Bratcher v. Akron Area Board of Realtors Reply Brief for the Plaintiffs-Appellants

    UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS , _et_ al_. ,
Plaintiffs,

v .

WILLIAM BENNETT, SECRETARY 
OF EDUCATION, et al.,

Defendants.

WOMEN'S EQUITY ACTION LEAGUE, 
et al., Plaintiffs, 

v .

WILLIAM BENNETT, SECRETARY 
OF EDUCATION, et al.,

Defendants.

" MEMORANDUM OPINION AND ORDER

On September 14, 1984, the United States Court of 
Appeals for the District of Columbia remanded this matter for a 
"current ruling on whether standing and other Article III 
requirements are satisfied." Women's Equity Action League (WEAL) 
v. Bell, 743 F.2d 42, 44 (D.C. Cir. 1984). The Court of Appeals
had before it two matters: (1) defendants' appeal from a March
11, 1983 order of this court denying their motion to vacate a 
1977 Consent Decree containing time frames for the processing of 
complaints and compliance reviews by the Department of 
Education's Office of Civil Rights (OCR), and (2) defendants'

Civil Action No. 3095-70

FILED
DEC 11 1987

) CLERK, U.S. DISTRICT COURT,
) DISTRICT OF COLUMBIA
)
)) Civil Action No. 74-1720 
)



appeal from a second order of this court dated March 24, 1983, 
granting injunctive relief which reimposed, also with some 
modifications, the time frames and associated provisions relating 
to higher education which had also been part of the 1977 Consent 
Decree. The appeals raised important questions regarding whether 
the 1977 and 1983 time frame decrees were authorized by the 
applicable statutes and Executive Orders, whether the decrees, 
involving judicial intervention in the day-to-day operations of 
agencies of the Executive Branch, violated the separation of 
powers doctrine and whether the decrees, under traditional equity 
concepts, were any longer necessary or appropriate.

The Court of Appeals did not reach the merits of these 
contentions. Rather, in view of defendants' basic argument that 
this court had "lost sight of the specific goals of the initial 
suit", and embarked on a policy of supervising Executive Branch 
activity.for an indefinite period of time, the Court of Appeals 
found itself "obliged to consider on [its] own motion threshold 
Article III impediments to the initiation and maintenance of 
[this] action." WEAL, 743 F.2d at 43. The two specific Article 
III concerns raised by the Court of Appeals involved questions of 
standing and mootness. The Court expressed no opinion on these 
threshold issues or on the merits of defendants' underlying 
complaint concerning the legality of the two decrees.
Accordingly, it vacated the orders from which appeal had been 
taken and remanded the case to this court "for consideration 
whether, in harmony with the case-or-controversy limitations... 
this action may proceed in court". Id. at 44. In taking this

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action, the Court of Appeals placed great reliance on the 
decision of the Supreme Court in Allen v Wright, 468 U S. 737 
(1984), handed down during the pendency of the appeal. In Allen, 
the Supreme Court raised the question whether "absent actual 
present or immediately threatened injury resulting from unlawful 
government action," it is an appropriate role for federal courts 
to act as "virtually continuing monitors of the wisdom and 
soundness of Executive action". Id. at 760 (quoting Laird v. 
Tatum, 408 U.S. 1, 15 (1972)). This is a question to which we 
will return after, a brief detour.

I. Background

It is appropriate at this point, before we begin our 
consideration of the Article III concerns raised by the Court of 
Appeals, to set forth briefly the relevant history of this 
case. This litigation has its roots in the distant past.
Several actions have been joined to give it its present shape and 
form. The common thread underlying each of the several

1. The original Adams litigation presented a challenge to the 
Department of Health, Education & Welfare's policy of non­
enforcement of Title -VI of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. §§2000d et seq. (1982), with respect to 
seventeen (17) southern and border states. In 1975 a similar 
suit was filed against HEW alleging that the agency was failing 
to enforce Title VI in thirty three (33) northern and western 
states as well. Judge Sirica found HEW in default of its 
statutory obligations. Brown v. Weinberger, 417 F. Supp. 1215 
(D.D.C. 1976). Relief in that case was for the most part 
consolidated with Adams in the December 29, 1977 order. The 1977 
Consent Decree also expanded the scope of the litigation by 
including a separate suit brought by the Women's Equity Action 
League in 1974. In that complaint, WEAL alleged that the

t of Health, Education & Welfare (HEW) and the
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complaints in this litigation, however, is the alleged improper 
grant of federal funds in violation of various statutes and 
regulations. These statutes and regulations include Title VI of 
the Civil Rights Act of 1964, as amended (Title VI), 42 U.S.C. 
§2000d et seq. (1982), Title IX of the Education Amendments of 
1972 (Title IX), 20 U.S.C. §1681 (1982), Executive Order No. 
11246, as amended by Executive Order 11375, and §504 of the 
Rehabilitation Act of 1973, 29 U.S.C. §794 (1982). Plaintiffs 
also present a constitutional challenge to defendants' conduct.

The original Adams case presented a challenge to HEW's 
policy of non-enforcement of Title VI with regard to claims of 
racial discrimination. In 1976 additional groups and individuals 
were allowed to intervene in the Adams litigation on the basis of 
HEW's representation that the Title VI enforcement obligations 
previously imposed by this court made it impossible to devote 
sufficient resources to the review and processing of Title IX sex 
discrimination and Title VI national origin discrimination 
complaints. In October 1977, the National Federation of the 
Blind also intervened, complaining of lack of enforcement of §504 
of the Rehabilitation Act of 1973 and §904 of the Education 
Amendment Act of 1972 with respect to discrimination based on 
handicap. Thus, the entry of these plaintiff-intervenors in the 
Adams suit greatly expanded the statutory scope of the 
litigation.

