Brown v. Califano Brief for the Appellees
Public Court Documents
October 1, 1978

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Brief Collection, LDF Court Filings. Brown v. Califano Brief for the Appellees, 1978. 63c168bd-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/79a9deac-d29a-494a-91ca-5b03f44e5926/brown-v-califano-brief-for-the-appellees. Accessed April 19, 2025.
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: * j 90flS3 vi ] 0 - 4r* 1 •* • •'* ' *• ■*..*' v-̂i7SAl86^ 7 ; f ' ; ,\ _______ _ • ■ ' -J£r# V iv:> *ywA — a ® ? ”* 5»«,vJR ■ W a r n irF- ■X ♦ - • ^ :;; J | l , IN^THE UNITED*. ATAT^.: aO.UE^^ OS' APPEALS FOR THE DISTRICT w M L Vrifr*aMK̂tv *p- '>M̂raajfiaffl8S».. • /. •;'•jNISPP W r ic w taffiMK -■ ̂, y -v ;g; .?§ £ V It 'WV . . P - t . .?;% JQ ssP H ;A % ^ t f jy 3 F A S 0 jX R . ; v e t i x . , '•- -: - Defendants-Abo v 6 \.J-' • v . .̂ Vy. o . o:; APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE .DISTRICT. Q’F COLUMBIA-.£g£ 1 & \ 'v- . - ■ '.0 . -■•*•: '. 0 -UOv^H ;-H ; ERIE? FOR THE APPELLEES•>,& %S** *' <7p'l!E«gS85- Sf ifiPiSlr/S.-*: f w w n ’ &$«& ̂%*'h4vV̂Ai*';"rSiVf rhsyar*/' -<?* S ' *3& S «- ' 'BARBARA ALLEN 3ABC0CK,: • 7 3f* ,..' A At ; Assistant Attorney General-, BSapSK •>' ■‘̂ ‘ ’"'̂ "‘A bid 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. ■•-. ", ; w M m l f « f i n s ; PH 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 _