Adams v. Bell Motion For Further Relief 5-82 (Folder)

    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUiMBIA

KENNETH ADAiMS / et ^ ,
Plaintiffs,

V .

TERREL H. BELL, et al,,
Defendants.

Civil Action No. 70-3095

DEFENDANTS' POINTS AND AUTHORITIES IN OPPOSITION 
TO PLAINTIFFS' MOTION FOR FURTHER RELIEF

Introduction
Title VI of the 1964 Civil Rights Act prohibits, inter alia, 

the granting of federal aid to public higher education systems 
which have not desegregated. In 1978, the Department of Health, 
Education and Welfare (HEW) (a predecessor of the Department of 
Education) adopted guidelines, the Revised Criteria Specifying the 
Ingredients of Acceptable Plans to Desegregate State Systems of 
Public Higher Education, 43 Fed. Reg. 6658 (1978) (Criteria), to 
assist states in preparing acceptable plans for the desegregation 
of their formerly ^  jure segregated higher education systems.
See Adams v. Califano, 430 F. Supp. 118, 121 (D.D.C. 1977). The 
Criteria enumerate the goals and commitments that HEW, in consul­
tation with various groups and organizations —  including the 
plaintiffs here —  concluded should be contained in those plans.

Since 1978, the Office for Civil Rights (OCR) has applied the 
Criteria in accepting state plans for desegregation. In 1978 or
1979, HEW accepted the plans submitted by the States of Arkansas,

*/Florida, Georgia, North Carolina, Oklahoma, and Virginia."
Since January, 1981, OCR has accepted plans submitted by the 
States of Delaware, Missouri, and West Virginia, and

•k "k ^

conditionally accepted a plan from Kentucky. Following
acceptance of each of these state plans for desegregation of 
higher education systems, the Office for Civil Rights of the 
Department of Education (Education) has monitored implementation 
of those plans to ensure that the goal of desegregation of

V  These are referred to as the "first tier" states. Included 
within that group is the State of Pennsylvania, from which no plan 
has been accepted yet.
**/ These are referred to the "second tier" states. Another 
second tier state is Texas, which is discussed below.



state public higher education systems is .achieved in an effective 
and meaningful manner within each state system.

The experience of OCR over the past four years has shown that 
applying and implementing the Criteria has been a complex, diffi­
cult and time-consuming process. Each state has presented a 
unique situation, in terms of the nature of the violation to be 
remedied, the structure of the state system, and many other 
relevant factors. OCR has striven to apply the Criteria in a 
meaningful and effective way, consistent with each state's unique 
si tuation.

Despite OCR's strenuous efforts to achieve desegregation of 
state higher education institutions within the context of these 
various state systems, plaintiffs have moved for further relief in 
this area, alleging that Education is not properly applying or 
enforcing the Criteria. Plaintiffs raise two related claims. 
First, they allege that the desegregation plans accepted from the 
"second tier" states do not meet the Criteria. Second, they 
allege that Education has failed to impose sanctions where the 
"first tier" states have failed to implement their plans pursuant 
to the Criteria. As relief, plaintiffs request this court to 
order defendants to "implement the desegregation guidelines and 
timetables mandated by the Criteria" and to "initiate enforcement 
proceedings, where necessary, with respect to those states which 
are defiant or perenially [sic] recalcitrant." Plaintiffs' Motion 
for Further Relief (Motion) at 44.

Despite Education's good faith and responsible efforts to 
apply flexibly the Criteria in accepting and monitoring state 
plans for desegregation to meet the unique needs of each state, 
plaintiffs ask this Court to undertake what would necessarily be 
an extraordinarily sweeping and detailed review of enumerable 
exercises of administrative discretion in complex, state-wide 
cases involving ten states. Based on selected, skeletal statis­
tics and isolated factual anecdotes, plaintiffs seek a ruling that 
the plans for each of five states are inadequate and must be 
renegotiated. They also request this Court to find that five

-  2 -



other states are not implementing their desegregation plans and to 
order the Department of Education to institute enforcement pro­
ceedings against those five states. This wide-ranging interven­
tion into the difficult process of achieving desegregation is not 
justified.

Plaintiffs' motion should be denied. From their inception, 
the Criteria were understood to be guidelines to be applied in a 
flexible manner consistent with the unique circumstances of 
particular states. Application of the Criteria in accepting a 
desegregation plan requires a detailed understanding of the 
problems, structure and possible solutions of each state's higher 
education system. Monitoring of state desegregation plans 
requires this same level of understanding, as well as the exercise 
of judgment concerning the delicate and complex decisions of 
degrees of compliance. Monitoring entails making judgments 
concerning the relative value of additional efforts at voluntary 
compliance.

OCR has attempted through negotiations to work with states to 
further desegregation and ensure compliance with accepted plans. 
Where OCR has determined that such efforts are insufficient, it 
has taken further steps: initiated enforcement proceedings (North
Carolina); referred cases for enforcement to the Department of 
Justice (Ohio and Alabama); and formally notified States of 
deficiencies in the implementation of previously accepted plans 
(Florida and Virginia),

Achieving desegregation of higher education systems requires 
time and much mutual effort on the part of OCR and the states. 
Indeed, both the States and OCR, have operated under the belief 
that it was necessary to allow five years for the major objectives 
of the plans to be achieved and that the end of that five year 
period is the m.ost appropriate time to determine the success of 
the plans. For the first tier states (Virginia, Oklahoma,
Georgia, Florida and Arkansas), the five year period expires at

-  3 -



the completion of the 1982-1983 school year. OCR is prepared to 
review thoroughly the compliance status of these states at the end 
of the five year period, and to seek further remedies where 
necessary.

DISCUSSION
I. The Criteria Provide Specific and

Effective Guidance to the States in 
Achieving Desegregation of Their 
Higher Education System but Do Not 
Have the Force and Effect of Law.

The Criteria were issued to provide guidance to formerly de 
jure segregated state higher education systems developing
desegregation plans.' 
the Criteria:

As stated in the introduction to

HEW has determined that the criteria provide 
specific and effective guidance to the States 
and at the same time are sufficiently flexible 
to provide for circumstances which may vary from 
state to state.

43 Fed. Reg. 6658 (1978). The Criteria were thus designed to aid 
in devising plans that would be effective in achieving the 
desegregation of the system. 43 Fed. Reg. 6659 (1978) . As the 
Fourth Circuit noted, prior to the issuance of the higher 
education guidelines. Title VI required negotiations seeking 
voluntary compliance as an initial step and that the issuance of 
"'compliance guidelines' or instructions . . . [would] assist in 
voluntary compliance and . . . negotiations. . . . "  Mayor and 
City Council of Baltimore v. Mathews, 562 F.2d 914, 922 (4th Cir, 
1977), withdrawn, 571 F.2d 1272, cert, denied, 439 U.S. 862 
(1978) .

Because desegregation problems in colleges and universities 
differ widely from those encountered in elementary and secondary 
schools, the Court of Appeals recognized, in 1973, the need for 
HEW to formulate separate guidelines for the desegregation of 
statewide systems of higher education. Adams v. Richardson, 480 
F.2d 1159 , 1164 (D.C. Cir. 1973). This Court -subsequently ordered 
HEW to "develop final guidelines or criteria specifying the 
ingredients of an acceptable higher education desegregation plan 
within 90 days." Adams v. Califano, 430 F. Supp. 118, 121 (D.D.C. 
1977). Pursuant to that order, HEW developed and filed, on July 
5, 1977, the Criteria Specifying the Ingredients of Acceptable 
Plans to Desegregate State Systems of Public Higher Education.
One month later, these criteria were amended to take into account 
suggestions from the states and, in 1978, the Revised Criteria 
Specifying the Ingredients of Acceptable Plans to Desegregate 
State Systems of Public Higher Education, 43 Fed. Reg. 6658 (1978) 
(Criteria), were published.

-  4 -



Indeed, in issuing the Criteria, David Tatel, then Director 
of OCR, noted that "[t]he goals [of the Criteria] are established 
as indices by which to measure progress toward the objective of 
eliminating the effects of unconstitutional de jure racial segre­
gation. . . 43 Fed. Reg. 6659. Noting that "[t]hese goals are
not quotas . . ."Mr. Tatel wrote that "[flailure to achieve a 
goal is not sufficient evidence, standing alone, to establish a 
violation of Title VI." M. It was always intended that OCR 
would have the authority under the Criteria to "modify the goals 
and timetables." Id.

The Criteria were not intended to operate as regulations with 
the force and effect of law, nor were they promulgated as regula­
tions pursuant to the procedural requirements of the Administra­
tive Procedure Act (APA) , 5 U.S.C. 551 e_t sea., or published for 
comment as a "proposed rule" in the Federal Register. Neither 
this Court nor the Court of Appeals has mandated otherwise.
Indeed, both the Court of Appeals and this Court consistently

*/referred to the need for "guidelines" in this area.”
Viewing the Criteria as non-mandatory guidelines, rather than 

regulations subject to mechanical application, is consistent with
the manner in which the courts and Education" have

V  The Court of Appeals said "HEW has not yet formulated guide­
lines for desegregating state systems of higher learning." Adams 
V. Richardson, 480 F.2d at 1164. This Court remarked that HEW 
should "develop final guidelines or criteria." Adams v. Califano, 
430 F. Supp. at 120.
**/ It is well settled that the agency's interpretation should 
be deemed a prime consideration when determining whether rules 
such as the Criteria are guidelines or substantive regulations. 
Daughters of Miriam Center v. Mathews, 590 F.2d 1250, 1255-56 n. 9 
(3d Cir. 1978); Haddon Township Board of Education v. New Jersev 
Department of Education, 476 F. Supp. 681, 693 (D. N.J. 1979); 1 
K. Davis, Administrative Law Treatise §503 (1958 and Supps. 1970, 
1976). Besides making it clear in the Criteria themselves that it 
considered the Criteria to be merely guidelines, the Department of 
Education has consistently interpreted the Criteria as guidelines 
and not regulations. For example, in the administrative enforce­
ment proceeding against North Carolina's higher education system, 
in which these same plaintiffs were actively involved as inter­
veners, Education stated on several occasions that it viewed the 
Criteria as guidelines and not regulations. The administrative 
law judge agreed and so ruled:

(FOOTNOTE CONTINUED ON NEXT PAGE)

-  5 -



treated similar criteria issued in connection with elementary and 
secondary schools.

Guidelines were issued in the elementary and secondary educa­
tion area to assist such systems in formulating desegregation 
plans. Issued prior to the higher education guidelines, the 
elementary and secondary school guidelines were treated by HEW and 
have been recognized by the courts as policy guidelines —  not 
regulations. See "Revised Statements of Policies for School 
Desegregation Plans under Title VI of the Civil Rights Act of 
1964" 31 Fed. Reg. 5623 (April 1966) (1966 Guidelines); United 
States V. Jefferson County Board of Education, 372 F.2d 836 (5th 
Cir. 1966), rehearing en banc 380 F.2d 385 (1967), cert. denied, 
389 U.S. 840 (1967); Alabama NAACP State Conference Branches v. 
Wallace, 269 F. Supp. 346 (M.D. Ala. 1967).

In Jefferson County Board of Education, supra, 372 F.2d at 
857-858, for example, the Fifth Circuit emphasized the distinction 
between HEW's "policies" and its substantive regulation imple­
menting Title VI —  45 C.F.R. Part 80:

(Footnote continued from previous page)
The history of the Criteria convinces 
me that neither Judge Pratt nor the 
government intended that they have the 
force, and effect of law. . . . Such 
guidelines or interpretations (of Title 
VI) are not binding on the courts —  the 
hallmark of legislative type rulemaking.
Rather, they simply "constitute a body of 
experience and informed judgment to which 
courts and litigants may properly resort 
for guidance." Skidmore v. Swift and 
Co., 323 U.S. 134, 140 (1944).

In Re the State of North Carolina, et al.. No. 79 VI-1, Order 
Ruling on Respondents i'’totion To Dismiss Administrative Proceeding 
and Certifying Certain Questions To The Reviewing Authority at 7 
(October 10, 1979).

-  6 -



The guidelines (i.e., Policies) do not purport 
to be a rule, regulation or order. They con^ 
stitute a statement of policy under Section 
30.4(c) of the HEW Regulations. HEW is under no 
statutory compulsion to issue such statements . . . .  
They are not regulations requiring the approval of 
the President.

Similarly, in Alabama NAACP State Conference Branches v. Wallace, 
supra, 269 F. Supp. at 351, the court stated that the 1966 Guide­
lines were "simply statements of policies," and "were not an exer­
cise of rule-making power and hence do not have the status of
law. "■ The Court also noted that "school authorities may
and should respect the guidelines as a reliable guide to what

-k-k y
the Department's enforcement action should be." W.

As guidelines and not regulations issued pursuant to the APA, 
the Criteria do not carry the force and effect of law. See 
Chrysler Corp. v. Brown, 441 U.S. 281, 313-317 (1979); Brown v. 
Lynn, 385 F. Supp. 986, 998 (D. 111. 1974); Haddon Township Board 
of Ed. V. New Jersey Dept, of Ed., 476 F. Supp. 681, 691 (D. N.J.
1979). They are merely statements of policy, as contemplated by 5 
U.-S.C. §553 (b) (A). As observed by the district court in North 
Carolina v. Dept. of H.E.W., 480 F. Supp. 929, 938 n.6 (E.D. N.C.

^7 Moreover, the status of the guidelines issued in the elemen­
tary and secondary area has been compared to those issued in the 
higher education area. Shortly before the Criteria were published 
in 1977, the Fourth Circuit noted that although HEW had developed 
and published the 1966 Guidelines, it has "failed, however, to 
take comparable action with respect to higher education." Mayor 
of Baltimore v. Mathews, 562 F.2d 914, 922 (4th Cir. 1977), with­
drawn , 571 F.2d 1273, cert. denied, 439 U.S. 862 (1978) (emphasis 
supplied). The Fourth Circuit, echoing the earlier directive of 
this Court, found that comparable guidelines were necessary and 
ordered HEW to provide "final guidelines or criteria specifying 
the ingredients of an acceptable higher education desegregation 
plan for Maryland." M.  at 926.
**/ In 1973, the Court of Appeals specifically referred to the 
Alabama NAACP case when it noted the need for guidelines in the 
higher education area, impliedly recognizing the guidelines as "a 
statement of policies." Adams v. Richardson, 480 F.2d 1159, 1164 
n.9 (D.C. Cir. 1973) (en banc).

-  7 -



(1979), "the criteria can be adjusted to meet unique situational 
realities like those that confront North Carolina's higher educa­
tion system.... (W)e expect that the Secretary will utilize them 
as standards in a practical and flexible manner."

II. OCR has Applied the Criteria in a Meaningful 
and Appropriate Manner to Each State's 
Unique S i t u a t i o n _______________________
A. Plans Accepted From the Second

Tier States Specifically Address 
the Goals Set Forth in the Criteria 
and Provide For Each State's Particular 
Circumstances________________________

This Court and the Court of J^peals specifically identified 
several issues when addressing the problems of desegregating 
formerly ^  jure segregated public higher education systems. The 
Court of Appeals emphasized that integrating higher education 
"must be dealt with on a statewide rather than a school-by-school 
basis." Adams v. Richardson, 480 F.2d 1159, 1164 (D.C. Cir. 1973) 
(en banc). It stressed that the states needed to eliminate 
systemwide racial imbalance, to focus on increasing minority 
representation in professional areas, and to take into account the 
special problems of minority students. M.  at 1164-1165. Fur­
ther, both the Court of Appeals in its 1973 decision and this 
Court in Adams v. Califano, 430 F. Supp. 118 (D.D.C. 1977), 
pointed out that the process of desegregation should place no 
greater burden upon black colleges and their students than upon 
white colleges. Id. at 120. This Court accordingly prescribed 
that HEW must "take into account the unique importance of the 
black colleges. . . . "  when devising criteria for higher education 
desegregation plans. Id.

These principles are reflected in the Criteria developed in 
1977. They are set forth in the introduction to the Criteria:

1. The Criteria will apply to states which 
formerly operated ^  jure segregated (dual) 
systems of higher education;

2. In those states there is an affirmative 
duty to take affirmative remedial steps as 
opposed to adopting neutral and passive 
policies to eliminate the vestiges of the 
formerly dual system;



3. Those states must undertake a statewide 
approach with coordinated planning to 
produce a comprehensive, systemwide 
desegregation plan;

4. The desegregation plans should contain 
specific goals and timetables for 
enrollment and employment and specific 
commitments for the enhancement of 
traditionally black institutions (TBIs);

5. There are special considerations present 
when desegregating higher education which 
make that process different and more 
complex than desegregating elementary and 
secondary education; and

6. The states, in developing their plans, 
must take into account the unique role of 
the TBIs and not place disproportionate 
burdens on black students, faculties and 
institutions.

Revised Criteria Specifying the Ingredients of Acceptable Plans to 
Desegregate State Systems of Public Higher Education, 43 F.R.
6658, 6659-6660 (Feb. 15, 1978).

These principles embody the goals involved in higher educa­
tion desegregation. In determining whether a plan submitted by a 
state is acceptable, OCR examines whether the plan comports with 
the Criteria, as expressed in those legal principles set out 
above, and whether the plan has a reasonable likelihood of accomp­
lishing its purposes.

As envisioned by the Criteria, however, OCR also examines the 
varying circumstances presented by each state's higher education 
system. When it published the Criteria, HEW recognized that they 
"provide specific and effective guidance to the states and at the 
same time, are sufficiently flexible to provide for circumstances 
which may vary from state to state." Criteria, supra, 45 Fed.
Reg. at 6658 (Feb. 15, 1978).

Of necessity, each state requires a specially tailored set of 
remedies. Each state system varies according to the number and 
size of its higher education institutions, its racial enrollment, 
its state racial population and other relevant institutional 
characteristics such as limited missions, limited program offer­
ings and service areas. Some states had several TBIs and signifi­
cant racial separation in enrollment and employment. (Declaration 
55A). Other states had only one TBI. (Declaration ^5A). Some

-  9 -



states had black enrollment in its traditionally white institu­
tions (TWIs) reflecting those institutions' service areas, while 
other states did not. (Declaration f[5A) . The TBIs of some states 
were not the equal of the TWIs in such areas as their academic 
quality, facilities, and program breadth while the conditions at 
TBIs in other states required less enhancement to achieve compar­
ability. (Declaration J5A). Some states no longer have a systemr 
wide violation. (Declaration 55A). Consequently, each state is 
required to develop a plan that would address its particular 
circumstances, considering the violation(s) identified by OCR in 
the letter of findings (LOF) transmitted to the state.

Because the circumstances and the scope of the violation in 
each state differ, OCR has attempted to negotiate plans consistent 
with the nature of each individual state system and the remedy 
required for the particular violation identified. This approach 
could and has resulted in emphasizing one aspect of the Criteria 
less than another, as long as similar remedial results are 
achieved. (Declaration ?[5B) .

