet come when 
courts of one circuit should issue declaratory judgments eval­
uating actions taken by courts of another circuit.” Maj. op. 
at 6 n.7. I am fully sympathetic with this view. But I more 
fervently believe that the day should never come when one 
court must forfeit control and supervision of a case already 
before it because another court has improperly usurped its 
authority. See text and notes at pp. 49-50 infra. I am afraid 
that in this case the majority favors courtesy over protection 
of plaintiffs’ fundamental rights.



42

In my judgment, this case is not moot because alterna­
tive forms of relief can be granted to appellants. The 
Department is presently in contempt of the injunction 
that the District Court ordered in 1977. The District 
Court should order the Secretary of Education to petition 
the North Carolina court for authority to withdraw from 
the consent agreement.188 This should give the Depart­
ment an opportunity to purge itself of its contempt of 
the District Court’s 1977 order. Once the Department is 
relieved by the North Carolina court, the District Court 
should grant all relief necessary to assure that the De­
partment henceforth abides by its published desegrega­
tion Criteria.1111 Should the North Carolina court refuse 
to relieve the Department, and thereby eliminate the con­
flict that its approval of the consent decree created with 
the 1977 injunction, the District Court should cite the 
Secretary and the Department for contempt.

Generally, a party will not be granted relief from a con­
sent judgment. 7 J. Moore, Federal Practice j[ 60.19 at 239- 
240 (2d ed. 1982). But in appropriate cases, Rule 60(b) 
allows consent decrees to be modified or vacated. See Fed. R. 
Civ. Pro. 60(b) (the court may relieve a party from final 
judgment for certain enumerated reasons, including mistake, 
newly discovered evidence, fraud, and "any other reasons 
justifying relief from the operation of the judgment.” See 
also Philadelphia Welfare Rights Organization v. Shapp, 602 
F^d 1114 (3d Cir. 1979) (granting modification of decree 
7_h®re ^ in s tan ces  changed) ; U.S. v. Gould, 301 F.2d 353 
(5th Cir. 1962) (ordering hearing on motion to vacate) ; 
Sagers v. Yellow Freight Systems, Inc., 68 FRD 686 (N.D. 
Ga. 1975) (vacating decree in class action where notice of 
terms and conditions not sent to members of affected class). 
Since the decree entered here infringed upon the existing in­
junctive order of the District Court of the District of Colum­
bia, the extraordinary circumstances justifying relief exist. 
To fail to provide this relief would leave the Secretary in con­
tempt of a previously existing decree.

ni Thia conclusion applies to both the Amended Criteria, 
R ^ ^ 658C(1978)d ^  ^ epnr*'rnen*;’3 Revised Criteria, 43 Fed.

43

When the Secretary entered into the consent decree, 
he was subject to the earlier judgments of the District 
Court. Bound by these judgments and the directions of 
the Court of Appeals’ 1973 en banc decision, the Secre­
tary was not at liberty to enter into a consent decree in­
consistent with the 1977 injunction; likewise, the North 
Carolina court was not free to approve that consent 
decree. Indeed, the government itself recognized this when 
it petitioned to remove North Carolina’s earlier challenge 
to the invocation of the administrative process to the Dis­
trict Court of the District of Columbia.136 But the ma­
jority of this panel prefers to invoke principles of comity 
to avoid what it terms an "unseemly and irreconcilable” 
conflict with the North Carolina court. See Maj. op. a t 7. 
This strategy rests on an ill-conceived view of comity 
principles.

The North Carolina court has already decided that the 
technicalities of comity do not apply here because differ­
ent parties, different causes of action, and different issues 
are involved. State v. Dep’t of Health, Edxtcation & Wel­
fare, 480 F.Supp. 929 (E.D. N.C. 1979). See Great 
Northern Railway Company v. National Railroad Adjust­
ment Board, First Division, 422 F.2d 1187 (7th Cir. 
1970) ; Robertson v. Department of Defense, 402 F.Supp. 
1342, 134G (D. D.C. 1975). First, Judge Dupree found 
no identity of parties in the earlier litigation; Adams was 
not a party to the North Carolina litigation just as North 
Carolina was not joined as a party here.180 Second, Judge

186 See State v. Dep’t of Ifealth, Education & Welfare, 480 
F.Supp. 929 (E.D. N.C. 1979). Judge DuPree denied this 
motion, ironically, on comity grounds.

