Brown v Board of Education of Topeka Arguments and Rebuttals

    J t t  tlj? j& ipratt? d m trt a f  lfyp 3lut&b j&atefi
October Term , 1977

v  9 j f & - • '•■ $ * '  v V * ; '-\v ** k •,<••:",k  v ^ r - " - v - T : ' ’. J -  • • t : £ 3' k ' \ > :.- t v  ’- V_________

Th e  Regents of the U niversity of California,
PETITIONER

' ■ ■ i  v - ■
A llan  Bakke

________ ■.

ON WRIT OF CERTIORARI TO THE
’■■■■ < - /  SUPREME COURT OF CALIFORNIA

'
MOnON FOR LEAVE TO FILE A SUPPLEMENTAL 

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
f a : -’>4

S;*1 V,: r: ■
and

SUPPLEMENTAL BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE

*H - '.i*' I ? I • '■«■iVVi’S'-'" ■’ - *.-V\ r̂ :'* ;•
V

Griffin B. Bell,
Attorney General,

Wade H. McCree, J e.,
Solicitor General,■ r

Drew S. Days, III,
■■'X. ' Assistant Attorney General,

Lawrence G. Wallace,
Deputy Solicitor General,

/ Frank H. Easterbrook,
Assistant to the Solicitor General,

■ , * . A ttorneys,
Department of Justice,
Washington, D.C. 20530.

’ iiZmmmmmmammimimmmmmmmm m " ‘ " — *—    — '—  ---------—   m V "  $  <
l 'Vj" r ' ' <» IhV ‘ - . .' ‘-r.,-'ij V '̂ X-: .'j„ - v • /Ivy. '• -, •» * > ••

• ; ■ J ' ■ . ^ ;.V  ■' ' ■
/  '-.l ,' r: '  . . ii ■ / :  ~ !■&<
-  i {;, . - v . ............  . . . . . . .

C< &•

7 4 ^  «Vr

p-t



I N D E X
Page

Statement _____________________________ 1
Introduction and summary of argument_____  3

Argument _____________________________ 7
I. A minority-sensitive program tailored to

overcome the effects of past discrimina­
tion does not violate Title VI ________ 7
A. The legislative history shows that

Title VI was designed to assist 
minority persons in obtaining the 
benefits of federally-assisted pro­
grams _______________________  8

B. Parallel anti-discrimination provi­
sions permit the use of minority- 
sensitive criteria________________  11

C. Federal regulations interpreting
Title VI endorse minority-conscious 
programs ______________________  15

D. Developments after the passage of
Title VI demonstrate that it does 
not prohibit properly designed af­
firmative action programs________  19

II. Private persons may sue to enforce the 
anti-discrimination provision of Title
V I ___________________________    24

Conclusion ______________________________  34



II

CITATIONS
Cases: Page

Adams v. Richardson, 480 F.2d 1159 32
Albemarle Paper Co. v. Moody, 422 U.S.

405 ____________________________6,12,14
Allen v. State Board of Elections, 393

U.S. 544 _______________________ 6,27,28
Anderson v. San Francisco Unified School

District, 357 F. Supp. 248 _______ 15
Associated General Contractors of Cali­

fornia v. Secretary of Commerce, C.D.
Cal., No. C.A. 77-3738, decided Novem­
ber 2, 1977 ______________________ 23

Bossier Pansh School Board v. Lemon,
370 F.2d 847, certiorari denied, 388
U.S. 911 __________________ 24, 32

Boynton v. Virginia, 364 U.S. 454 4
Bradley v. School Board of the City of

Richmond, 416 U.S. 696 34
Brown v. Pitchess, 13 Cal. 3d 518, 119 

Cal. Rptr. 204, 531 P.2d 772 34
Califano v. Sanders, 430 U.S. 99   19
Campbell v. Kruse, No. 76-1704, decided

October 3, 1977 __________________  33
Cannon v. University of Chicago, 559 F.2d

1063 ____________________________ 24,33
Cardinale v. Louisiana, 394 U.S. 437 4, 5, 25
Constructors Association of Western 

Pennsylvania v. Kreps, W.D. Pa., No.
C.A. 77-1035, decided October 13, 1977, 
appeal pending, C.A. 3, No. 77-2335 23

Cart v. Ash, 422 U.S. 66 .. . . . . . . . . . .  31, 32
Evans v. Lynn, 537 F.2d 571, certiorari 

denied sub nom. Evans v. Hills, 429 
U.S. 1066 28



Ill

Cases—Continued Page
Fitzpatrick v. Bitzer, 427 U.S. 445 _____  34
Flanagan v. President and Directors of

Georgetown College, 417 F. Supp. 377 15, 24
Florida East Coast Chapter of the Asso­

ciated General Contractors of America 
v. Secretary of Commerce, S.D. Fla.,
No. 77-8351-CIV-JE, decided Novem­
ber 3, 1977 ______________________ 23

Gautreaux v. Romney, 448 F.2d 731 ___  32, 33
Hanker son v. North Carolina, No. 75-

6568, decided June 17, 1977 ________  3
Hazelwood School District v. United 

States, No. 76-255, decided June 27,
1977 ____________________________ 13

Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241 ______________  8

International Brotherhood of Teamsters 
v. United States, No. 75-636, decided
May 31, 1977 ____________________  10

Jefferson v. Hackney, 406 U.S. 535 ...... 10, 25
Katzenbach v. McClung, 379 U.S. 294 __ 8
Langnes v. Green, 282 U.S. 531_______  3
Lau v. Nichols, 414 U.S. 563 ___ 3, 6, 7,10,14,

15, 25, 26
Laufman v. Oakley Building & Loan Co.,

408 F. Supp. 489 . . _______ ______  24
Lear, Inc. v. Adkins, 395 U.S. 653 __ 4
Linmark Associates, Inc. v. Township of

Willingboro, 431 U.S. 8 5 ___________  14
Mann City Council v. Marin County Re­

development Agency, 416 F. Supp. 707 24
Massachusetts v. Westcott, 431 U.S. 322 4, 25
McDonald v. Santa Fe Trail Transporta­

tion Co., 427 U.S. 273 _____________  5



IV

Cases—Continued Page
McGoldnck v. Compagnie Generate Trans-

atlantique, 309 U.S. 430 -----------------  5, 25
Miree v. DeKalb County, No. 76-607, de­

cided June 21, 1977 . 26
Mitchum v. Foster, 407 U.S. 225 ----- -- 34
Montana Contractors’ Association v.

Kreps, D. Mont., No. C.A. 77-62-M,
decided November 7, 1977   23

Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 25

Natonabah v. Board of Education, 355 F.
Supp. 716 ----------------------------------- 24

Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 _____________________ 27, 34

Otero v. New York City Housing Author­
ity, 484 F.2d 1122 ________________  15

Piper v. Chris-Craft Industries, Inc., 430
U.S. 1 __________________    32

Rosado v. Wyman, 397 U.S. 397 29
Securities Investor Protection Corp. v.

Barbour, 421 U.S. 412--------------------  28
Simon v. Eastern Kentucky Welfare

Rights Organization, 426 U.S. 26 —  28
Singleton v. Wulff, 428 U.S. 106 --------  25
Southern Christian Leadership Confer­

ence, Inc. v. Connolly, 331 F. Supp.
940 _____________________________ 24

Strong v. Strong, 22 Cal. 2d 540, 140
P.2d 386 __________________________ 31

Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 -------------------  14

United Jewish Organizations of Williams-
burgh, Inc. v. Carey, 430 U.S. 144 —7,13,14



V

Cases—Continued Page
United States v. Jefferson County Board 

of Education, 372 F.2d 836, affirmed 
en banc, 380 F.2d 385, certiorari de­
nied sub nom. Caddo Parish School 
Board v. United States, 389 U.S. 840 . 10

Uzzell v. Friday, 547 F.2d 801________  15, 24
Washington v. Davis, 426 U.S. 229 ____  10
Williams v. Horvath, 16 Cal. 3d 834, 129 

Cal. Rptr. 453, 548 P.2d 1125 ______  34

Constitution, statutes and regulations:
United States Constitution:

Fourteenth Amendment__ 1, 2, 3,10,15, 35
California Constitution, Privileges and

Immunities Clause ________________  1, 2
Civil Rights Act of 1964:

Title VI, 78 Stat. 252, 42 U.S.C.
2000d et seq. _________________ passim

Section 601, 42 U.S.C. 2000d passim
Section 602, 42 U.S.C. 2000d-l 9 ,11,

15, 28, 29, 30
Section 604, 42 U.S.C. 2000d-3 12

Title VII, 78 Stat. 253, 42 U.S.C.
2000e et seq. _______________ 5,12,19

Section 703, 42 U.S.C. 2000e-2 12
Section 703(a), 42 U.S.C. 2000e- 

2 (a) ------------------------------  12
Civil Rights Attorney’s Fees Awards Act,

Pub. L. 94-559, 90 Stat. 2641, 42 U.S.C.
(1976 ed.) 1988 32



VI

Constitution, statutes and
regulations—Continued Page

Education Amendments of 1976, Pub. L.
94-482, 90 Stat. 2233, adding Section 
440(c) to the General Education Provi­
sions Act, 20 U.S.C. (1976 ed.) 1231i
(c) -------------------------------------------  21

Local Public Works Capital Development 
and Investment Act of 1976, Pub. L. 94- 
369, 90 Stat. 999, as amended ______  22

Section 106, 42 U.S.C. (1976 ed.)
6705 ____________________   23

Section 106(f) (2), 91 Stat. 117 23
Section 110, 42 U.S.C. (1976 ed.)

