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, IN^THE UNITED*. ATAT^.: aO.UE^^ OS' APPEALS 
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S ' *3& S «- ' 'BARBARA ALLEN 3ABC0CK,: • 7 3f* ,..' A At ; 
Assistant Attorney General-,

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EARL J. SIL3SRT3

n. - United Stated Attorney, A‘ ' ----- ---------------------- '-------- ----—  .■•';•

WILLIAM' KAHTSrV  
;: ?, FRANK: A . .ROSENFELD,■ . -*V Attorneys,

Appellate.. Staff,
Civil' Divlsi-cn,
Department of- Justice ,'• '-••y?; 
Washington, *DfC*.' '2053'Ĉ V' ̂
Tel: C2C2) 633-3959. ■•-. ", ;

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I N D E X

Question Presented -------------------------------
References To Parties And Rulings ----------------  2
Statutes Involved --------------------------------- 2
Statement ----------------------------------------- 2

1. Nature of the case. --------------------- 3
2. Statutory Scheme. ------------------------ 4
3. Proceedings in this case. -----------------12

Argument:
Summary of Argument---------------------------16
IT IS NOT UNCONSTITUTIONAL FOR CONGRESS 
TO PREFER THAT SCHOOL DESEGREGATION PLANS 
REQUIRING BUSING BE ORDERED ONLY BY COURTS 
RATHER THAN BY ADMINISTRATIVE ACTION --------  17
A. The Statutes Are Only ProceduralIn Nature. -------------------------------- 17
B. Congress Has The Discretion To Choose

The Litigation Procedure Over The 
Administrative Procedure. ---------------  28

Conclusion----------------------------------------  45
CITATIONS

Cases:
Adams v. Califano, D.D.C., CivilAction No. 3095-70 -----------------------------  12
Adams v. Richardson, 351 F.Supp. 636 

(D.D.C. 1972); 356 F.Supp. 92 CD.D.C.
1973); aff’d en banc 156 U.S. Aop. D.C.
267, 480 F. 2d 1159 (1973) ----------------------  13, 43

Alexander v. Holmes County Board of
Education, 396 U.S. 19 (1969) ------------------ 42

Brown v. Board of Education, 347U.S. 483 (1954) --------------------------------- 37

Cases and authorities chiefly relied upon are marked by asterisk. J

Page

i



Page
Buckley v. Valeo, 424 U.S. 1(1976) ---------------------------------------- -
Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961) ---------------- . 26
Carroll v. Board of Education of 
Jefferson County, Kentucky, 56l
F.2d 1 C6th Cir. 1971) -------------------------24

Cisneros v. Corpus Chris-ti 
Independent School District,
467 F.2d 142 (5th Cir. 1972),
cert, denied 413 U.S. 922 (1973) ----------------6

Civil Service Commission v. Letter 
Carriers Association, 413 U.S.
548 (1973) ------------------------------------  22

*Cooper v. Aaron, 358 U.S. 1
(1958) ----------------------------------------  14-15, 24

Evans v. Buchanan, 4l6 F.Supp. 328CD. Del. 1976) -------------------------------- 33
Evans v. Newton, 382 U.S. 296

(.1966) ----------------------------------------  26
Gautreaux v. Romney, 448 F.2d 
731 (7th Cir. 1974), aff’d sub 
nom Hills v. Gautreaux, 425 U.S.284 (.1976) ------------------------------------  25

Glidden v. Zdanok, 370 U.S. 530(1962) ----------------------------------------  2g
Green v. Connally, 330 F.Supp. 1150 

(D.D.C. 1971), aff'd 404 U.S. 997 (.1971) ---------------------------------------- -
*Katzenbach v. Morgan, 384 U.S. 64l

(1966) 29, 30, 31
Kelsey v. Weinberger, 162 U.S. Apr.

D.C. 159, 498 F. 2d 701 (1974) -1----------------- 25
Lee v. Nyquist, 318 F.Supp. 710 

(W.D.N.Y. 1970), aff’d 402 U.S.
935 (1971) ------------------------------------  24

*McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316 (1819) -------------------------- 29

- ii -



Mayor & City of Baltimore v.
Mathews, 562 F.2d 914 (4th 
Cir. 1977), 571 F.2d 1273(4th Cir. 1978) -------------------------------- 12

Morton v. Mancari, 417 U.S.
535 (1974) ------------------------------------- 22

*North Carolina State Board of 
Education v. Swann, 402 U.S. 43
(1971) ------------------------------------------!4, 23

Oklahoma v. United States Civil 
Service Commission, 330 U.S. 127 (19H7) ------------------------------------------

Regional Rail Reorganization ActCases, 419 U.S. 102 (1974) --------------------  22
Simkins v. Moses H. Cone Memorial 
Hospital, 323 F.2d 959 (4th Cir.1963) ------------------------------------------ 25

Swann v. Charlotte-Mecklenberg Boardof Education, 402 U.S. 17 (1971) ---------------- 37
United States v. Johnson, 323
U.S. 273 (1944) -------------------------------  22

United States v. Marion County School 
District, No. 78-22-Civ-Oc (M.D. Fla.August 11, 1978) ------------------------------- 21

^United States v. O'Brien, 391 U.S.
367 C1968) -------------------------------------36—37

United States v. W. T. Grant Co., 345
U.S. 629 (1953) -------------------------------- 26

^Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252 (.1977) ------------------------------------- 36, 41

Washington v. Davis, 426 U.S. 229(1976) ----------------------------------------- 36> n
Constitutional Provisions, Statutes, and Rules: 2’
^Fourteenth Amendment, Section 5 ----------------  28

Page

- iii -



Page
^Necessary and Proper Clause,Art. I, §8, cl. 18 -------------
Civil Rights Act of 1964, Title VI,42 U.S.C. 200d et seq. ----------
Section 601, 42 U.S.C. 2000d ---
*Section 602, 42 U.S.C. 2000d-l —

Section 6Q3, 42 U.S.C. 2000d-2 ----
*Eagleton-Biden Amendment,
P.L. 94-205, 91 Stat. 1460, 
incorporating H.R. 7555, Section 208

Emergency School Aid Act,
2Q U.S.C. 1601-1619 ----------------

Equal Educational Opportunity Act
of 1974, 20 U.S.C. 1701 et seq. ----20 U.S.C. 1702(a)(1) ---------------
20 U.S.C. 1706 ---------------------
20 U.S.C. 1708 ---------------------

Esch Amendment, 20 U.S.C. 1714(a)
*Scott-Mansfield Amendment, 20 U.S.C. 1702(b) ------
20 U.S.C. 24lk -----------
28 C.F.R. 
28 C.F.R. 
45 C.F.R. 
45 C.F.R. 
45 C.F.R. 
45 C.F.R. 
45 C.F.R. 
45 C.F.R, 
45 C.F.R. 
45 C.F.R,

0.50---------
50.3, Part 1(B) 
Part 80 ------
80.4---------
80.4(b) ------
80.4(c) ------
80.8(a) ------
80.8(c) -------
80.9(a) -------
80.9(d) -------

28, 30

passim4, 22
3, 4, 5, 6,
8, 9, 30, 34-35, 42

3, 8, 31

passim

25

6
22
22
22

passim

18, 38-39
8
10
9
5
5
5
5
9
8

8
8

iv



45 C.F.R. 80.10(a) ------------------------------  8
45 C.F.R. 80.11 ---------------------------------- 8
45 C.F.R. Part 8 l ------------------------------- 34
Miscellaneous:
120 Cong. Rec. 14925 ----------------------------- 18
120 Cong. Rec. 15076-15079 ----------------------  18
120 Cong. Rec. 15079 ----------------------------- 18, 38
120 Cong. Rec. 24919 -----------------------------18, 38
*123 Cong. Rec. SIO898--------------------------- 32
*123 Cong. Rec. S10900 ---------------------------  32
*123 Cong. Rec. S10901 ---------------------------  19-20, 40
*123 Cong. Rec. S10907 --------------------------- 33
*123 Cong. Rec. S10915-10916 --------------------- 33
*123 Cong. Rec. S10917--------------------------- 20
124 Cong. Rec. H10793 ---------------------------  21
124 Cong. Rec. H10797-10798 ---------------------  21

Page

v



IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1864

DARRYL W. BROWN, et al.,
Plaintiffs-Appellant

v.
JOSEPH A. CALIFANO, JR., et al.,

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLEES

QUESTION PRESENTED
Whether the district court correctly upheld the constitu­

tionality of statutes which provide that the Department of 
Health, Education, and Welfare may not use administrative pro­
cedures to directly order local school authorities to use student 
transportation for desegregation but must, instead, refer such 
cases to the Department of Justice for institution of an action
in court.