Department of Labor (DOL) had both failed to meet their 
obligation to enforce Executive Order 11246 with respect to 
institutions of higher education, and that HEW had failed to 
comply with its Title IX obligations.



As an indication of the breadth of this extensive and
protracted 
Adams plain 
individual 
intervenor 
of two (2) 
Memorandum

litigation, it is signif 
tiffs consist of forty (

. 2plaintif f-mtervenors a 
organizations. The cur 
individuals and six (6) 
in Support of their Moti

icant to note 
40) individual 
nd five (5) pi 
rent WEAL plai 
organizations, 
on -to Dismiss

that the current 
s, eight (8) 
aintiff- 
ntiffs consist 
 ̂ Defendants' 
(Defs. Memo.) at

5.
A . Court of Appeals Pronouncements

In the original Adams case filed in 1970, we held that the 
Department of Health, Education and Welfare and its Director of 
the Office of Civil Rights did not have further discretion but 
were under an affirmative duty to commence enforcement 
proceedings against public educational institutions to ensure 
compliance with Title VI where efforts towards voluntary

2. Plaintiff-intervenors Martinez, et al. are four
individuals: Jimmy Martinez, Ben G. Salazar, Pablo E. Ortega and
Arturo Gomez, Jr.. Plaintiff-intervenors Cynthia L. Buxton, et 
al. are two individuals: Cynthia L. Buxton and Kay Paul 
Whyburn. Finally, individual handicapped plaintiff-intervenors 
are Douglas J. Usiak and Joyce F. Stiff.
3. These organizations include the Women's Equity Action League 
(WEAL), the National Organization for Women (NOW), the National 
Education Association (NEA), the Federation of Organizations for 
Professional Women (FOPW) and the National Federation for the 
Blind (NFB).
4. These organizations include WEAL, NOW, NEA, FOPW, the 
Association for Women in Science (AWIS), and the United States 
Student Association (USSA). Unless otherwise indicated, both the 
plaintiffs and plaintiff-intervenors in Adams and the plaintiffs 
in WEAL will be collectively referred to as "plaintiffs."

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compliance were not attempted or successful. Adams v.
Richardson, 351 F. Supp. 636, 641 (D.D.C. 1972). Subsequently,
we ordered the agency to take certain corrective measures. Adams
v. Richardson, 356 F. Supp. 92 (D.D.C. 1973). With minor
modifications not here relevant the Court of Appeals, sitting en
banc, affirmed this court's decision. Adams v. Richardson, 480
F.2d 1159 (D.C. Cir. 1973)[hereinafter "Adams I"]. Although our
order directed that the commencement of enforcement proceedings
take place within certain time frames, the appellate court was
careful to emphasize that: *

the order merely requires initiation 
of a process which, excepting contemptuous 
conduct, will then pass beyond the District 
Court's continuing control and supervision-

id. at 1163 n.5. (Emphasis added).
A further interpretation of the boundaries of our 1973 

order arose later in another context. In March, 1979, the 
Department of Education (DE) , which had succeeded to HEW's 
jurisdiction, rejected the State of North Carolina's 
desegregation plans, and subsequently commenced enforcement 
proceedings against the State.5 -In response, North Carolina 
filed suit in federal court in North Carolina to enjoin the

5 These proceedings were commenced as the result of an order we 
issued on April 1, 1977 in Adams v. Califano, 430 F. Supp. 118 
(D.D.C. 1977). This order, denominated the Second Supplemental 
Order, directed defendant to notify six southern states, 
including North Carolina, that their plans for higher education 
were not adequate. The Second Supplemental Order set time frames 
fbr the submission of final guidelines and revised desegregation 
plans by each state, and for the acceptance or rejection of such 
plans by defendants.

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administrative hearing and to prevent the DE from deferring grant
payments. The North Carolina court enjoined the deferral of
payments but permitted the enforcement proceeding to continue.
After the Department had completed the presentation of its case
in chief, after several months of hearings, the parties entered
into a consent settlement, which the North Carolina court
approved. North Carolina v. Department of Education, Memo. Op.,
No. 79-217-CIV-5 (E.D.N.C. July 17, 1981). At this juncture, the
Adams plaintiffs, who were not parties to the North Carolina
suit, sought injunctive relief from this court to enjoin the
Department from acceding to the proposed consent settlement. We
declined to grant the requested relief, for reasons of comity as
well as limitations in the scope of our original 1973 order.
Adams v. Bell, Transcript at 26-30, No. 70-3095 (D.D.C. June 25,
1981). The Court of Appeals for this Circuit, again sitting en
banc, affirmed our decision. Adams v. Bell, 711 F.2d 161 (D.C.

*Cir. 1983) [hereinafter "Adams II"] . It found that the purpose of 
the 1973 decree was to require the Department to meet its 
responsibilities under Title VI by the commencement of formal 
proceedings or through voluntary compliance, and that our decree 
did not extend to details of particular enforcement programs, 
including the supervision of the Department's settlement with 
North Carolina.^ Id. at 165.

6 The Court of Appeals expressly stated that it did not "pass on 
the scope of the District Court's authority with reference to 
other possible Department of Education actions. . . ." Adams
II, 711 F.2d at 165. This exclusion covers the content of our 
subsequent orders of March 11, 1983 and March 24, 1983, which are 
the focus of the present litigation. Id. at 165 n. 25.

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The opinions of the appellate court in Adams I and Adams II
are the only Court of Appeals decisions concerning the proper 
reach and meaning of our original order. They both affirm the 
original direction of this litigation, and emphasize the limited 
nature of our intervention.