6709 ________________________ 22-23
Public Works Employment Act of 1977,

Pub. L. 95-28, Section 103, 91 Stat. 116-
117 _____________________________ 23

Rehabilitation Act of 1973, Section 504,
87 Stat. 394, 29 U.S.C. (Supp. V) 794 33

Voting Rights Act of 1965, 79 Stat. 437,
42 U.S.C. 1973 ___________________  13

81 Stat. 787 ________________________ 32
84 Stat. 121____    32
28 U.S.C. 1257 ________  ____  ....... 4
5 C.F.R. 900.404(b)(6) ___  17
7 C.F.R. 15.3(b)(6)   17
10 C.F.R. 4.12(f) _______    17
12 C.F.R. 529.4(b)(6) _____________  17
13 C.F.R. 112.3(b)(3) 17
14 C.F.R. 379.3(b) (3) _____ ............... 17
14 C.F.R. 1250.103-2 (e) 17
15 C.F.R. 8.4(b)(6) _________ 17
18 C.F.R. 302.3(b)(6) ______________ 17



VII

Constitution, statutes and 
regulations—Continued Page

18 C.F.R. 705.4(b)(5) ______________  17
22 C.F.R. 141.3(b) (5) ______________  17
22 C.F.R. 209.4(b) (6) ______ 17
24 C.F.R. 1.4(b) (6) ___      17
28 C.F.R. 42.104(b)(6) _____________  17
28 C.F.R. 42.406 ____________________  14
29 C.F.R. 31.3(b)(6) _______________  17
32 C.F.R. 300.4(b) (4) ______________  17
32 C.F.R. 1704.5(f) (1974 rev.) ______  17
38 C.F.R. 18.3(b)(6) ______________  17
40 C.F.R. 7.5 ____________________  17
41 C.F.R. 101-6.204-2(a) (4) ___  17
43 C.F.R. 17.3(b)(4) __________  17
45 C.F.R. 80.3(b)(2) _______________  14
45 C.F.R. 80.3(b)(6) ________ 16,17
45 C.F.R. 80.3(b) (6) (i) _____ 16
45 C.F.R. 80.3(b) (6) (ii) ____ 16
45 C.F.R. 80.5(j) _________________  17
45 C.F.R. 611.3(b)(6) _____ ____ 17
45 C.F.R. 1010.4(b)(6) . ...... 17
45 C.F.R. 1110.3(b) (6) ............. 17
45 C.F.R. 1203.4(b)(4) _____  17
49 C.F.R. 21.5(b) (7) ____________ 17

Miscellaneous:
Comment, The Philadelphia Plan: A Study 

in the Dynamics of Executive Power, 39 
U. Chi. L. Rev. 723 (1972) 19-20

49 Comp. Gen. 59 (1969) . 19
110 Cong. Rec. (1964):

p. 2464 ------------------------------------  32
p. 2467 ------------------------------  .... 9, 32



VIII

Miscellaneous—Continued Page
p. 5090 ________________________  29
p. 5243 ________________________ 9
p. 6049 ________________________  29
p. 6051 ________________________  32
p. 6544 ________________________  9
p. 6546 ________________________
p. 7054 ________________________ 10
pp. 7060-7061 __________________  29
p. 7062 _______________   9
p. 7064 ________________________  29
p. 13700 _______________________ 11
p. 13876 _______________________  32

117 Cong. Rec. (1971):
p. 31981_______________________  20
p. 31984 _______________________  20
p. 32111_______________________  20

122 Cong. Rec. (daily ed., May 12, 1976):
p. H4316 ______________________  20
p. H4317 ______________________  20

122 Cong. Rec. (daily ed., September 21,
1976):

p. I l l2159 _____________________  33
p. II12164 _____________________  33
p. H12165 _____________________  33
p. S16251 _____________________ 33

123 Cong. Rec. (daily ed., June 17, 1977):
p. H6099 ______________________ 21, 22
p. H 6103-------   21
p. H6106 ___    22



IX

Miscellaneous—Continued Page
123 Cong. Rec. H8330 (daily ed., Au­

gust 2, 1977) ____________________  22
Executive Order 11246, 30 Fed. Reg.

12319, as amended by Executive Order
11375, 32 Fed. Reg. 14303 _________  19

Executive Order 11764, 39 Fed. Reg.
2575 ____________________________ 15

Federal Rules of Civil Procedure, Rule
8 (c) ____________________________ 31

36 Fed. Reg. 23448 ____  16
36 Fed. Reg. 23448-23512 .....................  - 16
36 Fed. Reg. 23494 _________    18
38 Fed. Reg. 17919-17997 ____________  17
38 Fed. Reg. 17978 __________  - 18
41 Fed. Reg. 52669 et seq._____  14
H.R. Conf. Rep. No. 94-1701, 94th Cong.,

2d Sess. (1976) _________ ___ . 21
H.R. Rep. No. 914, 88th Cong., 1st Sess.

(1963) __________________________ 8,11
42 Op. Att’y Gen. No. 37 (1969)   ..... 19
S. Rep. No. 93-1297, 93d Cong., 2d Sess.

(1974) __________________________ 33
Stern, When to Cross-Appeal or Cross- 

Petition— Certainty or Confusion?, 87 
Harv. L. Rev. 763 (1974) 3-4



S it %  (tfm u l itf  %  M m frii §>tt\Us
October T erm , 1977

No. 76-811
T he  Regents of the U niversity  of California ,

PETITIONER

V.

A llan  Bakke

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF CALIFORNIA

MOTION FOR LEAVE TO FILE A SUPPLEMENTAL 
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

On October 17, 1977, this Court ordered the parties 
to file “a supplemental brief discussing title VI of 
the Civil Rights Act of 1964 as it applies to this 
case.” The United States moves for leave to file a 
supplemental brief as amicus curiae to address that 
question.

The United States has substantial responsibility 
for enforcing Title VI of the Civil Rights Act of 1964, 
78 Stat. 252, 42 U.S.C. 2000d to 2000d-4. Title VI 
requires “ [e]ach Federal department and agency 
which is empowered to extend Federal financial as­
sistance to any program or activity” (42 U.S.C. 
2000d-l) to ensure that recipients of federal funds 
do not discriminate “on the ground of race, color, or

( 1)



2

national origin” in any program (42 U.S.C. 2000d). 
Title VI authorizes federal agencies to withhold funds 
from non-complying recipients, and 27 agencies have 
issued regulations addressed to the relationship be­
tween affirmative action programs and this enforce­
ment responsibility.

The Department of Health, Education, and Welfare, 
which provides funds for the Medical School at Davis, 
has issued regulations (45 C.F.R. 80.3(b) (6) (ii) and 
80.5 (j )) approving minority-sensitive efforts to over­
come the effects of conditions that have resulted in 
limiting the participation of persons of particular 
races in federally-assisted programs. The validity of 
these regulations as an interpretation of Title VI 
could be directly affected by this case, as could the 
validity of the regulations of many other federal 
agencies.

The Court permitted the United States to file a 
brief as amicus curiae and to participate in the oral 
argument of this case. Because of the unique federal 
responsibility for construing and enforcing Title VI, 
the United States has an interest, in addition to the 
interest described at pages 1-3 of our main brief, in 
the Court’s resolution of the question it has asked the 
parties to address. The Court therefore should grant 
leave for the United States to file this supplemental 
brief.

Respectfully submitted.

Wade H. McCeee, J r.,
Solicitor General.

N ovember 1977.



3it %  iutyrnutu* (Emtrt itf %  'M m tih  f&atro
October Term , 1977

No. 76-811
T h e  Regents of the U niversity  of California ,

PETITIONER

V.

A llan  Bakke

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF CALIFORNIA

SUPPLEMENTAL BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE

STATEMENT

This statement of facts supplements the statement 
at pages 3-22 of our main brief.

Respondent’s complaint stated (A. 2-3) that his 
claim for relief was founded on the Equal Protection 
Clause of the Fourteenth Amendment of the United 
States Constitution, the Privileges and Immunities 
Clause of the California Constitution, and Title VI 
of the Civil Rights Act of 1964.1 Petitioner pleaded,

1 The complaint erroneously refers to Title VI as “the Fed 
eral Civil Rights Act (42 U.S.C. sec. 200 (d).) ” (A. 3), but the 
intent of the pleading is clear.

