Correspondence from Lani Guinier to Prof. Richard Engstrom Re Whitfield v. Clinton

    Nos. 01-2224/01-2296

IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL 
PROTECTION, etal., 

Defendants/Appellants,

v.

SOUTH CAMDEN CITIZENS IN ACTION, et al., 
Plaintiffs/Appellees.

ST. LAWRENCE CEMENT CO., L.L.C., 
Intervenor-Defendant/Appellant

On Appeal from the United States District Court 
f j hie District of New Jersey

BRIEF OF AMICI CURIAE LAWYERS' COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF 
COLORED PEOPLE, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, 

INC., ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND AND 
GARDEN STATE BAR ASSOCIATION IN SUPPORT OF APPELLEE AND

URGING AFFIRMANCE

Thomas Henderson 
Janette L. Wipper 
Lawyers' Committee for Civil 
Rights Under Law 

1401 New York Avenue, N.W. 
Washington, D.C. 20005 
(202) 662-8600

Elaine R. Jones 
Theodore M. Shaw 
Norman J. Chachkin 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 965-2200



Dennis Courtland Hayes, Esq. 
National Association for the 

Advancement of Colored People 
4801 Mount Hope Road 
Baltimore, Maryland 21215 
(410) 486-9191

Ronald Thompson, Esq.
Garden State Bar Association 
Law Office of Ronald Thompson 

213 South Harrison Street 
East Orange, New Jersey 07018 
(973) 673-1001

Ken Kimerling 
Margaret Fung
Asian American Legal Defense 

and Education Fund 
99 Hudson St. -12th Floor 
New York, New York 10013 
(212) 966-5932

Regina Waynes Joseph, Esq.
Garden State Bar Association 
320 South Harrison Street 

16th Floor
East Orange, New Jersey 07018-1333 
(973) 744-5208



TABLE OF CONTENTS

PAGEISI

INTEREST OF AMICUS CURIAE ...................................................................... 1

I. DISTRICT COURT PROPERLY HELD THAT TITLE 
VI REQUIRES NJDEP TO CONSIDER ADVERSE 
DISPARATE IMPACTS WHEN IT CONSIDERS
WHETHER TO ISSUE AIR QUALITY PERMITS ........................5

II. DISTRICT COURT PROPERLY FOUND THAT THE
PLAINTIFFS DEMONSTRATED A LIKELIHOOD OF 
SUCCESS ON THE MERITS ON THE QUESTION 
WHETHER THE GRANT OF THE PERMIT WOULD 
HAVE A DISPARATE IMPACT ON AFRICAN- 
AMERICANS AND HISPANIC-AMERICANS .............................. 19

A. The Record Clearly Establishes That 
Issuance of the SLC Permit Would Have a
Disparate Racial Im pact..........................................................21

B. The Disparate Impact Holding Is Supported 
by the Apparent Disparity in Other Sources 
of Exposure That Have Been Authorized to
Operate in Waterfront South ..................................................27

C. The Disparate Impact Holding Is Supported 
by the Apparent Racial Pattern in the 
Distribution of NJDEP-Permitted and EPA
Regulated Facilities State-Wide..............................................31

CONCLUSION......................................................................................................34

i



TABLE OF AUTHORITIES

CASES PAGE(S')

Adams v. Richardson. 351 F. Supp. 636 (D.D.C. 1973),
modified & aff d. 480 F.2d 1159 (D.C. Cir. 1973)............................2

In re AES Puerto Rico. 29 E.L.R. 41132 flE.A.B. 1999) ........................  18

Ammons v. Dade City. Florida, 594 F. Supp. 1274 (M.D.
Fla. 1984), aff d. 783 F.2d 982 (11th Cir. 1986) ..........................  30

In Re Arthur Treacher's Franchisee Litigation. 689 F.2d 1137
(3d Cir. 1982)..................................................................................  19

Bean v. Southwestern Waste Management Corp.,
482 F.Supp. 673 (D.C. Tex. 1979).................................................  28

Blackshear Residents Organization v. Housing Authority of the
City of Austin. 347 F. Supp. 1138 (W.D. Tex. 1972) ............passim

Bronson v. Crestwood Lake Section 1 Holding Corp.. 724 F.
Supp. 148 (S.D.N.Y. 1989)..............................................................  32

Bryan v. Koch. 627 F.2d 612 (2d Cir. 1980) ............................................  26

Burton v. Wilmington Parking Authority, 365 U.S. 715 ( I 9 6 0 ................ 8

Castaneda v. Partida. 430 U.S. 482 (1977)............................................  7, 30

Coalition of Concerned Citizens v. Damian, 608 F. Supp. 110
(S.D. Ohio 1984)..............................................................................  25

Columbus Bd. of Educ. v. Penick. 443 U.S. 449 (1979) ............................8

l i



Croskev St. Concerned Citizens v. Romney, 335 F. Supp. 1251
(E.D. Pa. 1971).......................................................................... 13, 14

East Bibb Twiggs Neighborhood Ass’n v. Macon-Bibb County
Planning & Zoning Comm’n. 706 F. Supp. 880 (M.D. Ga. 1989)............  25

In re EcoElectrica. L.P.. 7 E.A.D. 56 (1997) ............................................  18

El Cortez Heights Residents & Property Owners Association
v. Tucson, 457 P.2d 294 (Ariz. App. 1969)............................ passim

Gilmore v. City of Montgomery. 417 U.S. 556 0974) .............................. 8

Griggs v. Duke Power Co.. 401 U.S. 424 (1971)............................  8, 10, 20

Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971)...................... 29

Hicks v. Weaver. 302 F. Supp. 619 (E.D. La. 1969) ..........................  15, 24

Hodges v. Public Building Commission of Chicago. 864 F.
Supp. 1493 (N.D. 111. 1994) ............................................................  26

Huntington Branch. NAACP v. Town of Huntington, 844 F.2d
926 (2d Cir. 1988), affd. 488 U.S. 15, 17 (1989) ..........................  33

Instant Air Freight Co. v. C.F. Air Freight Inc.. 882 F.2d 797
(3d Cir. 1989)..................................................................................  19

Jackson v. Conway, 476 F. Supp. 896 (E.D. Mo. 1979), affd,
620 F.2d 680 (8th Cir. 1980) ........................................................... 30

Kennedy Park Homes Associate. Inc, v. City of Lackawanna,
436 F.2d 108 (2d Cir. 1970), cert, denied. 401 U.S. 1010
(1971) ................................................................................................ 29