For instance, historically, black and white schools in the 
same service area offered identical programs, thereby encouraging 
students to make their enrollment decisions for racial reasons. 
(Declaration 55D). The Criteria therefore call for the elimina­
tion of unnecessary educational program duplication. The elimina­
tion of this unnecessary duplication (by eliminating, merging or 
specializing the programs) is designed to encourage students to 
enroll at the school where the program remains available instead 
of making their enrollment decision for racial reasons.

But the Criteria also require that the unique importance of 
black colleges be taken into account. The Criteria recognize, 
therefore, the need to place new, high demand, unduplicated pro­
grams at the black institution. This type of flexibility permits 
the states some alternative in their choice of remedies. In 
Georgia, for example, OCR approved a plan that called for the

-  10 -



elimination of unnecesary program duplication in two major pro­
grams taught at two schools in the same city, (Declaration 

*/fSD). However, OCR sanctioned Georgia's alternative 
approach of adding attractive, high demand programs -- without 
"eliminating" existing "duplication" —  at its two other black 
institutions.

Similarly, in the state plan accepted by OCR for South 
Carolina, the State promised to create no further program duplica­
tion and to enhance the TBI so that in five years, twenty-five 
percent of the students at the TBI would be enrolled in high 
demand or unduplicated programs. To assist in accomplishing that 
goal, a doctoral program in education was among the nine new high 
demand or unduplicated programs to be added to the TBI. The State 
also committed itself to ensuring the resources necessary for the 
TBI to maintain accredited programs in Engineering Technology,

•k it ̂
Business and Education. (Declaration ?[5F) .

OCR accepted a plan from the State of Florida that would 
address its unique structure. The Florida system is unique 
because 80 percent of its students are enrolled in community 
colleges. (Declaration J5K). Because of this, OCR permitted 
Florida to address Criterion IIB(2) (which requires the states to 
reduce the disparity between black and white entrance rates into 
TWIs from high schools) by committing itself to increase the 
enrollment of black students entering the four-year and upper 
division TWIs, instead of by setting goals for entering freshmen

•k kk ̂
at the senior institutions.

V  In Savannah, Savannah State College eliminated its education 
programs and neighboring Armstrong State College eliminated its 
business programs. These steps did result in shifts in racial 
enrollment. (Declaration 55D).
**/ OCR has permitted other states to follow a similarly 
flexible, programmatic approach to the desegregation of TBIs, 
where a new program development plan, combined with other mea­
sures, appeared to have a reasonable likelihood of success. For 
example, in Virginia, one of the TBIs shares a city with a TWI, 
necessitating a plan for those two colleges which emphasizes 
eliminating unnecessary duplication. The approach for the other 
TBIs in the State is to rely on program enhancement. (Declaration 
55E). Other states plans which emphasize new program development 
at TBIs include the plans of Oklahoma, Kentucky, Florida and 
Delaware. (Declaration 555G-5J).
***/ The need for statewide enrollment goals is more limited 
in some states than others. In Kentucky, for example, blacks 
enter higher education institutions at a slightly higher rate than 
do whites. Where necessary for an institution, however, the goals 
were provided,

-  11 -



In negotiating a desegregation plan with a state, and in 
deciding whether that plan will remedy the violation, therefore, 
OCR considers several factors. These include, among others; (1) 
scope of the violation; (2) geography; (3) necessity for, and 
extend of, institutional participation; (4) degree of 
desegregation; (5) demographics (e ,g. , location); (6) the history 
of each institution; (7) the relative growth of each institution;
(3) the service area; (9) the mission of each institution; (10) 
its course offerings; (11) the quality of the faculty; (12) the 
condition of the physical facilities; (13) the degree to which 
proximate institutions compete for students; (14) the financial 
support received from the State; (15) outside financial support; 
(16) endowment income; (17) the state tax base and the share it 
provides to public higher education; (18) employment factors; and 
(19) structure of the State governing boards. (Declaration ^54, 
6A). OCR considers those factors initially in developing its 
letters of findings (LOFs) transmitted to the states.

Consideration of these factors.is a complex and time 
consuming process. Plaintiffs of necessity are asking this Court 
to review the pertinent characteristics listed above for at least 
the five states which, they allege, departed impermissibly from 
the Criteria. The case of North Carolina illustrates the 
magnitude of the course upon which plaintiffs would have this

embark. When HEW was faced with a decision on the adequacy 
of the proposal made by North Carolina, it chose to initiate an 
administrative proceeding at which approximately 70 witnesses 
testified, some of them for as long as five days. The issue in 
that hearing was essentially the same issue olaintiffs ask this 
Court to decide for each of five states.

-  12 -



Plaintiffs fail to recognize, however, the need to consider
these various factors set forth above in shaping a 

*/remedy.” In attacking the state plans of Kentucky,
Missouri, Delaware, West Virginia and Texas, they simplify the 
approach of examining the adequacy of accepted state plans by 
mechanistic application of the Criteria where defendants have 
taken a complex approach and have conducted detailed and lengthy

★ ★ y'
analyses. The examples set out below demonstrate how
plaintiffs' failure to consider the nexus between remedy and 
violation seriously flaws their analysis.

For example, plaintiffs complain that the plan accepted by 
defendants for Missouri was not acceptable, because only three of 
twenty-eight institutions are included. Only three Missouri 
institutions are included because defendants' investigation demon­
strated that the other institutions already have been desegre­
gated. (Declaration f6I). That determination was based on a 
review of each institution's enrollment and employment and the

* ie it ie y

racial composition of the area it services. Further,

V  Plaintiffs also fail to recognize the wide diversity of 
governing structures in higher education. While some states, such 
as North Carolina, have a single board which operates the state 
system in a centralized fashion, other states, such as Texas (with 
several independent boards) or Virginia and Kentucky (with board 
authority limited to coordination functions), have governing 
structures which are much less centralized. (Declaration ^8). 
Plaintiffs apparently expect, and believe necessary, a profound 
restructuring of higher education in each Adams state. OCR, on 
the other hand, must be prepared to negotiate with those parties 
selected by the governor to develop the state's plan. This may 
include either a centralized board certain of its ability to 
implement necessary commitments, or a board less able to implement 
changes on its own. OCR is without power to require states to 
organize their higher education systems in a highly centralized 
fashion.
**/ OCR's analyses often draw upon outside consultants and 
on-site visits, and involve the review of these diverse 
factors.
***/ Service area data are considered essential in determining 
whether an institution has been desegregated. It is not 
sufficient to note merely that an institution is, for instance, 59 
percent black.

-  13



it was determined that no other institutions were needed in the
state plan for an adequate remedy. Therefore, the focus of the
plan was directed at those three schools in which the vestiges of

*/the formerly dual system remained."
The plaintiffs speculate, however, that in Missouri;

[a] comprehensive state-wide Plan would seek 
to benefit from the presence of a two-year 
institution that appears to be progressing 
toward integration in the region of a 
substantially segregated university by relying 
upon the two-year school as a "feeder” 
institution to help integrate the nearby 
university.

Motion at 17. Plaintiffs are referring to Moberly College, a 
junior college approximately thirty-five miles from the University 
of Missouri at Columbia (UM-C). Moberly College, 15% black in 
1980, has a total enrollment of 901, including 136 blacks. UM-C, 
the state's flagship institution, has an enrollment of 24,579, and 
is 90% white. OCR concluded, with obvious accuracy, that Moberly 
did not have sufficient black enrollment to act as an adequate 
feeder institution. Of course, UM-C still retains the burden of

Plaintiffs make a similar mistake with regard to Delaware, 
again complaining about the failure to address the system on a 
statewide basis, since the community colleges were not included in 
the plan. OCR found that the community colleges were not part of 
the violation, because, as with Missouri, no community college in 
Delaware is racially identifiable in terms of student enrollment, 
when considering service area, nor in terms of faculty employment, 
when considering the availability pool. (Declaration 5 6N). 
However, OCR did direct the state to consider the effect that 
remedial measures applied to one institution, including the 
community colleges, will have on another institution.

A similar flexible approach was taken in West Virginia to 
meet the needs of remedying the violations in that state. Defend­
ants determined that racial attendance patterns at state schools 
were strikingly regional in nature, and that those patterns 
generally reflected the relative racial population of the sur­
rounding countries. (Declaration *I6L) . Thus, the State's plan 
logically and appropriately focused upon the desegregation of WVU. 
Likewise, in Kentucky and Arkansas, enrollment goals vary with the 
racial composition of those counties which make up each institu­
tion's service area. (Declaration 1[̂ 6D, 6F) . Thus, in Kentucky, 
three senior institutions and the community colleges have no goals 
for increasing black enrollments since they have achieved parity 
in their service areas. (Declaration ![6F). In Arkansas, the 
goals range from 0 percent to 42-52 percent depending on the 
racial makeup of the service areas. (Declaration ![6D).

-  14



*/attracting black students. Based upon the facts provided 
to this Court by plaintiffs, it would be impossible to make an 
accurate finding on the alleged need to include additional insti­
tutions in Missouri's plan. To the contrary, OCR's detailed 
consideration of the scope and nature of that state's violations 
has shown otherwise.

In attacking Delaware's plan, plaintiffs allege that there is 
duplication of programs between Delaware Technical and Community 
College (DTCC) and the TBI, Delaware State College (DSC). Motion 
at 14. They offer no evidence to support this assertion, however. 
Ordinarily, two year degree programs at technical and community 
colleges do not duplicate four year degree programs at liberal 
arts schools because their purposes are radically different, and

* * y/
OCR did not find the situation to be otherwise. (Declara­
tion ?[60) .

Plaintiffs also assert that in Kentucky's plan there are 
"absolutely no statewide measures" for student recruitment, 
retention and development. Motion at 9. This assertion is wrong. 
In fact Kentucky promised to adopt statewide retention measures, 
if the institutional measures did not work. Kentucky Plan at

■k it it y

84-85. Also, the need for student recruitment measures
in Kentucky is not- as great as for many other states because -the 
black entrance rate in the State is higher than that for whites. 
(Declaration *[7L) . Plaintiffs' claim that the plan contains only

Plaintiffs also claim that there are two-year and four-year 
institutions in the general vicinity of the other universities 
cited in the LOF, implying that they would be of great assistance 
in the desegregation process. Motion at 17. The facts prove this 
statement to be incorrect. For instanoe. Southeast Missouri State 
University (SEMSU), oited in the LOF, is approximately ninety 
miles away from any other public college. The two community 
colleges approximately ninety miles from SEMSU are .8 peroent and 
4.3% black (with a total of 65 black students). (Declaration 
56K) .
**/ Two year and four year programs being provided in the same 
service area can create competition for students which may inter­
fere with desegregation. OCR is monitoring the situation in 
Delaware. (Declaration ![60) .
***/ Even if the assertion were true, it would not serve to 
indict Kentucky's plan, since such measure can often best be 
developed by individual institutions, absent unusual circum­
stances. (Declaration !I6G) .

-  15



collections of statistical reports and no statewide employment 
plan is also inaccurate. Plaintiff's Motion at 10. To the 
contrary, the plan does contain individual affirmative action 
plans for institutions and statewide bodies. (Declaration «[7M) .

The plaintiffs also allege that defendants circumvented this
Court's order of September, 1981 by granting a provisional accept-

*/ance to the Kentucky plan. Motion at 9.~ They fail to 
grasp, however, the occasional necessity for provisional accept- 
ance of statewide plans.

A state faces tremendous practical problems in developing, in 
a relatively short time, a comprehensive, coordinated state plan 
affecting numerous institutions. (Texas, for instance, has 
thirty-seven senior institutions and 68 technical schools and 
community colleges.) Often, numerous studies must be conducted to 
determine appropriate program placement, examine facilities, 
develop affirmative action plans and formulate enrollment and 
retention measures involved in the long-range planning. As a 
result, most state plans have totaled hundreds of pages. Although 
plaintiffs emphasize the importance of statewide planning, they 
also expect a comprehensive plan to be developed ninety days after 
the issuance of an LOF. Such an unrealistic practice could only 
result in poor planning, confusion, an inability properly to

The Kentucky negotiations were extremely complex. There were 
sixteen negotiation sessions over a twelve month period and OCR 
received 21 written submissions from the State. The negotiations 
did extend beyond this Court's deadline. By December 31, 1931, 
however, OCR was very confident that it would reach an agreement 
with Kentucky. At the same time, it was prepared to initiate 
enforcement proceedings if it became necessary. OCR chose to 
avoid creating a confrontational atmosphere by enforcement pro­
ceedings that might inhibit the negotiations that were quickly 
closing. This choice was upheld. In fact, a plan from Kentucky 
was provisionally accepted by OCR on January 29, 1982. (Declara­
tion 510A) .
**/ Plaintiffs imply that a provisional acceptance is unusual 
and inappropriate. As plaintiffs are well aware, OCR has provis­
ionally accepted numerous state plans in the past, beginning as 
early as OCR's provisional acceptance of the Oklahoma plan in 
1978. On none of these occasions did plaintiffs complain to this 
Court that defendants were circumventing its orders. For example, 
OCR provisionally accepted the Oklahoma plan on February 3, 1978, 
the Virginia plan on toril 14, 1978, and the Georgia plan on March 
14, 1978. OCR also provisionally accepted North Carolina's sub­
mission in 1978, only to reject it later when the conditions 
attached to final acceptance were not satisfactorily met. 
(Declaration 511).

-  16



assess critical factors, and the eventual failure of the desegre­
gation plan. OCR's experience indicates that an adequate "compre­
hensive statewide plan," which can affect as many as 275,000 
students, cannot be developed quickly or easily. Therefore, in
Kentucky, numerous-, complex negotiations have occurred to develop 

*/a fxnal state plan.
Similar lengthy negotiations are occurring in Texas. These 

result from a variety of factors;
o The complexity of the Texas system, with 105 

institutions. The thirty-seven senior 
institutions alone have sixteen separate boards 
of governance.

o The need to revise fifty-four institutional 
student recruitment and retention plans.

o The development of 105 institutional affirmative 
action employment plans.

o The need to negotiate among the many different 
boards within the state.

o The development of student enrollment and staff 
employment goals, alone of all the states, for 
both Hispanics and blacks. (Declaration *[9A) .

The complexity of the Texas situation has required numerous
negotiating sessions and numerous exchanges of documents and
letters; OCR is reasonably confident that a fully acceptable plan
will be achieved in a timely manner. (Declaration S9B).

Lengthy negotiations have also occurred in Pennsylvania. In 
1974, Pennsylvania submitted, and OCR accepted, the State's higher 
education desegregation plan. OCR subsequently reviewed various 
reports and submissions from the State and conducted three on-site 
monitoring visits during the period of 1975-1980. As a result of 
the information gathered during this period, OCR notified the 
State on January 16, 1981, that it had failed to achieve compli­
ance with Title VI under the 1974 plan. (Declaration ?[19A).

V  In Kentucky, there were face-to-face negotiations in 1981 on 
March 1, on July 28, on August 19, 21, and 28, in September, on 
November 20, on December 7, 8, 11 and 15, and in 1982 on January 
6, 10 and 15 and on March 30-31. The State mads written submis­
sions in 1981 on February 10, March 16, June 8, 12 and 16, July 10 
and 28, August 10, 19, 21 and 24, September 1, 22 and 29, December 
4, 8, 23 and 31, and in 1982 on January 6, 10 and 15. (Declara­
tion <[10A) .

-  17 -



Between January and May, 1981, OCR met with officials of the 
State concerning a revised plan. On May 27, 1981, the State 
affirmed its commitment to supplement its 1974 plan and proposed 
specific time frames within which it intended to accomplish addi­
tional steps necessary for the final development and submission of 
its supplemental plan. (Declaration ?[19C) .

On September 30, 1981, the State forwarded its 1981 Supple­
ment to the 1974 plan. On December 18, 1981, OCR notified the 
State that the Supplement was incomplete in major areas and 
included a point-by-point analysis for the further guidance of the 
State. Pennsylvania was asked to submit a revised plan, which it 
did on February 25, 1982 (the Mdendum) . (Declaration ?[19D).

On March 18, 1982, OCR's regional office notified the State 
that, because of the state's continued deferral of a plan for the 
enhancement of Cheyney State, the 1982 Addendum was not an accept­
able plan for compliance with Title VI, and that, if an acceptable 
plan was not submitted, enforcement proceedings would be recom­
mended. (Declaration fl9E). As a result, on April 16, 1982, the 
regional office wrote the State informing it,that the region was 
recommending the initiation of enforcement proceedings. (Declara­
tion I19E) .

On May 6, 1982, the State wrote OCR to report on progress 
toward the enhancement of Cheyney State. Enhancement efforts at 
Cheyney State have been delayed, however, while the State seeks to 
appoint a new president of the college. (Declaration ^191) .

In late April 1982, the Assistant Secretary for Civil Rights, 
Clarence Thomas, left the Department of Education and Acting 
Assistant Secretary, Harry M. Singleton, assumed his duties and 
responsibilities. As is his prerogative as the new Assistant 
Secretary, Mr. Singleton is reviewing the situation in Pennsyl­
vania's system of higher education. (Declaration ^19G).

Plaintiffs have miscomprehended and misapplied the principles 
of the Criteria. Neither the Criteria nor applicable law require 
the states to adopt unneeded remedial measures. To the contrary, 
defendants have ensured that the plans adopted are properly 
tailored to the problems identified in the LOFs. Plaintiffs' 
attempt to attack those plans, based on a mechanistic application

-  18 -



of the Criteria and without the detailed knowledge of each indi­
vidual state system with which OCR has negotiated, is unsupported 
and should be rejected by the Court.

B. OCR has Monitored the States' Efforts 
to Implement Desegregation Plans and 
Has Taken Appropriate Steps to Cure 
Specific Implementation Difficulties 
in Particular States.________________

Plaintiffs assert that "despite evidence of noncompliance 
with state plans and Title VI, defendants have neither imposed 
more stringent requirements nor initiated enforcement proceedings 
against the "first tier" of Adams states." Motion at 20. This 
allegation is unwarranted.

First, OCR has continually monitored compliance by the "first 
tier" states. OCR maintains staff to monitor and review compli­
ance by each state with its plan, by conducting, among other 
things, detailed analyses of statistical and narrative reports, 
which analyses costs approximately $250,000 per year. (Declara­
tion fl3). OCR provides evaluation reports to each state summar­
izing its progress under its desegregation plan. If a state does 
not meet its yearly goals, if it does not carry out a commitment 
contained in its plan, or if the situation in the state has been 
altered, OCR seeks an explanation for the problem and often 
require the state to implement additional and/or more stringent 
measures designed to improve compliance. (Declaration ^12). In 
particular, defendants have issued two evaluation letters to each 
of the states specifically detailing flaws or omissions in each 
state's implementation efforts, demanding specific steps to 
correct the problems, and often providing guidelines outlining the 
necessary improvements. (Declaration 5[13) .

Second, OCR has found that it is important to allow time for 
full implementation of the plans. From 1977 to 1979, OCR engaged 
in complex and lengthy negotiations with each state. The product 
of those negotiations in each instance was a five-year plan, due 
to expire at the end of the 1982-83 academic year, which OCR

19



found had a reasonable likelihood of desegregating each state's 
higher education system. Each plan contained a complex, 
interrelated set of measures which deserved and required time to 
be developed, implemented, and accepted by students, faculty and 
others. These plans, therefore, most properly can be measured at 
the conclusion of the five-year period.