( 1 )



2

as an affirmative defense (A. 7), that its special ad­
missions program is consistent with Title VI. Peti­
tioner filed a cross-complaint for declaratory relief. 
It sought a declaratory judgment that the special 
admissions program was proper, and it alleged (A. 
10-11) that an “actual controversy has arisen and 
now exists” between the parties “relating to whether 
the special admissions program * * * violates 
the federal Civil Rights Act (42 U.S.C. § 2000(d)).”

The trial court found (Pet. App. 114a), as peti­
tioner had admitted (A. 5, 9), that the University 
received federal assistance. It held that the special 
admissions program violated not only the Fourteenth 
Amendment and the California Constitution but also 
Title VI (Pet. App. 112a, 117a, 118a). The court 
entered a judgment declaring that “the special ad­
missions program at the University of California at 
Davis Medical School violates the Fourteenth Amend­
ment to the United States Constitution, Article 1, 
Section 21 of the California Constitution, and the 
Federal Civil Rights Act [42 U.S.C. § 2000(d)]” 
(Pet. App. 120a; bracketed material in original).

On appeal in the Supreme Court of California, 
petitioner discussed Title VI and urged that that 
statute, as interpreted by regulations issued by the 
Department of Health, Education, and Welfare, per­
mits admissions programs such as the special admis­
sions program at the Medical School (see Br. 34-35). 
Respondent did not separately discuss Title VI, noting 
(Br. 14 n. 1) that it did not require further treat-



3

ment because it “in many ways parallels the four­
teenth amendment.”

The Supreme Court of California characterized re­
spondent’s contention as an argument that the spe­
cial admissions program violated the Equal Protec­
tion Clause of the Fourteenth Amendment; the court 
stated that petitioner’s cross-complaint sought a de­
claratory judgment that the “program was valid” 
(Pet. App. 3a). The court’s decision rested entirely 
on the Fourteenth Amendment {id. at 37a), and it 
mentioned Title VI only in passing {id. at 13a n. 10).

INTRODUCTION AND SUMMARY OF ARGUMENT

The threshold question here is whether this Court 
could or should decide whether Title VI either pro­
hibits or authorizes the special admissions program. 
The Supreme Court of California did not pass on 
that question, petitioner did not present any Title VI 
issue in the petition, and respondent’s brief did not 
rely on Title VI as a distinct ground for affirmance 
of the judgment.

The customary rule is that a “respondent may make 
any argument presented below that supports the 
judgment of the lower court.” Hankerson v. North 
Carolina, No. 75-6568, decided June 17, 1977, slip op. 
6 n. 6. See Langnes v. Green, 282 U.S. 531; Stem, 
When to Cross-Appeal or Cross-Petition—Certainty

2 The court simply mentioned that Lau V. Nichols, 414 U.S. 
563, had been decided under Title VI.



4
or Confusion?, 87 Harv. L. Rev. 763 (1974).3 The 
Court has reached statutory issues that were pre­
sented (and decided) in the state courts, but not in 
this Court, when that would allow it to pretermit 
resolution of difficult constitutional questions. See, 
e.g., Boynton v. Virginia, 364 U.S. 454, 457. It also 
has decided federal statutory issues that were not 
reached by state courts in light of their disposition 
of other federal issues. See Lear, Inc. v. Adkins, 395 
U.S. 653; id. at 678 (White, J., concurring in part). 
The Title VI question was presented to the California 
courts, and they had an opportunity to resolve it. We 
therefore believe that this Court has the authority to 
decide this case on Title VI grounds.

Considerations of prudence and respect for state 
courts, and the limitations on review under 28 U.S.C. 
1257, however, suggest that in many cases this Court 
should allow state courts to consider issues before 
this Court undertakes to do so. For example, in 
Massachusetts v. Westcott, 431 U.S. 322, the Supreme 
Judicial Court of Massachusetts had held that a state 
statute was invalid under the United States Constitu­
tion. This Court vacated that judgment and remanded 
the case to allow the state court to consider whether 
its decision also could rest upon federal statutory 
grounds.4 Remanding for further consideration of the

3 See also pages 16-19 of our brief in United States V. Neiv 
York Telephone Co., No. 76-835, argued October 3, 1977. We 
have furnished copies of that brief to counsel for the parties to 
this case.

4 See also Cardinale V. Louisiana, 394 U.S. 437, 439 (state 
courts must be given the “first opportunity” to address a



5

federal statutory issues is, similarly, an available 
option here.

On the assumption that the Court has decided to 
consider the Title VI question in the present case, we 
turn to a discussion of the issues that question 
raises. As a preliminary matter, we believe that 
Title VI protects white persons as well as all other 
persons. See McDonald v. Santa Fc Trail Transpor- 
tation Co., 427 U.S. 273, 278-285 (Title VII of the 
same statute prohibits discrimination against mem­
bers of any racial group). But this is only the be­
ginning of the inquiry because, as the Court observed 
(427 U.S. at 281 n. 8), that case did not involve any 
question concerning the propriety under the statute 
of an affirmative action program.

federal question, and a question not raised in state court there­
fore cannot be decided by this Court on certiorari); McGoldrick 
V. Compagnie Generate Transatlantique, 309 U.S. 430, 434-435 
(“due regard for the appropriate relationship of this Court to 
state courts requires us to decline to consider and decide ques­
tions affecting the validity of state statutes not urged or con­
sidered there [, and] * * * error is not to be predicated upon 
their failure to decide questions not presented”). Although 
some of the discussion in McGoldrick may be taken as stating 
that this Court will not consider issues that the state court did 
not actually decide, we believe that the more accurate conclu­
sion is that this Court has the power to pass on issues that 
were either presented to or decided by the state court. Any 
other conclusion would allow the state courts to compel this 
Court to decide particular issues, even though prudence might 
counsel disposing of the case on other grounds. As we read 
Cardinale and McGoldrick, the only jurisdictional requirement 
is that the federal issue sought to be raised here have been 
presented to or decided by the state courts.



6

A logical precondition to respondent’s reliance on 
Title VI is a conclusion that Title VI creates a claim 
for relief enforceable by private parties. No provi­
sion of Title VI explicitly authorizes private suits, 
and this Court has not decided whether they may be 
maintained, although Lau v. Nichols, 414 U.S. 563, 
awarded relief to private plaintiffs in a suit to en­
force Title VI. For the reasons we discuss at pages 
26-34, infra, we believe that Title VI does create 
judicially-enforceable private claims, for the same 
reason that other civil rights statutes do so. See, e.g., 
Allen v. State Board of Elections, 393 U.S. 544, 555- 
557. Because the propriety of a private action to 
enforce the provisions of Title VI is not a jurisdic­
tional question, however, the failure of either peti­
tioner or respondent to present the issue to the state 
courts precludes consideration of it now.

We discuss the substantive meaning of Title VI at 
pages 7-23, infra. The legislative history of that 
statute reveals no hostility to voluntary plans of in­
tegration. Title VI was designed to assist black 
persons, and others often excluded from federally- 
assisted programs, to receive the benefits of those 
programs. There is no support for a conclusion that 
Title VI bans minority-sensitive decisions that would 
assist in achieving this objective.

This Court has held that a parallel prohibition in 
Title VII of the same statute sometimes requires con­
sideration of race in making employment decisions. 
Albemarle Paper Co. v. Moody, 422 U.S. 405. It has 
held that a prohibition against discrimination in ap-



7
portionment of legislative districts does not prohibit 
consideration of race in bringing about fair apportion­
ments. United Jewish Organizations of Williams- 
burgh, Inc. v. Carey, 430 U.S. 144. Similarly, Title 
VI does not prohibit the employment of minority- 
sensitive criteria in order to overcome the lingering 
consequences of past discrimination and to prevent 
the Medical School from denying to minority appli­
cants equal opportunity for a federally-assisted medi­
cal education.

Any doubt of this is resolved by the regulations 
issued by the many federal agencies interpreting 
Title VI. Congress instructed the agencies to issue 
interpretive regulations, and they are entitled to 
great deference. Laic v. Nichols, supra, 414 U.S. at 
566-569 (opinion of the Court), 571 (Stewart, J., 
concurring). The regulations issued by the Depart­
ment of Health, Education, and Welfare approve vol­
untary affirmative action designed to include minority 
persons in the programs of recipients of federal 
money.

ARGUMENT

I

A MINORITY-SENSITIVE PROGRAM TAILORED TO 
OVERCOME THE EFFECTS OF PAST DISCRIMINA­
TION DOES NOT VIOLATE TITLE VI

Section 601 of the Civil Rights Act of 1964, 78 
Stat. 252, 42 U.S.C. 2000d, provides:

No person in the United States shall, on the 
ground of race, color, or national origin, be ex-



8

eluded from participation in, be denied the bene­
fits of, or be subjected to discrimination under 
any program or activity receiving Federal fi­
nancial assistance.