Laramore v. Illinois Sports Facility Authority. 722 F. Supp.

in



443 (N.D. 111. 1989) 26

Norwood v. Harrison. 413 U.S. 455 (1973)................................................ 8

Palmore v. Sidoti. 466 U.S. 429. 433 (1984).............................................. 8

Regents of University of California v, Bakke, 98 S.Ct. 2733, 2746
(1978) ..............................................................................................  6

Resident Advisory Board v. Rizzo. 564 F.2d 126 (3d Cir.
1977)......................................................................................  7,20,24

R-I.S.E. v. Kav. 768 F.Supp. 1144 (E.D. Va. 1991).................................. 28

Shannon v. United States Department of Housing &
Urban Development. 436 F.2d 809 (3d Cir. 1970) ................ passim

Shelley v. Kramer. 334 U.S. 1 (1947).......................................................... 8

South Camden Citizens in Action v. New Jersey Department of 
Environmental Protection. No. Civ.A. 01-702, 2001 WL 
392472 (D.N.J. Apr. 19, 2001).................................................. passim

United Farmworkers of Fla. Hous. Project. Inc, v. City of Delray Beach.
493 F.2d 799 (5th Cir. 1974) ..........................................................  13

United States v. Yonkers. 96 F.3d 600 (2d Cir. 1996)................................ 8

Village of Arlington Heights v. Metropolitan Housing
Development Corp.. 429 U.S. 252 (1977)......................................  20

Washington v. Davis. 426 U.S. 229, 242 (1976) ................................... 7, 20

Watson v. Fort Worth Bank & Trust. 487 U.S. 977 (1988)................... 8, 20

IV



STATUTES PAGEfS)

40 C.F.R. part 7 .............................................................................................5

40 C.F.R. § 7.35(a)(6)...................................................................................8

40 C.F.R. § 7.35(b).................................................................................. 6, 9

40 C.F.R. 7.85(a)(2)-(4) ............................................................................. 12

Fed. R. App. P. 29(a)......................................................................................4

42 U.S.C. § 2000d......................................................................................... 5

42U.S.C. § 7401(b)(1)............................................................................... 17

42 U.S.C. § 7503(a)..................................................................................... 18

42 U.S.C. § 7508(a)(1)(A) ......................................................................... 17

42 U.S.C. § 7508(a)(A)-(C) ....................................................................... 17

v



INTEREST OF AMICUS CURIAE

The Lawyers' Committee for Civil Rights Under Law ("Committee") 

was founded in 1963 by the leaders of the American bar, at the request of 

President John F. Kennedy, in order to help defend the civil rights of minorities 

and the poor. Its Board of Trustees presently includes past Presidents of the 

American Bar Association, past Attorney Generals of the United States, law 

school deans and many of the nation's leading lawyers. It has local affiliates in 

Boston, Chicago, Denver, Los Angeles, Philadelphia, San Antonio, San Francisco 

and Washington, D.C. Through the Committee and its affiliates, hundreds of 

attorneys have represented thousands of clients in civil rights cases across the 

country. The Committee is a tax-exempt, nonprofit civil rights organization. 

Among the Committee's essential interests is the proper construction and 

implementation of Title VI of the Civil Rights Act of 1964, as well as of the 

regulations that give life to the statutory promise of nondiscrimination in 

Federally-assisted programs.

The National Association for the Advancement of Colored People 

("NAACP"), established in 1909, is the nation's oldest civil rights organization. 

The NAACP has state and local affiliates throughout the nation, including the 

State of Maryland where it maintains its national headquarters. The fundamental



mission of the NAACP includes promoting equality of rights, eradicating caste 

and race prejudice among the citizens of the United States and securing for 

African Americans and other minorities increased opportunities for employment. 

The NAACP has appeared before courts throughout the nation in numerous 

important civil rights cases.

The NAACP Legal Defense and Educational Fund Inc. ("LDF") was 

incorporated in 1939 under the laws of New York State, for the purpose, inter alia, 

of rendering legal aid free of charge to indigent “Negroes suffering injustices by 

reason of race or color.” Its first Director-Counsel was Thurgood Marshall. LDF 

has appeared as counsel of record or amicus curiae in numerous cases before the 

Supreme Court, the Courts of Appeals, and the federal District Courts, involving 

constitutional and statutory civil rights guarantees and has litigated cases under 

Title VI of the Civil Rights Act of 1964 and its implementing regulations, 

including efforts to require federal agencies to enforce the statute effectively. See 

Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972), 356 F. Supp. 92 (D.D.C. 

1973), modified & aff d. 480 F.2d 1159 (D.C. Cir. 1973). Based upon this 

experience, LDF believes that private litigation to enforce the Title VI requirement 

of nondiscrimination by recipients of federal funds is essential to effectuate the

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fundamental principle of equal treatment embodied in the Fourteenth Amendment 

and recognized by Congress in the Act.

The Asian American Legal Defense and Education Fund 

(“AALDEF”), founded in 1974, is a non-profit organization based in New York 

City. AALDEF defends the civil rights of Asian Americans nationwide through 

the prosecution of lawsuits, legal advocacy and dissemination of public 

information. AALDEF has throughout its long history fought for the rights of 

equal access to government for its constituents. Title Vi’s disparate impact 

regulations and guidelines have been an important part of that advocacy.

AALDEF currently represents plaintiffs in the United States District Court who 

have asserted claims under the Title VI regulations and section 1983 seeking equal 

access to Unemployment Insurance through Chinese language services.

The Garden State Bar Association ("GSBA"), founded in the late 

1960's as Concerned Legal Associates by a group of African-American law 

students and attorneys, is an affiliate of the National Bar Association. In 1975, the 

organization changed its name to the Garden State Bar Association and was 

incorporated in New Jersey. Its purposes include the elimination of discrimination 

and inequality in all aspects of life and assisting African-American and other

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ethnic minorities in becoming an effective part of the judicial and legal systems. 

Its membership includes more than 500 African-American attorneys, judges and 

law students throughout the State of New Jersey.

The Committee, NAACP, LDF, AALDEF, and GSBA (collectively, 

the "Amici") respectfully file this brief with the consent of counsel for the parties 

pursuant to Fed. R. App. P. 29(a).

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I. THE DISTRICT COURT PROPERLY HELD THAT TITLE VI 
REQUIRES NJDEP TO CONSIDER ADVERSE DISPARATE 
IMPACTS WHEN IT CONSIDERS WHETHER TO ISSUE AIR 
QUALITY PERMITS.