REFERENCES TO PARTIES AND RULINGS
The opinion and order of U.S. District Judge John Sirica 

upholding the constitutionality of the statutes under challenge 
were filed on July 18, 1978. They are reproduced in the joint

Vappendix at App. 1-14.

STATUTES INVOLVED

The "Esch Amendment" is codified at 20 U.S.C. 1714(a) and 
reads as follows:

No court, department, or agency of 
the United States shall, pursuant to 
section 1713 of this title, order the 
implementation of a plan that would require 
the transportation of any student to a 
school other than the school closest or 
next closest to his place of residence 
which provides the appropriate grade 
level and type of education for such 
student.

This provision is modified by the "Mansfield-Scott Amend­
ment", codified at 20 U.S.C. 1702(b), which reads as follows 
in relevant part:

* * * the provisions of this chapter are 
not intended to modify or diminish the 
authority of the courts of the United 
States to enforce fully the fifth, and 
fourteenth amendments to the Constitu­
tion of the United States.

The "Byrd Amendment", as modified by the "Eagleton-Biden 
Amendment", P.L. 95-205, 91 Stat. 1460, incorporating H.R. 7555, 
Section 208, provides as follows:

None of the funds contained in this 
Act shall be used to require, directly or 
indirectly, the transportation of any

*/ "App." refers to pages In the joint appendix. "PI, Hr," 
refers to pages in the brief for plaintiffs-appellants filed In 
this Court.

2



student to a school other than the school 
which is nearest the student's home, except 
for a student requiring special education, 
to the school offering such special 
education, in order to comply with title VI 
of the Civil Rights Act of 1964. For the 
purpose of this section an indirect require­
ment of transportation of students includes 
the transportation of students to carry out 
a plan involving the reorganization of the 
grade structure of schools, the pairing of 
schools, or the clustering of schools, or 
any combination of grade restructuring, 
pairing, or clustering. The prohibition 
described in this section does not include 
the establishment of magnet schools.

STATEMENT
1. Nature of the case. This appeal is a challenge to the 

constitutionality of two statutes which change the procedures 
by which the Department of Health, Education, and Welfare can 
by its own initiative bring about a program of student trans­
portation as a remedy for illegal segregation by a school 
district. HEW has the power under Title VI of the Civil Rights 
Act of 1964, 42 U.S.C. 2000d et_ sea. , to cut off federal financial 
support for any school district unwilling to submit a satisfactory 
plan for coming into compliance with the civil rights laws.
This administrative order cannot be put into effect until after 
notice and hearing, and is subject to judicial review. 42 U.S.C. 
2000d-l, 2000d-2. Because of the Esch Amendment and the 
Eagleton-Biden Amendment (successor to the somewhat less detailed 
Byrd Amendment), HEW cannot now use this administrative procedure 
to require busing for purposes of desegregation. However, if 
HEW concludes that a given school district would probably require

- 3 -



busing to remedy past and present illegal segregation, it can 
refer that case to the Civil Rights Division of the Department 
of Justice, which has the authority under several statutes to 
file suit against the school district to obtain relief, which 
can include busing if the court finds it necessary. Plaintiffs 
assert that this requirement that busing be ordered only by a 
court and not by the HEW administrative procedure is unconstitu­
tional. The district court held that, unless and until it can 
be shown that the litigation route is, as a matter of proven 
fact, inadequate to fulfill the government’s duty not to fund 
schools which violate the Constitution, the statutes cannot be 
declared unconstitutional. Plaintiffs appeal from this ruling.

2. Statutory Scheme. Title VI of the 1964 Civil Rights 
Act prohibits discrimination against any individual on account 
of race, color, or national origin under any program or activity 
receiving federal financial assistance. P.L. 88-352, Title VI, 
§601, 78 Stat. 252; 42 U.S.C. 2000d. The Act authorizes the 
enforcement of this mandate either by the termination of federal 
funding to any entity found to be operating in violation of its 
provisions or "by any other means authorized by law." 42 U.S.C. 
2000d-l. In the years since its enactment, two principal means 
of enforcing this statutory mandate with respect to schools and 
school districts have evolved: (.1) an administrative proceeding 
conducted by the Department of Health, Education,and Welfare 
directed toward the termination of such funding in appropriate 
circumstances; and (2) a lawsuit instituted in federal district

4



court by the Department of Justice to remedy the discrimination.
Both of these avenues can begin at HEW, in a procedure which 

is a product of both statute (42 U.S.C. 2000d-l) and regulations 
promulgated by the Secretary (45 C.F.R. Part 80). This procedure, 
unless so indicated, still applies to all school districts under 
all situations, even after the Esch and Eagleton-Biden Amendments. 
Each recipient of federal financial assistance covered by the 
Act is required to submit an assurance of compliance with the 
Act and the applicable regulations as a part of its application 
for new or continued federal financial assistance. 45 C.F.R.
80.4. Elementary or secondary school systems fulfill this 
obligation by providing sufficient assurance that they will comply 
with a plan for any required desegregation determined by the 
responsible department official to be adequate to accomplish the 
purposes of the Act. 45 C.F.R. 80.4(b). If such school or 
school cystem is subject to a court desegregation order, it need
only provide an assurance that it will comply with such order.
45 C.F.R. 80.4(c) . “

From time to time, HEW’s Office for Civil Rights (OCR) will 
investigate individual school districts to determine whether 
they are in compliance with Title VI and with the assurances of 
compliance which they submitted to HEW. If OCR comes to the

. aer® a c°urt desegregation order is entered after a sub­mission of a plan to HEW, the regulations require that the 
g0 revised to conform with the court order. 45 C.F.R.

- 5 -



preliminary conclusion that a violation does exist, it will begin
negotiations with the school district in an attempt to have the
district voluntarily adopt a remedy that will eliminate the
constitutional violation. During this process the responsibility
is on the school board (because of its expertise and intimate
knowledge of the local schools) to come forward with a plan of
desegregation. In developing such a plan, a school board is
guided by the priority of remedies established by Cisneros v.
Corpus Christi Independent School District, 467 F.2d 142 (5th Cir
1972), cert.denied, 413 U.S. 922 (1973)j and by the Equal
Educational Opportunity Act of 1974. Since the situation is
unlikely to be the same in any two school districts, it is
difficult to predict in any given situation whether and to what 
extent a plan would have to include the involuntary reassignment
of students to a school which is both farther away than their 
neighborhood school and far enough away to require transportation 

As a general matter, OCR has a very strong position during 
these negotiations, because if the school board is unwilling to 
adopt a plan which OCR feels is adequate to end the discrimina­
tion OCR has concluded exists, the board can be informed that 
either formal administrative procedures to cut off federal 
funding will be begun under 42 U.S.C. 2000a-l or that the case 
will be referred to the Department of Justice for the filing of 
a lawsuit to force the district into compliance. This threat 
of formal action is a very effective way of inducing a foot- 
dragging school board to submit a satisfactory plan. If OCR

6



concludes that busing for purposes of desegregation is needed 
in a given situation, its actions must differ slightly at this 
stage, given the Esch and the Sagleton-Biden Amendments. These 
statutes provide that HEW cannot itself directly "require" the 
use of busing. In line with the interpretation of these 
Provisions given during debate by the Senate sponsors of the 
most recent version, (see pp. 19-20 infra), while HEW no longer 
has the option of cutting off funding by the administrative 
process , it still retains the second option, that is, the right 
to refer the case to the Department of Justice. Thus, if OCR 
feels that busing is required and the shcool district resists thi
suggestion, it will tell officials of the school district the 
following:

(a) A complete remedy of the violation cannot be had without 
transportation of some students to a school other than the one 
closest to their home;

(b) OCR cannot itself require this transportation because 
of Eagleton-Biden;

(c) In order to exercise its Fifth Amendment obligations,
OCR is obliged to refer the matter to the Justice Department with
a recommendation that a lawsuit be filed to remedy the violation; 
and

(d) The school district may avoid that litigation by 
voluntarily reassigning students in situations that could not be 
required by OCR because of Eagleton-Biden.

If the local authorities persist in refusing to adopt a 
satisfactory plan, despite being told by OCR that either



administrative or judicial procedures as appropriate will be 
used against them, OCR then may choose one or the other kind of 
formal procedure. Under the administrative procedure, which 
now can be used to induce any kind of appropriate desegregation 
plan other than one entailing busing, the district is notified 
of the decision to terminate its funding and of its right to a 
hearing. 42 U.S.C. 2000d-l; 45 C.F.R. 80.8(c), 80.9(a). Funds 
cannot be cut off until REM makes a formal finding of non- 
compliance after notice and any hearing if desired by the 
district. 42 U.S.C. 2000d-l, 45 C.F.R. 80.8(c). Unless the 
district wishes otherwise, a full hearing before an administra­
tive law judge must be held at which both the Department and 
the recipient have the right to counsel, the right to introduce 
all relevant evidence on any issue specified in the notice of 
hearing or as otherwise determined by the ALJ to be appropriate, 
and the right to cross-examine witnesses. 45 C.F.R. 80.9(d). 
Depending on the terms of his appointment, the ALJ may then make 
an initial decision or he may certify the entire record including 
his recommended findings and proposed decision to a reviewing 
authority for a final decision. 45 C.F.R. 80.10(a). Any 
initial decision by the ALJ is -also appealable by either the 
Department or the recipient to a reviewing authority and then to 
the Secretary. 45 C.F.R. 80.10(a) and (e). The final agency 
decision is then reviewable in the courts under the APA. 45 C.F.R. 
80.11; 42 U.S.C. 2000d-2. This review is in the court specified 
in each grant statute; in public shcool cases it is taken directly 
to the courts of appeals. 20 U.S.C. 24lk.