Respondent has argued that this provision forbids 
affirmative action programs, including the special ad­
missions program at the Medical School, because 
they “exclude” applicants on racial grounds. We 
argued in our principal brief (Br. 30-65) that the 
Constitution does not bar the Medical School from 
taking race into account in order fairly to compare 
minority and non-minority applicants. We now sub­
mit that Title VI does not prohibit the Medical School 
from employing a minority-sensitive program that 
the Constitution would permit.

A. The Legislative History Shows That Title VI Was 
Designed to Assist Minority Persons in Obtaining the 
Benefits of Federally-Assisted Programs

Title VI was part of a sweeping package of re­
medial measures designed to eliminate racial dis­
crimination from much of society. See generally 
Heart of Atlanta Motel, Inc. v. United States, 379 
U.S. 241; Katzenbach v. McClung, 379 U.S. 294. 
Title II forbade discrimination in public accommo­
dations, Title VII in employment. The Act as a whole 
was intended to deal with the discrimination against 
black persons then pervasive in our society, discrimi­
nation depriving them of the “rights, privileges, and 
opportunities which are considered to be, and must 
be, the birthright of all citizens.” H.R. Rep. No. 914, 
88th Cong., 1st Sess. 18 (1963).



9

At the time the Act was being considered, blacks 
often were denied the benefits of programs supported 
with federal funds. Title VI was designed to put an 
end to federal support of discrimination and to assure 
to blacks “the right to access” to federally-assisted 
programs. 110 Cong. Rec. 5243 (1964) (statement of 
Senator Clark).B Representative Celler, the Chair­
man of the House Judiciary Committee and the prin­
cipal House proponent of Title VI, stated (id. at 
2467) that:

[i]t seems rather shocking * * * that while we 
have on the one hand the 14th amendment, 
which is supposed to do away with discrimina­
tion since it provides for equal protection of the 
laws, on the other hand, we have the Federal 
government aiding and abetting those who per­
sist in practicing racial discrimination.

Congress recognized that private suits were making 
some progress in opening opportunities to racial 
minority groups; it sought, in Title VI, to expedite 
that progress both by explicitly declaring in Section 
601 that discrimination was forbidden and by creat­
ing, in Section 602, 42 U.S.C. 2000d-l, the remedy of 
terminating federal funds for programs that contin-

6 Senator Pastore, Senate floor manager for Title VI, ex­
plained: “ [T] itle VI is simply designed to insure that Federal 
funds are spent in accordance with the Constitution and 
our public policy” (110 Cong. Rec. 7062 (1964)). Senator 
Humphrey, Senate floor manager for the entire bill, expressed 
a similar view. 110 Cong. Rec. 6544 (1964). (The language 
of Section 601 that is relevant here remained the same in con­
sideration by both the House and Senate.)



10

ued to practice discrimination. See, e.g., 110 Cong. 
Rec. 7054 (1964) (remarks of Senator Pastore); 
see also United States v. Jefferson County Board of 
Education, 372 F.2d 836, 853 (C.A. 5), affirmed en 
banc, 380 F.2d 385, certiorari denied sub nom. Caddo 
Parish School Board v. United States, 389 U.S. 840.

Title VI thus was designed to strengthen enforce­
ment of the constitutional guarantee of treatment of 
all persons as equals, and it applied that guarantee 
to federally-assisted programs whether or not the 
recipients of the federal money were state bodies 
directly subject to the Fourteenth Amendment. Con­
gress sought to afford the full constitutional protec­
tion to all intended beneficiaries of federal assist­
ance.6 Title VI, which opened the doors of federal 
programs to minority applicants who were formerly 
excluded, should not be interpreted to close those 
doors when the recipients of federal assistance have 
voluntarily implemented affirmative action programs 
that are consistent with the Constitution.

6 This case does not present the question whether Title VI 
and the Constitution treat differently state programs that have 
a racially disproportionate impact. The special admissions 
program deliberately used racial criteria, and any differences 
between intentional discrimination and disproportionate effect 
do not require consideration here. Compare Law v. Nichols, 
414 U.S. 563, 568, with Jefferson V. Hackney, 406 U.S. 535, 
549-550 n. 19. See also Washington V. Davis, 426 U.S. 229; 
International Brotherhood of Teamsters V. United States, No. 
75-636, decided May 31, 1977, slip op. 9 n. 15. This case in 
volves only the question whether a conceded resort to race is 
justified, and for that purpose it makes no difference whether 
disproportionate impact is enough to establish a prima facie 
case of violation of Title VI.



11

Indeed, Title VI was intended to induce voluntary 
achievement of the objective of equal treatment. See, 
e.g., H.R. Rep. No. 914, supra, at 18; 110 Cong. Rec. 
13700 (1964) (remarks of Senator Pastore); id. at 
6546 (remarks of Senator Humphrey). The proviso 
of Section 602 requiring each federal agency to seek 
voluntary compliance before resorting to coercive en­
forcement exemplifies this objective. For the reasons 
we have discussed in our main brief, voluntary efforts 
to overcome the effects of prior discrimination often 
will entail use of minority-sensitive criteria. If Title 
VI were understood to bar voluntary use of minority- 
sensitive criteria to deal with the lingering conse­
quences of prior discrimination, it would effectively 
prohibit recipients of federal funds from opening 
their programs to the formerly-excluded groups—in 
other words, to prohibit voluntary use of minority 
sensitive criteria would be, in many cases, to prohibit 
recipients of federal funds from achieving the major 
objective of Title VI.'

B. Parallel Anti-Discrimination Provisions Permit the 
Use of Minority-Sensitive Criteria

Section 601 prohibits “exclusion” of persons, and 
other discrimination, “on the ground of race, color,

7 It would defeat the purpose of the statute—to open fed­
erally-assisted programs to persons of all races—if recipients 
could not attempt to deal with the lingering effects of discrimi­
nation elsewhere in society that was hindering participation 
by some groups in the programs. See pages 38-40 of our main 
brief. Title VI therefore does not prohibit voluntary efforts 
to overcome the consequences of discrimination by third 
parties.



12

or national origin * * The cognate provision of 
Title VII of the same statute, 42 U.S.C. 2000e-2, 
makes it unlawful for an employer “to fail or refuse 
to hire” any applicant “because of such individual’s 
race, color, religion, sex, or national origin * * *.” 
These statutes have a similar effect; “excluding” 
someone from the benefits of a program is not mate­
rially different from not hiring that person and 
thereby denying him the benefits of employment; dis­
crimination “on the ground of” race is not materially 
different from discrimination “because of” race. It 
therefore is significant that the Court has upheld 
the use of racial criteria in making employment deci­
sions, when that is necessary to ensure that the em­
ployer’s decisions are not racially biased. Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 425. If Title VII 
permits (and, in some cases, requires) appropriate 
consideration of race in making employment deci­
sions, Title VI permits appropriate resort to minor­
ity-sensitive criteria in making decisions about ad­
mission to medical school.8

»Title VI also applies to employment decisions by certain 
programs receiving federal funds. Compare Section 604, 42 
U.S.C. 2000d-3 (no employment decision is covered by Title VI 
unless “a primary objective of the Federal financial assistance 
is to provide employment”) with Section 703(a), 42 U.S.C. | 
2000e-2 (a) (employment discrimination is unlawful). It seems I 
unlikely that Congress would have intended Title VI and Title \ 
VII to establish different standards for assessing the legality ' 
of minority-sensitive decisions and thereby forbidden, in fed- 
eral programs that have a primary objective to provide em- 1 
ployment, employment decisions that would be permitted under 
Title VII.



13

The Voting Rights Act of 19G5 also contains a 
provision barring any voting procedure or qualifica­
tion that denies or abridges “the right of any citizen 
of the United States to vote on account of race or 
color” (79 Stat. 437, 42 U.S.C. 1973). This statute, 
too, permits officials to take race into account in order 
to make decisions that ultimately are evenhanded; 
the State may take race into account in order to 
apportion legislative districts in a way that fairly 
represents the voting strength of different racial and 
ethnic groups. United Jewish Organizations of WU- 
liamsburgh, Inc. v. Carey, 430 U.S. 144. If volun­
tary remedial use of race is permitted under the Vot­
ing Rights Act, nothing less should be permitted un­
der Title VI.