On appeal, NJDEP does not directly challenge the District Court’s 

determination that Title VI and its implementing regulations require that an 

agency undertake an analysis of the potential adverse disparate impact of a permit 

in connection with determining whether to grant or deny such permit. 42. U.S.C.

§ 2000d, 40 C.F.R. part 7. Instead, NJDEP takes issue with the particular analysis 

of adverse disparate impact that the District Court found to be presented by the 

facts and circumstances of this case. Accordingly, NJDEP argues that the District 

Court erred because it “impos[ed] a requirement of an ‘adverse disparate impact 

assessment’ that includes ‘cumulative environmental burdens and community- 

specific health problems. ’” NJDEP Br. at 34 (emphasis added).1

NJDEP’s limited arguments underscore the weaknesses of its

'See also NJDEP Br. at 31 (arguing that the District Court erred because it 
“required] a specific disparate impact analysis.”); Id. at 34(arguing that the court 
erred because it “impos[ed] a requirement of an ‘adverse disparate impact 
assessment’ that includes ‘cumulative environmental burdens and community- 
specific health problems.’”); Id. at 32 (arguing that the statute does not “require[] 
any particular ‘adverse disparate impact analysis.’”); Id. at 33, 36, 37 (arguing 
that the EPA regulations “do not require a specific assessment,” nor do they 
“require the specific analysis ordered by the Court.”) (emphasis added).

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position. By targeting only the particular analysis of the District Court, NJDEP 

implicitly concedes that Title VI and its implementing regulations require some 

form of adverse disparate impact analysis. At the same time, in advancing its 

focused attack, NJDEP fails to recognize that any such analysis will be shaped by 

the operative facts presented. The District Court was correct in its holding that 

Title VI and its implementing regulations clearly require NJDEP, as a recipient of 

federal funds, to consider the potential adverse effects of its decisions and the race 

of the population to be affected, so as to avoid making discriminatory decisions. 

The District Court was also correct in applying an analysis of such adverse 

disparate impacts to the particular facts and circumstances presented by the parties 

in the preliminary injunction proceedings.

The obligations imposed by Title VI require that NJDEP consider the 

potential adverse disparate effects of its decisions, whether in furtherance of the 

obligation not to engage in or give effect to intentional discrimination, under 

§601, see Regents of University of California v. Bakke. 438 U.S. 265, 287 (1978), 

or the obligation not to make decisions in a manner that will “have the effect of 

subjecting individuals to discrimination because of their race,” under regulations 

adopted pursuant to §602, see 40 C.F.R. § 7.35(b). Consideration of the potential

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adverse consequences of a decision and the race of those affected thereby is 

necessary because it is critical to determining whether intentional discrimination is 

present and whether an action will have a result prohibited by the “discriminatory 

effects” standard of the regulations.

Consideration of the racial effects of a decision begins the inquiry 

whether a decision is intentionally discriminatory. See Resident Advisory Bd. v. 

Rizzo. 564 F.2d 126, 141 (3d Cir. 1977) (quoting Washington v. Davis. 426 U.S. 

229, 242 (1976))(“The impact of the official action - whether it ‘bears more 

heavily on one race than another’ - may provide an important starting point.”). 

Where the discriminatory impact is dramatic, the inquiry into discriminatory intent 

may well be subsumed by the inquiry into and the finding of, discriminatory 

effect. See Castaneda v. Partida. 430 U.S. 482, 496 (1977).

By failing to consider the adverse racial impact of its permitting 

decision, NJDEP failed to comply with its obligations under §601 to avoid or 

prevent an intentionally racially discriminatory decision in issuing a permit. 

Consideration of the racial effect of its decisions is necessary because NJDEP can 

violate Title VI (and the Constitution), not only through its own intentional

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discrimination, but by giving effect to the intentional discrimination of others,2 or 

through the perpetuation of past discrimination.3

Consideration of adverse disparate impacts is also necessary to ensure 

compliance with the “discriminatory effects” standard established in the EPA 

regulations. Indeed, the adverse disparate impact analysis is the fundamental and 

primary tool in assessing disparate impact or discriminatory effects claims. See, 

e.g.. Watson v. Fort Worth Bank & Trust. 487 U.S. 977, 988 (1988); Griggs v. 

Duke Power Co., 401 U.S. 424, 432 (1971). The familiar burden-shifting analysis 

of disparate impact claims described by the District Court is well established in 

precedent. Thus, it is impossible for NJDEP to comply with the obligations under 

the effects standard regulations of EPA without assessing the potential adverse

2See Gilmore v. City of Montgomery. 417 U.S. 556, 567 (1974) (city policy 
facilitating, reinforcing, and supporting private discrimination unconstitutional); 
Norwood v. Harrison. 413 U.S. 455, 463 (1973) (state support to racially 
discriminatory private schools violates Constitution); Burton v. Wilmington 
Parking Auth.. 365 U.S. 715, 725 (1961) (discrimination of private lessee imputed 
to public lessor); Shelley v. Kramer. 334 U.S. 1, 20 (1947) (imputing intentional 
discrimination of private parties to public authority that gave it effect); United 
States v. Yonkers. 96 F.3d 600, 612 (2d Cir. 1996) (citing Palmore v. Sidoti. 466 
U.S. 429, 433 (1984)) (“Private biases may be outside the law but the law cannot, 
directly or indirectly, give them effect.”)

3See 40 C.F.R. §7.35(a)(6); Cf. Columbus Bd. of Educ. v. Penick. 443 U.S. 
449(1979).

-8-



disparate effects of its decisions.

Nonetheless, NJDEP attempts to avoid the obvious necessity of 

considering the potential adverse disparate impact of its decisions. It does so by 

attempting to redefine its Title VI obligations by selective reference to only certain 

portions of the EPA regulations. Specifically, NJDEP argues that it has not “flatly 

denied any obligations whatsoever” under Title VI, because it acknowledges that 

“it may not use discriminatory criteria or methods,” and utilizes “the same criteria 

for all applicants,” — more specifically, it “uniformly utilize[s] the duly 

promulgated health-based standards governing the pollutants emitted by facilities 

seeking a license.” NJDEP Br. at 33 n. *

NJDEP’s argument ignores the text of the relevant EPA regulation 

and the obligation it imposes. The regulation does not merely prohibit 

“discriminatory criteria of methods,” as NJDEP suggests, but “criteria or methods 

of administering its program which have the effect of subjecting individuals to 

discrimination because of their race.” 40 C.F.R. § 7.35(b) (emphasis added). Far 

from prohibiting only discriminatory criteria or methods or the application of 

different criteria or methods to different racial groups, the disparate impact 

paradigm assumes a facially neutral policy or practice that, when applied to all,

-9-



will have a disparate racial impact. See Griggs. 401 U.S. at 431. Thus, NJDEP 

has the obligation to assess whether its uniform application of race-neutral 

standards will result in an adverse disparate racial impact. NJDEP either 

misunderstands or misrepresents the regulatory obligation. In any event, its 

insistence on refusing to consider any information other than the environmental ly- 

relevant National Ambient Air Quality ("NAAQ") standard cannot satisfy that 

obligation.