8



HEW also has the option In any case —  Including those where
OCR feels busing is necessary —  to refer the matter to the
Department of Justice for the possible commencement of a civil
action to remedy the non-compliance. Under 45 U.S.C. 2000d-l,
any agency providing federal funds to an entity not in compliance
with Title VI may use either the administrative cut-off procedure
or "any other means authorized by law" to enforce Title VI.
HEW’s Title VI regulations provide that:

Such other means may include, but are 
not limited to, (1) a reference to the 
Department of Justice with a recommenda­
tion that appropriate proceedings be 
brought to enforce any rights of the 
United States under any law of the 
United States (including other titles 
of the Act), or any assurance or other 
contractual undertaking * * s.

45 C.F.R. 80.8(a). Department of Justice guidelines, issued 
by the Attorney General in 1965, also make provision for such 
referrals from HEW:

Compliance with the nondiscrimina­tion mandate of Title VI may often be 
obtained more promptly by appropriate 
court action than by hearings and 
termination of assistance. Possibilities of judicial enforcement include (1) a 
suit to obtain specific enforcement of 
assurances, covenants running with 
federally provided property, statements 
[of] compliance or desegregation plans 
filed pursuant to agency regulations,
(2) a suit to enforce compliance with 
other titles of the 1964 Act, other 
Civil Rights Acts or constitutional or 
statutory provisions requiring non­
discrimination, and (3) initiation of, 
or intervention or other participation 
in, a suit for other relief designed to 
secure compliance.

28 C.F.R. 50.3j Part 1(3). Cases referred by HEW to the

9



Department of Justice fall within the jurisdiction of the Civil 
Rights Division of the Department, which is authorized to commence 
a civil action at any time thereafter. 28 C.F.R. 0.50.

The effect of the Ssch and Eagleton-Biden Amendments is to 
eliminate the first of these two options, the administrative 
cut-off procedures, as a means of requiring a school district to 
adopt a desegregation plan including busing once negotiations reach 
an impasse. Instead, OCR can only use the second option, 
referring the case to the Justice Department for litigation in 
which such a program will be ordered by the court if necessary 
to eliminate illegal segregation in the district's schools.

Through a series of depositions and affidavits, the parties
in this case attempted to establish the actual effect that this
change in procedures has had on OCR's enforcement efforts. OCR
Director David Tatel testified at a deposition on July 28, 1977
that, there were a number of districts where OCR's actions were
then being affected by the statutes (App. 18-22). Re added a
few more names to this list in an August 31j 1977 affidavit.
On February 28, 1978, Cynthia Brown, serving in the role of
Acting Director of OCR in Mr. Tatel's temporary absence, explained
in an affidavit just what that effect was in each" of the districts
mentioned (App. 38-41). Three districts, she explained, are not

2/affected by Eagleton-Biden. Five other districts had gone

2/ These are Jones County, Miss, (schools already in racial 
balance); Saginaw, Mich, (adverse ruling from administrative 
law judge); and Vance County, N.C. (case settled; student 
assignment satisfies constitution)(App. 39)• Plaintiffs are thus
(Footnote 2 continues on p. 11).

10



through the administrative hearing stage; in each case the
AuJ ruled favorably to OCR, and each case was then being oreoared

3/for referral to the Department of Justice.
Sight more school districts made up a third group where the 

investigations and negotiations were still at a preliminary 
stage. Five of these districts had "taken substantial voluntary 
steps to eliminate racial isolation in their schools", but were 
doubtful enough to require consideration for oossibie referral

V
to Justice. The other three were also being evaluated for

(Footnote 2 continued from p. 10).
2/totally in error when they assert that Saginaw is getting 
Federal money even though it has "refused to desegregate"(PI. Br. 6).
3/ These districts are Lima, Ohio; Kansas City, Mo.; Flint, 
Mich.; Marion County, Fla.; and Marshall, Texas. Kansas City was subsequently settled on the basis of a plan which OCR 
accepted as in compliance with Title VI (App. 40). Plaintiffs 
are thus totally in error when they assert that HEW intends to 
continue giving these districts federal money despite their refusal to desegregate (PI. Br. 6).
V The districts on this list are Springfield, Ohio; Joliet, 
111.; Anne Arundel and Frederick Counties, Maryland; and Fresno, 
Calif. Plaintiffs, once again, are totally in error when they 
assert that these districts were "settled or dismissed" after 
a finding of unconstitutional segregation which required busing 
(PI. Br. 5). Typical of plaintiffs' distortions of the record 
is their quote from a letter by a high OCR official dated 
May 1$> 1977 —  almost a year before the Cynthia Brown 
affidavit —  which was selectively quoted to create the erroneous 
impression that OCR was prevented by the statutes from requiring 
necessary desegregation in Springfield. Plaintiffs omit the 
last sentence of the paragraph they quote (PI. Br. 6). Interest­
ingly, that sentence reads:

Even with the limitation imposed by 
Congress through this law, HEW was able to 
negotiate a desegregation plan, to be imple­
mented in September 1977, which will result 
in no Springfield school having a majority 
black student enrollment.

(App. 29). As of February 1978, OCR, as we have noted, was still 
studying Springfield for possible referral if this plan Droves inadequate.

11



possible referral; in two of these three cases, an actual ore-
5/liminary decision to refer had been made. Finally, Baltimore

presented a special case, since the Fourth Circuit had just upheld
an injunction against a pending administrative proceeding;

6/further litigation was contemplated there (App. 4l) . In
every case, then, OCR was either able to negotiate acceptable 
desegregation plans or intended to refer the case to the Depart­
ment of Justice if dissatisfied with the local authorities' 
actions.

3. Proceedings in this Case. This appeal concerns only 
part of a more general lawsuit, filed several years ago, to seek 
review of HEW’s efforts to enforce Title VI. It is the companion 
case to Adams v. Califano, D.D.C., Civil Action No. 3095-70, which 
deals with the 17 southern and border states. In Adams, plaintiffs

5/ These districts are Madison County, Georgia; Gulfport, Miss.; 
and Maywood, 111. The preliminary decision to refer was made as 
to the last two. Gulfport and Madison County are on plaintiffs' 
list of cases "settled or dismissed" despite the need for busing 
(PI. Br. 5); Maywood is on their list of cases where HEW supposedly 
intends to continue funding despite the need for busing CPI. Br.__6) . 
These descriptions are as totally erroneous as the others discussed 
in the earlier footnotes.
6/ The Fourth Circuit initially reversed the injunction, which 
was granted for reasons wholly unrelated to Esch and Eagleton- 
Biden. Mayor & City of Baltimore v. Mathews, 562 F.2d 914 (.4th 
Cir. 197771 On rehearing, on February 16, 1973, the Court decided 
to affirm by an equally divided court because it could not properly 
count the vote of Judge Craven, who died during the writing 
of the original opinions. 571 F.2d 1273 (4th Cir. 1978).

12



alleged that HEW, during the Nixon Administration, had decided 
not to take any formal steps to enforce Title VI, either by 
administrative cut-off procedures or by referring cases to 
the Department of Justice. Judge Pratt held that this practice 
violated the language of Title VI and ordered that HEW take 
formal enforcement steps against a number of specified school 
districts, leaving to HEW the option to choose between admin­
istrative cut-offs or reference of cases to Justice. Adams v. 
Richardson, 351 F. Supp. 636 (D.D.C., 1972)] 356 F. Supp. 92 
(D.D.C., 1973). This Court affirmed en banc. 156 U.S. App.
D.C. 267, 480 F.2d 1159 (1973). The present suit was filed in 
1975 to essentially apply Adams to the remainder of the country.
On July 20, 1976, Judge Sirica entered an order similar to the 
one in Adams, again requiring that HEW take either administrative 
steps or other formal steps authorized by law to enforce Title VI 
in several specified school districts.