Third, OCR has sought additional requirements when appro- '
P-C'iste, and generally has requested remedial action from a state

*/when dissatisfied with its performance." For example, in 
Florida, OCR has attempted to monitor and secure implementation of 
its plan by means of written correspondence, meetings, on-site 
reviews and reviews by OCR of statistical and narrative annual 
reports provided by the State. On January 15, 1981, OCR notified 

of the following deficiencies: rates of high school grad­
uates who would attend college; the number of black students 
entering upper divisions at the TWIs; the number of black under­
graduates at TWIs; white enrollment at the TBI; desegregation of 
faculty at the TWIs; recruitment programs for black students; 
retention studies and measures for increasing the retention rate 
of black students; establishment of new programs at the TBI; the 
elimination of program duplication; the completion of a facilities 
study; and procedures to assess the possible adverse impact of 
proposed changes on black students. OCR demanded that Florida 
take steps to respond to these problems. (Declaration fl4C).

Florida officials initially responded by denying OCR's list 
of deficiencies. After a series of meetings in the spring of 
1981, however, Florida officials provided OCR with: new commit­
ments and revisions of the student recruitment procedures; impact 
assessments; new programs and other measures designed to enhance 
the TBI; completion dates for the physical plant facilities stud­
ies; establishment of interim retention goals; revised enrollment 
projections for new programs at the TBI: and a description of 
methods for measuring progress toward achieving stated goals.
Thus, in Florida, OCR sought and obtained the corrective action it 
found was required after reviewing Florida's compliance status.

V  OCR is not required by the Criteria to take a particular, 
specified action. The decision is left to OCR's discretion.

-  20 -



(Declaration ^14S) , Plaintiffs' repeated general assertions to 
the contrary are unfounded.

Negotiations to ensure compliance are continuing. On Septe.m- 
ber 11, 1981, OCR sent Florida a second evaluation letter after 
reviewing Florida's submissions and conducting on-site inspec­
tions. The letter addresses three additional areas of deficient 
plan imple.mentation: black enrollment; impact assessments; and 
reporting and analyses of progress and monitoring. OCR subse­
quently met with Florida officials to discuss the problems identi­
fied in this letter. (Declaration 1[14F) . A third evaluation 
letter will be issued this fall. (Declaration 514G).

Defendants have followed the same course of action in 
Georgia, Virginia, Arkansas and Oklahoma as in Florida. That is, 
OCR reviews the statistical and narrative submissions of the 
state, conducts on-site investigations if necessary, and then 
issues an evaluation letter designed to catalogue the concerns OCR 
has identified and to request that alternatives be developed or 
that particular attention be paid to specific problems. OCR also, 
when appropriate, identifies remedial possibilities for the state 
to follow.

For example, OCR's 1980 evaluation of Arkansas' first year of 
its plan implementation resulted in the identification of two 
major deficiencies in its plan —  delays in the implementation of 
expanded masters degree programs at the TBI and a growing dispar­
ity in the rate at which black and white students enter public 
higher education for the first time. OCR requested a timetable 
for the expansion of masters offerings and a description of addi­
tional measures the State would implement to reduce the disparity 
in college-going rates. OCR also identified defioiencies in: 
undergraduate enrollment at the four-year TWIs; entry rates to 
graduate programs; the development of an in-depth study on the 
transfer of students; and academic employment. (Declaration 
515A).

-  21 -



Arkansas responded by promising two recruitment and financial 
aid measures to decrease the disparity in entry rates to under­
graduate institutions, as well as promising to increase black 
undergraduate enrollment at the TWIs, to develop revised graduate 
enrollment goals, and to initiate an in-depth study of the trans­
fer of students. In April 1980, OCR and State officials met and 
agreed on methods for measuring progress toward goals contained in 
the plan. (Declaration fl5B).

Thus, it is clear that defendants have not "totally ignored 
their responsibilities" as plaintiffs allege. Motion at 20. 
Moreover, enforcement proceedings are a measure of last resort. 
They can create a hostile, confrontational atmosphere which often 
inhibits the inplementation and success of any remedial approach. 
As a result, OCR has found it would be inappropriate to initiate 
enforcement proceedings prior to the completion of the five-year 
plan unless it is determined that the plans are not being carried 
out in good faith.

IV. CONCLUSION
OCR has consistently monitored the efforts of the states to 

comply with Title VI. It has taken steps in each instance in 
which it found further action was required to carry out the goal 
of desegregation of higher education institutions. These efforts 
are based on Education's knowledge and experience in dealing with 
each state's higher education system and are supportable exercises 
of discretion. Relying on that judgment, it found that no state's 
performance has yet required the commencement of an enforcement

,. Vproceeding.
Moreover, the plans accepted for Delaware, Kentucky, West 

Virginia and Missouri comply with the Criteria. These plans are 
based on the nature of each state's violations and unique circum­
stances found within each state. Plaintiffs' factual allegations 
fail to show otherwise and do not justify the relief requested.

V  It should be noted, however, that OCR's concern with 
Virginia's performance caused it to transmit a letter on June 3 to 
the state summarizing the continuing problems with the plan's 
implementation and requesting additional information and actions 
designed to cure the problems. In that letter, Virginia was 
expressly warned that the regional director intended to recommend 
the initiation of enforcement proceedings if efforts of voluntary 
negotiations should fail, (Declaration 5 I8J).

-  22 -



For the foregoing reasons, plaintiffs' motion should be 
denied.

Respectfully submitted,
J. PAUL MCGRATH 
Assistant Attorney General
STANLEY S, HARRIS 
United States Attorney

OF COUNSEL;
JUDITH A. WINSTON 
Assistant General Counsel
FELIX V. BAXTER 
Senior Attorney 
Department of Education
WILLIAM MICHAELS 
KATHLEEN S. DEVINE 
Attorneys
Office for Civil Rights

DAVID J. ANDERSON

RICHARD A. LEVIE

BETSY J. GRi'y /
Attorneys, iWpartment of Justice 
10th & Pennsylvania Ave., N.W. 
Washington, D.C. 20530 
Telephone: (202) 633-3428
Attorneys for Defendants

-  23 -



IN THE UNIT0 STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al_., 

Plaintiffs

V.

TERREL BELL, ^  a]_., 

Defendants

Civil Action No. 3095-70

DECLARATION IN SUPPORT OF DEFENDANTS' REPLY 
TO PLAINTIFFS' MOTION FOR FURTHER RELIEF

Julia Dobbs hereby declares and states:

1. I am the Chief of the State Systems Desegregation Branch, 

Postsecondary Education Division of the Litigation, Enforcement and 

Policy Service for the Office for Civil Rights (OCR) in the Department 

of Education (ED), I have held this position since November 30, 1980.

In my capacity as Branch Chief, I am responsible for the enforcement of 

compliance with Title VI by state systems of public higher education.

2. Based on my personal knowledge and on information provided to me 

by my staff, I make this declaration in support of ED's Reply to Plaintiffs' 

Motion for Further Relief.



3. In deciding to accept the state plans for the desegregation of the 

public higher education systems in Oklahoma, Arkansas, Virginia, Georgia, 

Florida and Delaware, OCR determined that each state plan had a reasonable 

likelihood of leading to the desegregation of each state's system of public 

higher education, as required by Title VI. Further, OCR determined that the 

plans submitted by Missouri and West Virginia had a reasonable likelihood of 

leading to the desegregation of the institutions OCR had identified as retain­

ing vestiges of de jure segregation, as required by Title VI.

4. OCR believes that neither: (1) the adequacy of a state plan nor

(2) the relative success of a state in desegregating its institutions can be 

determined on the basis of the facts offered by plaintiffs. In order to 

make a proper and adequate determination of either of those two questions, a 

detailed and thorough examination of the state's system is necessary. For 

instance, plaintiffs allege that fewer blacks enrolled in the Georgia system 

in 1980 than in 1977. Motion for Further Relief at 29. That fact alone is 

insufficient to determine whether Georgia is implementing its plan provisions 

relating to increasing black enrollment. Among the other facts necessary to 

make a proper determination on the acceptability of Georgia's efforts to 

implement this portion of its plan include: demographics (for instance,

Georgia's overall college enrollment has declined), the state and national 

economic situation and its effect on college going rates, the enrollment of 

blacks in private collages, the number of blacks attending out-of-state 

schools, the number of blacks choosing alternative careers, the number of 

blacks planning to delay college attendance for financial reasons, the avail­

ability of financial aid, etc. None of these essential facts is provided by 

plaintiffs.

- 2-



b. OCR believes that, when determining the adequacy of a state plan or 

the success of a state plan, the following factors relating to each institution 

or to the entire system are important (though this list is not inclusive):

(1) The history of each institution, including when it was founded, its 

various missions, etc.

(2) The relative growth of each institution.

(3) Its geographic location.

(4) Its service area (from which it draws its students).

(5) The mission of each institution.

(6) Each institution's course offerings.

(7) The quality of the faculty.

(8) The-condition of the physical facilities.

(9) The degree to which proximate institutions compete for students.

(10) The financial support received from the state, past and present.

(11) Outside financial support, past and present.

(12) Endowment income.

(13) The state tax base and the share it provides to public higher 

education.

(14) Demographic considerations, including population growth trends.

(15) The quality of the libraries.

(16) Future program needs.

(17) Employment factors including availability pools,

(18) Indicators of college success.

(19) Racial enrollment statistics.

(20) Future employment needs by employers.

(21) .The structure of the state governing boards.

- 3-



FLEXIBLE APPLICATION OF THE CRITERIA

5.a. In negotiating desegregation plans for state systems of higher 

education, OCR has encountered widely divergent circumstances which required 

OCR and each state to negotiate a specially designed plan. For instance, 

in states such as North Carolina and Georgia, the enrollment and employment 

data indicated that the institutions were racially separate, probably, in part, 

because of the numerous traditionally black institutions (three in Georgia 

and five in North Carolina). Other states, such as Kentucky or Oklahoma 

faced less-difficult problems, probably, in part, because each had only one 

TBI. For various reasons, many of the traditionally white institutions in 

such states as West Virginia, Kentucky and Missouri had racial enrollments 

that reflected the racial makeup of the area from which each institution 

drew its students (service area). Furthermore, OCR found that two states 

(Missouri and West Virginia) did not have system-wide violations. Last, the 

condition of the TBIs in some states, such as Delaware and Kentucky, did not 

require the degree of enhancement that was necessary in states such as Georgia 

and Virginia.

b. As a result of the varying circumstances existing in each state,

OCR's approach has been to seek remedies which it felt would best respond to 

the structure of each state system and the needs of each individual institu­

tion. Often, one of the provisions of the Criteria would less successfully 

serve that end than would another. Thus OCR permitted each state to rely 

less heavily on one provision of the Criteria, if emphasis on other provisions 

was more appropriate.

-4-



c. OCR considers the Criteria to be guidelines to be used by each state 

to assist it in developing a state-wide, comprehensive desegregation plan for 

its system of public higher education. OCR has applied the Criteria flexibly 

to assist the states in developing remedies appropriate to the particular 

circumstances existing in each state. Thus, OCR has permitted each state to 

develop a remedy responsive to the identified violations of Title VI.

Examples of instances where OCR has applied the Criteria flexibly include, 

but are not limited to, the following;

d. For Georgia, OCR approved a plan which emphasized the elimination 

of educationally unnecessary program duplication (Criterion IC) between one 

traditionally black institution (TBI), Savannah State College (SSC), and one 

traditionally white institution, Armstrong State College (ASC), located in 

the same city. SSC eliminated its education programs and ASC eliminated its 

business programs. OCR and the State' believed that this measure would 

encourage students interested in education or business to enroll at the 

institution where the program was offered. In OCR's opinion, the program 

shift would operate to increase other race enrollment in each school. OCR, 

at the same time, approved of Georgia's approach of adding attractive high 

demand programs at each of the State's two other TBIs, Albany State College 

and Fort Valley State College. OCR believed that the addition of seven new 

degree programs at Albany State and five new degree programs at Fort Valley 

State, along with numerous other enhancement measures (Criterion IB), would 

enhance the quality of each school, thereby attracting students for reasons 

other than that school's racial identity. See Georgia plan document on 

enhancement (10/19/78).



8. For Virginia, OCR approved a plan calling for the specialization of 

certain degree programs and the elimination of certain educationally unneces­

sary program duplication at a TBI, Norfolk State University, and a neighboring 

TWI, Old Dominion University. Virginia's plan emphasized the addition of 

eight new, high demand programs at Virginia State University, the State's 

other TBI, as one means of enhancing that institution. Virginia plan at 1-39 

(1/6/79); Virginia plan at 13-19 (12/21/78).

f. South Carolina's plan called for the avoidance of further program 

duplication and the enhancement of the TBI by adding nine new, high demand 

or unduplicated programs, including an Ed.D. (The Ed.D is the first doctoral 

program awarded a TBI as a result of state-wide desegregation efforts.) The 

State also promised to provide the necessary resources to meet professional 

accreditation standards in Engineering Technology, Business and Education 

programs at the TBI. Tne State's goal is to have 25% of the students enrolled 

at the TBI in nigh demand or unduplicated degree programs within five years.

OCR and the State believed that these actions could assist in the desegrega­

tion of the State's system. South Carolina plan at 19-22, 27-35, 35A (7/17/81).

g. Oklahoma's plan focussed on the redefinition of the TBI's mission V  

by adding several programs related to urban studies. OCR and the State

felt that this approach would create a school with an unusual and attractive 

set of degree offerings. Oklahoma Plan at 28-35 (9/78).

V  An institution's mission can be defined as the major purpose or purposes of 
the institution (e.g., teachers preparation, research, graduate education, etc.



h. Florida's plan, as it was amended in April 1981, called for the 

addition of high demand or unduplicated programs at the TBI so that 40% of 

the TBI's students would be enrolled in high demand or unduplicated programs. 

Letter from Barbara Newell and Ralph Turlington to Fred Cioffi at 3 (4/1/81).

i. Kentucky's plan set a goal of 30% of the TBI's student to be enrolled 

in high demand and/or unduplicated programs by 1986. Kentucky plan at 70.

The State's emphasis is on providing the TBI with unique programs and on 

emphasizing a state government service mission (public administration), 

rather than on eliminating educationally unnecessary program duplication. 

Kentucky plan at 31-33, 60-61.

j. Delaware's higher education system is unique. There are only two 

public four-year institutions in Delaware, a small liberal arts undergraduate 

college (the TBI, with an approximate enrollment of less than 2000), and a 

large doctoral granting institution (the TWI, with an approximate enrollment 

of 15,000), and one community college (DTCC) with four campuses. Both senior 

institutions serve the entire state. The State has no public professional 

schools, only one public graduate institution, and one teacher education 

oriented institution. The remedy for the State required recognition of the 

fact that the TBI and the TWI have significantly different missions. OCR 

acknowledged the possibility that the elimination of duplication may not 

have a significant effect because of the vast differences between the TBI 

and the TWI. As a result, OCR permitted an emphasis on program enhancement

at the TBI, rather than on elimination of duplication. Delaware plan at 10-16.

k. Because Florida's system has a unique structure (80% of its students 

are enrolled in the community colleges), OCR agreed that Florida's approach 

for addressing Criterion II B(2) could be different than for other states.

- 7-



(Criterion II B(2) requires a state to reduce the disparity between black 

and white entrance rates into T/JIs from high schools.) OCR approved of a 

plan that set Criterion IIB(2) goals for entrance of black first time entrants 

into both four year and upper division TOIs. Letter from Ralph Turlington 

to Fred Cioffi at 1-2 (4/17/81).

l. OCR approved of a different method for Oklahoma to approach Criterion 

IIA. (Criterion IIA requires parity in black and white entrance rates into 

higher education.) Rather than comparing the proportion of black and white 

high school graduates who enter the State's system of public higher education, 

Oklahoma committed to "....parity in the enrollment of first-time entering 

black undergraduates in public institutions of higher education, using as a 

basis black twelfth grade enrollment in Oklahoma high schools the previous 

year." Oklahoma plan at 19 (9/5/77).

m. OCR permitted Arkansas to compute the black and white high school 

graduate entrance rates into the system's colleges by using twelfth grade 

enrollment figures, rather than the graduation rate figures specified in 

Criterion IIA, Arkansas did not have available data on high school graduation 

rates for use in computing compliance with Criterion IIA. Arkansas plan at 

55, 58.

n. In Kentucky, blacks enter higher education at a slightly higher rate 

than do whites. Kentucky plan at 73. As a result, the enrollment goals of 

Criterion II A were not considered as essential as in other states.

THE REMEDY MUST FIT THE VIOLATION; STATE PLANS REQUIRE
--------THAT I N'ST I TUT rO'N’S'' 8 EAR’ " VAR VING Bu RD E n S "BASIT)

------ON THE CIRCUM STANCES’ FOUND IN EACH STATE"'

6.a. OCR has emphasized with each state the need for a state-wide com­

prehensive plan where there was a state-wide violation. OCR, when considering



the appropriate remedy for the identified violation, must be aware of such 

factors as geographic location of institutions, the degree of institutional 

participation, demographic characteristies, amount of racial separation and 

other factors.

b. Because of the complicated circumstances found in each state, when 

investigating a state system, and then when attempting to negotiate a state 

plan, OCR, often with the assistance of outside experts, reviews numerous 

factors including; enrollment, service areas, attendance patterns, financial 

support, physical facilities, faculty experience, academic mission, depth 

and breadth of academic programs, state tax base, state appropriations, state 

economic situation, enrollment trends, etc.

c. Each plan accepted by X R  contained the remedies it concluded were 

necessary to respond to the violations of Title VI, and is designed in 

consideration of the relevant factors. X R  has not required that each 

remedial measure be state-wide in scope or operate on a state-wide basis.

OCR has required that the totality of the remedies have the effect of ad­

dressing the system-wide violations, and that the states, not the institutions, 

assume the ultimate responsibility for ensuring that the remedies are effectuated 

and that they result in desegregation. V  OCR has not required a state to

adopt remedies where no particular violation exists or where a violation has 

previously been eliminated. As a result, each state's plan places varying 

burdens on its institutions as are necessary to lead to the successful desegre­

gation of the system or the institution. Further, OCR has not required that 

every recruitment, retention, employment and enhancement measure be state-wide, 

since it believes that institutional measures may often be best developed

V  OCR's duty is to ensure that the states properly carry out that responsibility.