Sole consideration of environmental standards, particularly whether a 

permit meets a specific NAAQ standard, is simply not a proper measurement of 

Title VI compliance. At a minimum, Title VI demands that NJDEP consider both 

the effects of a permit and the race of the population affected by it. Otherwise, 

Title VI protections would effectively be vitiated in the environmental permitting 

context. In refusing to acquiesce in a nullification of Title VI, the District Court 

properly held that consideration of both adverse effects and race must be included 

in NJDEP’s permitting process.

Long-standing civil rights precedent clearly demonstrates that the 

District Court's holding was correct. See Shannon v. United States Dep't of Hous. 

& Urban Dev.. 436 F.2d 809, 821 (3d Cir. 1970) (holding that HUD must utilize

-10-



some institutionalized method whereby ... it has before it the racial and socio­

economic information necessary for compliance with its duties under the 1964 and 

1968 Civil Rights Acts);4 Blackshear Residents Org. v. Hous. Authority of the 

City of Austin. 347 F. Supp. 1138, 1145 (W.D. Tex. 1972) (holding that 

procedures administered in selecting and approving housing sites that lacked race 

considerations were grossly inadequate to ensure compliance with the national 

civil rights policy expressed in Title VI and Title VIII of the Civil Rights Acts); El 

Cortez Heights Residents & Prop. Owners Ass’n v. Tucson. 457 P.2d 294, 296 

(Ariz. Ct. App. 1969) (holding that the racial character of the neighborhood cannot 

be ignored in approving a housing site under Title VI). Courts have consistently 

held that agencies cannot “legitimately meet the mandate” of Title VI and the 

regulations “and at the same time reject considering the racial character” of the 

neighborhood affected. See El Cortez. 457 P.2d at 296.

4The holding in Shannon was based upon the Housing Act of 1949 and the 
Civil Rights Acts of 1964 and 1968. In discussing these statutes, the court 
addressed both the non-discrimination obligations under Title VI and the 
affirmative duty to further fair housing under Title VIII. Nonetheless, it separately 
addressed the independent obligations of each statute. Here, what is instructive is 
its analysis of Title VI obligations. That analysis recognized, separate and apart 
from the affirmative duty under Title VIII, that Title VI requires an agency to 
consider the race and effects of its actions, and to prevent discrimination resulting 
from such actions. IcL at 816, 820-821.

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Title VI charges recipient agencies with a duty to take action in

furthering its non-discrimination obligations. "The duty imposed under the statute 

and the regulations is not simply the negative duty to not discriminate.” El Cortez. 

457 P.2d at 296. "It is a mandate that prohibits recipient agencies from acting in a 

manner that results in discrimination.” Id. To effectuate this mandate, for 

example, EPA requires each recipient to establish procedures by which to 

“collect” and “maintain” “racial/ethnic” and “national origin” data. 40 C.F.R. § 

7.85(a)(2)-(4). This requirement represents the type of duties imposed by Title VI.

When agencies have failed to fulfill the duties imposed under the 

statute or regulations, courts have directed them to take action. Shannon. 436 F.2d 

at 821; Blackshear. 347 F. Supp. at 1148-1149. The direction provided by the 

District Court offers an appropriate example. But the Shannon requirements 

imposed by this Circuit provide an particularly instructive example of such 

direction. Shannon. 436 F.2d at 821.

In Shannon, this Circuit held that “the Agency must utilize some 

institutionalized method whereby ... it has before it relevant racial and socio­

economic information necessary for compliance with its duties under the 1964 and 

1968 Civil Rights Acts.” Id. In so holding, this Circuit “suggested some

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considerations relevant to a proper determination” under these Acts. Id. 

(suggesting eleven considerations, seven of which explicitly refer to the racial 

character of the population affected). Shannon’s procedural requirements have 

been adopted by many courts. See, e.g.. United Farmworkers of Fla. Hous. 

Project. Inc, v. City of Delray Beach. 493 F.2d 799, 811 n. 11 (5th Cir. 1974); 

Blackshear. 347 F. Supp. at 1146-1147; Croskev St. Concerned Citizens v. 

Romney. 335 F. Supp. 1251, 1255 (E.D. Pa. 1971).

These procedures were based upon the national civil rights policy 

expressed in Title VI and Title VIII of the Civil Rights Acts. That policy, as 

explicitly described in Shannon, arises out of the statutory approach “expressed in 

the Civil Rights Acts of 1964 and 1968,” which “show a progression of thinking 

of Congress as to what factors contribute” to discrimination and “what steps must 

be taken to reverse ... or prevent” it. Shannon. 436 F.2d at 816. In recognizing 

Title Vi’s role in this policy, this Circuit stated that “before 1964, administrators 

of federal ... programs could ... remain blind to the very real racial effect” of their 

decisions, [but] [t]oday such color blindness is impermissible.” Id. at 820. In 

further defining that role, this Circuit added that “[b]y 1964, [such administrators 

were] directed, when considering whether a program ... was workable, to look at

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the effects of [its] action and to prevent discrimination ... from such action.” Id. at 

816. Accordingly, this Circuit held that the requirement that “an Agency must 

utilize some institutionalized method whereby ... it has before it the relevant racial 

... information” is “necessary for compliance with its duties under the 1964 ...

Civil Rights Act.” Id. at 821. Based on this Circuit’s reading of Title VI “within 

the framework of the national policy against discrimination” and the procedural 

requirements adopted pursuant thereto, the “procedures” ordered by the District 

Court were not only authorized, but consistent with controlling precedent. See Id. 

at 816; NJDEP Br. at 32.

