Bryan v Koch Reply Brief for Plaintiffs-Appellants
Public Court Documents
January 1, 1980

9 pages
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Brief Collection, LDF Court Filings. Bryan v Koch Reply Brief for Plaintiffs-Appellants, 1980. 15391737-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8490b9a7-ce12-4e71-ade7-bdd16c2abe7a/bryan-v-koch-reply-brief-for-plaintiffs-appellants. Accessed July 20, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT NO. 80-7401 DAVID E. BRYAN, JR., et al., Plaintiffs-Appellants, v . EDWARD I. KOCH, et al_. , Defendants-Appellees. DISTRICT COUNCIL 37, et al., Plaintiffs-Appellants, v . EDWARD I. KOCH, et al., Defendants-Appellees. On Appeal From The United States District Court For-The Southern District of New York REPLY BRIEF FOR PLAINTIFFS-APPELLANTS BEVERLY CROSS KAREN SMITH JOEL GILLER 140 Park Place New York, New York 10007 JACK GREENBERG BETH J. LIEF 10 Columbus Circle Suite 2030 New York, New York 10019 Attorneys for Plaintiffs, District Council 37 v. Koch Attorneys for Plaintiffs in Bryan v . Koch HERBERT SEMMEL SANFORD J. NEWMAN Center for Law and Social Policy 1751 N Street, N.W. Washington, D.C. 20036 Attorneys for individual Plaintiffs in District Council 37 v. Koch IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 80-7401 DAVID E. BRYAN, JR., e* ?!., Plaintiffs-Appe Hants, v . EDWARD I. KOCh, et al.. Defendants-Appellees. DISTRICT COUNCIL 37, et al.. Plaintiffs-Appellants, v . EDWARD I. KOCH, et al., Defendancs-Appellees. On Appeal From The United States District Court For The Southern District of New York REPLY BRIEF FOR PLAINTIFFS-APPELLANTS The complaints in these actions each alleged that the conduct of the defendants, in addition to violating Title VI, also contravened the requirements of the regulations issued by HHS. App. 12, 22, 246, 255. The trial court expressly recognized, as did the defendants below, that those regula tions, 42 C.F.R. § 80.3, establish a disparate impact standard. The court expressly held that the regulations, together with the HHS opinions and r jcommendations elaborat ing on their meaning, are invalid. App. 590-600. In this Court appellees discussion of the regulations is largely- limited to the contention that the regulations are not entitled to deference in construing Title VI. Appellees Brief, pp. 31- 35. We urge that, even if Title VI itself applies only to instances .of discriminatory purpose, the regulations forbid ding certain types of disparate racial impact would nonetheless be valid. It is clear beyond peradventure that an agency authorized under a statute may at times establish by regulation new obliga tions not contained in the statute itself. "[T]he role of regulations is not merely interpretative; they may instead be designedly creative in a substantive sense, if so authorized Usery v. Turner Elkhorn Mining Co., 128 U.S. 1, 37, n. 40 (1976) In Mourning v. Family Publications Service, 411 U.S. 356 (1973), the Federal Reserve Board had promulgated a regulation under the Truth in Lending Act requiring the disclosure of certain information, such as the total cost of the goods, in any instalment transaction involving more than four payments. 12 C.F.R. '§ 226.2(k). Although the Truth in Lending Act itself required disclosures only if the case of transactions involving a finance charge, the Board's regulation required disclosures regardless of whether there was a finance charge so long as more than four instalment's were involved. The defendant in that case challenged the regulation, arguing it created obliga tions not contained in the statute itself, and was in excess - 2 - of the Board's authority. The Supre le Court unanimously rejected that contention. The defendant in Mourning, like the court below, recog nized that the power to issue regulations ordinarily authorized regulations "reasonably related to the purposes of the enabling legislation", Thorpe v. Housing Authority of Durham, 393 U.S. 268, 280-81 (1969), but urged that the statute and regulation were "inconsistent" because the regulation created obligations not found in the statute." The purported conflict arises be cause the statute specifically mentions disclosure only in regard to transactions in which a finance charge is in fact imposed, although the rule requires disclosure in some cases in which no such charge exists." Mourning, 411 U.S. at 372. Compare App. 592-93. But the Supreme Court held that the im position of obligations on parties Vvuo might not be within the coverage of the statute was permissible. It recognized that some contracts providing for more than four instalments would involve hidden finance charges, and held that the Board was not obligated to determine in each case whether there was such a charge and the Act itself applied. The fact that the regulation applied the obligations of the statute to some individuals who had not violated and were not covered by the act itself did not render the regulation invalid. - 3 - Where, as here, the transaction or conduct which Congx ass seeks to administer occur in myriad and changing forms, a requirement that a line be drawn which insures that not one blameless individual will be subject to the provisions of an act would unreasonably encumber effective administration . . . 411 U.S, at 356. The Court also sanctioned the ust of regulations broader than the underlying statute in Gem co v. Walling, 324 U.S. 244 (1945). In that case the Administrator of the Wage and Hour Division was charged with enforcing the minimum wage provisions of the Fair Labor Standards Act. Although the Act itself established no limitations on where workers could be employed, the Administrator forbade employers from giving their employees work to do at home. The Administrator reasoned that it could not effectively monitor the number of hours being worked. Gemsco, however, argued that the regulation was invalid, urging, not only that homework had not been for bidden by the act, but that it was "an independent subject matter wholly without the .statute1s purview . . .." 