- 9-



and implemented by individual institutions. Examples of OCR's approach, 

which permitted each state to develop its remedy to be responsive to the 

identified violation, are provided below.

d. Arkansas' plan contains commitments to a state-wide goal that 15% 

of first-time entrants be black. However, individual institutions have goal 

ranges based on the racial composition of their service areas. Thus, for 

instance, Phillips County Community College has a goal range of 42-62%, 

while North Arkansas Community College has a goal range of 0% (no significant 

number of blacks in the service area). Arkansas plan at 59, 51.

e. The Florida plan also permits variance in the black enrollment at 

the TVlIs, since local racial composition, commuting possibilities, etc. 

affect attendance rates. Thus, individual institution goals ranging

from 8.2% to 16.8% have been adopted. Florida plan at 66.

f. In Kentucky, three senior institutions and the community colleges 

have no goals for increasing black enrollment. OCR did not seek such goals 

for those institutions since they had already achieved racial parity in 

their respective service areas. Kentucky Letter of Findings at 5 (1/15/81).

g. Kentucky has made the appropriate commitments to improve student re­

tention (Kentucky plan at 84-85), faculty hiring (Id. at 92-98; j_d. at

App. IVB) and appointments to governing boards (Id. at 99). Many of these 

commitments can be best developed and carried out by individual institutions.

h. Kentucky has also promised to resolve issues of educationally unneces­

sary program duplication in favor of fulfillment of the TBI's enhanced mission. 

Id. at 68-69.

-10-



i. In Missouri, OCR concluded that there was no state-wide violation, 

thus no state-wide plan was necessary. Institutions which were already 

desegregated were not required to submit remedial measures. Instead, only 

three institutions were included in the plan, since only three institutions 

required desegregation. This determination was based on OCR's analysis of 

data and on-site reviews, including information relating to each institution's 

enrollment and employment, and the racial composition of each institution's 

service area. Missouri Letter of Findings at 3 (1/15/81).

j. OCR also concluded that there was no college near the University of

Missouri-Columbia (UMC) which could act as an adequate feeder to UMC. For 

instance, Moberly College, a community college approximate!y 35 miles from 

UMC, had an enrollment of 901 in 1980. Of that enrollment, 136 students, or 

15%, are black. OCR HEGIS 2300 2.3 (1980). UMC, the state's flagship institu­

tion, has 24,579 students (90% white). OCR believes that Moberly College

does not contain sufficient black enrollment to act as a feeder institution

to UMC. Furthermore, the next closest community college is State Fair Com­

munity College (an estimated 50 miles from UMC). It, however, is only 2.8% 

black. Id.

k. Another P.JI, Southeast Missouri State University, is within approxi­

mately 90 miles of two small community colleges. However those schools have 

enrollments that are .8% and 4.3% black (a total of 65 black students).

OCR HEGIS 2300 2.3 (1980). Again OCR concluded that neither school could be 

an effective feeder institution. For that reason, those schools were not 

included in the Missouri plan.

l. OCR also concluded that there was no state-wide Title VI violation 

in West Virginia. X R  found that a substantial proportion of black students

-11-



(52%) were enrolled in P/lIs by 1 978. With the exception of West Virginia 

University, OCR determined that the attendance zones for state institutions 

were highly regional, with the majority of in-state enrollees coming from 

the counties surrounding the institution. OCR then determined that black 

attendance rates at each institution essentially reflected its service area 

population of blacks. Additionally OCR determined that the TBIs (Bluefield 

State College and West Virginia State College) were integrated, with black 

enrollments of 16.3% and 20.9% respectively. West Virginia Letter of Findings 

at 2 (1/7/81).

m. West Virginia University (WVU) had a 1.1% black enrollment in 1978. 

Also, only 1.3% of the faculty and 1.9% of the administrators were black.

West Virginia Letter of Findings at 4. Thus OCR concluded that the focus of 

the desegregation plan should be on WVU and not on the institutions which

no longer were racially identifiable. OCR concluded that the plan submitted 

by West Virginia for WVU adequately responded to the violation identified by 

OCR.

n. X R  concluded that the Delaware community colleges were not racially 

identifiable and that they were not established as part of the de jure segre­

gated system; thus, the community colleges were not included in Delaware's 

plan. OCR's determination was based on a number of factors including student 

enrollment, service area population, faculty employment and employment avail­

ability pools. Despite the fact that X R  did not require the inclusion of 

the community colleges, OCR did request that the State consider the effect 

that remedial measures applied to one institution will have on other institu­

tions in the same service area. Delaware Letter of Findings at 6 (1/15/81).

-12-



0 . OCR has considered the possibility that there is educationally un­

necessary program duplication in Delaware between the community colleges 

and the TBI. Hov^ever, OCR believes that, for the most part, two year degree 

programs at community colleges and technical schools in Delaware do not 

duplicate four year degree programs at liberal arts colleges. The missions 

of the schools are different, thus the content and approach of the programs 

is different. Although two year and four year programs in the same service 

area can cause competition between institutions for students and, thus, 

interfere with desegregation when those institutions have different racial 

identities, OCR concluded that the problem did not exist in Delaware.

p. OCR is aware that recently the University of Delaware (the TWI) has 

proposed to offer programs at Delaware Technical and Community College.

Because of OCR's concern that the offerings might interfere with the further 

desegregation of Delaware State College, OCR and the State have been involved 

in discussions of the effect of this proposal on Delaware's plan. Thus, 

neither defendants nor the State are ignoring the relationship of the com­

munity colleges to the senior institutions.

PLAINTIFFS' MOTION CONTAINS NUMEROUS ERRORS

7. Plaintiffs' Motion for Further Relief contains numerous errors of 

fact and misleading statements. Examples of those errors of fact and 

misstatements include:

a. Plaintiffs claim ED has not compelled Texas to meet the requirements 

of the Criteria. Motion at 11. In fact, in OCR's January 15, 1981 letter, 

the information identified as necessary for an adequate plan comports with the

-13-



Criteria. Further, OCR's August 10, 1981 letter to the State detailed the 

deficiencies in the plan by using the Criteria as a standard.

b. Plaintiffs state that Arkansas' Fall 1981 annual report notes a

decrease in the proportion of black students who graduated from two-year 

colleges and entered four-year institutions from 59.4% in 1977-78 to 23.1% 

in 1979-80. 22. Plaintiffs neglect to note that the white student

transfer rate has fallen from 36.8% to 21.9% and is, thus, lower than the 

rate for blacks. Arkansas Fall 1981 Annual Report at 11, Table 9.

c. Plaintiffs claim that, in Arkansas, the black graduate enrollment 

has declined from 1977 to 1980. Id. at 22. In fact, the black graduate 

student enrollment has risen from 4.7% in 1977-78 to 7.6% in 1980-81. OCR 

HEGIS 2300 2.3 Supplement.

d. Plaintiffs claim that blacks were 10.3% of the masters recipients

in Arkansas in 1978-79, but only 5.3% of the administrative and 4.7% of the 

faculty new hires in 1979-80, _I1* 23. However, Arkansas has infonned

OCR that it requires a doctoral degree for faculty employment. In 1979, 

4.3% of the doctoral degree granted were granted to blacks, compared to 

4.7% of the faculty new hires. OCR 5000 Survey and EEO-6 reports.

e. Plaintiffs state that Virginia has no state-wide and state-funded

programs for recruitment and retention of black students. at 24. In

fact, Virginia's plan contains, and the State is implementing, the Summer 

Undergraduate Programs for Minority Virginians, the Doctoral Program for 

Minority Virginians and the Enrollment Scholarship Incentive Grant Program. 

Virginia plan at 67, 87 (3/16/78).

- 14-



f. Plaintiffs note that Virginia is not achieving its numerical enroll­

ment goals, yet claim that OCR has not requested that Virginia take remedial 

action. Motion at 24-27. Actually, OCR's November 17, 1981 evaluation letter 

asks the State to "... describe alternative or additional steps the Commonwealth 

and the institutions will take to meet black student entrance objectives

At 2-3.

g. Although plaintiffs note the decline in white enrollment at Virginia 

State University from 191 in 1 978 to 1 51 in 1980 (from 8.7% to 8.2%), _Id. at 

27, they fail to point out that white enrollment at Norfolk State (the other 

TBI) has risen in that period from 4.2% to 6.8%. Letter to Secretary Gilley 

from Regional Director Dewey Dodds at 16 of the Attachment (11/17/81).

h. Plaintiffs note that black enrollment at the graduate level in Georgia 

has decreased. Motion at 30, but they do not inform this Court that black 

graduate enrollment in Georgia exceeds the proportionate graduate rate by

blacks at the bachelor's level. Evaluation letter. Status Report at 19 (5/20/82).

i. Plaintiffs imply that OCR has not required further remedial measures 

from Oklahoma to assist in achieving enrollment goals and reducing retention 

rate disparities. Motion at 31-33. OCR's evaluation letter of August 26, 1981 

requested that the State take steps to improve implementation of existing 

programs or implement additional measures. At 2.

j. Plaintiffs claim that there was a substantial decline of black first-time 

freshmen in Florida from 3,429 in 1977 to 2,971 on 1980. 21. at 36. OCR is

not aware of the document plaintiffs used to obtain these figures. OCR data 

indicate that there were 8,799 black first-time freshmen in 1977-78 and 7,034 in 

1980-81. The number of black high school graduates in Florida, however, also 

has declined, by 2,050 students (approximately 12%). Florida Desegregation

-15-



Status Report, 1977-73 and 1978-79; Students in Florida Public Schools,

Status Report (Fla. Dept, of Educ. (5/81).

k. Plaintiffs state that five of Florida's nine senior institutions 

provide only upper division and graduate programs. Id. at 37. Actually, three 

of nine senior institutions do so.

l. Plaintiffs state that there are no state-wide measures for student 

recruitment, retention and development in the Kentucky plan. JW. at 9.

However, Kentucky has promised to adopt state-wide measures if the institu­

tional measures do not work. Kentucky plan at 84-85. It should also be 

noted that the need for student recruitment measures in Kentucky is less 

severe, since black entrance rates in Kentucky are higher than the entrance 

rates for whites. Id. at 73.

m. Plaintiffs' claim that the Kentucky plan contains only statistical 

reports instead of state-wide employment plans is misleading. Id. at 10.

The plan does contain affirmative action plans for individual institutions 

and state-wide bodies. Kentucky plan. Appendix Tables IV A and IV B; Institu­

tional Affirmative Action Plans.

NEGOTIATIONS BETWEEN OCR AND A STATE 
OFTEN ARE LENGTHY AND Ca'lPLICATED

8. One of the difficulties OCR has faced in negotiating state plans is 

the divergent structures of the entities that govern higher education in each 

state. States with centralized governing boards often find it easier to 

develop state-wide plans than do states with no centralized board of governance. 

The less centralized governing structures often require longer to properly 

design and coordinate a system-wide plan. For instance the governing structure 

of Virginia is decentralized and Kentucky's board has limited ability to

-15-



assart its authority. Although thera is a central board in Texas, there are 

also many independent boards of governance with '̂ hich the centralized board 

must communicate. Other boards of governance, such as North Carolina's or 

Georgia's possess greater immediate authority. The varying types of struc­

tures have affected the amount of time required to develop an acceptable 

desegregation plan.

9. a. Although the negotiations involving Texas have been extremely lengthy, 

the Texas situation is very complicated. The system contains 105 institutions, 

including 37 senior institutions with 15 governing boards. The plan negotia­

tions have required Texas to develop 105 institutional affirmative action 

plans, revise 54 student recruitment and retention plans and develop enroll­

ment and employment goals for both blacks and Hispanics. Also, because of

the unusual structure of the Texas system, efforts to enhance the TBIs often 

require discussions with different state boards.

b. Because the negotiations have been so complex, the State and OCR 

have met on numerous occasions and have transmitted numerous documents and 

letters.

10. a. The Kentucky negotiations were extremely complex. There were fif­

teen negotiating sessions (in 1981, on March 17, July 28, August 19, 21, and 

28, in September, on November 20, December 7, 8, 11, and 15; in 1982, on 

January 5, 10, and 15 and March 30-31). OCR also received 21 written submis­

sions frcm the State (in 1981, on February 10, March 15, June 8, 12 and 15,

July 10 and 28, August 10, 19, 21, and 24, September 1, 22 and 29, and De­

cember 4, 8, 23, and 31; in 1982 on January 5, 10 and 15).

b. The Kentucky negotiations did, indeed, extend beyond this Court's dead­

line. However, by December 31, 1981, OCR was very confident that it would

•17-



reach an agreement with Kentucky. At the same time, it was prepared to 

initiate enforcement proceedings if it became necessary. An enforcement 

package had been prepared. OCR chose to avoid creating a confrontational 

atmosphere, which it felt might cause negotiations, which were fast closing 

on an acceptable remedy, to break down. OCR's confidence was appropriate.

A plan from Kentucky was provisional ly accepted by OCR on January 29, 1 982.

11. OCR's provisional acceptance of the Kentucky plan is not unique. 

Previously, OCR has provisionally accepted plans from Oklahoma on February 3, 

1978, frcm Virginia on April 4, 1978 and from Georgia on March 14, 1978.

MONITORING OF STATE PLANS

12. Once a state's plan has been accepted, OCR monitors and reviews 

the state's implementation of the plan, and provides the state with evalua- 

ations o-f its progress. Each plan establishes yearly benchmarks and goals

by which OCR can measure such progress. If a state fails to reach the yearly 

goals or commitments contained in its plan, OCR seeks a satisfactory explana­

tion for this failure and proposed additional and/or more stringent measures 

designed to remedy the problem. In addition, if the situation in the state 

has changed during the previous year, OCR requires the state to revise 

and/or amend the measures contained in its plan to take into account these 

changed circumstances.

13. OCR has issued two evaluation letters to each of the "first-tier" 

Adams states, and is presently preparing its third series of letters. As 

the examples below demonstrate, these reviews are based on analyses of narra­

tive reports on the state's implementation of its plan and statistical reports 

on the previous fall enrollment figures (these analyses cost X R  more than 

$250,000 per year), on-site monitoring visits to several public higher educa­

tion institutions in the state, and numerous correspondence and meetings

with state officials.

Examples of XR's efforts to monitor and review each state's compliance 

efforts include, but are not limited to:

14. Florida -- a. OCR has attempted to monitor and secure implementa­

tion of Florida's plan by means of written correspondence, meetings, on-site 

reviews and reviews by X R  of statistical and narrative annual reports provided 

by the State. XR's first evaluation letter was forwarded to the State in 

1981. There were, however, numerous contacts with the State which preceded

-18-



that letter. On October 15, 1978, OCR provided Florida with an evaluation 

critical of the State's proposed program duplication plan. Nine months 

later, on July 12, 1979, OCR forwarded to the State a second critique of its 

program duplication plan. Officials from OCR and the State met on September 

17, 1979 to discuss the program duplication issues. No resolution, however, 

was reached. Then, on March 14, 1980, OCR notified Florida that there remained 

serious unresolved program duplication issues. Letter from Roma Stewart to 

Ralph 0. Turlington (3/14/80).

b. There were several other meetings and correspondence with the State 

between 1978 and 1980. On July 20, 1978, CCR requested impact assessments 

of the creation of a branch campus of the University of Florida in Jackson­

ville. The following September, State officials met with OCR to discuss 

problems in plan implementation. In 1979, OCR conducted on-site reviews at 

Manatee Junior College and Lake-Sumter Junior College. In March of 1980,

OCR requested that Florida provide it with impact assessments regarding 

teacher education admission requirements and requirements for admission to 

upper level courses. Florida's response, the following month, failed to 

provide the requested assessments.

c. After several on-site visits in the Spring of 1980, and review of

all relevant information, X R  prepared and forwarded, on January 15, 1981, 

the first evaluation letter, discussing Florida's progress in implementing 

its plan. Tnis letter noted deficiencies in: college-going rates of black

high school graduates; the number of black students entering upper divisions 

at the TWIs; the number of black undergraduates at IP/lIs; white enrollment at 

the TBI; desegregation of faculty at the TOIs; recruitment programs of TOIs

■19-



for black students; retention studies and measures for increasing the reten­

tion rate of black students; establishment of new programs at the TBI; 

elimination of program duplication; completion of a facilities study; 

and, procedures to assess the possible adverse impact of proposed changes on 

black students. OCR demanded that Florida take steps to respond to the 

identified problems. Letter from Assistant Secretary for Civil Rights,

Cynthia Brown, to the State Commissioner of Education, Ralph Turlington, at 

2-3 (1/15/81).

d. Florida officials initially responded on February 21, 1981, by denying 

most of XR's list of deficiencies and refuting the need for impact assessments 

at the University of North Florida branch campus, teacher education admission 

standards and upper division admission requirements. Letter from Chancellor 

Ralph D. Turlington to Frederick T. Cioffi (2/21/81).

e. After a series of meetings in the spring of 1981, however, Florida 

officials provided OCR with; new commitments and revisions of the student 

recruitment procedures; impact assessments; new programs and other measures 

designed to enhance the TBI; completion dates for the physical plant facilities 

studies; establishment of interim retention goals; revised enrollment projec­

tions for new programs at the TBI; and, a description of methods for measuring 

progress towards achieving stated goals. Letters of April 10 and 17, 1981, 

from Barbara E. Newell and Ralph Turlington to Frederick Cioffi. OCR notified 

Florida that these commitments constituted an acceptable response to its 

January 15, 1981 latter. Letter from Antonio J. Califa to Ralph D.

Turlington (4/20/81). Many of these promised actions have since been taken

by the State.

-20-



f. Further, on September 11, 1981, OCR sent Florida a second evaluation

letter, after reviewing Florida's submissions and conducting additional 

on-site visits. The letter addressed three additional areas of deficient 

plan implementation: black enrollment; impact assessments; and reporting

and analyses of progress and monitoring. Letter from OCR Regional Director, 

William H. Thomas, to Ralph D. Turlington (9/11/81). OCR subsequently met 

with Florida officials on November 10, 1981 to discuss the problems identified 

in this letter. At this time, Florida submitted impact studies.

g. OCR is also currently preparing a third evaluation letter to be issued 

in the fall of 1982. In preparation for this evaluation, four more on-site 

visits were conducted and several correspondence and telephone contacts were 

made.

15. Arkansas -- a. OCR's evaluation of the first year of Arkansas' 

plan implementation (1978-79) was based on a review of Arkansas' statistical 

and narrative submission and on-site monitoring visits to thirteen two-year 

and four-year institutions. OCR evaluation letter of December 3, 1980 

identified two major deficiencies in Arkansas' plan implementation: delays 

in the implementation of expanded master's degree programs at the TBI (Univer­

sity of Arkansas at Pine Bluff) and a growing disparity in the first-time 

entry rates of black and white students. OCR requested that the State provide 

it with a timetable for the expansion of master's offerings and a description 

of additional measures designed to reduce the disparity in college-going 

rates. OCR also identified deficiencies in: undergraduate enrollment at

the four-year TWIs; entry rates to graduate programs; the development of 

an in-depth study on the transfer of students; and academic employment.

-21-



Letter from OCR Regional Director, Taylor D. August, to T. Michael Elliott 

(12/3/80).

b. Arkansas responded to this evaluation on February 3, 1981, premising 

two recruitment and financial aid activities to decrease the disparity in 

entry rates to undergraduate institutions and increase black undergraduate 

enrollment at the TWIs. Arkansas also agreed to develop revised graduate 

enrollment goals, and initiating an in-depth study of the transfer of students. 