When Congress enacted first the Esch Amendment in 1974 and 
then the Byrd Amendment in 1975 (which was identical to the 
present Eagleton-Biden Amendment, except that it did not explicitly 
include clustering and pairing of schools among the techniques 
it considered "indirect" busing), plaintiffs in neither this 
case nor the Adams case challenged their constitutionality. When 
the Eagleton-Biden Amendment was enacted in 19773 however, plain­
tiffs moved for declaratory and injunctive relief, claiming that 
Esch and Eagleton-Biden are unconstitutional on their face. The 
government defended the statutes on the ground that they removed 
only the administrative procedure option and left untouched the

13



the option of court action by the Department of Justice; this 
option, we argued, is good enough to prevent the statutes from 
being unconstitutional.

The district court agreed with the government and denied 
plaintiff’s motion. Judge Sirica carefully examined the two 
enforcement options (Opinion at 3-5, App. 3-5), and noted that 
Senators Eagleton and Biden had both made it clear during Senate 
debate on their proposal that the litigation option was still 
open, and that indeed the reason for their proposal was their 
preference for the use of court orders in busing cases 
(Opinion at 5-6, App. 5-6). The court agreed with the government 
that the litigation option is adequate to prevent the statutes 
from being unconstitutional on their face (Opinion at 6-7, App. 
6-7). The court rejected the notion that the Supreme Court's 
decision in North Carolina State Board of Education v. Swann,
402 U.S. 43 ( 1971) compelled any different result. Swann, the 
court explained, involved a statute directly prohibiting busing. 
These statutes, by contrast, eliminate only one procedural method 
by which one of several possible entities, including private 
plaintiffs, can assure that local authorities institute busing 
if necessary (Opinion at 7-9, App. 7-9).

The court then held that Cooper v. Aaron, 358 U.S. 1, 19 
(1958) also did not compel a different result, reasoning that 
plaintiffs' claim that the statutes will force the federal govern­
ment to give financial support to school districts which violate 
the constitution is "exaggerated and unpersuasive" (Opinion at 10, 
App. 10). The statutes, the court explained, only require that

14



one procedural method the government has for fulfilling its 
duty not to support segregation be used rather than another; 
there is nothing in Coooer or the cases following Cooper requiring 
that any particular procedure be used, the court concluded 
(Opinion at 11, App. 11). Finally, the court held that the 
evidence does not presently support any contention that the 
Ij-tigS-tion option is inferior to the administrative option 
(Opinion at 11—12, App. 11—12). if evidence should later come 
to 1-ugnt that uhe litigation route cannot or will not be used as a 
"workable instrument for effecting equal educational opportunities," 
the court announced it will then consider new challenges by 
plaintiffs to the government's actions "on an as applied basis." 
(Opinion at 13, App. 13; emphasis in original).

Plaintiffs now appeal this ruling.

15



ARGUMENT

Summary of Argument
The Esch and Eagleton-Biden Amendments do not forbid the 

use of student transportation for purposes of desegregation, 
nor do they require that the federal government continue granting 
funds to school districts which refuse to adopt such busing 
when it is constitutionally necessary. The statutes only have 
an effect on the procedures by which the government will enforce 
its duty to assure that local school districts receiving 
federal funds will use busing if it is necessary as part of a 
desegregation plan. Instead of ordering the use of busing on 
the administrative level, HEW can only refer such a case to the 
Department of Justice for the filing of a lawsuit. This 
alternate procedure, however, is more than adequate to meet the 
government's constitutional duties. The government will still 
be enforcing the law, and the courts can order any necessary 
remedy if a violation is found. Since that is the case,
Congress was free to eliminate the administrative procedure and 
prescribe that the litigation procedure be used in this type 
of case. There is no evidence, either in logic or in the 
record, to indicate that the use of litigation rather than 
administrative procedures will in fact not fulfill the 
government's duties.

16



IT IS NOT UNCONSTITUTIONAL FOR CONGRESS 
TO PREFER THAT SCHOOL DESEGREGATION PLANS 
REQUIRING BUSING BE ORDERED ONLY BV COURTS RATHER THAN BY ADMINISTRATIVE ACTION

The statutes at issue in this appeal have only a limited 
and very specific effect. All they do is narrow somewhat 
the choices HEW can make among the available procedures for 
guaranteeing that local school authorities will adopt a 
busing program if one is needed to eliminate illegal segre­
gation, While in the usual situation,, HEW can choose either 
an administrative procedure cutting off a grantee’s federal 
funding or reference of a case to the Department of Justice 
for filing of a lawsuit, these statutes limit HEW to the 
second option when OCR concludes busing is necessary to 
obtain requisite relief. Congress' choice in this matter 
is well within any possible constitutional bounds.

A * The Statutes Are Only Procedural in Nature.

The essential fact to keep in mind--a fact consistently 
ignored by plaintiffs— is that the Esch and Eagleton-Biden 
Amendments are only procedural in nature, not substantive.
We should not allow ourselves to be confused by the language 
of these statutes into thinking that this is not the case. 
Esch, especially, looks on its face like a direct substantive 
interference with busing, for it provides simply that ”[n]o 
court, department, or agency of the United States shall * * * 
order the implementation of a plan that would reauire the 
transportation of any student" past the closest or next 
closest school. 20 U.S.C. 1714(a). That language standing

17



alone might well he unconstitutional. Significantly, however, 
Congress refused to enact this language into law when it was 
proposed without qualification. While it passed the House, 
it was voted down in the Senate by a vote of 47-46. 120
Cong. Hec. 14925 (May 15, 1974).

Instead, the Senate passed a proposal put forth by
Senators Hugh Scott and Mike Mansfield which revived the Esch
language, but added a proviso drastically changing it. 120
Cong. Rec. 15076-15079. This proviso, known as the Scott-
Mansfield Amendment, says that

* * * the provisions of this chapter 
are not intended to modify or diminish 
the authority of the courts of the 
United States to enforce fully the 
fifth and fourteenth amendments to the 
Constitution of the United States.

20 U.S.C. 1702(b). The combination of this proviso with the
Esch language transformed Esch from a substantive measure
to a wholly procedural one. In fact, the supporters of the
original version apparently without exception voted against
the Scott-Mansfield proposal3120 Cong. Rec. 15079, and many
of them bitterly attacked the bill when it returned from
conference with the Scott-Mansfield language intact. Senator
Gurney, the sponsor of the original version in the Senate,
actually called the final version of the language "no less
than our official stamp of aporoval to forced busing." 120

] _ /Cong. Rec. 24919 (July 31j 1974). Esch, as modified by

7 / The legislative history of this and the other statutes af issue in this case is discussed again later at 
PP • 32-3,3, 37-^0, infra.

18



Scott-Mansfield, thus does not affect the power of courts 
to order busing. Moreover, since by its terms it only 
forbids agencies from issuing an "order" that there be busing, 
it also does not prevent HEW and the Department of Justice 
from asking a court to exercise this power.

The Eagleton-Biden Amendment can also be somewhat mis­
leading on its face. It provides that HEW cannot use any of 
its appropriated funds to "require., directly or indirectly, 
the transportation of any student to a school other than the 
school which is nearest the student’s home * * *." This 
language was originally enacted as the Byrd Amendment, a rider 
to the HEW-Labor Department appropriation bill. The quotations 
offered by plaintiff from the legislative history of this original 
version of the amendment do not, however, reveal what either 
its sponsor, Senator Byrd, or the Congress in general thought 
the provision actually meant. Rather, they are quotations 
from speeches attacking busing in general, and contain

_8_/no comment on the actual intended effect of the proposal.
In 1977* however, as Congress prepared to reenact the proposal
for the next year's annropriation bill, Senators Eagleton and

9__/Biden were its sponsors. They explained the specific
effect of the language to the Senate in no uncertain terms:

The Byrd amendment * * * does not 
prohibit HEW from requiring remedies 
when there has been a finding of a

8_/ See PI. Br. 30-35.
9 / This time, the provision contained some new language 
wKich defined indirect busing as including grade restructuring, 
pairing, and clustering of schools.

19



title VT violation. However, it does 
require that when HEW determines that 
compliance with title VT requires that 
students be bused, because of the grave 
consequences to a community that very 
often accompany such a requirement 
enforcement may not proceed through the 
administrative process. HEW is authorized 
under title VT to refqr matters to the 
Department of Justice for litigation; 
this is the course that should be pursued 
if there is a decision to go forward in a 
case to which the Byrd amendment applies.

* * * *

If there is an equal protection clause vio­lation, there is a remedy. The Civil Rights 
Division can go into the Department of 
Justice [sic] and seek it. Senator Biden 
and I do not tamper with that and do not want to.