Moreover, whether or not Title VI prohibits prac­
tices that have a racially disparate effect in the ab­
sence of a racial motive,9 the statute surely allows 
administrators of federally-assisted programs to be 
suspicious when their practices result in a racial com­
position for their program that does not fairly reflect 
the racial composition of the pool of potential appli­
cants.10 Administrators W'ho observe such a racial

9 See note 6, supra.
10 Petitioner has not argued that the admissions program at/ 

the Medical School during its first two years violated Title VI 
because of its disproportionate exclusion of minority appli 
cants, and the present record would not permit an investiga­
tion of that question. See Hazelivood School District V. Unitei ^  
States, No. 7G-255, decided June 27, 1977 (study of relevan ; 
population or applicant groups necessary to determine whethei' 
statistical information about hiring rate establishes discrimi •



14
disproportion—as the Medical School experienced dur­
ing its first two years (see page 9 of our mam 
brief)-should be entitled to take steps to overcome 
whatever factors are contributing to that result. That, 
we believe, is the meaning of Albemarle and United 
Jewish Organizations: the federal civil rights laws, 
designed to make programs meaningfully open to 
minority applicants, do not prohibit the steps neces­
sary to achieve that result. Indeed, federal regula­
tions prohibit a recipient of funds from “utilizing] 
criteria or methods of administration which have the 
effect of subjecting individuals to discrimination be­
cause of their race, color, or national origin, or have 
the effect of defeating or substantially impairing ac­
complishment of the objectives of the program as re­
spect individuals of a particular race, color, or na­
tional origin.” 45C.F.R. 80.3(b)(2).11

The elimination of racial separation is an im­
portant governmental objective. Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 16; 
Linvmrk Associates, Inc. v. Township of WUlingboro, 
431 U.S. 85, 94-95. It would require strong evidence, 
evidence missing from either the structure or the leg­
islative history of Title VI, to support the conclusion 
that Congress has inhibited state agencies from volun-

nation); 41 Fed. Reg. 52669 et seq., to be codified at 28 C.F.R. 
42.406 (Department of Justice Title VI regulations requiring 
the collection of relevant population data by race).

u This Court applied that regulation in Lau v. Nichols, 
suma in holding that a neutrally-applied school board policy 
of providing instruction only in English violated the rights o 
Chinese-speaking students under Title VI.



15
tarily endeavoring, in a way consistent with the Con­
stitution, to attain that objective.12

C. Federal Regulations Interpreting Title VI Endorse 
Minority-Conscious Programs

Section 602, 42 U.S.C. 2000d-l, requires federal 
agencies to promulgate regulations interpreting Title 
VI. These regulations, which are required to be ap­
proved by the President,13 are entitled to the greatest 
respect as guides to the meaning of Title VI. Lau 
v. Nichols, 414 U.S. 563, 566-569 (opinion of the 
Court), 571 (Stewart, J., concurring). The regula­
tions remove any doubt about the proper interpreta­
tion of Title VI.

The Department of Health, Education, and Wel­
fare, which provides most of the federal assistance to 
institutions of higher education, has adopted regula-

12 The lower courts have reached divergent, but not neces­
sarily mutually inconsistent, results under Title VI. See Uzzell 
V. Friday, 547 F.2d 801 (C.A. 4) (Title VI prohibits racial 
allotments of membership of student government and student 
honor court); Otero V. New York City Housing Authority, 484 
F.2d 1122 (C.A. 2) (Title VI permits consideration of race to 
promote integration); Flanagan V. President and Directors of 
Georgetown College, 417 F. Supp. 377 (D. D.C.) (Title VI pro­
hibits allotment of scholarship funds by race but may permit 
consideration of race in making admissions decisions); Ander­
son V. San Francisco Unified School District, 357 F. Supp. 248 
(N.D. Cal.) (Fourteenth Amendment and Title VI prohibit 
preference for minority group members in choosing school 
administrators).

13 By Executive Order 11764, dated January 21, 1974, 39 
Fed. lteg. 2575, the President delegated this authoirty to the 
Attorney General. This delegation took place after the adop­
tion of most of the regulations referred to in this brief.



16
tions providing that recipients of assistance that 
have previously engaged in racial discrimination.must 
undertake “affirmative action to ove™me the effects 
of that discrimination. 45 C.F.R. 80.3(b) ( ) ( )• 
regulations also provide that, even in the absence 
of prior discrimination, a recipient of federal funds 
“may take affirmative action to overcome the effects 
of conditions which resulted in limiting participation 
Tin the program] by persons of a particular race, 
cohrr^or national origin.” 45 C.F.R. 80.3(b) , 6) (« ).“

' ..Twenty-six other federal agencies

I w ia n t'S I h fr e ^ W ta s  r e s e n t s  a considered decision

byr i " y B — e recommended *  the President 
the uniform adoption of the foU ow inE  nmerrdment to the T 
VI regulations of Federal agencies (36 Fed. Reg. ^ 4 4 » J .

This regulation does not prohibit the consideration of race 
color, or national origin if the purpose, and effect are to 
remove or overcome the consequences of practices or 
impediments which have restricted the availability of, o 
participation in, the program or activity receiving Fed­
eral financial assistance, on the grounds of race, color, or 
national origin. Where previous discriminatory practice 
or usage tends, on the grounds of race, color, or national 
origin, to exclude individuals from participation in, to 
deny them the benefits of, or to subject them t° discrimi­
nation under any program or activity to which this r g 
lation applies, the applicant or recipient has an obligation 
to take reasonable action to remove or overcome the con­
sequences of the prior discriminatory practice or usage, 
and to accomplish the purposes of the Act.

This and a number of other proposed amendment were pub- 
Hshed on December 9, 1971, as proposed regulations for 21
agencies. 36 Fed. Reg. 23448-23512. , ...

The original 21 agencies and four others adopted, w 
presidential approval, a regulation including either the lan-



17

The regulations provide an illustration to demon­
strate the meaning of this latter provision. 45 C.F.R. 
80.5(j) provides:

guage originally suggested or a modification. The Department 
of Health, Education, and Welfare adopted the modlfi®d la 
guage discussed in the text; this language was intended to 
clarify the responsibilities of educational institutions, not to 
change the substance of the provision^ The final re^ilatio 
were published on July 5, 1973. 38 Fed. Reg.
The agencies included: C iv il S erv ice  Commission 5 C.F R.
900.404(b) (6); Department of Agriculture, 7 C.F.R. lo.6(D) 
(6); Atomic Energy Commission (now Nuclear Regulatory 
Commission), 10 C.F.R. 4.12(f); Federal Home Loan Bank 
Board, 12 C.F.R. 529.4(b) (6); Small Business Administration,
13 C.F.R. 112.3(b)(3); Civil Aeronautics Board, 14 C *-K. 
379.3(b) (3); National Aeronautics and Space Administration,
14 C F.R. 1250.103-2(e); Department of Commerce, 15 W - J  
8 4 (b )(6 ); Tennessee Valley Authority, 18 C.F.R. 302.3(b) 
(6) ; Department of State, 22 C.F.R. 141.3(b) (5); Agency for 
International Development, 22 C.F.R. 209.4 (b) (6); e l e  ­
ment of Housing and Urban Development, 24 C.F.R. 1. ( ) 
(6); Department of Justice, 28 C.F.R. 42.104(b) (6) ; Depar - 
ment of Labor, 29 C.F.R. 31.3(b) (6); Department of Defense, 
32 C.F.R. 300.4(b) (4); Office of Emergency Preparedness, 
C.F.R. 1704.5(f) (1974 rev.); Veterans Administration, 38 
C.F.R. 18.3(b)(6); Environmental Protection Agency, 40 
C.F.R. 7.5; General Services Administration, 41 C.F.R. 101- 
6.204-2 (a) (4); Department of the Ulterior, 43 C.F.R. L7- ( ) 
(4); Department of Health, Education, and Welfare, 45 C.F.R 
80.3(b) (6); National Science Foundation, 45 C.F.R. 611.3(b) 
(6U Office of Economic Opportunity (now Community Serv­
ices’Administration), 45 C.F.R. 1010.4(b) (6); National Foun­
dation on the Arts and Humanities, 45 C.F.R. 1110.3(b) (6), 
Department of Transportation, 49 C.F.R. 21.5 (b) (7). Regula­
tions have since been adopted by ACTION, 45 C.F.R. 1203.4 
(b)(4), and the Water Resources Council, 18 C.l.K. <05.4
(b)(5)!



18

Even though an applicant or recipient has 
never used discriminatory policies, the services 
and benefits of the program or activity it ad­
ministers may not in fact be equally available 
to some racial or nationality groups. In such cir­
cumstances, an applicant or recipient may prop­
erly give special consideration to race, coloi, 01 
national origin to make the benefits of its pro­
gram more widely available to such groups, not 
then being adequately served. For example, wheie 
a university is not adequately serving membeis 
of a particular racial or nationality group, it 
may establish special recruitment policies to 
make its program better known and more readily 
available to such group, and take other steps to 
provide that group with more adequate service.

The Department of Health, Education, and Wel­
fare has interpreted these regulations, and with them 
Title VI, as permitting consideration of race in 
the university admissions process because minority- 
sensitive admissions criteria are a means to achieve 
a more thorough and fair consideration of minoiity 
applicants. See 38 Fed. Reg. 17978. These regula­
tions, adopted “to make services more equitably avail­
able” (36 Fed. Reg. 23494), are consistent with the 
purpose of Title VI and should be sustained.