Letter from T. Michael Elliott to OCR Regional Director, Taylor August, at

5-7 (2/3/81). On April 21, 1981, OCR and State officials met and agreed on 

methods for measuring progress toward goals contained in the plan. Arkansas 

subsequently carried out its premise to implement recruitment activities 

and student financial aid activities.

c. On November 10, 1981, OCR issued its second evaluation letter to the

State, addressing plan implementation through 1979-80 (and, in part, through 

1980-81). This evaluation was again based on narrative and statistical 

reports and on-site visits to ten institutions. This letter reported deficien­

cies in: funding for facility renovation at the TBI; development of a time­

table for autonomous master's programs at the TBI; the efficacy of adopted 

measures for increasing the entry rates of first-time black students; entry 

rates of black students into graduate and professional programs; retention

of black undergraduate students; submission of the in-depth study of the 

transfer of students; and the efficacy of measures adopted to increase academic 

employment of blacks. OCR requested that the State respond within 45 days 

and include specific corrective measures. Letter from OCR Regional Director, 

Taylor D. August, to T. Michael Elliott (11/10/81).

-22-



d. On January 29, 1982, Arkansas submitted a response and requested 

three plan changes involving undergraduate enrollment at TWIs, entrance 

rates to graduate and professional education, and academic employment measures. 

Letter from T. Michael Elliott to OCR Regional Director, Taylor D. August 

(1/29/82). OCR wrote the State on April 7, 1982 (Letter from OCR Regional 

Director, Taylor D. August to T. Michael Elliott) and subsequently met with 

state officials on April 12, 1982, informing them that their response was 

unacceptable and denying the first two of their three requested plan changes. 

Arkansas officials then promised to submit OCR's requested revised measures 

and supplemental information in order for OCR to evaluate Arkansas' third 

request for a plan change (regarding academic employment), but requested an 

extension of time until July 15, 1982 in order to gather the information.

The State promised to include all information and remedial measures requested 

by OCR in its April 7, 1982 letter, including the results of its study of 

the transfer of students. OCR agreed to this extension.

16. Oklahoma -- a. In preparation for OCR's evaluation of Oklahoma's 

first year of plan implementation (1978-79), OCR reviewed narrative and 

statistical reports and conducted eleven on-site monitoring visits to State 

institutions. On December 3, 1980, OCR forwarded to the State a letter 

requesting: an explanation for the state's delay, and a revised timetable

for initiating several programs to improve and enhance Langston University, 

the TBI; an assessment of the State's progress toward completing capital 

improvements at the TBI; an explanation for and alternative/additional measures 

to remedy the growing disparity in college-going rates of black and white 

students; and an assessment and revision of previously approved employment

- 23-



goals since T/JIs had failed to meet their interim goals. Letter from OCR 

Regional Director, Taylor D. August, to Chancellor E. T. Dunlap at Tab A 

(12/3/80). Tne State responded on January 13, 1981, providing OCR with: 

satisfactory explanations of the delay and revised timetables for the enhance­

ment of the TBI; a plan indicating that capital improvement plans at the TBI 

were moving along as scheduled; an adequate explanation for the decline in 

black first-time entering students; and, expanded measures designed to meet 

the plan's employment goals. Letter from Chancellor E. T. Dunlap to OCR 

Regional Director, Taylor D. August (1/13/81).

b. OCR subsequently met with State officials in February to discuss Okla­

homa's plan implementation. OCR forwarded a second evaluation letter to 

Oklahoma in 1981, assessing the State's progress under the plan during the 

1979-80 academic year. In this letter, OCR identified two problem areas:

the State had not fully implemented several commitments relating to the 

TBI's new urban mission; and the black student enrollment objectives had not 

been met. OCR requested and received a satisfactory explanation for the 

enhancement measures undertaken at the TBI, and additional measures designed 

to improve student enrollment goals and retention. Letter from OCR Regional 

Director, Taylor D. August, to Chancellor E. T. Dunlap at 1-2 (8/26/81).

c. OCR met with State officials in February and March of 1982 to discuss 

further plan implementation, proposed activities regarding student enrollment 

and retention measures, and a proposed expansion of upper-level higher education 

programs in the Tulsa area, an area where the TBI operates a clinical base.

17. Georgia -- a. As in the other "first tier" states, X R  has forwarded 

two evaluation letters to the State. These letters were based upon information

-24-



culled from the narrative and statistical reports completed by the State, 

several on-site visits to institutions, and telephone interviews. The De­

cember 12, 1980 letter evaluating plan implementation during 1978-79 noted 

deficiencies and problems in the State's: failure to indicate whether the 

TBIs had received the promised three million dollar capital outlay cash 

appropriations; failure to appoint a Director for the Rural Life Center at 

Fort Valley State College; delay in implementing several new degree programs 

at the TBIs; failure to complete productivity and management reviews of the 

TBIs' academic programs; failure to implement joint extension and public 

service programs at Savannah State College and Armstrong State College; 

establishing medical school enrollment goals inconsistent with those listed 

in the plan; significant decrease in black first-time enrollment; and, failure 

to report on progress made in meeting goals designed to increase black partici­

pation in higher education. Letter from OCR Regional Director, William H. 

Thomas, to Chancellor of the University System of Georgia, Vernon Crawford 

at Tab A (12/12/80). OCR requested that remedial action be undertaken 

within 45 days.

b. On February 1, 1981, in a letter to OCR Regional Di rector Wil li am

H. Thomas, the Chancellor of the Georgia University System provided a response. 

Additional information was provided by the Vice Chancellor on January 6, 1982, 

in another letter to OCR Regional Director, William H. Thomas. OCR found 

their responses insufficient. Further clarification on the issue of enhance­

ment funds was provided by telephone on January 29, 1982.

c. These monitoring activities resulted in the implementation of new 

degree programs and the establishment of a public service program in the

- 25-



Savannah area, jointly sponsored by Savannah State College (TBI) and Armstrong 

State Col lege (TWI),

d. The second evaluation letter, forwarded to the State on May 20, 1982, 

reviewed plan implementation during the 1979-80 and 1980-81 academic years.

OCR noted that; the TBIs had not yet received the promised capital outlay 

cash appropriations; several new degree programs had not been implemented; 

there was-a continuing failure to select a director of the Rural Life Center; 

there was a failure to reduce the disparity between National Teacher Examina­

tion scores at Fort Valley State College and other colleges in the state 

system; there was a failure to complete productivity and management reviews; 

there was a disparity in college-going rates; there was a failure to meet 

black student enrollment goals at many institutions; there was a decline in 

the number and percentage of medical and dental degrees awarded to black 

students; and, there was a failure to desegregate staff at the University 

level. CCR requested that, within 45 days, the State provide it with specific 

remedial measures designed to remedy these identified deficiencies. Letter 

from OCR Regional Director, William Thomas, to Chancellor Dr. Vernon Crawford 

at 2-5 (5/20/82).

e. The Chancellor's response has not yet been received, and a follow-up 

telephone call is planned for the week of July 6, 1982.

f. In order to update information on the issues raised in the May 20,

1982 evaluation letter, during June and the first two days in July 1982,

OCR conducted on-site visits to eight institutions. Before conducting these 

on-site reviews, OCR made telephone calls, wrote the institutions with numerous 

questions and received responses from the appropriate institutional officials.

-26-



g. Also, on June 14, 1982, an Acting Director for Fort Valley's Rural 

Life Center (now "Farm and Community Life Center") was appointed. OCR is 

continuing to press for appointment of a permanent director, and conducted 

an on-site visit to the institution on June 21, 1982.

h. OCR has scheduled an August 9, 1982 meeting with Georgia's Chancellor 

to discuss problems with the state's implementation of its plan.

18. Virginia -- a. OCR's evaluation of the implementation of the 

State's first full academic year (1978-79) of its desegregation plan consisted 

of a review of narrative and statistical reports, on-site monitoring visits 

to 5 institutions, information contained in a December 7, 1979 letter from 

the State (from J. Wade Gilley to OCR Regional Director, Dewey E. Dodds) and 

meetings in May and October of 1979 and January 1980 with State officials.

The first evaluation letter, dated November 28, 1980, requested that the 

State clarify and explain the following problem areas: enhancement of facili­

ties at two TBIs, Norfolk State College and Virginia State College; provision 

of comparable resources to the TBIs; desegregation impact procedures; student 

enrollment objectives; and, employment objectives for the TWIs. Letter 

from OCR Regional Director, Dewey Dodds, to Secretary Gilley at Tab A (11/28/80) 

b. The State responded to this letter on January 12, 1981, in a letter 

from the State's Secretary of Education Gilley to OCR's Regional Director,

Dewey Dodds. Although this response addressed each of the OCR-identified 

problem areas, the State's response was adequate in only one respect -- 

desegegation impact procedures.

-27-



c. OCR's second evaluation letter, sent to the State on November 17, 1981, 

requested clarification, explanation and additional measures designed to address 

student enrollment and retention problems, employment goals and commitments to 

enhance the TBIs. Letter from OCR Regional Director, Dewey Dodds, to Secretary 

Gil ley at Tab A (11/17/81).

d. OCR's Regional Director and staff met with Secretary Gilley on De­

cember 17, 1981 to discuss the problems identified in OCR's November 17, 1981 

letter. The State committed to provide a detailed response to the problem 

areas raised by OCR.

e. On December 31, 1981, the State forwarded its response to OCR. This 

response discussed studies that had been conducted regarding student enrollment 

and retention, provided information on completed enhancement activities and 

rebutted OCR's statements regarding employment goals. XR, however, deter­

mined that this response was inadequate because the State' did not propose

any increased or new activities to cure the identified problems. Letter 

from Wade Gilley to OCR Regional Director, Dewey Dodds, at Attachment pp. 1-8 

(12/31/81).

f. OCR regional staff also met with.the Secretary Gilley in December to 

discuss the continuing plan implementation problems. The meeting was not 

productive, however, since the Governor and his administration had less than 

30 days to remain in office. Consequently, X R  awaited the inauguration

of the new administration in Virginia, and then initiated discussions with 

the new Secretary of Education. A meeting to discuss plan implementation 

problems with this new administration was held on May 11, 1982.

g. Finally, on June 3, 1982, X R  Regional Director Dewey Dodds wrote 

Virginia's Secretary of Education, summarizing the continuing problems in

-28-



plan implementation. This letter referred to the problems in the areas of 

student enrollment and the enhancement of the TBIs, specifically citing: the 

increased disparity in college entrance rates between black and white high 

school graduates; the minimal increase in the proportion of black undergraduate 

enrollment at the P/lIs; the failure of most schools to reach their black 

undergraduate enrollment goals; the disparity in entrance rates of black 

baccalaureate graduates into graduate and professional schools; the disparity 

in graduation rates of white enrol lees versus black enrol lees; and the absence 

of comprehensive enhancement measures for the TBIs. Letter from OCR Regional 

Director, Dewey E. Dodds, to John T. Casteen III at 1-2 (6/3/82).

h. This letter also cited the State's failure to address, in its De­

cember 31, 1981 letter, specific issues and problems raised in OCR's Novem­

ber 17, 1981 evaluation letter. Id. at 1-2.

i. In addition, in responding to the State's request to set forth OCR's 

parameters in negotiating and accepting a higher education desegregation 

plan, OCR reiterated the commitments and goals outlined in the Criteria.

j. OCR then stated that the information presently available to it indi­

cates that the goals of the plan will not be achieved by the 1982-83 academic 

year. OCR requested that the State develop and submit specific measures, 

with time tables for implementation, to overcome the plan deficiencies within 

60 days. Id. at 2-3. The letter also notified the State that if these 

problems could not be resolved voluntarily, OCR's regional office would 

recommend the initiation of enforcement proceeding against Virginia's higher 

education system.

-29-



PENNSYLVANIA

19.a. In 1974, Pennsylvania submitted, and OCR accepted, the state's 

higher education desegregation plan. OCR subsequently reviewed reports and 

submissions received from the State in: February, September and October of

1975; February, July and October 1976; February and August 1977; July 1978; 

July 1979; and July 1980. In addition, OCR reviewed narrative and statistical 

reports received in August 1978, 1979 and 1980. Three on-site monitoring 

visits were conducted in 1975, two in 1979 and one in 1980. As a result of 

the information gathered during this period, OCR notified the State, on 

January 16, 1981, that it had failed to achieve compliance with Title VI 

under the 1974 plan. The continuing noncompliance with Title VI was found 

to be a result of three factors: important commitments in the plan were not

carried out; the content of the plan was limited, and important components 

necessary for complete desegregation of the system were omitted; and, the 

scope of the plan was too narrow. Letter from OCR Regional Director,

Dewey Dodds, to Pennsylvania Governor Richard Thornburgh at 3 (1/16/81).

b. Between January 16 and May 27, 1981 , OCR and officials of the State 

met and exchanged correspondence concerning the development of a revised 

plan for compliance with Title VI.

c. On May 27, 1981, the State affirmed its commitment to supplement its 

1974 plan, and proposed specific time frames within which it intended to 

accomplish additional steps necessary for the final development and submission 

of its supplemental plan. The State promised to submit this supplemental 

plan on July 27, 1981. The promise was qualified, however, in that some 

aspects of the plan -- admissions/ recruitment, the library action plan and

-30-



an academic action plan for the TBI, Cheyney State College -- would not be 

final until the new administration at Cheyney State had an opportunity to 

review them. Letter from Pennsylvania Secretary of Education Robert Scanlon 

to Department of Education Secretary Terrel Bell (5/27/81).

d. On June 15, 1981, the State forwarded an outline of its supplemental 

plan. On August 5, 1981, the Acting Governor wrote OCR requesting a meeting 

to discuss its proposed supplemental plan and requesting an extension until 

September 30, 1981 for submitting this Supplement. As scheduled, on Septem­

ber 30, 1981, the State forwarded its 1981 Supplement to the 1974 plan. The 

State expressed its position as being that full compliance with Title VI would 

be achieved upon completion of the commitments made in the Supplement, and 

accepted the Criteria as a framework for the development of an acceptable plan 

for compliance. OCR found the Supplement to be a good start toward the develop­

ment of a complete compliance plan. The Supplement, however, was deficient in

a number of respects. On December 18, 1981, OCR notified the State that the 

Supplement was incomplete in major areas and included a point-by-point analysis 

for the further guidance of the State. Pennsylvania was asked to submit a revised 

plan, which it did on February 25, 1982 (the Addendum). Latter from OCR Re­

gional Director, Dewey Dodds, to Secretary Scanlon (12/18/81).

e. After a brief review of the Addendum, on March 18, 1982, OCR's regional 

office notified the State that because of the state's continued deferral of a 

plan for the enhancement of Cheyney State, the 1982 Addendum was not an accept­

able plan for compliance with Title VI, and that, if an acceptable plan was

not submitted, enforcement proceedings would be recommended. Letter from 

X R  Regional Director, Dewey Dodds, to Secretary Scanlon at 5 (3/18/82). As a 

result, on April 16, 1982, the regional office wrote the State informing it 

that the region was recommending the initiation of enforcement proceedings.

-31-



f. On May 6, 1 982, the State wrote X R  to report on progress toward the 

enhancement of Cheyney State. Enhancement efforts of Cheyney State have been 

delayed, however, 'while the State seeks to appoint a new president of the 

college.

g. In late April 1982, the Assistant Secretary for Civil Rights,

Clarence Thomas, left the Department of Education and Acting Assistant Secre­

tary, Harry M. Singleton, assumed his duties and responsibilities. As is

his prerogative as the new Assistant Secretary, Mr. Singleton is reviewing 

the situation in Pennsylvania's system of higher education.

I declare under penalty of perjury that the foregoing is true and correct.

Julia Dobbs 
Chief, State Systems 

Desegregation Branch 
Office for Civil Rights

Dated:: L>,

-32-



CERTIFICATE OF SERVICE
 ̂ C6rtify that a copy of tha following Dafandants'

Points and Authorities in Opposition to Plaintiffs' Motion for
Relief, and Declaration were mailed first class mail this 

(> day of July 19 82 to:
Marcia D. Greenberger, Esquire 
Center for Law & Social Policy 
1751 N Street, N.W.
Washington, D.C. 20036
David K. Flynn, Esquire 
Covington & Burling 
1201 Pennsylvania Avenue, N.W. 
Washington, D.C. 20044

and hand delivered to:
Elliott C. Lichtman, Esquire 
Rauh, Silard and Lichtman 
1001 Connecticut Avenue, N.W. 
Washington, D.C. 20036

ĵlj a
RICHARD A. LEVIE



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al,,

TERREL H. BELL, et al.,

Plaintiffs,

Defendants.

Civil Action No.
3095-70

ORDER
Upon consideration of Plaintiffs' Motion for Further Relief, 

Defendants' Points and Authorities in Opposition thereto.
Declaration and the entire record herein, it is this ____ day of
________________ , 1982

ORDERED that Plaintiffs' Motion for Further Relief is hereby 
DENIED.

UNITED STATES DISTRICT JUDGE



IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al.,
Plaintiffs,

V.

TERREL H. BELL, et al.. 
Defendants.

)
) Civil Action No. 70-3095
)

MOTION FOR FURTHER RELIEF
Plaintiffs move for further relief requiring defendants to 

enforce the Revised Criteria Specifying The Ingredients of 
Acceptable Plans To Desegregate State Systems of Public Higher 
Education (hereinafter "the Criteria"), 43 Fed. Reg. 6658 
(Feb. 15, 1978) (see Appendix A, infra), promulgated by defen­
dants in compliance with this Court's Second Supplemental Order 
of April 1, 1977, in this case. Adams v. Califano, 430 F.Supp. 
118, 121 (D.D.C. 1977). Today, more than five years since the 
date of this Court's seminal order, the United States Department 
of Education (*'DE") has abandoned the Criteria. Even though 
the Criteria were adopted to comply with an order of this 
Court, and even though they cannot be formally abandoned 
without this Court's permission, defendants cavalierly treat 
the Criteria as a dead letter and act as though they can ignore 
and disregard the Criteria at will. In state after state, DE 
has accepted plans which do not meet the Criteria and has 
failed to impose sanctions where previously accepted plans 
are not being implemented pursuant to the Criteria.



I. Introduction
Pursuant to this Court's Second Supplemental Order of 

April 1, 1977, the Department of Health, Education and Welfare 
("HEW") promulgated specific standards for desegregation plans 
for six states that were subsequently amended and published as 
Amended Criteria Specifying Ingredients of Acceptable Plans to 
Desegregate State Systems of Public Higher Education. 42 Fed. 
Reg. at 40780-85 (August 11, 1977). In February 1978, HEW 
re-published the standards as Revised Criteria, having concluded 
that they were providing specific and effective guidance:

HEW originally developed the criteria mindful 
of the instructions of the Court that they comply 
with constitutional standards and Title VI, conform 
with sound educational practices, and take into 
account the unique importance of black colleges.
Based on its experience in applying the criteria 
to six state systems of higher education over the 
past months, HEW has determined that the criteria 
provide specific and effective guidance to the 
states and at the same time are sufficiently 
flexible to provide for circumstances which may 
vary from state to state.