Other courts have applied the “statutory approach based on the Civil 

Rights Acts of 1964 and 1969 adopted in Shannon v. HUD” to order similar 

procedures. Blackshear. 347 F. Supp. at 1146, 1148-1149 (relying on Shannon in 

ordering an agency to adopt procedures which included “considerations relevant to 

a proper determination” under the Civil Rights Acts); Croskev. 335 F. Supp. at 

1254-1256 (holding that Title VI mandates “adequate consideration of the impact 

of site selection on racial concentration in deciding to approve a project so that the 

decision complies with the Shannon requirements”). In assessing an agency’s 

decision-making process against the underlying policy principles upon which Title

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VI is based, courts have consistently held that a process, which did not include 

any examination of race, is “grossly inadequate to ensure that the national policy 

o f equal opportunity. ” See Blackshear. 347 F. Supp. at 1145 (emphasis added).

While requirements based upon the national policy expressed in the 

Civil Rights Acts have been well-established, other courts have recognized similar 

duties based solely on Title VI. See, e.g.. Hicks v. Weaver. 302 F. Supp. 619, 623 

(E.D. La. 1969)(ruling that consideration of the racial character of a neighborhood 

is critical under Title VI because, based on the analogous area of school 

construction, locating a public housing project in an African American 

neighborhood “creates a strong inference” of discrimination); See also. El Cortez. 

457 P.2d at 297 (holding that a recipient agency that “admittedly rejected 

considering the racial character of the neighborhood” in choosing a housing site 

failed to fulfill its duties under Title VI). It is well-established that an agency 

must consider the racial impact of its decisions under Title VI.

This precedent demonstrates two points regarding NJDEP’s Title VI 

obligations. First, its obligations clearly go beyond the negative duty “not to use 

discriminatory criteria or methods.” NJDEP Br. at 33 n. *. Secondly, they 

require, at a minimum, that NJDEP’s permit process include a method by which

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the effects of a facility and the race of the population affected is considered. 

Furthermore, the policy principles underlying its obligations demonstrate that 

NJDEP’s attempt to offer compliance with environmental standards as a substitute 

for civil rights considerations appears to be “no more than an excuse for avoiding 

responsibility of having to find criteria” which will effectuate the purposes of Title 

VI. See El Cortez. 457 P. 2d at 296.

Many courts have directly undercut what NJDEP argues is a proper 

means of measuring civil rights compliance. It is well-settled that relying on 

criteria essenti ally irrelevant to discrimination, although worthwhile and 

reasonable in other areas, will not substitute for the race and effects considerations 

required by Title VI. For example, as this Circuit has explained, Title VI prohibits 

administrators from avoiding race and effects considerations by concentrating on 

other factors. See Shannon. 436 F.2d at 820 (stating that agencies cannot “by 

concentrating on land use controls, building code enforcement, and physical 

conditions of buildings, remain blind” to the racial effect of their decisions). 

Similarly, as stated in El Cortez. Title VI prohibits administrators from focusing 

on “availability of transportation, shopping, schools, business and community 

services, health and medical facilities, churches, improvability of land,

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topography, traffic congestion, zoning,” while “rejecting] considering the racial

character of the neighborhood.” El Cortez, 457 P.2d at 295-296. Likewise, Title 

VI prohibits NJDEP from solely focusing on environmental standards to avoid 

considering the race and effects of its permit decisions.

To further justify its reliance on environmental standards or, more 

specifically, solely on the NAAQ PM-10 standard, NJDEP insists that it is not 

“authorized” to consider anything more. NJDEP Br. at 34 (“In fact, some of the 

criteria call for by the Court are factors on which NJDEP cannot legally base a 

permitting decision.”). The Clean Air Act (“CAA”), according to NJDEP, 

prohibits such consideration. Id. Far from precluding consideration of the race 

and effects in permitting the facility, the Act expressly calls for the protection of 

broader public interests, including "the public health and welfare." 42 U.S.C. §§ 

7401(b)(1), 7508(a)(1)(A), 7508(a)(A)-(C). EPA has interpreted this 

Congressional mandate to consider what NJDEP now argues is unauthorized.

For instance, EPA has interpreted the omnibus clause of the CAA, as 

well as other environmental statutes, -  that mandate to “protect the public health 

and welfare,” and to assess penalties “as justice may require” -  to authorize 

consideration of broad impacts, including all racially discriminatory adverse

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impacts. See In re AES Puerto Rico. 29 E.L.R. 41132 (E.A.B. 1999)(holding that 

environmental permitting process under the Clean Air Act may include “additional

considerations”); In re EcoElectrica. L.P.. 7 E.A.D. 56 (1997). Second, the CAA 

requires that any permits issued for sources in non-attainment areas like Camden 

which already do not meet the NAAQS must include “an analysis of alternative 

sites, sizes, production processes, and environmental control techniques for such 

proposed source demonstrates that the benefits of the proposed source 

significantly outweigh the environmental and social costs imposed as a result 

of its location, construction or modification.” 42 U.S.C. § 7503(a)(emphasis 

added). Therefore, NJDEP was not only authorized to consider the broad impacts 

of the permit, but was statutorily directed to carefully consider such consequences 

in its analysis of that permit based on the circumstances in this case. The statutory 

directive, combined with NJDEP’s obligations under Title VI, support the adverse 

disparate impact analysis ordered by the District Court.

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II. DISTRICT COURT PROPERLY FOUND THAT THE 
PLAINTIFFS DEMONSTRATED A LIKELIHOOD OF 
SUCCESS ON THE MERITS ON THE QUESTION WHETHER 
THE GRANT OF THE PERMIT WOULD HAVE A 
DISPARATE IMPACT ON AFRICAN-AMERICANS AND 
HISPANIC-AMERICANS.

The District Court reviewed the factual record to evaluate the 

"likelihood of success on the merits" component of the standard for preliminary 

relief. See Instant Air Freight Co. v. C.F. Air Freight. Inc.. 882 F.2d 797, 800 (3d 

Cir. 1989); In Re Arthur Treacher's Franchisee Litig.. 689 F.2d 1137, 1143 (3d 

Cir. 1982). The Court held that plaintiffs had established a prima facie case of 

adverse disparate impact, and otherwise established an entitlement to preliminary 

relief. South Camden Citizens in Action v. New Jersey Dept, of Envir. Prot.. 2001 

WL 392472, * 2 (D.N.J. 2001)(“SCCIA I”).

Amici here focus specifically on disparate impact.5 The District 

Court's ruling in this regard is entirely consistent with established precedent and is

5

This brief focuses on the disparate impact portion of the adverse disparate 
impact analysis. The District Court’s findings of fact as to harm and risk from 
exposure to emissions from the SLC facility, together with the ample record 
evidence provide the basis for the court’s holding that the disparate impact is 
adverse. Those findings are addressed in the briefs of Appellees and other amici 
and will not be given significant treatment here.

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the only conclusion that can properly be drawn from the record.