15 Some employment decisions also are covered by Title VI 
(see note 8, supra), and enforcement in these circumstances is 
governed by the Policy Statement of the Equal Employment 
Opportunity Coordinating Council (see Appendix C to our 
main brief). This statement encourages “voluntary affirma­
tive action * * * to achieve equal employment opportunity ’



19

D. Developments After the Passage of Title VI Demon­
strate That it Does Not Prohibit Properly Designed 
Affirmative Action Programs

The propriety of affirmative action programs has 
been a matter of considerable congressional debate in 
the years since Title VI was enacted. Attempts 
have been made to prohibit or limit such programs, 
and all of these attempts have been unsuccessful. 
The fate of these attempts gives some indication about 
the meaning of Title VI. Cf. Califano v. Sanders, 
430 U.S. 99.

As our main brief discussed, perhaps the most 
prominent affirmative action program was established 
by Executive Order 11246, 30 Fed. Reg. 12319, as 
amended by Executive Order 11375, 32 Fed. Reg. 
14303, which required federal contractors to take 
affirmative action to counteract disproportionately low 
employment of racial minorities. The Comptroller 
General concluded that this program was unlawful 
under Titles VI and VII. 49 Comp. Gen. 59 (1969). 
The Attorney General, on the other hand, issued an 
opinion stating that the program was lawful. 42 Op. 
Att’y Gen. No. 37 (1969). The Comptroller Gen­
eral then urged Congress to enact legislation that 
would override the Executive Order; after lengthy 
consideration by Congress, his request was rejected. 
See Comment, The Philadelphia Plan: A Study in the

(id. at 5A), and this Policy Statement therefore offers further 
support for the conclusion that Title VI does not prohibit 
properly designed affirmative action programs.



20

Dynamics of Executive Poiver, 39 U. Chi. L. Rev. 
723, 748-750 (1972).

The controversy was revived in 1972, when Con­
gress thoroughly reconsidered the existing civil rights 
legislation. Representative Dent proposed an amend­
ment that would have transferred jurisdiction of the 
executive order program and forbidden any “prefer­
ential treatment” of persons of any race (see 117 
Cong. Rec. 31981, 31984 (1971). The amendment 
was defeated (id. at 32111). In the Senate several 
proposals were made and defeated; the pioposals and 
arguments are discussed in Comment, supra, at 754-
757.

In 1976 issue was joined once more. Representa­
tive Eshleman offered an amendment to the General 
Education Provisions Act that would have barred the 
Secretary of Health, Education, and Welfare from 
requiring “the imposition of quotas, goals, or any 
other numerical requirements on the student admis­
sion practice of an institution of higher education 
* * * receiving Federal funds” (122 Cong. Rec. 
H4316 (daily ed., May 12, 1976)). Representative 
Chisholm objected that this amendment would bar 
effective remedies for established racial discrimina­
tion, and Representative Eshleman replied {id. at 
H4316) that “ [t]his amendment is in no way aimed 
at [remedies for racial discrimination].” The House 
adopted the amendment (id. at H4317).

The Senate bill had no comparable provision, and 
the Conference Committee resolved the difference by 
modifying the legislation to provide that “ [i]t shall



21

be unlawful for the Secretary to defer or limit any 
Federal financial assistance on the basis of any fail­
ure to comply with the imposition of quotas (or any 
other numerical requirements which have the effect of 
imposing quotas) on the student admission practices 
of an institution of higher education * * *.” The stat­
ute, as so amended, was enacted. Education Amend­
ments of 1976, Pub. L. 94-482, 90 Stat. 2233, adding 
Section 440(c) to the General Education Provisions 
Act, 20 U.S.C. (1976 ed.) 1231i(c). Thus the statute 
ultimately enacted did not prohibit goals or time­
tables; moreover, it is significant that the statute ap­
plied only to programs required by the federal gov­
ernment, rather than to programs voluntarily adopted. 
Congress therefore concluded, at least by negative im­
plication, that minority-sensitive programs employing 
goals and* timetables do not violate Title VI.16

The present Congress also has considered the pro­
priety of minority-sensitive programs. Representative 
Levitas proposed an amendment to an appropriations 
bill that, in the words of Representative Ashbrook, 
would have limited the federal government’s ability 
“to initiate, carry out or enforce any program of 
affirmative action” (123 Cong. Rec. H6099 (daily

10 The Conference Committee stated that the amended lan­
guage took no position on the question whether the Secretary 
of Health, Education, and Welfare could withhold federal 
funds because an institution of higher learning declined to 
adopt goals or timetables. H.R. Conf. Rep. No. 94-1701, 94th 
Cong., 2d Sess. 243 (1976). This reservation did not pertain, 
however, to the lawfulness of voluntarily-adopted minority- 
sensitive programs.



22

ed. June 17, 1977)). The proposed amendment was 
itself amended until it provided only that no “ratio, 
quota, or other numerical requirement related to 
race” could be required as a condition of federal fund­
ing; the bill then was passed by the House (id. at 
H6106). Representative Levitas explained that the 
bill meant “simply that no numerical quotas can be in­
volved and, beyond that, goals, timetables, affirmative 
action, can all be implemented” (id. at H6103). Rep­
resentative Ashbrook stated (id. at H6099) that if a 
“university wants to enact a program of this type, 
wants to have ;[an affirmative action] office, that 
would be their individual right, but this [amendment] 
would prevent the Government from being able to 
force them.” Once more, Congress acted on the as­
sumption that voluntary affirmative action programs 
do not violate Title VI.”

At the same time, Congress enacted legislation in­
dicating that affirmative action is. not inconsistent 
with the goal of the elimination of discrimination. 
The Local Public Works Capital Development and 
Investment Act of 1976, Pub. L. 94-369, Section 110, 
90 Stat. 1002, includes a provision that bars discrimi-

17 There was no comparable provision in the Senate bill, 
and the Conference Committee has deleted the House provision 
because it was excessively restrictive. The S™ate Conferees 
relied, in part, on a letter from the Secretary of HeaUh Cduca- 
tion and Welfare objecting to the provision. See 123 Cong. 
Rec.’ H8330 (daily ed., August 2, 1977) (remarks of Repre­
sentative Flood). The entire appropriations measure has not 
been reported back by the Conference Committee however, 
because of a disagreement about the provision of federal funds 
to pay for abortions.



23

nation on the ground of sex and provides that com­
pliance with the non-discrimination provision shall be 
enforced through the administrative machinery estab­
lished “with respect to racial and other discrimina­
tion” under Title YI. 42 U.S.C. (1976 ed.) 6709. On 
May 13, 1977, the President signed the Public Works 
Employment Act of 1977, Pub. L. 95-28, 91 Stat. 116- 
117. Section 103 of the 1977 statute adds subsection 
(f) (2) to Section 106 of the 1976 Act, 42 U.S.C.
(1976 ed.) 6705, to require, among other things, that no 
grant shall be made “unless the applicant gives satis­
factory assurance * * * that at least 10 per centum of 
the amount of each grant shall be expended for 
minority business enterprises.” The passage of this 
provision, in light of congressional recognition of the 
applicability of Title VI to projects funded under the 
Act, indicates that, in the view of Congress, affirma­
tive action is consistent with the prohibition against 
discrimination contained in Title VI.18

18 The constitutionality of Section 103 is currently being liti­
gated in a number of suits. See, e.g., Constructors Association 
of Western Pennsylvania  V. Kreps, W.D. Pa., No. C.A. 77- 
1035, decided October 13, 1977 (plaintiff’s motion for prelimi­
nary injunction denied), appeal pending, C.A. 3, No. 77-2335; 
Associated General Contractors of California  v. Secretary of 
Commerce, C.D. Cal., No. C.A. 77-3738, decided November 2, 
1977 (plaintiffs’ request for declaratory and injunctive relief 
granted in p a rt); Montana Contractors’ Association  V. Kreps, 
D. Mont., No. C.A. 77-62-M, decided November 7, 1977 (plain­
tiffs’ motion for preliminary injunction denied); Florida East 
Coast Chapter of the Associated General Contractors of Am er­
ica  V. Secretary of Commerce, S.D. Fla., No. 77-8351-CIV-JE, 
decided November 3, 1977 (plaintiffs’ motion for preliminary 
injunction denied).



24

II

PRIVATE PERSONS MAY SUE TO ENFORCE THE 
a n t i d i s c r i m i n a t i o n  p r o v i s io n  o f  TITLE VI

A The Title VI issue was. raised by respondent s 
initial pleading. Title VI does not, however, explicitly 
provide for private enforcement of its terns, and 1 
could be argued that the provision in Section 602 for 
government enforcement implicitly precludes private 
suits.19 Although the United States submits that pri­
vate persons may bring suit to enforce Title VI, we 
believe that the question is not open in this case.