43 Fed. Reg. at 6658. HEW expanded the coverage of the 
standards beyond the six states to apply to states with a 
history of de jure segregation:

These criteria will be applied to a state 
which formerly operated a dual system of public 
higher education under state law, if the Office 
for Civil Rights [OCR] determines after investi­
gation that the state has failed to remove the 
vestiges of racial segregation in its system in 
violation of Title VI.
at 6659.
In the preamble to the Criteria, the legal principles 

underlying their issuance were set forth. As described more 
fully in the Points and Authorities filed in support of this 
motion, HEW recognized that 1) states which formerly practiced 
de jure segregation must take affirmative remedial actions 
which are "effective" and which "achieve results" in overcoming

- 2 -



the vestiges of that practice (43 Fed. Reg. at 6659); 2)
the states must engage in statewide rather than institution- 
by-institution planning if this objective is to be realized 
(ibid. ); 3) for plans to be accepted they must contain
specific goals and timetables rather than vague, general 
promises (ibid. ) ; and 4) to avoid the danger that desegrega­
tion might actually diminish higher educational opportunities 
for blacks, it must be accomplished in such a manner as to 
enhance and strengthen rather than weaken the traditionally 
black institutions in each state (î . at 6660).

The key requirements of the Criteria themselves, as set 
forth in a summary issued by defendants on the day of their 
release, are the following:

—  Traditionally black institutions must be 
strengthened in quality so that they attract 
students for non-racial reasons;

—  State systems must eliminate educationally 
unnecessary program duplication;

—  Some new "high demand" programs must be placed 
on traditionally black campuses;

—  The state must achieve parity in the rate of 
black and white students entering the higher 
education system;

—  The state must increase the number of black 
students at traditionally white institutions;

—  The state must achieve parity in the number
of black and white graduates of state colleges 
who enter state graduate schools;

—  The proportion of white students attending 
traditionally black colleges must be increased;

—  the state must increase mobility of students 
between the state's two-and four-year institutions;

—  The state must increase the percentage of black 
academic and nonacademic employees in the system 
and increase the number of black representatives 
on governing boards.

- 3 -



HEW Involvement in Desegregation of State Higher Education 
Systems, HEW NEWS, Office for Civil Rights, U.S. Department of 
Health, Education and Welfare, February 2, 1978.

As we shall demonstrate below, defendants are today 
ignoring these requirements. The exact manner of abandon­
ment varies from state to state depending upon the history, 
structure and operational program of each complex state 
system, but in each state the overall result has been 
the same: defendants have failed to enforce the Criteria 
which the Court of Appeals and this Court required them to 
establish many years ago.

Furthermore, in several respects defendants are violating 
not only the Criteria, but also the specific holdings of the 
Court of Appeals and this Court cited in the preamble as the 
very reasons for their issuance. For example, as set forth 
more fully in the accompanying Points and Authorities, the 
very foundation of the law of this case is the principle that 
in each state

[t]he problem of integrating higher 
education must be dealt with on a 
state-wide rather than a school-by-school 
basis.

Adams v. Richardson, 480 F.2d 1159, 1164 (D.C. Cir. 1973) (en 
banc). This principle was the mandate for this Court's order 
of April 1, 1977, and it became the cornerstone of the 
Criteria adopted by defendants in compliance with that order. 
See 43 Fed. Reg. at 6659 ("the state system as a whole 
[must] develop a comprehensive and coordinated statewide de­
segregation plan"). Yet in virtually every state DE has aban­
doned this controlling principle of law and has accepted frag­
mented efforts as sufficient. As a result, the vestiges of de

- 4 -



jure segregation in public higher education are not being eli­
minated.

Defendants have also ignored the requirement of the Court 
of Appeals and this Court that effective statewide measures be 
taken to increase the number of black professionals and de­
segregate the professional staffs of public higher educational 
institutions. Nine years ago, the en banc Court of Appeals 
declared that

[plerhaps the most serious problem 
in this area is the lack of state-wide 
planning to provide more and better 
trained minority group doctors, lawyers, 
engineers and other professionals. A 
predicate for minority access to quality 
post-graduate programs is a viable, co­
ordinated state-wide higher education 
policy that takes into account the 
special problems of minority students 
and of Black colleges.

Adams v. Richardson, supra, 480 F.2d at 1164-65 (D.C. Cir.
1973) (en banc). This Court's 1977 order specifically cited 
and quoted the above holding, Adams V. Cal ifano, 430 F.Supp. at 
120 (D.D.C. 1977), and the Criteria contain numerous provisions 
for its implementation, 43 Fed. Reg. at 6662-63.

State systems of higher education are key sources for 
credentialling persons to become candidates for professional 
positions, not only in their own institutions but also in the 
public and private sectors of their states and the nation.
State systems are also major employers. One would expect 
therefore that DE would require and vigorously monitor the 
states' performance in the enrollment and graduation of black 
professionals and in the hiring of blacks for administrative, 
academic and nonprofessional positions in the state system.
Yet, the generally and pervasively weak programs to recruit, 
enroll, retain and graduate blacks in graduate and professional

5 -



programs are clear evidence that defendants are not implement­
ing the mandate of the Court of Appeals that dismantling dual 
systems of higher education result in the credentialling 
of substantially increased numbers of black professionals. 
Furthermore, since January 1981, defendants have abandoned 
their responsibility to assure effective statewide measures 
which result in substantial increases in the number of blacks
employed by state postsecondary institutions as administrators,

1/faculty and professional nonfaculty staff members.”
Additionally, DE is failing to require expeditious 

enhancement of the traditionally black institutions to enable 
them to contribute to the development of black professionals, 
to serve an increasing number of nonblacks and to ensure that 
they are not bearing a disproportionate share of the burden of 
desegregating the statewide system. This also is required by 
the decisions of both the Court of Appeals and this Court,
Adams V. Richardson, supra, 480 F.2d at 1165; Adams v. Cal ifano, 
supra, 430 F.Supp. at 120, and is specifically provided for in 
the Criteria, 43 Fed. Reg. at 6660.

Finally, despite the clear requirements of the Criteria,
DE has abandoned any effort to secure realignment of programs 
and to eliminate educationally unnecessary duplication of pro­
grams and curriculum as vehicles for the enhancement of the 
traditionally black institutions and the desegregation of both 
traditionally black and white institutions.

Today, as in the era of de jure segregation, most of the 
states still have two public land-grant institutions which are

j_/ Defendants have accepted from almost every state mere 
promises that institutional affirmative action plans will be 
filed with the Labor Department's Office of Federal Contract 
Compliance Programs (OFCCP) without determining whether these 
plans have been approved and are in compliance with the 
Criteria.

- 6 -



racially identifiable. The historically black institutions 
have always been the weaker of the pair, having never shared 
equitably in federal and state funds for educational, research, 
extension and public service programs. Nonetheless, in vio­
lation of the decisions in this case and the Criteria, 
defendants have failed to address this historic pattern of 
discrimination.

We summarize below defendants' abandonment of the
Criteria in a broad cross-section of states covered by this
, . . . 2/litigation.

II. The "Second Tier" Adams States 3/

Although defendants announced in February 1978 that inves­
tigations would be undertaken to ascertain the compliance status 
of states with a history of de jure segregation other than the 
six covered by this Court's Second Supplemental Order, no 
formal action was taken with respect to those states for nearly 
three years. Defendants neither issued letters of findings 
nor commenced enforcement proceedings, and many efforts by 
plaintiffs to prod defendants into action proved fruitless. 
Finally, as a result of plaintiffs' November 1980 Motion for 
Further Relief, a Consent Order was agreed to by the parties 
and signed by this Court on December 17, 1980. The Consent

The documentation set forth below is illustrative of 
defendants' wholesale abandonment of the Criteria throughout 
the entire country. The failure to mention a particular state 
or particular problems within any one state is not a concession 
that defendants are in compliance with respect to that state 
or that problem.
3̂/ By "first tier" states, we refer to the original six 
states covered by this Court's Second Supplemental Order in 
1977. They are the subject of Section III infra of this 
Motion. "Second tier" states are described in the text above.

7 -



Order (paragraph one) required defendants to issue letters of 
compliance or non-compliance no later than January 15, 1981, 
and to observe the same time-frames for subsequent negotiation 
and enforcement mandated by the Court's previous order of 
December 29, 1977, in this case.

Although letters of findings were issued in timely 
fashion pursuant to the Consent Order, virtually everything 
else done by defendants has violated either that Order, the 
Criteria, or both.

KENTUCKY
The Court will recall that in the case of Kentucky,

DE did not secure a Plan from the Commonwealth in timely
fashion. Although DE cited Kentucky in January 1981 for
failing "to eliminate the vestiges of its former de jure

4/racially dual system of public higher education, defendants 
failed to require submission of a Plan within the mandatory 
120-day time period.—^ Defendants first secured a 105-day 
extension of time by order of this Court entered May 21, 1981, 
and then on August 27, 1981, sought another extension to 
January 15, 1982. In view of the sworn assertion of Assistant 
Secretary Clarence Thomas that this second extension would 
"result in a plan sufficient to bring Kentucky's system of

6/public higher education into full compliance with Title VI," 
the Court granted the extension on September 17, 1981, but wrote

£/ Letter from DE Regional Civil Rights Director William H. 
Thomas (Region IV) to Governor John Y. Brown, Jr., January 15, 
1981, p.2.
_5/ See this Court's Orders of December 1 8, 1 980, f 1 , and 
December 29, 1977, 1l 22.
6/ Declaration of August 26, 1981, p. 3.



onto its Order that date in its own handwriting that "1^ more 
extensions will be granted" (emphasis in original).

Unable to obtain further extensions, DE circumvented the 
Court's September 1981 Order, by granting only "provisional" 
acceptance to a Kentucky Plan and unilaterally granting the 
Commonwealth until August 31, 1982, before final approval is 
considered. By DE's own admission, its action had to be "provi­
sional" because the Commonwealth had not yet made "all decisions
necessary to the completion and successful implementation of 

7/the plan."~
Given all of the foot-dragging described above, it should 

come as no surprise that the provisionally approved proposal is 
grossly inadequate. Indeed, the proposal is openly defiant 
toward the Criteria, stating that they "were written in
cooperation with and as guidance for other states, are not re-

8 /gulations, and do not have the force of law."—
Kentucky's provisionally approved Plan is anything but a 

comprehensive, statewide program. There are absolutely no 
statewide measures, developed, coordinated and funded by the 
Commonwealth, in any of the areas critical to desegregation: 
student recruitment, retention, and financial aid, and faculty 
and staff recruitment, retention and development. There is no 
statewide desegregation budget or even a commitment to seek one 
from the legislature. There is no commitment to spend the funds 
necessary to upgrade the Commonwealth's traditionally black 
institution, Kentucky State University (KSU); and while KSU is

2/ Letter of Antonio J. Califa, DE's Director for Litigation, 
Enforcement and Policy Service, to Governor Brown, dated January 
29, 1982. We note that this letter of "provisional" acceptance 
was written 2 weeks after the Court's deadline of January 15th 
had expired.
8/ Kentucky Plan pp. 5-6.

- 9 -



promised a revised curriculum including high demand programs, 
those programs are not even identified. The Commonwealth makes 
a general commitment to eliminate unnecessary program dupli­
cation, but does not identify the specific programs it deems 
duplicative and does not detail how they will be eliminated 
and/or reassigned to KSU. The proposal contains no statewide 
employment desegregation plan, but rather sets forth a collec­
tion of statistical reports from some institutions and makes 
general assurances with very few goals and timetables.

In short, Kentucky has not yet submitted a Plan. It has 
submitted little more than a plan to plan. At this late date, 
nearly one year after a Plan was due in response to DE's 
January 1981 letter finding that the vestiges of de jure 
segregation have not yet been eliminated, that submission is 
totally unacceptable. DE's willingness to condone such a 
response vividly demonstrates the extent to which defendants 
have departed from the requirements of the Criteria and this 
Court's Orders.

TEXAS
By letter of January 15, 1981, former DE Assistant Secretary 

Cynthia G. Brown advised Texas Attorney General Mark White 
that "the State, of Texas has failed to eliminate the vestiges 
of its former de jure racially dual system of public higher 
education, a system that segregated blacks and whites." The 
letter charged (p.3) that judging by virtually every one of 
the significant indicia —  student enrollment, faculties, 
staffs, governing boards, resource allocation and program 
duplication —  Texas' state-supported colleges and universities 
continue "to reflect the racial identity assigned by law to 
Texas public institutions prior to 1954."

-  10 -



The Assistant Secretary's letter acknowledged (p.4) that 
on January 14, 1981, DE had received a submission from Attorney 
General White setting forth various measures which Mr. White 
"expect [ed] appropriate state officials to undertake voluntarily 
to achieve full compliance with Federal law." The letter 
identified many deficiencies in Texas' submission, including 
the critical fact that "the extent and sources of the funding 
necessary to carry out all aspects of the Texas plan have yet 
to be determined" (p.5). Nonetheless, the letter stated 
(p.5) that DE had "provisionally" accepted the deficient 
Plan. Texas was merely directed to submit additional informa­
tion and commitments by June 15, 1981.

Not only did DE grant "provisional" acceptance to a set of 
inadequate proposals without any firm commitment from state 
officials to implement them statewide, but it has taken no 
formal action since January 15, 1981. The June 15, 1981, 
deadline passed without any final approval of a statewide 
Texas Plan, and no final approval has been granted since that 
date. Thus despite this Court's Order of December 18, 1980 
(11 1), which explicitly requires enforcement proceedings 
against Texas within 120 days of DE's January 14, 1981 
letter of findings, DE has chosen to disregard that Order, 
manifesting further its contempt of this Court's directives.

In short, DE has allowed the Texas problem to lapse into a 
state of limbo. There is no accepted statewide final Plan, and 
not even a repeatedly extended "provisionally" accepted plan, 
at this time. DE has not compelled Texas to meet the require­
ments of the Criteria, and the vestiges of de jure segregation 
identified by Assistant Secretary Brown 15 months ago remain 
as strong as ever.

- 11 -



To appreciate fully DE's abandonment of the Revised 
Criteria with respect to Texas, it is necessary to summarize 
briefly the deficiencies of Texas' January 1981 proposal.
The Court need look no further than Assistant Secretary 
Brown's letter of January 15, 1981, to identify most of those 
deficiencies. DE charged that Texas had failed to address; 1) 
enhancement of the state's two traditionally black institutions 
(Prairie View A & M University and Texas Southern University), 
including a) the development of academic programs that 
promise to attract students of all races to those institutions 
and b) specific additional commitments to insure a funding 
level for those institutions comparable to that enjoyed by 
similar white institutions? 2) identification and elimina­
tion of educationally unnecessary program duplication on a 
specific schedule, combined with allocation of new high- 
demand, unduplicated programs to strengthen Prarie View and 
Texas Southern; 3) adoption of numerical goals for recruitment 
of black and Hispanic students at all institutions statewide 
(only some of which had proposed such goals as of January 
1981); 4) adoption of specific statewide plans for increasing 
both the number and proportion of black and Hispanic employees 
throughout the state's public higher education system; 5) an 
increase in the numbers of black and Hispanic persons appointed 
to the governing boards of Texas' traditionally white institu­
tions; and 6) the funding of Texas' Plan, complete with specific 
commitments by state and higher education officials and 
agencies who have the power to make and implement such

-  12 -



commitments. All of these actions are required by the Criteria;
none had been done as of January 15, 1981; and none has been 

9/done as of this date.—

DELAWARE
In a letter to Governor Pierre S. DuPont IV, apparently 

10/dated January 15, 1981, de Regional Civil Rights Director 
Dewey E. Dodds (Region III) directed submission of a plan for 
desegregation of the traditionally white University of Delaware 
(UD) and the traditionally black Delaware State College (DSC). 
However, Mr. Dodds did not require the state to specifically 
address the problems of desegregation within Delaware's 
Community College System, claiming (p. 6) that the community 
colleges were exempt from coverage in part "[bjecause the 
schools in the Delaware Community College System were not 
established as part of the State's former de jure system."

Such reasoning is entirely specious, and dangerously so. 
State-supported systems of higher education have expanded 
by leaps and bounds since the days of de jure segregation; if 
every campus opened since the de jure era were exempted from 
Title VI and the Criteria, the decisions of this Court and the

V  Additionally, Texas' January 1981 proposal was totally 
silent with respect to desegregation of the state's numerous 
junior and community colleges. By not including the two-year 
institutions, DE has not required the statewide plan demanded 
by the Criteria and the decisions of the Court of Appeals and 
this Court in this case.
10/ Although plaintiffs' copy is undated, it is our under­
standing that the letter was mailed on January 15, 1981.

-  13 -



Court of Appeals in this case would lose all meaning.
The failure to address the Delaware system of public

higher education on a statewide basis seriously undermines the
effort to desegregate UD and DSC. For example, plaintiffs
alleged in their objections to the Delaware plan, filed on
September 28, 1981, that there is duplication of programs
between the primarily white Delaware Technical and Community
College (DTCC) Terry campus in Dover and the traditionally
black DSC (also located in Dover). Secretary Bell did not
deny this claim in his response to plaintiffs' objections.
(DE Response of November 18, 1981, p.3). With DTCC in Dover
operating at a 78.3% white enrollment in 1980, and DSC still

12/63% black (74.6% black in full-time enrollment), any 
educationally unnecessary duplication of programs could be 
fatal to the effort to attract white students from the area 
to DSC.

Sim.ilarly, DTCC's Wilmington campus is 30.5% black at a time
when UD, also located in the Wilmington region, still has an

13/undergraduate enrollment of only 3.2% black.—  Yet the inter­
relationship of DTCC Wilmington and UD is ignored by the Delaware

11/

11/ Although Mr. Dodds requested the state to "take account 
of the effect that remedial measures applied to one institu­
tion will have on other institutions (two-year and four-year) 
sharing the same service area," he added that the community 
colleges "should have a relatively minor role in a statewide 
plan" and directed that they be discussed only to the extent 
necessary "for an effective remedy." (Letter of January 15, 
1981, to Governor DuPont, p.6.) The Delaware authorities, 
taking their cue from DE, submitted a plan on September 17, 
1981, which focuses almost exclusively upon UD and DSC and 
virtually ignores the community colleges.
12/ Delaware Title VI Compliance Plan, Exhibit One (Sept.
28, 1981).
13/ Ibid.

-  14



Plan. With the population of Wilmington at 46% black (see plain­
tiffs' objections to the Delaware plan, p.1), the inability of 
UD to attract black enrollment cannot possibly be addressed in.a
comprehensive fashion without taking into account the existence

1 4/of a 30.5% black community college in the same region.—  None­
theless, the current Administration of DE persists in allowing 
Delaware to operate its higher education system under this pal­
pably deficient Plan.

MISSOURI
In a letter to Governor Christopher Bond, dated January 

15, 1981, DE Regional Civil Rights Director Jesse High (Region 
VII) directed submission of a plan for desegregation of only 
three of Missouri's 28 institutions of public higher education: 
the University of Missouri at Columbia (the state's flagship 
institution), the University of Missouri at Rolla (the state 
engineering school), and Southeast Missouri State University 
(one of nine State campuses serving regional and commuter 
service areas).