We turn now to the events leading up to the 1977 Consent 
Decree, the validity of which was indirectly challenged in the 
appeal in WEAL, supra.

B . The 1977 Consent,Decree

In 1975, in response to plaintiffs' suit alleging delays 
in the administrative processing of complaints in elementary and 
secondary education cases, we ordered the agency to proceed 
against defaulting school districts and imposed time frames 
controlling future enforcement activities by the agency. Adams v. 
Weinberger, 391 F.Supp. 269 (D.D.C. 1975). This consent order 
was negotiated by the parties and served to supplement our 
original February 16, 1973 order. It came to be known as the 
First Supplemental Order, and was the first of a series of 
orders7 establishing time frames for each stage of the 
administrative process. Part F of this order directed attention 
for the first time to future Title VI enforcement activities, 
setting time limitations for the handling of future complaints 
and compliance reviews. Id. at 273. Part F of the First

7 A partial list of the relevant decisions and orders is 
attached hereto.

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Supplemental Order was modified by an unpublished June 14, 1976 
order of this court which established separate guidelines for the 
administrative processing of Title VI and Title IX complaints, 
compliance reviews, and Emergency School Aid Act cases. Adams v. 
Matthews, No. 3095-70 (D.D.C. June 14, 1976). A so-called Second 
Supplemental Order concerning the acceptable ingredients for the 
desegregation of higher education in the states was issued on 
April 1, 1977. Adams v. Califano, 430 F.Supp. 118 (D.D.C. 1977).

In mid-1977, the Adams plaintiffs were again before this 
court seeking further relief for noncompliance with the 1975 
order referred to above and with that portion of the 1973 order 
relating to special purpose and vocational schools. Plaintiffs 
sought compliance with previously imposed time frames and other 
administrative requirements. The court, after an extensive 
hearing, directed the parties to enter into negotiations. These 
negotiations resulted some months later in the 1977 Consent 
Decree issued on December 29, 1977. Adams v. Califano, No. 3095- 
70 (D.D.C. December 29, 1977).

The 1977 Decree was more extensive than the orders 
entered previously and differed from them in several respects. 
First, the Decree broadened the court's review of HEW enforcement 
activities to include all fifty states.8 Second, in addition to 
Title VI, it applied to complaints and compliance reviews under

8. As noted previously, the expanded geographical scope of the 
litigation resulted from the consolidation of this action with 
Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C. 1976), a case 
involving similar complaints against defendants with regard to 33 
northern and western states.

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Title IX, Executive Order No. 11246,9 and § 504 of the 
Rehabilitation Act of 1973.10 Third, it set forth a number of 
additional procedural steps to be performed following receipt of 
a completed complaint. Id. at TMI8 (a) , 9 and 11.

It is a fair summary to state that the emphasis in the 
original order of 1973 stemmed from defendants' abdication of 
their statutory responsibility in pursuing a conscious policy of 
non-enforcement. The 1973 order, as stated previously, rejected 
the agency claim that it had almost unfettered discretion in this 
area, and, instead, directed that enforcement proceedings be 
commenced within certain limited time frames. These time frames 
have become more detailed with the issuance of each new order, in 
part because of defendants' chronic delays and in part because of 
the asserted necessity for these delays during the various stages 
of the administrative proceedings. The Consent Decree of 
December 29, 1977 was a culmination of this process and attempted 
to address these difficulties in a single document fifty-four 
(54) pages in length comprised of eighty-eight (88) separately 
numbered paragraphs. Limitations of space prevent a detailed 
catalogue of these provisions. It -is sufficient to say that the

9 Prior to the date of the December 1977 Decree, HEW had 
responsibility under the Office of Federal Contract Compliance 
Programs (OFCCP) for the enforcement of Executive Order No.
11246, including sex based claims of employment discrimination in 
institutions of higher education with substantial government 
contracts. Teh months after the December 1977 Decree, OFCCP 
assumed this responsibility.
10. The Decree also expanded the scope of the 1970 litigation, 
as noted earlier, by linking a separate suit brought by WEAL 
against HEW and the DOL. All parties agreed that the December 
29, 1977 Consent Decree would apply to the WEAL action as well.

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parties, in good faith, made a serious attempt to settle all 
outstanding differences existing between them.

In August 1982 defendants moved to vacate the 1977 
Consent Order asserting changes in fact and law, as well as the 
need for a deeper consideration of the facts in light of 
experience. We denied defendants' motion to vacate on March 11, 
1983. On the same day, in response to- Motions for Orders to Show 
Cause filed by the Adams and WEAL plaintiffs, we entered a 
detailed order of thirty-seven (37) pages modifying the 1977 
Consent Order as it applied to the DE aqd the DOL. On March 24, 
1983, in response to Plaintiffs' Renewed Motion for Further 
Relief Concerning State Systems of Higher Education, we entered a 
separate order, in which we found that five southern states 11 
had defaulted in their commitments under previously accepted 
desegregation plans in violation of Title VI. Adams v Bell, No.
3095-70 (D.D.C. March 24, 1983). We ordered defendants to' ̂
require these states, with the exception of Virginia, which had 
recently submitted a provisionally approved plan, to submit 
further plans within a limited time frame or to commence formal 
enforcement proceedings no later than September 15, 1983. Id. 
Injunctive relief was also granted requiring defendants to take 
similar action with respect to Pennsylvania and Kentucky, and was 
denied with respect to Texas, West Virginia, Missouri and 
Delaware. Id.

11 These states include Florida, Georgia, Oklahoma, Virginia and 
North Carolina. The order applied to North Carolina's community 
colleges only.