Disparate impact analysis is simply a means of assessing “[t]he 

impact of the official action -  whether it bears more heavily on one race than 

another.” Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.. 429 

U.S. 252, 266 (1977) (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). 

See Rizzo. 564 F.2d at 141. Thus, disparate impact analysis involves an 

examination of the racial composition of the population that will be adversely 

affected by the challenged action in relation to the racial character of relevant 

populations that will not bear significant adverse effects. See Griggs. 401 U.S. at 

432; Watson. 487 U.S. at 988. Disparate impact analysis must be applied flexibly 

in a wide variety of contexts on the basis of the facts and circumstances presented 

in each case.

Application of established disparate impact analysis to this record 

demonstrates that NJDEP's grant of the air quality permit had a disparate impact 

on the basis of race, and that the Court’s holding is supported by several analyses 

of the available data. First, there is conclusive evidence that issuing the 

challenged permits will have a disparate racial impact on the essentially racially 

segregated population of Waterfront South — the community in which the facility

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will operate. Further, this disparate racial impact is aggravated by other sources of 

pollution that have been authorized to operate in this same neighborhood, as well 

as the correlation between race and the pattern of permits issued by NJDEP state­

wide.

A. The Record Clearly Establishes That
Issuance of the SLC Permit Would Have 
a Disparate Racial Impact

Plaintiffs' complaint challenged issuance of the permit by NJDEP for 

operation of the SLC facility in the Waterfront South neighborhood. See 

Plaintiffs' Compl. at §§ 98-101. The stark facts regarding the racial composition 

of that community and the exposure of the community to emissions from the SLC 

facility establish a clear and unmistakable disparate impact. This, together with 

the Court’s factual findings of the adverse health effects and risks that operation of 

the facility would have on that community, clearly establish adverse disparate 

impact.

Indeed, NJDEP does not, and could not, contest the evidence 

establishing that this community in which the plant it permitted to operate is 

comprised almost entirely of African-American and Hispanic-American residents. 

The undisputed evidence shows, and the Court found, that Waterfront South

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residents are 63% African-American, 28.3% Hispanic, and only 9% white (non-

Hispanic) -  a combined minority population of greater than 91%. SCCIA I at *

10. The undisputed evidence also demonstrates that the racial composition of this 

neighborhood differs dramatically from that of the larger community. The District 

Court’s comparison of Waterfront South to the demographics on both the county 

and the State levels illustrates this fact quite clearly:

Waterfront South County of Camden State o f New Jersey

63% African-American 16.2% African-American

28.3% Hispanic 7.2% Hispanic

91.3% Non-White 

9% White(non-Hispanic)

23.4% Non-White 

75.1% White(non-Hispanic)

20.6% Non-White 

79.4% White(non-Hispanic)

Thus, there can be no question that actions that impact on the Waterfront South 

community will “bear more heavily on one race than another,” the heart of 

disparate impact analysis.

NJDEP does not contest that this community of racial minorities 

would be exposed to a number of air "pollutants" from the operation of the SLC 

facility as a result of its permitting, including "particulate matter (dust), mercury, 

lead, manganese, nitrogen oxides, carbon monoxide, sulfur oxides, and volatile 

organic compounds." See SCCIA I at * 9. Instead, NJDEP argues only that the

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amount of pollutants emitted would not exceed the NAAQS requirements. NJDEP 

Br. at 9. Therefore, the finding that the adverse effects of those emissions would 

fall more heavily on one race than another does not require sophisticated statistical 

analysis when, as here, the population of the affected community is 91% minority 

and represents a racial concentration four times the county average.

Accordingly, the undisputed facts that the SLC facility permitted by 

NJDEP is located in a predominately minority community and that its operation 

will result in the exposure of residents of that community to its emissions establish 

conclusively that the issuance of the permit would have a disparate racial impact 

on Waterfront South.6 Contrary to what NJDEP contends, it is the permit issued 

by them that causes the harm by allowing for the operation of the facility. NJDEP 

Br. at 47. Without permission from NJDEP to operate, no harm would come to 

the residents of Waterfront South from the presence of the SLC facility. See

6

Although the District Court generally did not repeat its findings establishing 
the disparate impact of the permit on the Waterfront South community under the 
heading “Disparate Impact” in its opinion, see SCCIA I at *32, those findings 
precede and both shape and form the basis for its conclusions regarding the 
community and the adversity of the health effects and risks associated with the 
facility’s emissions. Even if the opinion were read to exclude this analysis of 
disparate impact, the uncontested facts and District Court's findings clearly 
establish the disparate impact of the issuance of the permit on the Waterfront 
South neighborhood as a basis for affirmance of the court’s order.

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Hicks. 302 F.Supp. at 623 (holding HUD liable under Title VI for approving a

project in a minority neighborhood because “nothing could be done without its 

approval.”). This record, together with the District Court’s findings of fact 

regarding the adverse effects and risks of that exposure, establish adverse 

disparate impact.

Analysis of disparate impact in similar contexts demonstrate that this 

analysis is not only entirely appropriate, but routine. For example, this Court in 

Resident Advisory Board v. Rizzo analyzed disparate impact with respect to a 

claim that a city's refusal to issue a permit for construction of a low-income 

housing project was discriminatory by identifying the racial character of the 

population affected by the decision -  those waiting for low-income housing, "95% 

of whom [we]re nonwhite” -  relative to the “now-all-white portion" of the city in 

which the project was to be built and from which those waiting for low-income 

housing would be excluded. 564 F.2d at 143. This Court concluded that "the 

discriminatory impact of the City's obstruction of the project could hardly be 

clearer. .. . The City's opposition to the construction of the project had an 

undeniable effect of bearing more heavily on one race than another." Id; accord 

Shannon. 436 F.2d at 820 (holding that an agency must consider "the relevant

-24-



racial and socio-economic information necessary for compliance with its duties" 

under the Civil Rights Act in considering site selection or type selection for low 

income housing).

Similarly, in Coalition of Concerned Citizens v. Damian, minority

residents challenged as racially discriminatory a state's construction of a new

highway through their community. 608 F. Supp. 110, 113 (S.D. Ohio 1984). The

Court found that plaintiffs stated a prima facie case of disparate impact based on

the racial disproportion of the population that would be affected by the highway:

[t]here is no dispute that parts of [the highway] would 
travel through neighborhoods that range from 50% to 
over 90% racial minorities. Further, of 355 persons 
displaced by the construction of [the highway], 260 or 
nearly 75% are members of racial minorities. There is 
also ample evidence to support that the disruptions and 
negative impacts of highway construction and after the 
highway is operating will fall primarily upon 
neighborhoods that are mostly comprised of minorities.