180 Appellants were only allowed to appear as amicus in the 
North Carolina proceeding. See Opposition of Amicus Curiae 
to Joint Motion for Entry of Consent Decree at 1 n.l in North 
Carolina v. Dep’t of Education, E.D. N.C. No. 79-217-CIV-5. 
As amicus, appellants could not appeal the consent decree to 
the Fourth Circuit Court of Appeals. See Moten v. Brick­
layers, Masons & Plasterers Int’l Union, 543 F.2d 224, 227



44

Dupree found that the issues raised by the two cases 
were “most dissimilar.” m Since the nature of the litiga­
tion has not changed, the majority must be willing to ac­
cept Judge Dupree’s comity analysis if they are to sup­
port his willingness to entertain the consent decree. Fi­
nally, the government itself contends, in a rather surpris­
ing change of heart,188 that the two cases involve very 
different causes of action.11,0 Judge DuPree made this 
same finding in rejecting the government’s motion to re­
move in the earlier North Carolina litigation.110 Thus, 
analyzed on Judge DuPree’s own terms, comity principles 
technically would not apply here.

(D.C. Cir. 1976) ; United, States v. Seigal, 168 F.2d 143 (D.C. 
Cir. 1948). Nor could appellants intervene in those proceed­
ings; for permissive intervention a common question of law 
or fnct must exist, Fed. R. Civ. Pro. 24(b), and the North 
Carolina court had previously ruled that "the issues raised by 
the two cases are most dissimilar.” State v. Dep’t of Health, 
Education & Welfare, supra 480 F.Supp. at 933 (emphasis 
added). Finally, the government conceded that the Adams 
plaintiffs focus on different issues than does the North Caro­
lina litigation. See brief for appellees at 21.

187 480 F. Supp. at 929, 933. Judge DuPree claimed that the 
Adams litigation involved only judicial review of the exercise 
of administrative discretion in enforcing a federal statute, 
while the North Carolina litigation also tested the degree to 
which the federal executive branch could alter or direct state 
regulatory powers. Id. Though this characterization of the 
issues is extremely formalistic, if it was true then, it is true 
now. Thus, comity principles do not bar this court from pro­
viding relief.

,!'8 This contention is surprising given its earliest attempts 
to remove the North Carolina litigation to the District Court 
here.

11,0 See brief for appellees at 21.
140 4 80 F.Supp. at 933. Judge DuPree claimed that the 

Adams litigation challenged HEW’s “nonaction” in enforcing 
Title VI, while the North Carolina litigation sought review of 
actual implementation of Title VI.

45

More importantly, the policies underlying comity prin­
ciples are not absolute. Comity was created only to as­
sure judicial efficiency and to reflect abiding respect for 
other courts; it does not outweigh the fundamental rights 
of the plaintiffs. Cj. Consumers Union of United States 
v. Consumer Product Safety Commission, 590 F.2d 1209 
(1978) (comity does not bar FOIA suits because of plain­
tiffs rights), reversed on other grounds, GTE Sylvania, 
Inc. v. Consumers Union, 445 U.S. 375 (1980). Title VI 
and the earlier orders of this court guarantee plaintiffs 
certain fundamental rights; it is the duty of this court 
to assure that the government properly implements the 
Criteria that would achieve those rights. Comity consid­
erations should not outweigh those rights.