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Defendants appealed from this court's denial of their 
motion to vacate the 1977 Consent Decree and from the March 24, 
1983 order relating to statewide systems of higher education. It 
is this appeal which is the subject of the Court of Appeals 
remand of September 14, 1984. WEAL, supra.

II. Discussion

Because the remand raised issues of standing and 
mootness, defendants were given an opportunity to engage in and 
complete discovery on these issues. After extensive discovery, 
defendants filed a Motion to Dismiss on the grounds that (1) 
plaintiffs lack standing; (2) the doctrine of separation of 
powers defeats standing as a matter of law and (3) the claims 
of the plaintiffs in WEAL and the plaintiff-intervenors in the
Adams litigation are moot. The Adams plaintiffs, in opposition

*to defendants' Motion to Dismiss, assert (1) that plaintiffs are 
suffering concrete personal injuries; (2) that these injuries 
are fairly traceable to defendants' conduct and (3) that such 
injuries are likely to be redressed by a decree of this court. 
After distinguishing Allen v. Wright, supra, they contend that 
defendants' separation of powers argument is lacking in 
substance. They point to the necessity of time frames to meet

12 On May 9, 1984, while this action was pending on appeal, we 
permitted plaintiffs to add new plaintiffs and certified the 
action as a class consisting of the newly added plaintiffs and 
certain others. Our January 17, 1985 order confined discovery to 
the issue of standing "without relitigating the certification 
order of May 9, 1984."

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defendants' chronic delays in the enforcement of defendants' 
obligations under Title VI and other statutes and the fact that 
the time frames were consented to by the appropriate officials of 
two different political administrations. Oppositions to 
defendants' Motion to Dismiss have been filed on behalf of 
WEAL,13 as well as other Adams intervenors.14

A . Standing

Federal courts, as has long been recognized, are courts 
of limited jurisdiction. This jurisdiction, under Article III, 
Section 2 of the Constitution, is limited to the adjudication of 
"cases" and "controversies." A plaintiff must first meet the 
requirements of standing before seeking to invoke the authority 
of a federal court to decide the merits. Warth v. Seldin, 422 
U.S. 490, 498 (1975). As the result of numerous cases arising in 
varying factual contexts, it is well settled that the doctrine of 
standing encompasses both a prudential component and a core

13. As noted previously, WEAL filed its complaint in 1974 based 
upon defendants' alleged violations of Title IX and Executive 
Order No. 11246. This Weal complaint has been processed with the 
original Adams Title VI litigation since the issuance the 1977 
consent decree.
14 Oppositions were filed on behalf of the Mexican-American 
plaintiff-intervenors, plaintiff-intervenor National Federation 
of the Blind, and others. These interventions are predicated on 
alleged violations of statutes other than Title VI. Since the 
issues raised by defendants' Motion to Dismiss are equally 
applicable to all intervenors, the oppositions of the above 
indicated parties will not be separately treated.

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component stemming directly from Article III and resting 
ultimately on the concept of separation of powers. Standing and 
the overlapping mootness, ripeness and political question 
doctrines concern "the constitutional and prudential limits to 
the powers of an unelected, unrepresentative judiciary in our 
kind of government". Vander Jagt v. O'Neill, 699 F.2d 1166, 1179 
(D.C. Cir. 1983)(Bork, J., Concurring).

At an "irreducible minimum," the constitutional component 
embodied in Article III requires that a plaintiff show: (1)
that he personally has suffered some actual or threatened injury 
as a result of the putatively illegal conduct of the defendant;
(2) that the injury is fairly traceable to the challenged action 
and; (3) that the injury will likely be redressed by the relief 
requested. Allen v. Wright, 468 U.S. at 751. See also Valley 
Forge Christian College v. Americans United for Separation of 
Church and State, 454 U.S. 464, 472 (1982).

Admittedly the constitutional component of the standing 
doctrine involves concepts not susceptible of precise definition, 
but ideas as to standing have gained considerable definition from 
developing case law and have evolved as guiding principles. As 
the cases show, the plaintiff must show injury in fact, which is 
"distinct and palpable." Gladstone, Realtors v. Village of 
Be11wood, 441 U.S. 91, 100 (1979) (quoting Warth, 422 U.S. at 
501). The injury cannot be "abstract" or "speculative." City of 
Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). It must be 
"fairly" traceable to the action challenged, and likely to be 
redressed by a favorable decision. Simon v. Eastern Kentucky

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Welfare Rights Org., 426 U.S. 26, 38. The Supreme Court has
taken note of this case-by-case development:

&

[T]he law of Article III
standing is built on a single basic
idea - the idea of separation of powers.
It is this fact which makes possible the 
gradual clarificaiton of the law through 
judicial application.

Allen, 468 U.S. at 752.
The prudential component of the standing doctrine

likewise embodies concepts which cannot be precisely defined.
*They also are based on the idea of separation of powers and are 

"founded in concern about the proper - and properly limited - 
role of the courts in a democratic society." Warth, 422 U.S. at 
498. These are the standards applicable to our determination of 
the issue of plaintiffs' standing to pursue this litigation.

, 1. Injury

Plaintiffs' basic contention is that defendants have 
granted and are continuing to grant federal assistance to 
educational institutions and political entities in violation of 
the rights of the plaintiffs under various statutes and under the 
Fifth Amendment of the Constitution. They assert that this is an 
injury separate and apart from the harm inflicted by the 
educational institutions in which they are enrolled, or by the 
states in which they reside.