Id. at 127.

Likewise in East Bibb Twiggs Neighborhood Ass’n v. Macon-Bibb 

County Planning & Zoning Comm’n. involving a disparate impact challenge to the 

approval of a private landfill, the court "observe[d] the obvious -  a decision to 

approve a landfill in any particular census tract impacts more heavily upon that

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census tract than upon any other. Since census tract No. 133.02 contains a 

majority black population equaling roughly sixty percent (60%) of the total 

population [of that area], the decision to approve the landfill in census tract 133.02 

of necessity impacts greater upon that majority population." 706 F. Supp. 880,

884 (M.D. Ga. 1989), affd, 896 F.2d 1264 (11th Cir. 1989).

Such analyses of racial divergence of the populations that will be 

affected by the authorization, termination or modification of particular facilities in 

determining disparate impact are commonplace and well established.7 

Accordingly, the disparate racial impact of the permit issued by NJDEP

7

See, e.g.. Bryan v. Koch. 627 F.2d 612,616-17 (2d Cir. 1980) (in challenge 
to closing of hospital, racial "disparity appears from comparing the 98% minority 
proportion of the [hospital's] patients with the 66% minority proportion of the 
patients served by the City’s municipal hospital system," plaintiffs "ha[d] 
sufficiently shown a disproportionate racial impact"); Hodges v. Public Bldg. 
Comm'n of Chicago. 864 F. Supp. 1493, 1501 (N.D. 111. 1994) (in challenge to 
revised expansion plan for school, court observed that 85% percent of the school's 
students and 90% of the applicant pool were minorities, and that "minorities have 
borne and would continue to bear the brunt of prolonged overcrowding and lack 
of program space" caused by the plan, and concluded that plaintiffs adequately 
showed a disparate impact); Laramore v. Illinois Sports Facilities Auth.. 722 F. 
Supp. 443, 449 (N.D. 111. 1989) (in challenge to construction of stadium in 
neighborhood with population that was "almost exclusively black," court 
compared the "alleged immediate impact" on black residents against the "indirect, 
and perhaps speculative impact" on white residents in concluding that plaintiffs 
"have adequately alleged a racially disparate impact").

-26-



authorizing operation of the SLC facility in Waterfront South is thoroughly

established in the record and findings of the District Court.

B. The Disparate Impact Holding Is 
Supported by the Apparent Racial 
Disparity in Other Sources of Exposure 
That Have Been Authorized to Operate in 
Waterfront South.

The record establishes that the Waterfront South neighborhood is not 

simply a 91% minority community, but a 91% minority community in which a 

host of regulated and unregulated facilities and sources of pollution and exposure 

previously have been authorized to operate. SCCIA I at * 1-2. Specifically, the 

District Court found that:

The Waterfront South neighborhood is already a popular 
location for the siting of industrial facilities. It contains 
the Camden County Municipal Utilities Authority, a 
sewage treatment plant, the Camden County Resource 
Recovery facility, a trash-to-steam plant, the Camden 
Cogen Power Plant, a co-generation plant, and two 
United States Environmental Protection Agency ("EPA") 
designated Superfund sites. Four sites within one-half 
mile of SLC's proposed facility are currently being 
investigated by the EPA for the possible release of 
hazardous substances. The NJDEP has also identified 
fifteen known contaminated sites in the Waterfront South 
neighborhood.

SCCIA I at *2.

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The practices of regulatory agencies, including the NJDEP, have 

already had a disparate impact on the area's African-American and Hispanic 

population. Contrary to what NJDEP’s contends, this heavy concentration of 

contaminated and polluting facilities, some of which were also permitted by 

NJDEP, is highly relevant to the District Court’s finding of disparate impact 

discrimination. NJDEP Br. at 47; See Bean v. Southwestern Waste Mgmt. Corp.. 

482 F.Supp. 673, 676 (S.D. Tex. 1979)(“Evidence as to [other permitting 

authorities actions] is relevant, however, to the question of whether Defendant..., 

being aware of the placement of solid waste sites throughout the city of Houston, 

... discriminated by approving the permit for the [challenged] site, since a state 

agency must not put its stamp of approval on a discriminatory practice or policy 

even if it did not initiate the practice or policy.”). Moreover, the concentration of 

such facilities supports the disparate impact finding as it suggests a cumulative 

disparate impact were the SLC facility to be permitted by NJDEP to operate.

In R.I.S.E. v. Kav. for example, the court held that "[t]he placement 

of landfills in King and Queen County from 1969 to the present has had a 

disproportionate impact on black residents." 768 F. Supp. 1144, 1149 (E.D. Va. 

1991). Similarly, in Blackshear. the court found that a history of siting public

-28-



housing had a racial impact in perpetuating residential racial segregation. 347 F. 

Supp. at 1148; see also Kennedy Park Homes Assoc.. Inc, v. City of Lackawanna. 

436 F.2d 108, 113-114 (2d Cir. 1970)(finding that Lackawanna's long history of 

trying to keep 98.9% of its African-American residents confined to one of the 

City's three wards was substantial evidence of disparate racial impact).

Disparate impact has also been established through evidence 

suggesting that African-American or other minority communities have not been 

afforded equal treatment in the administration of governmental services. For 

example, in Hawkins v. Town of Shaw, the Fifth Circuit considered statistical 

evidence. 437 F.2d 1286, 1288 (5th Cir. 1971)(discussing evidence showing that 

there were “451 dwelling units occupied by blacks in town, and, of these, 97% 

(439) are located in neighborhoods in which no whites reside.. . . [n]early 98% of 

the homes that front on unpaved streets in Shaw, [and n]inety-seven percent of the 

homes not served by sanitary sewers are in black neighborhoods.). The Shaw 

Court found that the City had clearly employed a policy to administer disparate 

municipal services to different sections of town, which "led to substantially less 

attention being paid to the black portion of town." Id  Asa result, the Shaw Court 

concluded that plaintiff had presented "enough evidence to establish a prima facie

-29-



case of racial discrimination." Id.; see also Jackson v. Conway. 476 F. Supp. 896, 

904 (E.D. Mo. 1979). affd, 620 F.2d 680 (8th Cir. 1980) (recognizing that courts 

have acknowledged Title VI violations where "a municipality would provide a 

certain service to a predominantly white section of town and a disparate or inferior 

service in a predominantly black section of town"); Ammons v. Dade City. 594 F. 