As noted in-plaintiffs' objections, filed with DE on 
August 13, 1981, enrollment data annexed to Mr. High's letter 
itself (Table I) establish the inadequacy of DE's failure to 
require a statewide plan. These 1978 data reveal, for 
example, a wide disparity in the black enrollment rate at the 
two four-year institutions in St. Louis: the University of
Missouri at St. Louis is 12.4% black, whereas Harris-Stowe

14/ Curiously, Exhibit One to Delaware's plan reveals that a 
smaller DTCC campus in the Wilmington region, located at 
Stanton, has a black enrollment of only 8.3%. This suggests 
the emergence of dualism within the DTCC system itself, and 
belies Mr. Dodds' assertion (p. 6) that "no community college 
campus is racially identifiable."

-  15



College, which traces its roots to the traditionally black 
Stowe Teachers College of the de jure era, remains 75.1% 
black. Similarly, there are significant disparities in the 
black enrollment rates at the various community colleges 
within the Kansas City and St. Louis regions: the four
Kansas City area community colleges range from 0.9% black at 
Maplewoods to 66% black at Pioneer, and the three St. Louis 
area community colleges range from 3.7% at Meramec to 54% at 
Forest Park.

Plaintiffs' objections to DE also cited a recent report,
prepared by the Missouri Commission on Human Rights, which
further demonstrates the need for statewide planning addressing
the problems of the St. Louis and Kansas City areas as well as
the three institutions for which DE required a Plan. The
Commission's February 1980 report. Graduates from the University
of Missouri, Missouri State Universities and Colleges in May
and June 1979, reveals that only 7% of the bachelor's degrees
granted by the University of Missouri at St. Louis in the
spring of 1979 were conferred upon black students; thus, while
the 1978 black enrollment rate set forth in Table I of Mr.
High's letter is 12.4%, there appear to be serious retention

15/and promotion problems for blacks at that institution.—

15/ The Criteria, § II E, require the State to take all 
steps to reduce any disparity in retention rates between 
black and white students. Retention is clearly a problem 
not confined to one institution in Missouri. The University 
of Missouri-Columbia "acknowledged the fact that the area 
requiring priority attention is retention ... based on data 
accumulated between fall, 1978 to fall, 1980, the total 
fulltime undergraduate retention rate for black students was 
57 percent compared to 78 percent for whites." (University of 
Missouri-Columbia, Plan for Continuing the Achievement of 
Equal Opportunity for Students and Faculty, Part One, p. 30.) 
Yet DE approved a Plan without measures for addressing this 
serious problem and has not required a statewide approach 
to retention.

-  16 -



Given the fact that the City of St. Louis is 45.6% black 
according to the 1980 census, the adequacy of Missouri's 
desegregation efforts in that region is highly suspect. 
According to the Commission, the University of Missouri at 
Kansas City granted only 5.4% of its bachelor's degrees to 
blacks, in contrast to the 7.7% black enrollment rate stated 
in Mr. High's letter. Kansas City is 27.4% black according to 
the 1980 census.

Quite apart from the failure to address the problems of 
St. Louis and Kansas City, the absence of a statewide plan 
could undermine the state's efforts to achieve desegregation 
on the three campuses cited by DE as requiring remedial 
action. For example, the 96.7% white University of Missouri 
at Columbia is near Moberly College, which at 11% black 
enrollment is the most integrated community college outside of 
St^ Louis and Kansas City (see High letter. Table I). A com­
prehensive statewide plan would seek to benefit from the 
presence of a two-year institution that appears to be progress­
ing toward integration in the region of a substantial^ly 
segregated university,‘by relying upon the two-year school as 
a "feeder" institution to help integrate the nearby university. 
Additionally, there are two and four-year institutions of 
public higher education in the general vicinity of the other 
universities cited by DE. Thus, the piecemeal approach of DE 
not only ignores the serious problems existing in the St.
Louis and Kansas City regions, but will also hinder progress 
even at the three institutions which were declared in violation 
of Title VI in January of 1981.

17 -



WEST VIRGINIA
In a letter to Governor John D. Rockefeller IV, apparently

16/dated January 6, 1981,—  DE Regional Civil Rights Director 
Dodds directed submission of a plan limited to only one of 
that state's sixteen institutions of public higher educa­
tion: the traditionally white West Virginia University (WVU).

In footnote 3 on page 3 of that letter, Mr. Dodds conceded 
that thirteen other state-supported institutions of higher 
education in West Virginia "employ very few blacks on their 
faculties and staffs." Nonetheless, DE did not require West 
Virginia to submit a statewide plan.

The Criteria, 43 Fed. Reg. at 6662, require that each 
state "commit the state system to the goal of increasing the 
number and proportion of black employees, academic and non- 
academic, throughout the system — " The thirteen institutions
cited by Mr. Dodds constitute 65.1% of the West Virginia higher

17/educational system in terms of enrollment, yet DE chose to 
ignore the problem. DE merely announced in footnote 3 of Mr. 
Dodds' letter that it would turn .the matter of employment dis­
crimination over to the Office of Federal Contract Compliance 
Programs of the Department of Labor, a gross abdication of re­
sponsibility which is totally at odds with the Criteria and 
with DE's obligations before this Court. Both the Court of 
Appeals and this Court have expressly held that progress in

16/ Plaintiffs' copy is undated. Secretary Bell's letter of 
June 22, 1981, to counsel for plaintiffs, rejecting plaintiffs' 
objections, states that the letter was dated January 6, 1981.
17/ See Appendix A to Mr. Dodds' letter. Employment statistics 
were not provided.

- 1i



desegregating faculty and other professional staff positions 
is crucial to the overall progress of desegregation (see pp. 
2-3, above).

The Plan submitted by West Virginia on May 5, 1981, in 
response to Mr. Dodds' letter, is limited solely to WVU. No 
statewide remedial effort is proposed, and indeed the sub­
mission provides no data concerning the state's 15 other 
public institutions of higher education. Concerning the 
employment of blacks which DE has noted as a problem at the 
non-WVU institutions, affirmative action at WVU will have a 
major impact upon those other schools. Since WVU's 1978 
enrollment of 14,581 constitutes 24.7% of the statewide total 
(see Appendix A to Mr. Dodds' letter), it is the very heart of 
the state's system. A genuine effort by WVU to attract 
black students and faculty would invariably draw blacks from 
the other institutions. Accordingly, the need for a statewide 
and state-funded program remains critical.

III. The "Fir^t Tier" Adams States
Pursuant to this Court's Second Supplemental Order of 

April 1, 1977, paragraph four (430 F. Supp. at 121), early in 
1978 defendants approved the plans of several of the states 
covered by that Order. And Virginia's plan was approved in 
January of 1979. However, on the basis of plaintiffs' review 
of reports filed by those states with the Office for Civil 
Rights, it is apparent that there is widespread noncompli­
ance with the plans that were approved. The Criteria ex­
plicitly spell out what defendants must do in that eventuality;

-  19 -



OCR shall review such [annual] narrative 
reports. If good cause for the failure 
to meet interim goals is not demonstrated,
OCR may impose more stringent require­
ments, including advance approval by OCR 
of desegregation methods, in order to 
assure achievement of the goals in the 
plan. In the alternative, the Depart­
ment may initiate enforcement proceedings 
under Title VI of the Civil Rights Act 
of 1964, if compliance with Title VI 
cannot be achieved by voluntary means.

43 Fed. Reg. at 6663.
As we shall demonstrate below, defendants have totally 

ignored their responsibilities under this provision of the 
Criteria. Despite substantial evidence of noncompliance with 
state plans and Title VI, defendants have neither imposed 
more stringent requirements nor initiated enforcement proceed­
ings against the "first tier" Adams states.

ARKANSAS
Arkansas has no statewide and state-funded programs 

to assure effective implementation of the Criteria's key 
requirements for desegregation of state systems of higher 
education. Consequently, Arkansas has not only failed 
to meet the goals of the Plan accepted by defendants in 1978, 
but is actually achieving less in virtually every category 
than was true at the time the Plan was submitted. Even 
though Arkansas' system of public higher education remains as 
segregated as ever, DE has failed to require the statewide 
remedial measures mandated by the Criteria.

Arkansas adopted the Criteria's required college-going 
parity among black and white high school graduates, and 
further promised in its Plan to "implement corrective measures' 
to address any disparities (Plan, p. 55). However, the 
racial disparity actually increased from 5.7 percentage points

-  20  -



in 1977-78 to 9.1 in 1980-81, and black enrollment in
postsecondary institutions statewide decreased from 16.9% in

11/1975 to 15.7% in 1980-81. Indeed the decline in some
institutions such as Henderson State University, whose black
enrollment dropped from 30.3% to 19.5% within four years, was

. 20/drastic. d e 's 1980 evaluation letter noted the problem 
and requested information on proposed corrective measures. Yet 
Arkansas has implemented no corrective measures specifically 
targeted to blacks, and confronted with this lack of initiative, 
DE has failed to impose more stringent requirements.

Concerning the State's traditionally white 4-year institu­
tions, the Arkansas Plan committed the State to reduce by 50% 
by 1982-83 the racial disparity in the proportion of black and 
white enrollees in these institutions. But the racial disparity
in first time students in these institutions actually increased

11/from 11.1 percentage points in 1977-78 to 14.1 in 1980-81. 
Nonetheless, Arkansas has no statewide and state-funded 
program for the special recruitment of black students into 
the higher education system in general, and into the tradi­
tionally white institutions in particular; and DE has not 
required any such programs.

The Criteria require promotion of opportunities for blacks 
to transfer from two-year institutions to the Junior class of 
four-year institutions. Yet Arkansas' latest annual desegrega-

11/

18/ Arkansas College and University Plan for Compliance with 
Title VI of the Civil Rights Act of 1964, Annual Report (Fall 
1981) Table 4, p. 6.
19/ Id. at Table 5, p. 7.
20/ Ibid.
21/ Id. at Table 4, p. 6.

-  21 -



tion report admits a growing racial disparity in the proportion
of students who complete their studies at the two-year colleges
and receive associate degrees. The same report documents an
alarming decrease in the proportion of black students who
graduated from two-year colleges and entered four-year institu-

22/tions from 59.4% in 1977-78 to 23.1% in 1979-80.—  The State's
report of the previous year identified this problem and conceded
that while "[S]ome policies have been developed [to combat it]
. . . they are not formal in nature and they are not enforced 

23/by all institutions." Yet DE has taken no action to require 
Arkansas to adopt a statewide program to address this serious 
problem.

Arkansas' performance has been equally dismal in the 
enrollment of blacks in graduate and professional programs.
The Criteria (II C) require the goal of parity in the propor­
tion of black and white baccalaureate graduates enrolling in 
the state's graduate and professional schools. Arkansas 
acknowledged in its 1980 Annual Report that the disparity was 
16 percentage points, and that only "limited progress" has-been 
made in reducing disparities overall as well as in those pro­
grams, where blacks have traditionally been underrepresented.
In fact, the state had only four more fulltime black graduate
students in 1980 than in 1977 and the black percentage in

25/graduate enrollment declined.—

24/

22/ Id. at Table 9, p. 11.
23/ Arkansas College and University Plan for Compliance with 
Title VI of the Civil Rights Act of 1964, Annual Report (Fall
1980) , p. 14.
2±/ at 16.
25/ Higher Education General Information Survey (hereinafter 
"HEGIS") Fall Enrollment and Compliance Report on Institutions 
of Higher Education. Source: Arkansas submission on OE 2300-2.3
for 1977 and NCES Form 2300-2.3A for 1980.

-  22 -



By Arkansas' own admission, desegregation of staff posi-
26/tions IS the area in which "progress has been slowest."—

The Criteria require Arkansas to achieve a black proportion in
positions not requiring the doctorate equal to the percentage
of black recipients of master's degrees. Blacks were 10.3% of
master's recipients in 1978-79, but constituted only 5.3% of
administrative and 4.7% of faculty new hires in 1979-80 at the

27/traditionally white institutions. Although black recipi­
ents of master's degrees declined to 8.2% in 1979-80, 13 of the 
18 predominantly white institutions failed to meet even this 
lesser goal for administrators and''13 failed it for faculty.
Seven of the nine two-year institutions had no black administra-

. . 28/ tors at all in positions not requiring the doctorate.—  For
positions requiring the doctorate, 16 of the 18 predominantly
white institutions did not meet a modest 2.2% goal for black
faculty and 15 did not meet that goal for administrators in 

2 9/1980-81.—  Between 1977 and 1980 the percentage of blacks in
administrative and professional non-faculty positions at pre-

30/dominantly white four-year institutions, declined.

26/ 1980 Annual Report at 17.
27/ Letter from Arkansas Director of Higher Education T.
Michael Elliott to DE Regional Director Taylor D. August 
(Region VI), February 3, 1981, p. 9.
28/ 1981 Annual Report at Table 11, p. 13.
29/ Id. at Table 12, p. 14.
30/ Source: Higher Education Staff Information (EEO-6) for 1977
and 1980 submitted by Arkansas. DE's evaluation letter merely 
noted Arkansas' failure to meet the employment goals in its 
Plan but did not assess the effectiveness of the State's 
implementing measures because they "were not approved by OCR 
until May 1979" (TAB B, p. 6) —  fully 15 months after defen­
dants' approval of the Plan. DE compounded its failure to 
insist upon measures prior to Plan approval by not imposing 
more stringent requirements when the delayed measures were 
clearly not working.

- 23 -



with Arkansas regressing on practically every front, the 
need for a vigorous statewide desegregation program is greater 
than ever before. Yet DE has done nothing to force Arkansas 
into compliance with the goals of that state's own Plan and to 
bring about adherence to the Criteria. The holdings of the 
Court of Appeals and this Court in this case, the Criteria 
promulgated pursuant to those holdings, and the Plan submitted 
by Arkansas pursuant to those Criteria, are all rendered 
meaningless by DE's inaction.

VIRGINIA
With the acquiescence of DE, Virginia has followed a 

fragmented, institution-by-institution approach to desegregation 
rather than a statewide program. The results since approval of 
the Virginia Plan three years ago have been disastrous.

Virginia has no statewide and state-funded programs for 
the recruitment.and retention of black students into under­
graduate, graduate and professional programs, as required 
by the Criteria. DB expressed concern that Virginia had 
regressed in compliance with the Criteria's requirement for 
parity in college-going rates:

According to the Commonwealth's August 1979 Report, 
the student enrollment data for 1978 indicate a 
disparity of 7.6% between the proportion of white 
and black high school graduates who entered Virginia's 
two-year and four-year state-supported institutions.
This represents an increased disparity from the time 
the Plan was accepted (4.6% for academic year 1976-77).
Of particular concern is the decline in freshman within- 
state black students enrollment from 5,294 in 1977 to 
4,292 in 1978. During this same period, the percentage 
of white student enrollment (freshmen, within-state) 
decreased by less than 1%. 31/

31/ Letter from D.E. Regional Director Dewey E. Dodds (Region
III, to Virginia Secretary of Education, J. Wade Gilley, Nov.
28, 1980, TAB B, p. 12).

24 -



Although DE compared the 18.9% decline in one year in black 
within-state freshmen to the 1% white decrease, it did not 
translate its concern into a requirement for remedial action. 
Virginia reported the following year that the college-going

32/rate disparity had risen even higher to 8.7 percentage points.—
The proportion of black fulltime undergraduates that was 16.3%

33/in 1977 remained precisely 16.3% in 1980.—
To promote desegregation of the traditionally white four- 

year institutions, the Criteria require substantial movement 
toward parity in the entrance rates of black and white high 
school graduates and transfer students. However, Virginia's 
predominantly white institutions are not achieving a black 
proportion in enrollment sufficient to ensure that the Cri­
teria's minimum requirements and the Plan's desegregation goals 
for 1982 will be met. The black/white disparity of 15.3% per­
centage points in first-time enrollees at these institutions 
in 1980 was an insignificant change from 1978. Eleven of the 
13 traditionally white four-year institutions did not meet their 
i980 goals for first-time black enrollees and most of these did
not fully utilize the other-race scholarships provided by the 

34/Commonwealth. Given this poor rate of progress that resulted 
from reliance upon institutional initiatives, DE cited Virginia's 
failure "to assess the effectiveness of institutional recruitment
the Plan" submitted by the Commonwealth in 1978. 35/ Nonetheless,

32/ State Council of Higher Education for Virginia, Annual 
Report (Aug. 31, 1981), p. 27.
33/ HEGIS Fall Enrollment and Compliance Report of Institutions 
of Higher Education. Virginia submission on OE 2300-2.3 for Fall 
1977 and NCES Form 2300-2.3A for Fall 1980.
34/ 1981 Annual Report at 37, 40 and 13.
35/ Letter from DE Regional Director Dewey E. Dodds (Region
III) to Virginia Secretary of Education J. Wade Gilley, Nov.
17, 1981, Attachment A p. 14-15.

-25 -



DE has taken no action to bring Virginia into compliance with 
the Criteria's requirement of progress toward parity.

Responsive to the Court of Appeals' special concern to 
increase the pool of black professionals, the Criteria set the 
goal of parity in the proportion of black and white state 
residents who complete baccalaureate studies and enroll in 
graduate programs. In Virginia black fulltime graduate enroll­
ment statewide slipped from 5.1% in 1977 to 4.9% in 1980,
largely due to an almost 56% decline in black graduate enroll-

Wment at one of the traditionally black universities. The pro-
,portion of blacks enrolled in professional programs was stagnant
between 1977-1980 and no blacks were among the 64 students to
enroll in Virginia Polytechnic Institute's first class in 

. . 37/veterinary medicine.—  in November 1981 OCR noted the 
continuing black/white disparities in post-baccalaureate 
enrollments and the absence of special recruitment efforts 
targeted to blacks for graduate and professional study at 7 of 
the 10 insitutions offering graduate or professional programs. 
Yet DE has failed to require any comprehensive statewide 
program to recruit, and, if necessary, provide financial 
assistance for black graduate and professional students in 
order to implement the Criteria's requirement for parity "in 
the immediate future" in the proportion of black and white 
state residents who complete baccalaureate studies and enter 
graduate or professional programs in the state system (43 Fed. 
Reg. at 6662 ) .

38/

36/ HEGIS Fall Enrollment and Compliance Report of Institutions 
of Higher Education. Opcit.
37/ Ibid.
38/ Dodds letter of Nov. 17, 1981, Attachment at 15.