The individual Adams plaintiffs, some 40 in all^ reside 
in various states and attend a variety of state educational

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institutions. Many of the plaintiffs can be placed in one of the 
following categories. (1) Three are students at Virginia State 
University (VSU), a predominantly black institution. They 
complain of unequal and inadequate facilities, equipment and 
programs. VSU is not in accord with the time frames set in our 
March 11, 1983 order. (2) Four of the plaintiffs are students 
at the University of Arkansas at Fayetteville (UAF) , a 
traditionally white institution. According to the July 8, 1985 
findings by OCR, UAF had failed to reach its black student, 
faculty and administrator goals for 1984-85, as required by its 
statewide desegregation plan.-*-̂  Defendants have not denied this 
allegation. (3) Three of the plaintiffs are students in Dillon 
County, South Carolina School District No. 2 (Dillion), who are 
enrolled in segregated classrooms. Since 1977, Dillon has been 
found by OCR to be in violation of Title VI on three different 
occasions. The matter was referred to the Department of Justice 
on June 23, 1983, following our order of March 11, 1983. Almost 
one year later it was returned by the Department of Justice to 
OCR, where it is still "under review." These facts are not 
challenged. (4) Five of the plaintiffs are students in Halifax 
County, Virginia, alleging racially discriminatory action in

15 See Stipulation of May 28, 1985.
16 Arkansas' performance has not improved. See House Committee 
on Government Operations, 100th Cong., 1st Sess., Report on 
Failure and Fraud in Civil Rights by the Department of 
Education. In this Report, the Committee states that Arkansas 
and nine other southern and border states have failed in their 
commitments to reduce racial discrimination in their colleges and 
universities.

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connection with events which occurred on a County school bus. 
OCR investigated the report and issued a letter of finding that 
Halifax County had not violated Title VI.

The Adams plaintiffs also assert standing on behalf of
unnamed members of the class certified under our May 7, 1984
order. In response, defendants have submitted a case-by—case
analysis of the status of the individual plaintiffs. Defs.
Memo., Ex. A. They assert that:

defendants' recent discovery efforts 
reveal that most of the current plaintiffs 
have not filed complaints ..with the Department of Education or the Department 
of Labor, or have complaints that are 
tolled pending resolution of private 
litigation, or do not attend schools 
currently undergoing compliance reviews.
In these instances, neither agency action 
in general nor the timeframes in particular 
have been triggered.

Id. at 2.
Without attempting to challenge the accuracy of the 

above assertion, we are satisfied that one or more of the 
plaintiffs, in charging racial discrimination against themselves, 
have alleged a distinct and palpable personal injury in violation 
of their rights under Title VI and the Constitution. This is 
more than a case where plaintiffs are asserting the right to have 
the government act in accordance with the law or the right to a 
particular kind of government conduct. This is also not an 
abstract or generalized grievance. Rather, the injury claimed in 
the instant case is the right to be educated in a racially 
integrated institution or in an environment which is free from 
discrimination based on race. As was said in Allen:

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It is in their complaint's second 
claim of injury that respondents 
allege harm to a concrete, personal 
interest that can support standing 
in some circumstances. The injury 
they identify - their children's 
diminished ability to receive an 
education in a racially integrated 
school - is, beyond any doubt, not 
only judicially cognizable, but as 
shown by cases from Brown v. Board of 
Education to Bob Jones University v.
United States, one of the most 
serious injuries recognized in our 
legal system. '

468 U.S. at 756. (Citations omitted).
We find no difficulty in holding that plaintiffs have 

alleged an injury which is judicially cognizable. We now turn to 
consideration of the second prong of the formulation enumerated 
in Allen, the requirement of causation.

2. Causation

Plaintiffs claim 
to the action or inaction

that their injury is "fairly traceable" 
of defendants. As the legislative

history shows, the intent and purpose of Congress in its 
enactment of Title VI was twofold:- to prevent the use of federal 
funds to support discriminatory practices and to provide 
individuals effective protection against such practices. Cannon

17 The court, in Allen, also held that a claim of injury posited 
on the "mere fact of government financial aid to discriminatory 
private schools" is not judicially cognizable, whether viewed as 
a claim to have the government avoid the violation of law alleged 
in the complaint or as "a claim of stigmatic injury, or 
denigration, suffered by all members of a racial group when the 
government discriminates on the basis of race." 468 U.S. at 752, 
754.

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v. University of Chicago, 441 U.S. 677, 704 (1979). There is no
doubt but that Congress designed Title VI to put an end to 
discrimination in the administration of Federal programs, and 
thereby to promote the national policy of non-discrimination.
The same national policy is reflected in the passage of several 
statutes following on the heels of Title VI, i.e. , Title VII 
(discrimination in employment) and Title IX (discrimination based 
on sex). But the above statements of purpose and intent do not 
alone solve the problem of whether plaintiffs' injury, which we 
hold to be judicially cognizable, is "fairly traceable" to the 
challenged conduct of defendants.

It is defendants' basic position that the educational 
institutions themselves and the political entities, both state 
and local, are "the direct causation of the discrimination of 
which plaintiffs complain." Defs. Memo, at 16-17. They claim 
that it is the conduct of these independant institutions and 
political entities, and not the action or inaction of defendants, 
which has caused plaintiffs' injury. Accordingly, they assert 
that the causal relationship between defendants' actions and 
plaintiffs' injury is too indirect and attenuated to supply the 
indispensible link of causation. Defs. Memo, at 20. In addition 
to Allen, supra, defendants strongly rely upon two other Supreme 
Court decisions, Simon v. Eastern Kentucky Welfare Rights 
Organization, 426 U.S. 26 (1976) and Warth v. Seldin, supra. In 
each of these cases, the party directly causing the alleged 
injury was a third-party, and the participation of the 
governmental entity was indirect and tangential. In each case