The question whether there is a private cause o 
action to enforce Title VI was not raised or litigated 
in the state courts. Although respondent relied on 
Title VI, petitioner did not argue that Title VI may 
not be enforced in private suits; to the contrary,

i. One court of appeals, in the course of holding that private 
persons may not bring suits to enforce Title IX of the Educa­
tion Amendments of 1972, has indicated that Title VI does not 
permit private s m o th e r .  Cannon V. University of Chicago 
559 F 2d 1063 (C ^ T A  Other courts, however, have either held 
or assumed thatS’ttfeVI establishes a private right of action. 
See e l  Uzzell V. Friday, 547 F.2d 801 (C.A. 4); Bossier 
Parish School Board  V. Lemon, 370 F.2d 847 (C.A. 5) . cer­
tiorari denied, 388 U.S. 911; Flanagan V. President and Direc- 

tor, of Georgetown College, 417 F. Supp. 377 (D. D C . ) ; W -  
won  V. Oakley Building & Loon Co. 408 F. Supp. 489 498-499 
(S.D. Ohio); Natonabah  V. Board of Education, 355 F. bupp. 
716 724 (D. N.M.). Cf. Marin City Council V. Marin County 
Redevelopment Agency, 416 F. Supp. 707, 709 n. 4 (NJD. Cal.); 
Southern Christian Leadership Conference, Inc. V. Connolly, 
331 F. Supp. 940 (S.D. Mich.).



25

petitioner pleaded that there is an actual conti o 
versy” between the parties concerning the lawfulness 
of the special admissions program under Title VI 
(A. 10) and sought a declaratory judgment that the 
program was lawful. Petitioner thus abandoned any 
argument that the Title VI issues may not be raised 
by a private plaintiff.

On review of a decision of a state court, this Court 
may not reach issues that were neither presented to 
nor decided by the state courts. Compare Massachu­
setts v. Westcott, 431 U.S. 322, with Cardmale v. 
Louisiana, 394 U.S. 437, and McGoldrick v. Com- 
pagnie Generate Transatlantique, 309 U.S. 430. Cf. 
Singleton v. Wulff, 428 U.S. 106, 119-121.

It would be necessary to decide the question whether 
private plaintiffs may bring suit to enforce Title VI 
only if that question were “jurisdictional.” See, e.g., 
Mt. Healthy City School District Board of Education 
v. Doyle, 429 U.S. 274, 278-279. But the question is 
not jurisdictional; this Court twice has reached the 
merits of a Title VI question in a private suit with­
out discussing the ability of a private plaintiff to raise 
Title VI questions, a course that would have been in­
appropriate if the question were jurisdictional. See 
Lau v. Nichols, supra; Jefferson v. Hackney, 406 
U.S. 535, 549-550 n. 19.

Even if the question were open, this would be an 
inappropriate case in which to resolve it. Private 
rights of action to enforce Title VI might be viewed 
in three ways. First, they might be seen as rights 
“implied” from the purpose and structure of Title VI



26

and therefore authorized by Title VI itself; in that 
event the case would present only issues of federal 
law. Second, they might be seen as suits by third 
party beneficiaries of the contracts between the fed­
eral agencies and the recipients of the federal funds; 20 
in that event the terms of the grant would be federal, 
but the right to recover might depend on state law. 
See Miree v. DeKalb County, No. 76-607, decided 
June 21, 1977 (suit by air crash victims as third 
party beneficiaries of federal airport safety grant is 
governed by state law). Issues of this sort would 
turn on provisions of state law that have not been 
discussed at any time in this litigation and that could 
not be resolved by this Court. Third, because this 
suit was commenced in state court, there is a possi­
bility that state law might confer a right of action 
to enforce Section 601 even if no suit could be brought 
in federal court. This question, too, involves state law 
issues that this Court could not resolve. These differ­
ent approaches complicate the question and require 
careful consideration in the lower courts.

Nevertheless, the issue was raised by petitioner at 
oral argument (Tr. 23), and, out of an abundance of 
caution, we briefly present our views on the first of 
these approaches, the existence of an implied federal
cause of action.

B. 1. The Voting Rights Act of 1965, like Title VI 
of the Civil Rights Act of 1964, provides that no 
person shall be discriminated against because of race.

20 See Lau v. Nichols, supra, 414 U.S. at 571 n. 2 (Stewart, J., 
concurring).



27

The Voting Rights Act, like Title VI, does not ex- 
plicitly provide for private actions to enforce its 
terms. This Court held that private persons may 
bring suit to enforce the personal rights confeired 
on them by the Voting Rights Act. It reasoned that 
“ [t]he achievement of the Act’s laudable goal could 
be severely hampered * * * if each citizen were re­
quired to depend solely on litigation instituted at the 
discretion of the Attorney General.” Allen v. State 
Board of Elections, 393 U.S. 544, 556. The Court 
found it significant that the Voting Rights Act ap­
plied to large numbers of political subdivisions, and 
that the great number of potential violators made it 
infeasible for a single Department of the Executive 
Branch to police all of the jurisdictions subject to
the Act. _

The same reasoning applies to Title VI. Great
numbers of federally-assisted programs are subject to 
the requirements of Section 601, and it is unrealistic 
to suppose that the agencies of the Executive Branch 
will be able to detect all violations of the statute or to 
commence enforcement proceedings whenever they de­
tect a violation. “When the Civil Rights Act of 1964 
was passed, it was evident that enforcement would 
prove difficult and that the Nation would have to rely 
in part upon private litigation as a means of securing 
broad compliance with the law.” Newman v. Piggie 
Park Enterprises, Inc., 390 U.S. 400, 401. Private 
suits to enforce the Civil Rights Act of 1964 are an 
indispensible complement to enforcement initiated by 
the Executive Branch. The statute “might well prove



28
an empty promise unless the private citizen were 
allowed to seek judicial enforcement” (Allen, supra, 
393 U.S. at 557).21

2. The strongest argument against allowing pri­
vate suits to enforce Section 601 is that Congress 
established in Section 602 an elaborate mechanism for 
governmental enforcement by federal agencies. The 
structure of Title VI, however, cuts against a conclu­
sion that the establishment of administrative enforce- 
TT̂ nt method pvpplndes private judicial enforcement.

Section 601 creates personal rig h ts / It provides 
that “ [n]o person in the United States shall, on the 
ground of race, * * * be excluded” from participation 
in any federally-assisted program. The rights cre­
ated by Section 601 run in favor of every person. 
Congress could as easily have provided that: “No pro­
gram discriminating on account of race shall receive 
federal funds.” If it had expressed the prohibition in 
that way, there would be a strong argument that per­
sons such as respondent could not bring suit.2  ̂ But 
the statute actually enacted was far broader; it in­
structs recipients of federal money not to discrimi­
nate. It was designed to end discrimination, not sim-

21 See also Securities Investor Protection Corp. V. Barbour, 
421 U S 412 424-425 (it was necessary to recognize a private 
right of action under the Voting Rights Act because it could 
not be fully enforced “against the many local governments 
subject to its strictures” if only the Attorney General could
sue).

22 Cf. Simon V. Eastern Kentucky Welfare Rights Organiza­
tion, 426 U.S. 26; Evans V. Lynn, 537 F.2d 571 (C.A. 2) (en 
banc), certiorari denied sub nom. Evans V. Hills, 429 U.b.
1066.



29

ply to allocate federal money to programs that did not 
discriminate.23 Private suits will be valuable in achiev­
ing the statute’s goal.24

A private action is especially useful in light of the 
practical limitations on the scope of administrative re­
lief under Section 602. That provision allows federal 
agencies to terminate the funding of programs that 
practice unlawful discrimination, but only if “compli­
ance cannot be secured by voluntary means.” The 
remedy available under Section 602 is essentially pros­
pective; a program that has discriminated in the past 
may continue to receive federal funds if it desists 
from doing so in the future and takes the steps neces­
sary to come into compliance with the statute. Al­
though future compliance would include, in many 
cases, rectifying the effects of past discrimination, as 
a practical matter this process may not afford effective 
relief to individual victims of unlawful discrimination.

23 See, e.g., 110 Cong. Rec. 6049, 7060-7061 (1964) (re­
marks of Senator Pastore); id. at 5090 (remarks of Senator 
Humphrey); id. at 7064 (remarks of Senator Ribicoff).

24 See also Rosado V. Wyman, 397 U.S. 397. Rosado was a 
private suit brought to challenge the state administration of a 
welfare program. The State pointed out that the federal stat­
ute granting funds to state welfare programs did not authorize 
a private action, and it argued that termination of funds was 
the exclusive remedy. This Court disagreed. It concluded that 
private plaintiffs could seek to enforce the substantive require­
ments of the federal statute, explaining (397 U.S. at 420) that 
“ [w]e are most reluctant to assume Congress has closed the 
avenue of effective judicial review to those individuals most 
directly affected by the administration of its program.”



30

A private action would<aupplemen)  the administra­
tive process by serving a7  an additwnal deterren o 
violations before they take place, and A would enable 
individual victims of discrimination to be made whole.
A private action would secure to the intended ben 
ciaries of Section 601 the full rights Congress gave 
them Once programs have accepted federal funds 
they incur the obligation not to discriminate; private 
actions would serve most usefully to enforce that obli­
gation for the years in which funds already have been 
received, while governmental enforcement under Sec- 
tion 602 selves as a practical matter principally to 
bring about compliance in the future.”