123 Cong. Rec. S10901, S10917 (daily edition, June 28, 1977; 
remarks of Sen. Eagleton).

If there were any doubts that the Esch, Byrd and Eagleton-
Biden Amendments were procedural only and not substantive,
these and similar comments should dispel those doubts. There
can be no arguing with the fact that, once their somewhat
ambiguous language is explained through reference to the
legislative history, these provisions do not prohibit busing,
nor do they even remotely require HEW to continue spending
federal money in any school district which engages in

10/unconstitutional segregation. These amendments, as Congress 
well knew at least after Eagleton-Biden, only eliminate the

10/ To the extent that plaintiffs assert otherwise, they 
are not fairly reading the statutes and thus misperceive the issue in this case.

20



administrative funding cut-off procedure as one means of
requiring busing; they deliberately leave the option of
litigation in place, as we explained at length above
(pp. ^-10, supra). Indeed, Senator Sagleton made it
plain to his colleagues that he expected that the litigation

11/route would be used.

11/ Significantly,, Congress has just rejected a proposal, 
Tmown as the Collins Amendment, which would have gone one 
step further and forbidden the Department of Justice "to bring any sort of action to require directly or indirectly 
the transportation of any student to a school other than the 
school which is nearest the student’s home * * 124 Cong.Rec. H10793 (daily ed., September 26, 1978). While the 
proposal passed the House, 124 Cong. Rec. H10797-10798, it 
was eliminated in Conference and not included in the final 
bill as it passed. The combination of Senator Eagleton's 
remarks and the rejection of the Collins Amendment show that 
Congress has deliberately drawn the line at the point we 
indicated, and does not wish to take the steo of eliminating 
the government's ability to require desegregation.

In another recent development, one district court has 
recently ruled that the Department of Justice does not have 
jurisdiction to bring suit under Title VI; the court did not 
comment on the Department's possible jurisdiction under other 
statutes. United States of America v. Marion Countv School District, No. 7«-^-Civ-0c (M.D. Fla., August ll, 1$78) . 
Marion County is one of the districts which OCR indicated in its affidavit was being prepared for referral to the Department of Justice. (See p. 1 and n. 3, supra. The 
Department of Justice is presently considering an appeal of the district court's decision.

21



Several familiar principles of statutory construction 
readily confirm that neither of these amendments prohibts the 
Department of Justice from seeking, or a federal court from 
imposing, a busing remedy where appropriate. The first is that 
"when two statutes are capable of co-existence, it i's the duty 
of the court, absent a clearly expressed Congressional inten­
tion to the contrary, to regard each as effective." Morton v. 
Mancari, 417 U.S. 535, 551 (1974). If either of the statutes 
were read to prohibit the remedy of busing in a civil action 
brought by the Department of Justice and involving a finding 
of de jure segregation, they would be inconsistent with 
section 601 of the 1964 Civil Rights Act, 42 U.S.C. 2000d, 
requiring the elimination of discrimination in federally 
funded programs. Indeed, the Esch Amendment would be incon­
sistent with other portions of the Act in which it appears, 
for the Equal Educational Opportunities Act also forbids

discrimination in education and authorizes the Attorney General 
to enforce that mandate through participation —  as an original 
party or as an intervenor —  in litigation. See 20 U.S.C. 
1702(a)(1), 1706, 1708.

The second tenet is that a statute should be construed 
"if consistent with the will of Congress, so as to comport 
with constitutional limitations." Civil Service Commission v. 
Letter Carriers Association, 413 U.S. 548, 571 (1973); see also 
Regional Rail Reorganization Act Cases, 419 U.S. 102, 134 (1974) 
United States v. Johnson, 323 U.S. 273, 276 (1944). As both

22



plaintiffs and defendants agree, a federal statute which would 
force the continued federal funding of schools and school dis­
tricts operating in violation of the Constitution would in some 
circumstances be unconstitutional. Since this Court must, if 
possible, interpret the Esch and Eagleton-Biden amendments 
consistently with the Constitution, it ought to hold that they 
permit use of the remedy of busing in actions brought by the 
Department of Justice under Title VI or other authority.

Plaintiff's citation to North Carolina State Board of 
Education v. Swann, 402 U.S. 43 (1971) thus is of no relevance 
to this case. Swann concerned a North Carolina statute which 
was substantive in nature, in that it actually prohibited 
busing and forbade the local school districts from adopting 
any busing program. It thus was fundamentally in conflict even 
with efforts by local school boards to adopt busing voluntarily 
(or at HEW's prodding), and was unavoidably in conflict with a 
district court's possible busing order. If the board was to 
obey the constitution and adopt necessary busing, either volun­
tarily or by court order, it would have to act in violation of 
this state statute. In such circumstances, the statute must 
fall. The Supreme Court's holding to that effect is strictly 
limited to that kind of situation. It struck down the statute 
because it was a "limitation on a school authority's discretion", 
402 U.S. at 45, and consisted of a "flat prohibition" —  indeed 
an "absolute prohibition" —  against the use of a method of 
desegregation which it is "the duty of school authorities" to 
use. 402 U.S. at 46. Swann very clearly does not govern here

23



since the statutes in the present case do not affect the 
authority or discretion of local school officials to adopt a 
desegregation plan using busing and is not a prohibition —  
absolute or limited —  on its use, but rather only alters the 
procedure by which federal officials will fulfill their duty  ̂
to assure that local school authorities adopt necessary busing.

Similarly, there is no doctrine (nor should there be, as we 
will see later, see pp.28-35, infra) which states that liti­
gation cannot be an acceptable substitute for the withholding of 
aid as a procedure to be used by a governmental unit to end its 
support of racial discrimination (PI. Br. 41-42). Plaintiffs 
invent such a doctrine out of whole cloth and cite several cases 
in support of it which do not stand for anything like the pro­
position advanced. All that these cases stand for is the 
familiar principle that a unit of government cannot support 
discrimination, directly or indirectly. Cooper v. Aaron, 358 
U.S. 1 (1958). In each case, the governmental unit involved

12/ Lee v. Nyquist, 318 F. Supp. 710 (W.D. N.Y., 1970), aff'd.
T 0 2  U.S. 935 (.1971) and Carroll v. Board of Education of Jeffer­
son County, Kentucky, 561 F.2a 1 (6th Cir. 1977) both involved 
statutes like the one in Swann and unlike the one in the present 
case, since they were both direct prohibitions on the power of 
local school authorities to adopt programs of pupil reassign­
ment. They, like Swann, are not relevant to this case, and for 
the same reasons. In fact, the court in Carroll actually went 
on to refuse to declare federal statutes unconstitutional which 
prohibited the granting of federal funds to local school auth­
orities to help defray the expenses of busing. Since no fed­
eral grant program made money available for programs like busing, 
but rather earmarked all funds for specific non-mandatory pro­jects, wiping the statutes off the books, the court explained, 
would not free a single cent. The statutes thus created no case 
or controversy, it held. 561 F.2d at 4.

- 24



had actually decided to tolerate discrimination by a recipient 
of its benefits rather than make an effort to eliminate it. 
Litigation was not an alternative to administrative proceedings 
in any of these cases, for the public officials involved had 
decided not to go after the discrimination at all, either by 
the administrative or the judicial route. Election of pro­
cedures was not at issue, since the governmental units had 
elected to take no procedure al all. Thus in Gautreaux v.
Romney, 448 F.2d 731 (7th Cir. 1974), aff'd sub nom Hills v. 
Gautreaux, 425 U.S. 284 (1976), the court found that the Depart­
ment of Housing and Urban Development had deliberately de­
cided to tolerate discriminatory practices by the Chicago 
Housing Authority, reasoning that Chicago authorities were too 
hostile to desegregation of public housing for it to be con­
structive to force the issue. The court of appeals was sym­
pathetic, but held that it could not allow such an exception 
to the duty to eliminate support for discrimination. Kelsey v. 
Weinberger, 162 U.S. App. D.C. 159, 498 F.2d 701 (1974), 
involved a regulation allowing recipients of federal funds 
under the Emergency School Aid Act, 20 U.S.C. 1601-1619, to 
delay desegregation of their teaching staffs for up to two 
years. This Court held that the regulation was of questionable 
enough constitutionality that the Act should be construed to 
prohibit it. Simkins v. Moses H. Cone Memorial Hospital, 323 
F.2d 959 (4th Cir. 1963), overturned a federal statute actually

- 25 -



allowing hospitals receiving Hill-Burton Act grants to maintain
seperate but equal facilities. Green v. Connally, 330 F.Supp.
1150 (D.D.C. 1971), aff’d 404 U.S. 997 (1971) invalidated the
Internal Revenue Service's practice of allowing tax-free status
and charitable donation tax deductions for white-only private 

13 /academies.-^- Finally, Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961) held that a city may not lease space in a
parking garage to a restaurant which refused to serve blacks,
since as landlord the city had become "a joint participant in

14 /the challenged activity" by the restaurant. 365 U.S. at 725-—  
In each of these cases, the government made a substantive 
choice to continue to give support to discrimination. None of 
these situations would have been subject to a government

43 / During the pendency of the case, the IRS announced by press 
release that it would begin to deny these tax breaks to the dis­
criminatory private schools. Nevertheless under the familiar 
equitable principle that a litigant cannot moot a case out by voluntarily agreeing to do what plantiff wants, United States v. 
W. T. Grant Co., 345 U.S. 629 (1953), the court ordered IRS to take specific formal steps. The decision was also grounded on 
the theory that the IRS press release was too informal to sat­
isfy the government's duty, especially in a case with constitu­
tional overtones. 330 F. Supp. at 1170-1171. If IRS had 
announced a formal program of enforcement, the Court might not 
have found it necessary to fashion such a program itself. In 
the present case, by contrast, there is a formal enforcement 
program in place: litigation after referral to the Department
of Justice.
4^ / We are frankly at a loss to explain plaintiffs' citation 
to Evans v. Newton, 382 U.S. 296 (1966), which held that a park 
run for decades by the city cannot be considered private any 
longer, even though the city was only trustee under a will 
donating the land for use as a park for white people. We do not see the relevance of this case to the issue for which it is 
cited or to this case in any way.