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standing was denied for lack of causation.
In the instant case, defendants are not charged with 

causing injury to plaintiffs directly, but rather indirectly, by 
providing financial assistance to educational institutions and 
states which engage in discriminatory practices. Defendants are 
not charged with a policy of non-enforcement, but rather with 
assisting in the unlawful practices of educational institutions 
by failing to promptly process complaints and compliance reviews 
according to certain time frames, and by failing to proceed 
against states which have failed to comply with statewide plans 
for the desegegration of institutions of higher education. The 
injury of which plaintiffs complain is caused by the conduct of 
independent third parties who are not before this court, i.e. the 
educational institutions and the states. It is entirely 
speculative whether a more rigid enforcement of time frames 
governing the administrative processing of complaints or the cut— 
off of Title VI funds, the ultimate sanction, would affect the 
decisions of these entities or lead to changes in policy. As was 
said in Allen, referring to Simon, supra,:

The causal connection [in S imon] depended 
on the decisions hospitals would make in 
response to withdrawal of tax-exempt 
status, and those decisions were sufficiently 
uncertain to break the chain of causation 
between plaintiffs' injury and the challenged 
Government action.

468 U.S. at 759.
Similarly, the decisions of educational and political 
institutions in response to the threatened or actual cut-off of

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funds in this context cannot be predicted with certainty. To 
believe that strict enforcement of time frames in the 
administrative processing of complaints or of time frames for 
compliance with state plans would redress the injury of which 
plaintiffs complain, is to indulge in speculation. The 
connection between plaintiffs' injury and defendants' action or 
inaction is too indirect to provide a proper nexus.

It should not be forgotten that the discriminatory 
practices of which plaintiffs' complain existed long before the 
passage of the Civil Rights Act of 1964., They were not caused by 
defendants. They have been continued, and maintained to the 
extent they presently exist, not by defendants, but by the 
schools and states themselves, where these practices have 
unfortunately long been customary. Any effect plaintiffs suffer 
as a result of the grant of federal assistance to these separate 
and independant entities is similar to the effect of the refusal 
to deny Section 501(c)(3) tax exempt status discussed in Allen, 
supra. It is indirect, attenuated and speculative. In no sense 
is such injury "fairly traceable" to defendants' conduct.

3. Redressability

As is frequently the case, the concepts of causation and 
redressability are closely related. This is especially so in the 
instant action. Since the injury of which plaintiffs' complain 
is not sufficiently linked to the action or inaction of 
defendants, it is also speculative to predict that the close

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monitoring of the day-to-day affairs of two arms of the Executive 
Branch, the DE and DOL, would remedy or even attenuate this 
injury. The effect of terminating, or threatening to terminate, 
federal aid to institutions continuing discriminatory practices, 
is even more speculative. This is especially so in the area of 
higher education.

a. Higher Education

The most difficult problems in^educational desegregation
exist in the area of higher education. This was recognized long
ago, when the Court of Appeals in Adams I, supra, affirmed the
injunctive relief provided by this court with one single
exception. With regard to institutions of higher education, the
Appeals Court extended the period of compliance with Title VI by
lengthening to 120 days the time within which a state was

*required to submit a plan for eventual desegregation, and, if an 
acceptable plan had not been submitted within 180 days, the 
initiation of compliance procedures. Adams I, 480 F.2d at 1165. 
•The court recognized the problems of integrating higher education 
when it noted:

Perhaps the most serious problem in 
this area is the lack of state-wide 
planning to provide more and better 
trained minority group doctors, lawyers, 
engineers and other professionals. A 
predicate for minority access to quality 
post-graduate programs is a viable, 
coordinated state-wide higher education 
policy that takes into account the 
special problems of minority students 
and of Black colleges. As amicus points 
out, these Black institutions fulfill a

- 2 2 -



crucial need and will continue to play an 
important role in Black higher education.

Id. at 1164-65. We stressed this thought in our Second
Supplemental Order of April 1, 1977. Adams v. Califano, 430 F.
Supp. 118 (D.D.C. 1977). That order addressed the failure of
certain southern states to submit acceptable plans for
desegregation, and ordered defendants within 90 days to
promulgate the ingredients of an acceptable higher education
desegregation plan, and within 60 days thereafter to require the
states of Arkansas, Florida, Georgia, North Carolina, Oklahoma,
and Virginia to submit revised plans. Id. At the same time, we
stated:

The process of desegregation must not 
place a greater burden on Black 
institutions or Black students’ opportunity 
to receive a quality public higher education.
The desegregation process should take into 
account the unequal status of the Black 
colleges and the. real danger that desegre­
gation will diminish higher education 
opportunitj.es for Blacks. Without suggesting 
the answer to this complex problem, it is 
the responsibility of HEW to devise criteria 
for higher education plans which will take 
into account the unique importance of Black 
colleges and at the same time comply with the 
Congressional mandate.

Id. at 120.
• • • • 1 ftThe lack of integration m  higher education remains

despite the passage of more than a decade, and was the focus of
our March 24, 1983 order presently under review. The
explanations are easily found and may be judicially noticed.
First, there is the inherent difficulty of increasing Black

18 See footnote 16.

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enrollment in predominantly white public institutions, stemming 
at.least in part from current admissions standards, which many 
Blacks, because of inferior secondary education, find difficult 
to meet. It is no secret that many of the Black eligibles with 
proper academic qualifications are persuaded to attend private 
out-of-state institutions offering scholarships and other 
financial aid. Extensive recruiting efforts have not been 
entirely successful. Second, white enrollment in predominantly 
Black institutions has also lagged but for different reasons, 
among them the diminished academic quality of these institutions 
and their poorer facilities. In order to bring Black 
institutions up to equality and make them competitive with white 
institutions state legislatures will have to act to supply the 
needed funds for the hiring of faculty and the expansion of 
physical plant and facilities.