324 U.S. at 261. 3ut the Court held that the regulation was lawful because it was reasonably directed at achieving the statutory objectives. 324 U.S. at 259. Title VI, in addition to prohibiting discrimination, authorizes and directs every federal agency granting federal assistance "to effectuate the provisions of section 20006 of this title . . . by issuing rules, regulations, or orders of general applicability' . ..." 42 U.S.C. § 2000d-l. This is on its face a grant cf authority comparable to that in Mourning, - 4 - and broader than that in Gemsco, which was effectively limited to preventing e\asion. See 324 U.S. at 248. As four members of the Supreme Court noted in University of California Regents v. Bakke, 438 U.S. 265 (1978). Attorney General Robert Kennedy testified that regulations had not been written into the legislation itself because the rules and regulatxons defining dis crimination might differ from ore program to another so that the term would assume different meanings in different contexts. 438 U.S. at 343. (Opinion of Justices Brennan, Marshall, White and Blackmun) (Emphasis added). Clearly the definition of "discrimination" could only vary from program to program, as thus contemplated, if the agencies were authorized to define it as something other than just "purposeful discrimination." The action of eight Federal agencies in promulgating in 1964 substantive regulations demonstrates their view, to which deference is certainly due, that section 2000d-l authorized the establishment of such substantive requirements which did not merely incorporate the language of the statute or the Fourteenth Amendment. The majority opinion .in Lau v. Nichols, 414 U.S. 563 (1974), cited both Title VI and the regulations at issue in this case. While the majority seems to have read Title VI itself to create an effect standard, it held that the practices in Lau had the "earmarks of the discrimination banned by the regulations," 414 U.S...at 568. (Emphasis added),. Although the majority did not reach the question of the validity of the regulation section 80.3 if its commands exceeded those of the statute, three members of the Courc did so. Justice Stewart, in an opinion joined by Justice Blackmun and the - 5 - Chief Justice, expressed doubts as to whether Title VI, "standing alone, would render illegal the expenditure of funds" on the disputed schools. 414 U.S. at 570. On the other hand the interpretive guidelines published by the Office of Civil Rights of the Department of Health, Education and Welfare . . . clearly indicate that affirmative efforts to give special training for non-English-speaking pupils are required by Title VI . . .. The critical question is, therefore, whether the regulations and guidelines promulgated by HEW go beyond the authority of section 601. 414 U.S. at 570-71. Relying on Mourning, Justice Stewart held the disparate impact regulation valid as "reasonably related to the purposes of the enabling legislation." 414 U.S. at 571. Although only three members of the Supreme Court have expressed an opinion as to whether, regulation section 80.3 V would be valid even if Title VI itself required proof of dis criminatory purpose, Justice Stewart's view is clearly correct The regulations require remedial action where the conduct of a grant recipient has a disproportionately adverse impact on minorities and other means exist for achieving the purported purpose of that action. Certainly prohibiting grantee conduct which has such an impact furthers the anti-discriminatory policy of Title VI, regardless of whether Title VI itself applies only to intentional discrimination. The existence of such a disparate impact alone is clearly significant evidence r '•of discriminatory purpose; where the recipient's professed purpose for its action could have been achieved without so burdening minorities, that fact raises serious questions as to whether tnat purpose was the actual or sole motive involved - 6 - Thus the circumstances specified by the regulation, like more than four instalmentcontracts in Mourning and the use of homework in Gemsco. gives substantial reason to believe that the underlying statute is being violated. HHS, like the Federal Reserve Board or the Wage and Hour Administrator, is not obligated to determine or consider on a case by case basis whether such a violation actually occurred. The problems involved in establishing the presence or absence of discrimina tory intent are enormously difficult, consistently confounding and dividing the federal courts. See, e.g., City of Mobile v. Bolden, 48 U.S.L.W. 4436 (1980). HHS was well within its authority in promulgating an adverse impact standard which, although cccasionally covering conduct and individuals not in violation of the Act, afforded a more administrable and predictable method by which HHS, the courts, and recipient agency themselves could test a proposed course of action. Respectfully submitted, JACK GREENBERG BETH LIEF 10 Columbus Circle Suite 2030 New York, New York 10019 Attorneys for Plaintiffs- Appellants in Bryan v . Koch BEVERLY GROSS KAREN SMITH JOEL GILLER 140 Park Place New York, New York - 7 - Attorneys for Plaintiffs- Appellants in District Council 37 v. Koch HERBERT SEMMEL SANFORD NEWMAN Center for Law and Social Policy- 1751 N. Street, N.W. Washington, D.C. 20036 Attorneys for Plaintiffs- Appallants in District Council 37 v. Koch MARGARET MCFARLAND University of Michigan Intern, Center for Law and Social Policy - 8 -