Kespondent seeks relief for acts during 1973 and 
1974 years in which petitioner accepted federa 
fu n d ’s. Those funds cannot be repaid to the federa 
government, and any termination of funds in the 
future would be unlikely to have an effect on le-

25 F “  the grant of an injunction or a declaratory judgment
• f nfinn would not be inconsistent with the adminis-

i r a U v e p m g r l  established by Section 602. The judgment 
tiative p g dutieg of the pr0gram so long as it
7  PdS1to rltatn he benefit of federal funding. The recipiendesmed to retain tne ne ^  to accept

then wou roceed with the negotiations contemplated
"  602 to define the contours of compliance. A declara-

Branch to bear on state programs; it therefore would not im­
plicate the concerns that led to the limitations contained in

S'A  sT p S L  question is presented by the fact that Section 602 
contemplates 'administrative remedies. Although it could be



31

spondent. If, as he maintains, respondent has been 
denied rights secured by Section 601, a private action 
is essential.26

3. Cort v. Ash, 422 U.S. 66, also indicates that a 
private party may seek to enforce Title VI. Under 
that case, a court must consider four questions (422 
U.S. at 78):

First, is the plaintiff “one of the class for whose 
especial benefit the statute was enacted —-
that is, does the statute create a federal right in 
favor of the plaintiff? Second, is there any indi­
cation of legislative intent, explicit or implicit, 
either to create such a remedy or to deny one? 
* * * Third, is it consistent with the underlying 
purposes of the legislative scheme to imply such a 
remedy for the plaintiff? * * * And finally, is 
the cause of action one traditionally relegated to 
state law, in an area basically the concern of the 
States, so that it would be inappropriate to infer 
a cause of action based solely on federal law?

argued that this creates a requirement of administrative ex­
haustion before a private person seeks judicial relief, this is 
an inappropriate case in which to consider that question. Re­
spondent filed an administrative complaint (R. 278-281), and 
petitioner has not argued that it was prejudiced in any way by 
the treatment of this complaint.

26 This case does not present any question concerning the 
period within which private suits must be filed. Reliance on a 
period of limitations is an affirmative defense, and, at least m 
the federal courts, it is waived if not pleaded in the answer to 
the complaint. Fed. R. Civ. P. 8(c). In California, too, the 
defense of limitations is waived if not pleaded. Strong V. 
Strong, 22 Cal. 2d 540, 140 P.2d 386. This Court therefore 
need not consider whether the complaint in this case was 
timely.



32

See also Piper v. Chris-Cmft Industries, Inc., 430 
US 1 37-41.

Section 601 creates a right in favor of all potential 
beneficiaries of federally-assisted programs; this satis­
fies the first Cvrt test. There is no contemporaneous 
legislative history concerning private actions, al­
though there was an inconclusive discussion on the 
question whether private persons could bring suit 
to require federal officials to terminate funding for 
programs that continued to engage in discrimination.27

It is more significant, however, that Congress! 
enacted statutes bearing on Title VI twice after the \ 
Fifth Circuit’s decision holding that private persons 
could bring suit to enforce Section 601.a8 See 84 Stat. 1 
121- 81 Stat. 787. Congress left the Fifth Circuit’s \  
decision undisturbed. And in 1976 Congress enacted 
the Civil Rights Attorney’s Fees Awards Act, Pub. L. 
94-559, 90 Stat. 2641, 42 U.S.C. (1976 ed.) 1988, 
which authorizes courts to grant attorney s fees to the 
prevailing party in any action brought to enforce,

« Compare 110 Cong. Rec. 6051 (1964) (remarks of Senator 
ohnson), and id. at 2464 (remarks of Representative Poff), 
rith id. at 2467 (remarks of Representative Gill), and td. at 
3876 (remarks of Senator Ervin). Two courts have held that 
uch suits may be maintained. Adams  V. Richardson, 480 
. 2d 1159 (C.A.D.C.) ( e n  banc); Gautreaux V. Romney, 448 
i\2d 731 (C.A. 7) (by implication).

Bossier Parish School Board  V. Lemon, supra.

.. Many of the supporters of the Civil Rights Attorney’s Fees 
Awards Act explicitly stated that attorney’s fees would assist 
private plaintiffs in maintaining actions under Title VI. bee,



33 A

among other civil rights statutes, Section 601/ These 
congressional actions appear to have ratified the Fifth 
Circuit’s early decision.10

e Q 122 Cong. Rec. S16251 (daily ed., September 21,1976) (re- 
marks of Senator Scott); id. at H12159 (remarks of Rep­
resentative Drinan); id. at H12164 (remarks of Representa­
tive Holtzman); id. at H12165 (remarks of Representative 
Seiberling). The Seventh Circuit—which itself had recognized 
in Gautreaux  V. Romney, supra, the propriety of Priyat® .su“ s 
to enforce Section 601—has argued that the Civil Rights 
Attorney’s Fees Awards Act does not demonstrate congies- 
sional support of private actions. See Cannon V. University 
of Chicago, supra, 559 F.2d at 1078-1080. It acknowledged 
that some Members of Congress believed that private suits 
were authorized, but it pointed to other statements in which 
Representatives stated that the new legislation did not im­
plicitly authorize private actions. We agree with the Seventh 
Circuit that the Attorney’s Fees Awards Act did not create a 
“new” cause of action; we rely on it here only to demonstrate 
that many Members of Congress assumed that it already ex­
isted, and to show that Congress has not indicated that a pri­
vate cause of action is inconsistent in any way with the plan of 
Title VI.

.*> In dealing with related issues Congress has assumed with­
out question that Title VI established a private right of action. 
For example, Section 504 of the Rehabilitation Act of 1973, 
87 Stat. 394, 29 U.S.C. (Supp. V) 794, provides that no 
handicapped person “shall, solely by reason of his handicap, 
be excluded from the participation in, be denied the benefits 
of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance.” This provision 
closely tracks the language of Section 601. It was inserted in 
the statute with the expectation that it “would * * * permit a 
judicial remedy through a private action.” S. Rep. No. 93-1297, 
93d Cong., 2d Sess. 40 (1974). This Court has instructed a 
lower federal court to reach the merits of a private suit brought 
under Section 504. Campbell V. Kruse, No. 76-1704, decided 
October 3, 1977. The clear intent of Congress to create a pri-



I »

34

Tt. is ^consistent with jh £  iindfirlyirtg nnm nses of” 
Title VI to permit private suits; for the reasons we 
have already discussed, private suits are an essential 
aid in enforcing civil rights statutes, because individ­
ual violating ar° limply tn ha-tna. numerous to_be 
dealt with effectively hv agency enforcement alone. 
Congress authorized attorney’s fees in private suits in 
recognition of that fact. See Newman v. Piggie Paik 
Enterprises, Inc., supra; Bradley v. School Boa')d of 
the City of Richmond, 416 U.S. 696.

Finally, enforcement of the right to be free from 
unlawful discrimination on account of race is not tra­
ditionally relegated to state law.” To the contrary, 
the rights conferred by Section 601 are preeminently 
federal.31 See Fitzpatrick v. Bitzer, 427 U.S. 445; 
Mitchum v. Foster, 407 U.S. 225.

CONCLUSION

We conclude, therefore, that respondent may main­
tain this private suit to enforce Title VI. For the 
reasons we have discussed at pages 7-23, supra, how­
ever, Section 601 does not prohibit petitioner from vol­
untarily adopting any minority-sensitive admissions

vate remedy by using language almost identical to the language 
of Section 601 strongly supports the position we have taken 
here.

31 Federal statutes may, of course, be enforced in state 
courts of general jurisdiction, unless Congress has indicated 
that federal courts are to have exclusive jurisdiction. Cf. 
Williams V. Horvath, 16 Cal. 3d 834, 129 Cal. Rptr. 453, 548 
P.2d 1125; Broivn V. Pitchess, 13 Cal. 3d 518, 119 Cal. Rptr. 
204, 531 P.2d 772.



35

program that is consistent with the Fourteenth 
Amendment. Consideration of Title VI therefore ulti­
mately does not affect this case,’2 and the judgment of 
the Supreme Court of California should be reversed 
in part and vacated in part for the reasons stated in 
our main brief.

Respectfully submitted.

Griffin B. Bell,
Attorney General.

Wade H. McCree, Jr.,
Solicitor General.

Drew S. Days, III,
Assistant Attorney General.

Lawrence G. Wallace,
Deputy Solicitor General.

Frank H. Easterbrook,
Assistant to the Solicitor General.

Brian K. Landsberg,
Jessica Dunsay Silver,
Miriam R. E isenstein,
Vincent F. O’Rourke,

Attorneys.
N ovember 1977.

32 Title VI could, however, have independent significance 
with respect to private recipient institutions to which Four­
teenth Amendment standards otherwise might not apply.

☆  U. S. GOVERNMENT PRINTING OrPICEj 1977 2 5 0 4 0 0  9 2