These conditions long antidated the passage of Title VI in 
1964 and are conditions over which defendants have no control. 
They were not caused by any action of defendants and are not 
"fairly traceable" to anything defendants have done or have 
failed to do. It is overly sanguine to believe that the 
enforcement of time frames or the defendants' ultimate weapon of 
cutting off funds will achieve the desired results of substantial 
compliance. In the case of Black institutions, in addition to 
being ineffective, the effect of cutting off federal funds might 
well be devasting. Funding from state and local sources is 
already in short supply. The record in this case indicates that 
many of the 104 Black colleges would have serious difficulty

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surviving if federal funding were eliminated. The injury of which 
plaintiffs complain, particularly in the case of state 
institutions of higher learning, is not redressible by the relief 
which plaintiffs seek.

b. Local School Districts

The record in the case of local school districts, 
composed of elementary and high schools, has been less bleak.
For the fiscal year 1982 through 1984, the OCR received 5,715 
complaints and closed 6,477 complaints. Defs. Memo., Statement 
of Frederick G. Tate, at 2. However, there is nothing in the 
record before us which indicates how these complaints were 
resolved and we can only speculate as to the merits of these 
complaints, the investigations which took place, the results of 
the compliance reviews, whether letters of findings were issued, 
and whether the defendants' compliance procedures have been 
instrumental in redressing the particular injury plaintiffs have 
asserted or will assert in the future. In any case, we find that 
the injury of which plaintiffs complain would not be redressible 
by the relief which plaintiffs seek, even in this context.

B . Separation of Powers

Finally, in concluding this discussion of plaintiffs' 
standing, we repeat again the recent pronouncement of the Supreme 
Court that "the law of Article III standing is built on a single

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surviving if federal funding were eliminated. The injury of which 
plaintiffs complain, particularly in the case of state 
institutions of higher learning, is not redressible by the relief 
which plaintiffs seek.

b. Local School Districts

The record in the case of local school districts, 
composed of elementary and high schools, has been less bleak.
For the fiscal year 1982 through 1984, the OCR received 5,715 
complaints and closed 6,477 complaints. Defs. Memo., Statement 
of Frederick G. Tate, at 2. However, there is nothing in the 
record before us which indicates how these complaints were 
resolved and we can only speculate as to the merits of these 
complaints, the investigations which took place, the results of 
the compliance reviews, whether letters of findings were issued, 
and whether the defendants' compliance procedures have been 
instrumental in redressing the particular injury plaintiffs have 
asserted or will assert in the future. In any case, we find that 
the injury of which plaintiffs complain would not be redressible 
by the relief which plaintiffs seek, even in this context.

B . Separation of Powers

Finally, in concluding this discussion of plaintiffs' 
standing, we repeat again the recent pronouncement of the Supreme 
Court that "the law of Article III standing is built on a single

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basic idea - the idea of separation of powers." Allen, 468 U.S. 
at. 752. As a corollary to this concept, the Court referred to 
the "well established rule that the government has traditionally 
been granted the widest latitude in the 'dispatch of its own 
internal affairs.'" Id. at 761. (Citations omitted). It pointed 
out that in the Article III context this principle:

...counsels against recognizing standing 
in a case brought, not to enforce specific 
legal obligations whose violations work a 
direct harm, but to seek a restructuring of 
the apparatus established>by the Executive 
Branch to fulfill its legal duties. The 
Constitution, after all, assigns to the 
Executive Branch, and not to the Judicial 
Branch, the duty to 'take care that the 
Laws be faithfully executed.' United 
States Constitution, Art. II, § 3. We 
could not recognize respondents' standing in 
this case without running afoul of that 
structural principle.

Id.
On two previous ..occasions, the Court of Appeals has 

referred to the scope of our original order as requiring only the 
initiation of the enforcement process, gaj^-not the perpetual 
supervision of the details of any enforcement program. Adams I, 
480 F.2d at 1163 n.5 ("the order merely requires initiation of a 
process which ... will then pass beyond the District Court's 
continuing control and supervision"); Adams II, 711 F.2d at 165 
(D.C. Cir. 1983)("Judge Pratt correctly interpreted the initial 
decree not to extend to supervision of the Department's 
settlement of its enforcement action against North Carolina").

The orders of March 11, 1983 and March 24, 1983 not only 
go well beyond the initiation of the enforcement process, but,

-26-



through the detailed imposition of precise time frames governing 
every step in the administrative process, seek to control the way 
defendants are to carry out their executive responsibilities.
The fact that the government for the most part consented to these 
burdens is of no consequence. More importantly, plaintiffs do 
not claim that defendants have abrogated their statutory 
responsibilities, but rather that, in carrying them out, they do 
not always process complaints, conduct investigations, issue 
letters of findings, or conduct compliance reviews as promptly or 
expeditiously as plaintiffs would like.' As was said in Laird v. 
Tatum, 408 U.S. at 15, and quoted with approval in Allen, 468 
U.S. at 760,:

Carried to its logical end, [respondents'] 
approach would have the federal courts as 
virtually continuing monitors of the 
wisdom and soundness of Executive action; 
such a role is appropriate for Congress 
acting through its committees and the 'power of the purse'; it is not the role 
of the judiciary, absent actual present 
or immediately threatened injury resulting 
from unlawful governmental action.

Thus, entirely apart from plaintiffs' failure to meet the
causation and redressability elements of standing, the orders
under review intrude on the functions of the Executive branch and
violate the doctrine of separation of powers, which is the basic
core of standing.