26 -



sponsored lawsuit, given the policies adopted by the relevant 
officials to allow the discrimination. None has any relevance 
to the issue in the present case: whether government can elect
between available procedures once it has decided to eliminate 
discrimination by its grantees.

27



b. Congress has the Discretion To Choose The Litigation
Procedure Over The Administrative Procedure.____________
Once it becomes clear that this case involves only the 

choice of one procedure rather than another by which the 
United States is to enforce its duty not to support unconsti­
tutionally segregated schools, the issue becomes this: can
Congress make the choice of procedures which it made in this 
case without acting in violation of the Constitution? The 
answer must be yes. Within reasonable bounds, Congress must 
remain free to prescribe the procedures by which agencies of 
the United States will enforce the law.

Section 5 of the Fourteenth Amendment authorizes Congress 
to enforce the amendment's provisions, including the Equal 
Protection Clause, by appropriate legislation. Congress also 
has the power to enforce the due process guarantee of the 
Fifth Amendment under the Necessary and Proper Clause.
U.S. Const., Art. I, §8, cl. 18. In this as in other areas 
where it has "substantive legislative jurisdiction", Con­
gress has "plenary authority . . .  so long as the exercise 
of that authority does not offend some other constitutional 
restriction." Buckley v. Valeo, 424 U.S. 1, 132 (1976).
Id. at 134-138. This authority must include the discretion 
to allocate enforcement functions among government offices 
and agencies. Where, as here, an enforcement scheme 
involves functions which are basically adjudicative in nature,

28



Congress' additional authority with respect to the jurisdic­
tion of the federal courts allows Congress broad discretion 
in allocating responsibilities between the courts and the 
federal agencies. Thus, in Glidden v. Zdanok, 370 U.S. 530, 
5^9 (1962), Mr. Justice Harlan rejected the notion that Con­
gress was prohibited from authorizing the courts to hear 
matters which might be resolved before an administrative 
tribunal:

. . . because Congress may employ such 
[administrative] tribunals assuredly does not mean that it must.

In Katzenbach v. Morgan. 334 U.S. 64l, 650-651 (1966), 
the Supreme Court indicated that the standard for determining 
the validity of federal legislation based on the Equal Pro­
tection and Due Process clauses of the Fourteenth Amendment
is the McCulloch v. Maryland standard, permitting Congress

15/
broad discretion. Congressional authority over the means 
of enforcing the Fifth and Fourteenth Amendments clearly 
authorized the enactment of section 602 of Title VI,

12/ That standard, as articulated by Chief Justice Marshall, is as follows:
Let the end be legitimate, let it be 
within the scope of the constitution, 
and all means which are appropriate, 
which are plainly adapted to that end, 
which are not prohibited, but consist with the letter and spirit of the 
Constitution, are constitutional.

McCulloch v. Maryland, 17 U.S. [4 Wheat.) 316, 421 fl8l9) quoted at 384 U.S. 650.

29



42 U.S.C. 2000d-l, which gave HEW and other agencies the choice 
between administrative and judicial enforcement of Title VI. 
That same congressional authority regarding the allocation 
of such functions among the federal departments amply supports
the instant legislation which, in effect, amends Title VI in

1 6 /certain circumstances. Indeed, it would be anomalous to
conclude that it was permissible for Congress to have given
the agencies a choice between administrative and judicial
enforcement, but that Congress may not constitutionally make
that choice regarding a particular category of cases. It
would also be anomalous if Congress had the power under the
Necessary and Proper Clause to choose a particular enforcement
technique but did not have the power under the same clause

1J jto choose not to use a particular technique.

16/ In Katzenbach v. Morgan, supra, 384 U.S. at 651, n. 10, the 
majority stated that Congress has "no power to restrict, abrogate, 
or dilute these guarantees [of the equal protection and due 
process clauses as interpreted by the Supreme Court]." However, 
as pointed out above, neither of the amendments in question 
here deny the right to desegregated education. Moreover, given 
the careful balance of rights which must be undertaken in formu­
lating a desegregation remedy, it would be an over-simplication 
of the matter to argue that the congressional preference for the 
judicial enforcement method where busing is involved is a 
retreat from the due process and equal protection guarantees provided under Title VI.
17_/ Moreover, both of these amendments, which essentially deal 
only with the expenditure of federal funds, may also be supported 
by the constitutional authority to tax and spend, which is within 
the plenary power of Congress. In this regard, Congress clearly 
has the authority to attach reasonable conditions to federal 
grants. See, e.g., Oklahoma v. United States Civil Service 
Commission, 330 U.S. 127, l4"3 (1947) • This authority would, of course, include the authority to determine how and by what 
federal agency the conditions are to be enforced.

- 30



As noted by the Supreme Court in Katzenbach v. Morgan,
supra, the sifting and weighing of relevant and sometimes
conflicting factors involved in formulating the mechanisms
by which the federal government enforces the constitutional
guarantees of due process and equal protection is appropriately
and —  absent a transgression of constitutional bounds —
exclusively the role of the Congress:

It is not for us to review the congres­
sional resolution of these factors. It 
is enough that we be able to perceive a 
basis upon which the Congress might re­
solve the conflict as it did.

384 U.S. at 653. The problems involved in deciding to order 
busing are among the most difficult faced by courts, involving 
an intricate balance among the rights of many interested 
parties. While it suffices for purposes of constitutional
analysis that Congress might rationally have preferred initial

1 8 /resort to the courts in addressing such complex factual
and legal matters, the legislative history, particularly of 
the Eagleton-Biden Amendment, which is the focal point of 
plaintiffs' challenge here, provides real evidence of such a 
legislative choice. Indeed, the statements of several legis­
lators, particularly Senator Eagleton, reflect considerable 
dissatisfaction with the safeguards of the administrative 
process and a strong preference for initial resort to the

18/ The final decision of the Secretary in a Title VI enforce­
ment matter has, since the enactment of Title VI, been subject 
to judicial review under the APA. 42 U.S.C. 2000a-2.

31



federal courts in effecting the proper balance of the competing 
interests. Thus, for example, Senator Eagleton expressed an 
opinion that HEW, in contrast to the courts, was incorrectly- 
applying the applicable legal standards:

By contrast [to the courts], the admin­istration of title VI by HEW gives the 
appearance of a mechanistic process; evidence 
concerning racial isolation is punched in and 
a requirement is printed out that each school 
must reflect the racial balance of the entire 
school system, give or take a few percentage 
points. Lipservice is paid to the need to 
establish a de jure violation, but there 
would seem to be a few school districts with 
any significant degree of racial isolation 
where HEW cannot construe some official 
action of some agency as having a racially 
discriminatory purpose, sufficient to call for districtwide relief often involving extensive busing.

123 Cong. Rec. S10900 (daily ed., June 28, 1977)- He explained 
why, as Senator from Missouri, he was particularly upset with 
. HEW:

The Byrd [Eagleton-Biden] amendment does apply and I support its application to 
matters such as Kansas City where HEW 
acting solely on its own administrative 
authority and acting without any judicial 
determination of unconstitutionality, 
administratively seeks to impose its own formula as the racial mix or racial 
balance of a given school district.

123 Cong. Rec. SIO898 (daily ed. June 28, 1977).
Senator Biden, co-sponsor of the amendment, expressed 

similar sentiments on the Senate floor:

32 -



. . . those of you who are going to vote 
with the Senator from Massachusetts are 
making one decision: That you think,
absent a court order, a bureaucrat down­
town or out in the district can make a 
judgment that there is a constitutional 
violation that exists. I say to you that 
the only person who should be able to make 
that decision is a duly constituted Federal 
court. It is not for some bureaucrat to 
say, "We think you violated the Constitu­
tion; therefore, we make the judgment that 
unless you comply with our order, you do not get any Federal money.