Furthermore, comity does not require a court to forfeit 
its continuing supervision of a prior injunctive decree; 
to the contrary, comity principles originally should have 
prevented the North Carolina court from entertaining 
the consent decree. As the Fifth Circuit stated in Mann 
Manufacturing, Inc. v. Hortex, Inc.:

When a court is confronted with an action that would 
involve it in a serious interference with or usurpa­
tion of this continuing power, "considerations of 
comity and orderly administration of justice demand 
that the nonrendering court should decline jurisdic­
tion * * * and remand the parties for their relief to 
the rendering court, * * *”

439 F.2d 403, 408 (5th Cir. 1971), partially quoting from 
Lapin v. Shulton, Inc., 333 F.2d 169, 172 (9th Cir. 1964), 
cert, denied, 379 U.S. 904 (1964). See also Gregory- 
Portland Independent School District v. Texas Education 
Agency, 576 F.2d 81 (5th Cir. 1978). Thus, even if 
Judge Dupree’s application of the technical elements of 
comity was incorrect, as I believe it was, it is the North 
Carolina court that should defer to the District Court 
here, and not the other way around. Comity principles do 
not require a rendering court to defer to a court that has



/  .

46

Usurped its authority. Nor would comity require us to 
stand by idly while the Department is evading its legal 
obligations. Finally, if Judge Dupree was correct as re­
gards the technical elements of comity, then both the 
technical elements and the policies underlying comity sup­
port our continuing supervision of the Adams' orders. In 
any event, the majority cannot both accept Judge 
Dupree’s characterization of comity and assert that comity 
prevents us from ordering the Department to abide by 
its legal obligations. .

The discontinuity in the majority’s mootness and comity 
arguments should now be obvious. Comity prevents this 
action only if the relief to be granted would produce an 
“unseemly and irreconcilable” conflict with another court. 
Mootness prevents this action only if no effectual relief 
can be granted. Comity and mootness can stand together 
only if the circumstances are such that comity prevents 
all relief that could be granted to plaintiffs. That is not 
the case here, since the District Court can order the Sec­
retary to petition the North Carolina court for relief 
from the consent decree, thus precluding any unseemly 
conflicts. Since effectual relief can be granted, the court 
should not use comity principles to bar relief that is es­
sential to protecting plaintiffs’ fundamental rights under 
Title VI. Indeed, in my opinion, the court must order 
the Secretary to petition for relief to prevent an un- 
Beemly conflict between the continuing, outstanding in­
junction and the North Carolina court’s acceptance of the 
consent decree. I t is the status quo that is “unseemly 
and irreconcilable."

The key issue here is not whether comity applies, but 
which court should defer to the other. I believe that the 
North Carolina court should defer to the District Court 
since it is our circuit's previously issued injunction that 
the Department is obligated to abide by. Accordingly, 
this case should be remanded to the District Court to en­
sure that the Department is complying with its legal obli-

47

gation, particularly with respect to its treatment of the 
promulgated desegi-egation Criteria. Because relief along 
the lines I have outlined is possible, the appeal is clearly 
not moot.

VI. Conclusion

Twenty-eight years after Brown v. Board of Education, 
and twelve years after the Adams plaintiffs filed suit, the 
Department of Education now appears once again to be 
pursuing a policy of benign neglect in enforcing desegre­
gation of higher education. Yet, despite commendable 
diligence over the years in assuring that the Department 
fulfilled its legal obligations, the District Judge suddenly 
rules that he lacked jurisdiction. The majority now af­
firms, though basing its decision on mootness and comity 
considerations.

I think the lower court manifestly had authority to ad­
judicate this suit, and that appropriate relief is available. 
By offering its approval to North Carolina’s plan, the 
Secretary of Education was acting inconsistently with his 
legal obligations and was directly undermining prior de­
cisions of the courts of this circuit. Thus the District 
Court here should have enjoined the Secretary from giv­
ing his approval to North Carolina’s plan. Even though 
the consent decree has now made prevention of that ap­
proval impossible, this action has not become moot. The 
lower court should be ordered to once again “assure that 
the agency properly construes its statutory obligations, 
and that the policies it adopts and implements are con­
sistent with those duties and not a negation of them.” 
Adams v. Richardson, supra a t 1160-61.

I therefore respectfully dissent.