C. Mootness

The jurisdiction of federal courts to review agency 
action is dependent on the existence of an actual "case or

-27-



f» O'Shea v. Littleton, 414 U.S. 488/ 493 (1974).controversy.
Our lack of authority to review moot cases stems from the very 
same Article III "case or controversy" requirement. DeFunis v. 
Odegaard, 416 U.S. 312, 316 (1974).

1. Plaintiffs in WEAL

Plaintiffs' complaint in WEAL seeks, in the form of both 
declaratory and injunctive relief, the enforcement of laws 
barring sexual discrimination. An amended complaint consisting of 
five (5) counts was filed on January 28, 1975.

Count I charges the defendants Secretary of HEW and the 
Director of OCR with failure to enforce Executive Order No.
11246, as amended by Executive Order No. 11375. Amended Complaint 

30-64. Defendants assert that as of October 8, 1978, the duty 
of enforcing these Executive Orders was transferred to the

^  <e.

Department of Labor and therefore that the claims against the HEW 
Secretary and its OCR Director are now moot. Defs. Memo, at 28.

Count II charges the DOL and the OFCCP with failure to 
enforce these Executive Orders due- to DOL's failure to monitor 
and correct deficiencies in HEW's compliance program. Amended 
Complaint, 65-69. Defendants assert that the responsibility 
for enforcing the Executive Order has since October, 1978 resided 
with DOL and therefore that these claims are also moot. Defs. 
Memo, at 29.

Count III charges HEW and OFCCP with certain procedural 
violations in administering the Executive Order. Amended

-28-



Complaint, 1MI 70-77. Defendants assert that two of the three 
individual complainants filed stipulated dismissals in early 1985 
and that the third, Elizabeth Farians, no longer has any 
complaint pending. Defs. Memo, at 29.

Count IV charges HEW with failure to promulgate final 
regulations implementing Title IX of the Education Amendments Act 
of 1972. Amended Complaint, M  78-88.- Defendants assert that on 
June 4, 1975, the final regulations under Title IX were 
promulgated. Defs. Memo, at 30.

Count V charges HEW with failure to enforce Titles VII
and VIII of the Public Health Service Act, 42 U.S.C. §295h-9
(1970), 42 U.S.C. §298b-2 (1976), by failing to issue final rules
and regulations. Amended Complaint, 1MI 89-95. Defendants respond
that under the Department of Education Organization Act, 20
U.S.C. §3441 (1979), defendant Department of Education
transferred its enforcement responsibilities to the Department of ‘ *
Health and Human Services (HHS), and that HHS is no longer a 
party to this litigation. Defs. Memo, at 30.

The WEAL plaintiffs, in a lengthy opposition to 
defendants' motion to dismiss, do not meet head on defendants' 
claims of mootness; Rather, they cite a long litany of cases 
where complaints under Title IX and Executive Order No. 11246 
have not been acted upon and compliance reviews have not been 
undertaken within the prescribed time frames.

2. Plaintiffs - Intervenors in Adams

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Defendants claim that all of the complaints of the 
plaintiff-intervenors in Adams concern HEW's past policy of non­
enforcement of Title IX, Section 504 of the Rehabilitation Act of 
1973 and Title VI with respect to national origin discrimination 
complaints. Accordingly defendants assert that, "since any 
policy regarding Title IX, Section 504 and Title VI national 
origin discrimination complaints is no longer effective, the 
action brought by these intervenors are moot." Defs. Memo, at 
32.

A detailed analysis of each of*defendants' claims of 
mootness with respect to each of the multitude of matters raised 
by the WEAL plaintiffs and the plaintiff-intervenors in Adams is 
difficult on the basis of the record before us. In view of our 
treatment of the issue of standing, we prefer to avoid this 
unnecessary and possibly indecisive exercise and make no 
determination concerning defendants' claims of mootness.

Ill. Conclusion

For all of the reasons set forth above, it is our 
holding that all of the plaintiffs and intervenors in Adams, as 
well as all of the plaintiffs in WEAL, lack standing to continue 
this litigation.

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Date:

Accordingly, we grant defendants' motion to dismiss.

JOHN H. P2ATT
United Sleates District Judge

I f  JHc

-31-



.PARTIAL CHRONOLOGICAL INDEX OF RELEVANT DECISIONS AND ORDERS

Adams v. Richardson, 480 F.2d 1159 
(D.C. Cir. 1973) [Adams I], affirming 356 F.Supp. 92 
(D.D.C. 1973)-
Adams v. Weinberger, 391 F.Supp. 269 
(D.D.C. 1975) [First Supplemental Order].

Adams v. Califano, 430 F.Supp. 118 
(D.D.C. 1977) [Second Supplemental Order]
(Modified unpublished order of March 14, 1975).

Adams v. Califano No. 3095-70 
(D.D.C. December 29, 1977) [Consent* Decree]
(basis for March 11, 1983 and March 24, 1983 Orders).

North Carolina v. Department of Education 
No. 79-217-CIV-5 (E.D.N.C. July 17, 1981)
(Approved consent settlement between the Department 
of Education and the State of North Carolina).

Adams v. Bell, 711 F.2d 161 (D.C. Cir. 1983) [Adams II] 
(affirming this court's refusal to enjoin the Department 
of Education from entering into a consent settlement with 
the State of North Carolina).

Adams v. Bell, No. 30J95-70 (D.D.C. March 11, 1983)
(Order modifying the terms of the 1977 Consent Decree).

Adams v. Bell, No. 3095-70 (D.D.C. March 11, 1983)
(Order denying defendants' motion to vacate the December 29, 
1977 Consent Decree).

Adams v. Bell, No. 3095-70 (D.D-.C. March 24, 1983)
(Order modifying 1977 Consent Decree with respect to issues 
pertaining to state-wide systems of higher education).