* * * * *
Our colleague from Minnesota says,'let us talk about the issue; the issue is desegregation.'
That is not the issue. The issue is, 

can an administrative agency, the Depart­
ment of Health, Education and Welfare, absent 
a finding by any court in this nation —  
absent a finding absent a court order, absent 
a court ruling that there is a constitutional 
violation —  can an administrative agency 
make a determination that in their judgment 
there is in effect a constitutional viola­
tion; and that therefore, unless a school 
district or a series of school districts 
entered into a plan suggested by or sanc­tioned by HEW, that; district or those dis­
tricts will have their federal funds withheld?

123 Cong. Rec. S10907, S10915-10916 (daily ed., June 28, 1977). 
Of course, these rather negative opinions of the practices of 
HEW are not, in our opinion, correct. It is not up to us, or 
to the courts, however, to quarrel with the perceptions of the 
facts held by members of Congress in adopting legislation.
The essential point is that the sponsors of the Eagleton- 
Biden Amendment —  and thus presumably Congress as a whole —

33 -



so believed. They acted reasonably on that belief, and the 
preference they expressed as a result of this belief was 
clearly within Congress’ authority.

That Congress has the authority to place reasonable 
procedural limitations on the government's civil rights 
enforcement effort is only confirmed by examining the pro­
vision which the amendments at issue in this case replaced, 
and which plaintiffs apparently feel is constitutionally 
required. Section 602 of the landmark Civil Rights Act of 
1964, 42 U.S.C. 2000d-l, itself imposes significant procedural 
limitations on the government's ability to enforce the guarantee 
against discrimination. Under its very terms, an agency may 
not cut off the funds received by any grantee until all of 
the following steps are taken: 1) the agency must first allow
the grantee to voluntarily comply with the law, and cannot act 
unless the agency has determined that such voluntary action 
will not bring the grantee into compliance; 2) if administra­
tive cut-off procedures are to be followed, the agency must

19/give the grantee notice and the opportunity for a hearing;
3) the agency must then make an express finding on the record 
of non-compliance; 4) the fund cut-off order must be limited 
to the specific program in which non-compliance was found;

19_/ HEW regulations actually require that this hearing be a formal, oral one, with live witnesses and the right of cross- examination. 45 C.F.R. Part 81.

- 34 -



5) a full written report must be filed with both the House 
and Senate committees with jurisdiction over the program.
Thirty days after the written report is filed, funds can be 
cut off, but not until then. The statute amounts to a flat 
requirement of a stay pending the outcome of agency proceedings. 
These provisions have a significant effect on the government's 
program, and indeed cause it to be significantly slower than 
it might be under other kinds of procedures. Nevertheless, 
Section 602 does not in any way alter the government's 
substantive duty to assure that federal money is not used to 
support discrimination. There can be no doubt that Title VI 
is constitutional. The Esch and Eagleton-Biden Amendments 
require no different analysis, and they too are consti­
tutional for the same reasons.

Plaintiffs discuss at great length what they perceive 
as the racially discriminatory motive behind these statutes 
held by some members of Congress (PI. Br. 29-37). They 
follow this discussion with the argument that, in effect, if 
any member of Congress had such a motive, then the statute 
which follows must be unconstitutional (PI. Br. 37-38).
This cannot be the law. It is true that the Supreme Court 
has held that racially discriminatory motives need not be 
shown to be the sole or even the primary reason behind some

35



governmental action before it can be held unconstitutional. 
Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington 
Heights v. Metropolitan Housing Development Corp., 429 U.S.
252 (1977). But the Supreme Court has never held that an 
act of Congress can be held unconstitutional because of the 
speeches of a few of its members, or that such speeches will 
require the courts to declare an act of Congress unconsti­
tutional even though the most recent legislative history, 
here the remarks of Senators Eagleton and Biden, demonstrates 
a purpose not racially motivated and even though the statute 
has not been shown to have a racially discriminatory effect.

The Court in Arlington Heights listed several methods 
of determining the purpose behind an official act. The 
Court noted that an examination of the legislative history 
can be one of the relevant methods, but it acknowledged 
that, at least as far as acts of Congress are concerned,

[t]his Court has recognized, ever since Fletcher v. Peck, 6 Cranch [10 U.S.] 87,
130-131 (1810), that judicial inquiries 
into legislative or executive motivation 
represent a substantial intrusion into 
the workings of other branches of govern­ment .

429 U.S. at 268 n. 18. This is in line with the Court’s earlier 
comment in United States v. O'Brien, 391 U.S. 367, 383-384 
(1968):

36 -



Inquiries into congressional motives 
or purposes are a hazardous matter.
When the issue is simply the inter­
pretation of legislation, the Court 
will look to statements by legislators 
for guidance as to the purpose of the 
legislature, because the benefit of 
sound decisionmaking in this circum­
stance is thought sufficient to risk 
the possibility of misreading Congress' 
purpose. It is entirely a different 
matter when we are asked to void a 
statute that is, und.er well-settled 
criteria, constitutional on its face 
on the basis of what fewer than a 
handful of Congressmen said about it.
What motivates one legislator to make 
speech about a statute is not neces­
sarily what motivates scores of others to enact it, and the stakes are 
sufficiently high for us to eschew guesswork.

These warnings from the High Court teach us that we must tread 
lightly here.

In any event, the legislative history of these amendments 
demonstrates clearly that discriminatory motives played little 
if any role in Congress' decision. As a preliminary matter, it 
must be remembered that none of the statements to which plaintiffs 
point demonstrate actual racial bias. The statements merely show 
that the speakers opposed the Supreme Court’s decision in Swann 
v. Charlotte-Mecklenberg Board of Education, 402 U.S. 17 (.1971), 
which held that busing could be constitutionally compelled, and 
instead professed adherence to their perception that Brown v.
Board of Education, 347 U.S. 483 (1954),required that pupil assign­
ments be made on a color-blind basis. Even if such sentiments 
had to be considered racial discrimination, it would only be in 
an indirect form.

37 -



Turning to the actual speeches, then, plaintiffs profess
to find a racially discriminatory purpose behind the Esch
Amendment by quoting from the speeches of the sponsors of the
original language of that amendment,including Senator Gurney,
not from the sponsors of the actual version enacted. This
original version, which purported to forbid even the courts
from ordering busing, was voted down in the Senate and thus
killed, as we explained earlier (see p.18 , supra). Every
supporter of the original Esch language in the Senate appears
to have then voted against the later Scott-Mansfield substitute,
which revived but drastically altered the provision, transforming
it into a merely procedural measure,120 Cong. Rec. 15-079, as
we also noted above (see p.l8 , supra). After the Conference
Committee chose the Scott-Mansfield language,

* " * the supporters of the original ' 
legislation in the House responded 
with accusations of betrayal, and 
statements that the result of the 
amendment was the effective 'gutting' 
of the provisions of the bill dealing 
with remedy. See, e.°m [120] Cong.
Rec. H7++02 (remarks of Mr. Esch.
[daily ed.] July 31, 197*0; H7*+06 
(remarks of Mr. Landgrebe, July 31,
197*+); H7*+10 (remarks of Mr. Parris,
July 31, 197*+); H7*+l*+ (Mr. Bauman,
July 31, 197*+).

Evans v. Buchanan, *+16 F. Supp. 328, 362 n. 173 (D. Del. 1976) 
(three-judge district court). Senator Gurney similarly called the 
provision "our official stamp of approval to forced busing."
120 Cong. Rec. 2*+919. A statute can hardly be condemned as 
unconstitutional because of the possibly discriminatory remarks 
of legislators who opposed it. Indeed, since in a close 47—46 
vote virtually every liberal senator, including Kennedy, Brooke,

- 38 -



Humphrey, Ribicoff and Javits, voted for Scott-Mansfield and
thus for reviving the Esch language which that amendment contained,
it would be difficult for us to say with assurance just what did
motivate Congress in adopting the amendment.

The remarks of Senator Byrd in sponsoring the predecessor
2jyto the present Eagleton-Biden language are somewhat more

problematical. His speeches do show a direct hostility to busing
on the grounds noted above that pupil assignments should be
color-blind. What is curious about them, however, is his utter
failure to discuss the actual language he was proposing, which
simply eliminated the administrative procedure for enforcementIVof the duty to bus. To read his speeches, one would almost
think that he was proposing to repeal the Scott-Mansfield 
proviso that courts may still enforce the constitution and that 
he wanted to return to the original Esch proposal. At any rate, 
he was only one of 535 members of Congress, and his proposal was 
only a rider to an appropriations bill and thus automatically 
expired at the end of the fiscal year. In 1977, the HEW-Labor 
Department appropriations bill was up for debate again and the

2J L /  3 ee ? 1 . Br . "30-3.5 V .'. . 1 .  . ..
21 / He was supported by a couple of Senators and opposed by 
a couple others, notably Senator Brooke. All of them 
seem to have kept their remarks on the same general plain.