Supp. 1274, 1301 (M.D. Fla. 1984), affd. 783 F.2d 982 (11th Cir. 1986)(holding 

that racial disparity in municipal services gave rise to inference of intent)(citing 

Casteneda v. Partida. 420 U.S. 482, 494 (1977)).

We do not suggest that the record evidence regarding the 

concentration of polluting facilities in Waterfront South presented in this hastily- 

prepared preliminary injunction proceeding is sufficient for a finding of 

discrimination. However, the issue before the District Court was whether there 

was evidence to establish a prima facie case of disparate treatment in determining 

whether plaintiffs were likely to succeed on the merits of their disparate impact 

claim. SCCIA I at * 2. In that context, the evidence of an apparent concentration 

of such facilities and the evident history of authorizing their operation in this 

minority community is probative, particularly in light of the undisputed disparate 

impact of NJDEP’s permitting decision allowing the SLC facility to operate.

-30-



C. The Disparate Impact Holding Is 
Supported by the Apparent Racial 
Pattern in the Distribution of NJDEP- 
Permitted and EPA Regulated Facilities 
State-Wide.

The District Court's finding of disparate impact is amply supported by

the facts proffered to support the two analyses set forth above. But beyond that

evidence, South Camden Citizens presented prima facie evidence that NJDEP's

permitting practices have a disparate impact across the State, with proofs that

pollutant-producing facilities are disproportionately located in communities of

color across New Jersey. Id. at * 42 (discussing the evidence presented by

Plaintiffs’ expert, Dr. Michel Gelobter, analyzing the correlation between race and

the distribution of facilities that emit air pollution in New Jersey).

On the basis of statistical evidence, the District Court found that in

the State of New Jersey there is “a strong, highly statistically significant, and

disturbing pattern of association between the racial and ethnic composition of

communities, the number of EPA regulated facilities, and the number of facilities

with Air Permits.” Id. at * 43. The District Court concluded:

At this stage of the proceedings, I find the evidence in 
the record amply supports a finding or disparate impact.
Moreover, plaintiffs' expert, Dr. Michel Gelobter's 
conclusion is further supported by the undisputed fact

-31-



that 91 percent of the population of Waterfront South 
consists of members of racial or ethic minorities.

Id. at * 43.

The District Court found that the facts support a prima facie showing of disparate 

racial impact in NJDEP's procedures for approving air quality permits. Id. at * 44.

Courts have based findings of disparate impact on statistical evidence 

showing correlation between the effects of multiple decisions and race in cases 

involving employment, zoning, fair housing, and other topics. These cases show 

the trial court's discretion to fashion the disparate impact analysis using statistical 

evidence as the basis for the prima facie case. For example, in Bronson v. 

Crestwood Lake Section 1 Holding Corp.. 724 F. Supp. 148, 153-155 (S.D.N.Y. 

1989), the court relied on statistics showing disparate impact to prove a pattern of 

racial discrimination related to a section 8 voucher policy.

There, the court granted a preliminary injunction, enjoining a 

landlord's policy requiring tenants to have an income level three times the amount 

of monthly rent. Plaintiff used statistical evidence of all renters in Yonkers, New 

York who — after payment of taxes and rent — would have an income level equal 

to or greater than the State "standard of need" level. See id. at 154 (evidence 

demonstrated that according to 1980 census figures, applying the three-times-

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income standard to all renters in the applicant pool would effectively disqualify 

6.25% of minority families from renting, but only serve to disqualify 0.25% of 

non-minority households from the pool). Based on that evidence, the Court 

observed that "the odds of being excluded from [renting] by the triple income test 

are 2.5 times greater for minority persons than non-minority persons." Id. The 

court concluded that on an application for preliminary injunction, the evidence in 

the record "amply supports a finding of disparate impact." kL, See also 

Huntington Branch, NAACP v. Town of Huntington. 844 F.2d 926, 929 (2d Cir. 

1988), affd, 488 U.S. 15, 17 (1989)(" Without endorsing the precise analysis of the 

couit of appeals, we are satisfied on this record that disparate impact was 

shown..." ).

Thus, the statistical evidence shows a correlation between distribution 

of regulated facilities and the percentage of minority residents. This is competent 

evidence of disparate impact and supports the District Court's holding.

-33-



CONCLUSION

WHEREFORE, for the foregoing reasons the undersigned Amici 

urge this Court to affirm the findings of the District Court that NJDEP violated 

Title VI of the Civil Rights Act of 1964 and the implementing regulations.

Respectfully submitted,

Thomas Henderson, Esq. 
Janette L. Wipper, Esq. 
Lawyers' Committee for Civil 
Rights Under Law 

1401 New York Avenue, N.W. 
Washington, D.C. 20005-2124 
(202) 662-8600

Elaine R. Jones 
Theodore M. Shaw 
Norman J. Chachkin 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013-2897 
(212) 965-2200

Dennis Courtland Hayes, Esq. 
National Association for the 

Advancement of Colored People 
4801 Mount Hope Road 
Baltimore, Maryland 21215 
(410)486-9191

Ken Kimerling 
Margaret Fung
Asian American Legal Defense 
and Education Fund 

99 Hudson St. -12th Floor 
New York, New York 10013 
(212) 966-5932

Ronald Thompson, Esq.
Garden State Bar Association 
Law Office of Ronald Thompson 
213 South Harrison Street 

East Orange, New Jersey 07018 
(973) 673-1001

Regina Waynes Joseph, Esq.
Garden State Bar Association 
320 South Harrison Street 

16th Floor
East Orange, New Jersey 07018-1333 
(973) 744-5208 
34



CERTIFICATION OF BAR MEMBERSHIP

I, THOMAS J. HENDERSON, hereby certify that I am a member in good

standing of the Bar of the United States Court of Adp^ for fhe Third Circuit.

Dated: August 2, 2001 
Washington, D.C.

CERTIFICATION OF SERVICE

I, THOMAS J. HENDERSON, an attorney at law and Member of the Bar of 

the United States Court of Appeals for the Third Circuit, do hereby certify that I 

have caused to be served on the parties listed on the attached service list, by first 

class mail and overnight delivery service, a true and correct copy of the foregoing 

Brief.

Dated: August 2, 2001 
Washington, D.C.

35



CERTIFICATION OF COMPLIANCE

I, JANETTE L. WIPPER, hereby certify that the brief complies with the 

type-volume limitation of R. 32(a)(7)(B). The brief contains 6901 words.

Dated: August 2, 2001 
Washington, D.C.

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