- 39



Byrd Amendment had to be reenacted if it was not to die.
Senators Eagleton and Biden proposed some changes in wording,
and then took the opportunity to explain the provision’s
purpose. Unlike Senator Byrd, they made it abundantly clear
to Congress that their proposal would not affect the duty of
HEW to refer cases where busing was a necessary part of a
desegregation plan to the Justice Department for court action
(see pp . 19-20 supra). As they explained,

HEW is authorized under Title VI 
to refer matters to the Department of 
Justice for litigation; this is the 
course that should be pursued if there 
is a decision to go forward in a case 
to which the Byrd amendment applies.

123 Cong. Rec. S10901 (daily ed., June 28, 1977, remarks of 
Sen. Eagleton). Certainly the comments made by sponsors of 
legislation when it was being reenacted and which address them­
selves to the specific language and effect of the legislation 
take precedence over the general and isolated remarks of the 
sponsor of an earlier version which was about to expire, 
especially when the earlier remarks did not address the specific 
language and effect of the legislation. Eagleton-BIden is not
unconstitutional simply because of a speech made by Senator 

22/Byrd.

22/ As noted earlier (p. 21, n. 11 , supra), Congress, by 
refusing to enact the Collins Amendment, confirmed that it 
did not intend to wipe out the government's efforts in the 
busing area.

40



Finally, plaintiffs’ arguments must fail for the 
separate and equally dispositive reason that they have not 
shown that the statutes have a racially discriminatory 
effect. We know of no case which declares a statute without 
a proven discriminatory effect unconstitutional. Washington 
v. Davis, supra, and Arlington Heights, supra, hold only 
that an action which has a discriminatory effect is not uncon­
stitutional unless it also was intended to have that effect. 
They do not hold that effect is irrelevant— in fact they 
state the opposite. 429 U.S. at 265; 426 U.S. at 242. The 
Esch and Eagleton-Biden Amendments simply have not been 
shown to have a discriminatory effect. Moreover, they are 
well within Congress' discretion to prescribe law enforce­
ment procedures, and were enacted for valid reasons.

There may nevertheless be a point where Congress so 
severely limits the procedures by which the Executive is to 
enforce the civil rights laws that its actions come under a 
constitutional cloud. The Esch and Eagleton-Biden Amend­
ments do not even approach that point. In fact, it is not 
clear that they will have any significant practical effect 
on the ability of the government to wipe out illegally 
segregated schools. It does not seem logical that OCR and 
the Civil Rights Division will be any less vigorous in their 
efforts to desegregate the schools simply because they must 
make those efforts in a different forum. Rather, these 
agencies should be expected to try to make the best of the 
situation. Moreover, it is also likely that the courts will

41



be as vigorous in ordering busing when it is constitutionally 
compelled as HEW would have been under the administrative pro­
cedure. Certainly, plaintiffs cannot be heard to say that the 
courts of the United States cannot be trusted to do all in 
their power to order an end to illegally segregated schools. 
Thus, there is nothing per se about the change in procedure 
which promises to allow school districts which are operating
in violation of the Constitution to get away with it to any

22/
greater extent than was the case under Section 602 alone.

Plaintiffs have attempted to show several specific
cases which, they assert, HEW has "settled or dismissed" or
where HEW has determined to continue funding because of the
statutes even though busing was necessary but not adopted 23/
(PI. Br. 5-6). This would be shocking if it were true.

22_/ Nor is there anything in the statutes which promises to 
delay imposing a remedy on schools found to be unconstitution­ally segregated. A district court trial can move as fast or 
as slow as an administrative hearing, and the courts will 
order immediate relief once a finding of violation is made. 
Moreover, the court can give temporary relief, while HEW is forbidden to do so by 42 U.S.C. 2000d-l. Thus Alexander v. 
Holmes County Board of Education, 396 U.S. 19 (1969) does not 
require a holding that these statutes are unconstitutional.
23/ Plaintiffs point to the differing results among cases 
involving desegregation of higher education in several south­ern states (PI. Br. 46, n. 18). They claim that some cases 
were settled quickly by the administrative process but that 
the proceedings in Louisiana and Mississippi, which were 
undertaken in district court, were much slower. They thus 
argue that this proves the inherent inferiority of the liti­
gation process. Hasty conclusions should not be drawn from 
this, especially since these charges are not in the record, 
and the government thus was not able to give explanations to 
the district court. Each case is unique, and the elimination 
of state-wide systems of segregated colleges is particularly 
difficult. Thus, the Louisiana and Mississippi situations do 
not prove much of great relevance about the comparativ effec­
tiveness of the two alternatives in the area of illegally 
segregated primary and secondary schools as a general matter.

42



Fortunately, It is not true, as the record amply shows. 
Plaintiffs rely heavily on the use of the term "settled or 
dismissed" in a series of leading questions which their 
counsel put to OCR Director Tatel at a deposition in 1977 
(App. 18-22), but they conveniently ignore the detailed 
follow-up to Mr. Tatel's answer filed as an affidavit in 
February of 1978. That affidavit, as we showed at length 
above, see pp. 10-12, supra, demonstrates that in every case 
mentioned by plaintiffs, OCR has either reached a settlement 
which satisfies Title VI and the Constitution, has reached a 
settlement which is in some slight doubt and is still under 
study, or has concluded that a violation exists, and that 
they either have referred cases where further busing is 
required to the Department of Justice or will refer them if 
such a conclusion is reached. Enforcement efforts are pro­
ceeding in due course, in spite of Esch and Eagleton-Biden.

If evidence should come up in the future that this 
process is not working, plaintiffs can go back to Judge
Sirica, at his express invitation (Opinion at 12-13, App.

25 /12-13), and document their charges. The court can then 
determine if additional steps should be ordered. This order 
might be premised on Title VI or even on Eagleton-Biden, as 
interpreted by Senator Eagleton himself Csee pp. 19-20, suora), 
as was the case in Adams v. Richardson, supra, or it can be 
based on the ground that the government is applying the

i-L/ is interesting that despite a year's experience with 
Eagleton-Biden, plaintiffs have as yet found no*actual evi­dence that this is happening.

- 43 -



statutes in an unconstitutional manner. Nothing in the 
record as it now stands, however, suggests that those now 
enforcing Title VI are so applying the statute. There is
thus no reason to hold that the statute must be unconstitu-

26/
tional on its face. There will be time to seek an appro­
priate remedy when and if it can be shown that the government

27/is not fulfilling its duties.
In sum, the district court found that there was not 

reasonable expectation that the litigation procedure would 
be slower or less adequate than the administrative procedure 
(Opinion at 11-12, App. 11-12). That finding of fact is 
amply supported by both the record and logic. It is correct, 
and certainly not clearly erroneous. It should not be 
reversed on appeal. The district court’s ruling as a matter

26/ Plaintiffs complain that the district court put the 
burden of proof on them to show that the litigation option 
is inadequate as a matter of fact (PI. Br. 44-45). The dis­
trict court opinion does not turn on burden of proof, however. 
The court merely held against plaintiffs on the record. At 
any rate, it could hardly be the government's duty to prove 
a negative, i.e., that the change in procedure does not have 
an effect. Nor should a mere accusation of unconstitutional 
effect create a rebuttable presumption that an act of Congress is invalid.
27/ Plaintiffs put great store in a series of comments from 
President Carter, Director Tatel, the Civil Rights Commission 
and others that they opposed the Esch and Eagleton-Biden 
Amendments. Their comments, however, must be placed in the 
political and institutional contexts in which they were made. 
Naturally, these individuals did not favor the restrictions 
in HEW’s discretion which the amendments impose. All the 
comments, however, were only generalized predictions about 
the future impact of the amendments, separated from a con­
crete context. Moreover, the statements were written from an 
advocates point of view, that is, they were primarily intended 
to persuade relevant parties that the amendments are a bad 
idea. The government still believes that they are a bad idea, 
but bad ideas are not automatically unconstitutional.

44



of law that the litigation option is constitutionally accept­
able and. that the administrative procedure is not constitu­
tionally compelled (Opinion at 7-11, App. 7-11) is likewise 
correct and should not be reversed on appeal.

CONCLUSION
For the foregoing reasons, this Court should affirm the

judgment of the district court.
Respectfully submitted,
BARBARA ALLEN BABCOCK,
Assistant Attorney General.

EARL J. SILBERT,
United States Attorney.

WILLIAM KANTER,
FRANK A. ROSENFELD,Attorneys,
Appellate Staff,
Civil Division,
Department of Justice, 
Washington, D.C. 20530,
Phone: (202) 633-7969.

OCTOBER, 1978

_ 45 _