- 26 -



Even at those institutions where some progress in black 
enrollment has been made, the alarming disparity in graduation 
rates between white and black students threatens to wipe out 
any meaningful progress. According to a study commissioned by 
the Commonwealth, the graduation rate of whites statewide 
exceeds that of blacks by an astonishing 27.4 percentage 
points. DE reprimanded Virginia for not reporting whether 
senior institutions have adopted measures to address this 
disparity, as well as attrition in graduate and professional
programs, but did not require any statewide approach to this 

39/serious problem.
Nowhere has Virginia's performance relative to its Plan

been more disappointing than in the effort to desegregate the
Commonwealth's two traditionally black four-year institutions,
Virginia State University and Norfolk State University.
Indeed, Virginia State's white undergraduate headcount actually

40/decreased from 190 in 1978 to 151 in 1980. qe has charged 
the Commonwealth with failure to "explore recruitment techni­
ques and other ways to increase the proportion of white stu- 
dents attending the traditionally black institutions, but 
has taken no action against the state for that failure. Simi­
larly, Virginia's failure to meet the Plan's commitments for 
enhancement of facilities at the traditionally black schools, 
especially the promise of a four-year School of Engineering
Technology and a Continuing Education Center on Virginia State's |

42/campus, has been noted by DE but has not been corrected.

39/ Dodds letter of Nov. 17, 1981, Attachment A at 16, 17. 
40/ 1981 Annual Report at 30.

W  Id. at 2.
41/ Dodds letter of Nov. 17, 1981, Attachment A at 16.

- 27 -



Finally, Virginia's performance in the effort to dese­
gregate faculty, administrative and professional non-faculty 
staff has been nothing short of dismal. The percentage of 
blacks employed fulltime in administrative positions at the
traditionally white four-year institutions was 4.81% in 1977;

43/It was still 4.81% in 1980. The percentage of blacks in
professional non-faculty positions at these institutions was

44/8.95% in 1977; by 1980 it had dropped to 7.66%.—  Despite
small gains in the percentage of blacks on faculty, most
institutions have not met the goals upon which the Plan was
accepted and show no signs of meeting those goals in the 
 ̂ 45/future. When asked by DE for a statewide report on
employment in 1981, Virginia simply refused to comply;

An aggregation of these goals to assess 
statewide progress was not deemed ap­
propriate due to the initial understand­
ing between the federal and state officials 
involved that objectives were to be set 
on an institution by institution, and 
department by department basis.

Letter of Secretary Gilley to DE Regional Director Dodds, Dec. 
31, 1981, p. 5. Virginia still has no statewide and state- 
funded program for recruitment of black faculty/ administrators 
and professional staff, and DE has required none.

GEORGIA
The state of Georgia, like Arkansas and Virginia, has 

regressed with respect to virtually all significant indicia of 
desegregation since approval of its Plan in 1979. Georgia has

43/ Source: Higher Education Staff Information (EEO-6) for Fall
1977 and Fall 1980 submitted by Virginia.
44/ M.
45/ 1981 Annual Report, Vol. IV, Employment Assessment.

- 28 -



admitted as much in its reports, and DE specifically cited
46/many areas of deficiency in its 1980 evaluation.—  Nonethe­

less, in the last seventeen months DE has not required Georgia 
to adopt more stringent measures and has taken no formal action 
to achieve compliance.

In the 1980 letter, DE concluded that Georgia had made
"no real assessment of its progress in meeting the requirement
of Section II [Desegregation of Student Enrollment] of the 

. »47/Criteria. in the Georgia Plan (p. 167), the Board of
Regents had endorsed the "objective of proportionate first year 
enrollments in public institutions of higher education." Yet 
in its 1981 Annual Report, Georgia admitted that there had been 
only "a very modest decline" in the racial disparity in college­
going rates statewide, from 25.2 percentage points in 1977 to 
22.8 in 1980, and that "most institutions have consistently 
fallen below their projections, some disproportionately below" 
(p. 6). According to the report (Table II-A-3), there were 
1,366 fewer blacks enrolled in the System in 1980 than in 1977, 
a decline of 6.7%; and black enrollment was 27.4% less than the 
Plan's projection for 1980. None of the universities met its 
1980 black enrollment goal and only one junior college exceeded 
its goal. The 22.7% decrease in black enrollment at the 
traditionally black institutions was not compensated by 
increases elsewhere in the System.

Nor is Georgia achieving parity in the enrollment and 
retention of black students. According to the 1981 Annual

46/ Letter from DE Regional Director William H. Thomas (Region 
IV) to Georgia University System Chancellor Vernon Crawford. 
Although plaintiffs' copy is undated, we believe that the letter 
was sent in November or December of 1980.
47/ Ibid, TAB, p. 18.

- 29



Report (p. 94), black recipients of bachelor's degrees in 1980 
were 18.9% of black freshman enrollment in 1976; the comparable 
figure for nonblacks was 37.8%.

In the 1981 Annual Report Georgia also conceded that 
black graduate enrollment had "consistently decreased" since 
1977; indeed, black enrollment in 1980 was 22.2% less than in 
1977 (pp. 13-14). During this same period, black recipients 
of master's degrees declined almost 32% —  from 796 in 1976-77 
to 542 in 1979-80.

The pattern is the same in the area of employment where
Georgia has not made progress. Black administrators statewide
decreased from 9.4% in 1977 to 8.9% in 1980; black faculty

48/decreased from 6.7% in 1977 to 6.6% in 1980.—  Black professional 
non-faculty personnel remained constant at 10.0% between 1977-80, 
but only by virtue of the hiring of more blacks at the tradi­
tionally black institutions; at the tradi tionally white
schools, blacks in this category decreased from 7.1% in 1977 to 

49/6.9% in 1980.—
DE's 1980 evaluation letter commented on the lack of 

progress in employment and the inadequacy of the state's 
institution-by-institution approach. DE observed that all 
institutions had not revised their affirmative action plans 
and that most of the plans that had been received were inade­
quate under "the Adams-guidelines" (i.e. , the Criteria); DE 
criticized the state for providing "no information regarding

48/ Source: Higher Education Staff Information (EEO-6) sub­
mitted by Georgia for Fall 1977 and Fall 1980.
49/ Ibid.

- 30 -



progress in implementing those measures to be taken to aid in
50/the achievement of employment goals."—  Nonetheless, DE 

has taken no steps to require Georgia to remedy the situation.
Under the Criteria, DE's obligation to impose a plan

.  ̂ . . 5 1 /with more stringent requirements—  or to initiate enforce­
ment proceedings against Georgia is clear. 43 Fed. Reg. at 
6663. If these provisions are to have any meaning at all, DE 
cannot stand idly by as the state of Georgia slips backward 
toward a more segregated system of public higher education.
The failure of DE to take action in Georgia is yet one more 
example of the wholesale abandonment of the Criteria by 
defendants.

OKLAHOMA
It has been more than thirty years since the Supreme Court 

ruled unconstitutional racial segregation in Oklahoma's graduate 
and professional schools. Sipuel v. Board of Regents, 332 U.S. 
631 (1948); McLaurin v. Oklahoma State Regents, 339 U.S. 637 
(1950). In 1978 HEW determined that a desegregation plan 
submitted by Oklahoma conformed to the Criteria and was there­
fore acceptable.

50/ Letter of Regional Director Thomas to Chancellor Crawford, 
p.23.
51/ Although plaintiffs here complain of DE's failure to secure 
compliance with Georgia's modest Plan, we have consistently 
taken the position that the Plan itself is inadequate, fails 
to comply the requirements of the Criteria, and should not 
have been approved in the first place. The Plan is especially 
weak in its failure to eliminate program duplication and to 
strengthen the state's traditionally black institutions. See 
letter of plaintiffs' counsel to Secretary Califano, February 
9, 1979.

-  31 -



However, in 1980 defendants transmitted an evaluation 
52/letter to Oklahoma which identified major areas in which 

the state was not meeting the commitments and goals in its Plan 
and was actually regressing in the desegregaton of its system 
statewide. DE requested explanations but did not impose more 
stringent requirements. Nor has it done so in the succeeding 
two years.

In its Plan (p. 19) Oklahoma had agreed to a "five-year 
aggregate goal of parity" in the proportionate enrollment of 
black and white first-time entering undergraduates. But 
in their 1980 letter, defendants found a disparity of 4.9 
percentage points in 1978 and concluded that the state was not 
progressing toward a parity goal. The college-going rate 
disparity actually increased to 7.2 percentage points in 1980 
(1981 Annual Report, TABLE TWO, p. 8). By 1980 fewer black 
students were enrolled statewide relative to three years 
earlier (See Table XIV attached infra).

The Plan (p. 20) also committed Oklahoma "to completely 
eliminate the disparity between the proportion of black and 
white first-time entering freshmen and transfer students at 
its traditionally white four-year institutions by 1982-83."
In 1980, the traditionally white institutions failed as a 
group to meet the goals for black Oklahoma first-time fresh­
men and transfers. Seven of these 11 institutions did 
not achieve their goals; and the University of Oklahoma and 
Oklahoma State University, the two largest white institutions

52/ Letter from Taylor D. August, Regional Civil Rights 
Director, Region IV, U.S. Department of Education, to Dr. E. T. 
Dunlap, Chancellor, Oklahoma State Regents for Higher Education, 
November or December 1980. Plaintiffs' copy is undated.

- 32 -



on which the Plan placed major reliance for achieving parity, 
were substantially below their goals (1981 Annual Report, TABLE 
FIVE, p. 12).

Concerning black enrollment in graduate programs which 
DE's letter identified as "a major problem area," Oklahoma had 
failed to reach the Plan's goal in 1980 (TAB B, pp. 10-11). 
There were fewer black graduate students in 1980 than in 1977 
(see Table XIV infra). Although the Plan had projected 37 
black professional students from Oklahoma by 1980 (see II C of 
the Criteria), fewer than half of the 35 blacks then enrolled 
were residents of the State. Yet Oklahoma has not instituted, 
and defendants have not required, any new statewide measures to 
address these problem areas.

Oklahoma's Plan had committed the State "to an absolute
reduction of any disparity between the population of black and
white students graduating with baccalaureate, master's and
doctor's degrees" (Plan, p. 25). However, in their 1981 Annual
Report (p. 13) the Regents admitted:

In 1979-80, not only was the doctoral 
degree goal not met, but the Black/White 
ratio of doctoral degrees conferred in­
creased by almost 300 percent over the 
previous year (i.e. from 1:13.6 to 1:37.6)
... . The master's degrees conferred goal 
was not met this year... . In actuality 
428 bachelor's degrees were granted to 
Black students. This was 197 degrees or 
32 percent less than the number needed to 
meet the ratio goal.

Although Oklahoma's failure to meet the graduation goals indi­
cates a problem concerning the retention of black students, the 
state has no statewide and state-funded retention program, and 
defendants have not required one.

In conformity with 1( III A of the Criteria, Oklahoma 
agreed to achieve a proportion of blacks in positions not 
requiring the doctorate equal to the percentage of black

- 33 -



recipients of master's degrees and to set goals for positions 
requiring the doctorate that conform to black availability for 
these positions. However, betwen 1977 and 1980 the number of 
blacks in such administrative and faculty positions statewide 
did not increase. Although the number and percent of black 
tenured faculty grew, that was due largely to an increase at 
the traditionally black college. Moreover, the decrease 
statewide in black faculty "nontenured but on track" during 
this period reduced the pool for potentially tenured black 
faculty. There was also a sharp decrease of blacks in "pro­
fessional nonfaculty" positions (See Table XIV infra).

The number of black academic employees in 1980-81 was far 
short of the stated goals. For administrative, faculty, pro­
fessional and teaching/research positions requiring the doctorate, 
the traditionally white institutions had 29.4 fulltime equivalent 
(FTE) blacks (compared to the promised 43.4); for the positions 
in those categories requiring the master's degree, there were 
116.4 FTE blacks (compared to the promised 137.8); for academic 
positions requiring less than a master's, the 87.5 FTE blacks 
did not reach the goal of 91.4. (1981 Annual Report, p. 41)
Although Oklahoma fell short of the Plan's goals by almost 
40 black academic staff members in its predominantly white 
institutions statewide in 1980, the defendants have not required
more effective measures to implement the goals in the Plan and 

53/the Criteria. For Oklahoma, as for the other states, defen­
dants have simply refused to enforce the Criteria.

53/ DE's 1980 evaluation letter also criticized Oklahoma's 
delay "in initiating several critical actions related to 
strengthening the academic program at Langston [University, 
the State's traditionally black institution,] and implementing 
its new mission" (TAB A, p. 1). Because the promised corrective 
steps involving Langston are still in process, we will reserve 
any objections until the completion of that process.

- 34 -



FLORIDA
In a letter of findings to Florida Commissioner of Edu­

cation Ralph D. Turlington, dated January 15, 1981, Assistant : 
Secretary Brown stated (p. 2):

Florida has not made satisfactory pro­
gress in implementing several ... pro­
visions of the Plan [approved by DE in 
1978]. Moreover, vestiges of the State's 
formerly segregated public higher educa­
tion system persist and in some respects 
the system has become more segregated....
... Florida has not made satisfactory 
progress toward dismantling its formerly 
dual system of public higher education.

Noting that the specific problems identified in the letter and 
attachments are "substantial" and that "issues central to the 
success of the Plan have not been resolved over a protracted 
period of time," the letter warned (pp.4-5) that enforcement 
proceedings would commence "unless Florida corrects the defi­
ciencies identified herein within 45 days from the date of this 
letter."

Florida responded with a series of submissions which did 
not even begin to address in any comprehensive fashion the 
numerous deficiencies identified by defendants on January 
15, 1981. DE itself later admitted that Florida "did not 
respond in full to each of the requests made in our January 15
letter."54/ Nonetheless, in an astonishing about-face, the
new Administration declared on April 20, 1981, that Florida had

55/made an acceptable response" to the January 15th letter. 
Commissioner Turlington then openly boasted that "[t]here's not a

54/ Letter of Assistant Secretary Thomas to plaintiffs' counsel, 
August 21,1981.
55/ Letter of Antonio J. Califa, Deputy Assistant Secretary, 
to Commissioner Turlington, April 20, 1981.

- 35 -



thing that's new" in the submissions filed in response to DE's
K 56/charges.—

Defendants' determination to back down from the strong 
language of the January 1981 letter of findings is one of the 
most vivid and most powerful illustrations of this Admini­
stration's disregard for the Criteria. Florida has not met 
the requirements of the Criteria and shows no sign of meeting 
them in the future, yet DE refuses to take corrective measures.

For example, the January 15th letter noted that the dis­
parity between the proportion of white and black high school 
graduates entering Florida's public colleges and universities 
increased alarmingly between 1977-78 and 1978-79, from 9.85% to 
15.47% (Attachment B, p.11); Florida was required to describe 
specific additional measures to combat this problem (Attachment 
A, p.1). Nonetheless, DE withdrew this requirement and instead 
accepted Florida's general promises to improve- recruitment 
efforts. Plaintiffs objected to the inadequacy of Florida's 
response, noting the substantial decline of black first-time 
freshmen in Florida from 3,429 in 1977 to 2,971 in 1980.—
Yet DE, while admitting that Florida's response does "not
necessarily [require] actions that are statewide in scope,"

58/refused to take any further action.—  ,
The Criteria require states "to expand mobility between 

two year and four year institutions as a means of meeting the 
goals set forth in these criteria," 43 Fed. Reg. at 6662.

56/ The Tampa Tribune, April 21, 1981.
57/ Letter of Plaintiffs' counsel to Secretary Bell, June 11, 
1981, Appendix One, p.2.
58/ Letter of Assistant Secretary Thomas to plaintiffs' counsel, 
Aug. 21, 1981, Attachment p.1.

- 36 -



Defendants' general failure to secure statewide approaches to
desegregation that effectively involve the public community
college is especially critical in Florida because of the nature
of the State's postsecondary system. Florida expects fully
80% of the students entering public postsecondary education to
enroll initially in one of its 28 community colleges. Five of
its 9 senior institutions provide only upper division and
graduate programs. Any decrease in black enrollment in, or
impediments to their upward mobility from, community colleges
must merit special remedial action. Yet the racial disparity
in the college-going rate into the Community cibllege System was

59/actually higher in 1980 than in 1977.—  Also, between
1977 and 1980 enrollment of blacks in the community colleges,
decreased 19.2%, with the largest institution registering a
staggering loss of 42.9% of its black enrollment ;— ^and
during this period black recipients of associate degrees (i.e. ,
those qualifying for admission to the universities as juniors) 

61/declined 6.7%. Thus, DE's refusal to require actions 
from Florida that are statewide in scope, impacting, throughout 
the Community College System, effectively undermines the 
potential for any meaningful desegregation in Florida.

Similarly, Florida has failed to make any commitment of 
state funds to promote enrollment of a larger number of blacks 
in the upper division of predominantly white four-year uni­
versities. Between 1977-78 and 1978-79 the percentage of

59/ See Equal Access-Equal Opportunity Data for Florida 
Community Colleges, Parity Analysis Tables (1979 and 1982 
Editions).
60/ Id. at Opening Fall Enrollment College Level Headcount 
Tables.
61/ Id. at Associate Degrees Earned Tables.

- 37 -



blacks entering the upper division fell from 8.68% to 8.19% 
(Letter of January 15, 1981, Attachment B, p. 12), and DE 
specifically required additional measures to reverse this 
trend (î . at Attachment A, p.2). Yet DE subsequently accepted 
Florida submissions that lacked any statewide and state-funded 
programs to increase black enrollment.

The latest available data establish that in 1980 blacks 
enrolled as undergraduates in Florida at lesser rates than in 
1977. Within the state university system, blacks constituted 
11.5% of the enrollment in 1980 as opposed to 12.3% in 1977;
and within the primarily white universities, blacks were 6.1%

62/of the enrollment in 1980 as opposed to 6.3% in 1977.—
DE's January 15 letter to Florida revealed inadequate 

black enrollment in graduate and professional programs (Attach­
ment B, p. 13). There were 298 fewer black graduate students 
in 1980 than in 1977, a decrease of 26.7%; and there were 
fewer blacks enrolled in professional programs at the pre­
dominantly white universities in 1980 than in 1977. The 
drastic reduction in the number .of black recipients of advanced 
degrees is therefore not surprising: 170 fewer blacks were
awarded master's degrees in 1980 than in 1977, and the 26 
blacks who received doctorates in 1980 were one-third fewer 
than their counterparts in 1 977.— '̂ Nonetheless, Florida 
has not committed itself to any new statewide measures and DE 
has not required any. The Court of Appeals' plea for a

62/ HEGIS Fall Enrollment and Compliance Report of Institutions 
of Higher Education. Source: Florida submission on OE Form
2300-2.3 for Fall 1977 and NCES Form 2300-2.3A for Fall 1980.
63/ HEGIS Degrees and Other Formal Awards Conferred. Florida 
submissions on NCES Form 2300-2.1A for 1976-77 and 1979-80.
When plaintiffs called the latest data to DE's attention, 
including a substantial decrease in number of graduate and 
professional degrees awarded to black students, DE responded 
merely that the data would be considered "in our ongoing 
monitoring of Florida's plan implementation." Thomas letter of 
Aug. 19, 1981, Attachment p. 1.

- 38 -



substantial increase in black professionals has been permitted 
to fall on deaf ears in Florida.

According to the January 15 letter, overall white enroll­
ment at the traditionally black Florida A & M University (FAMU) 
had fallen by 1979-80 to 8.94% —  the lowest percentage since ■ 
1975. (Attachment B, p.14). The latest data suggest that this 
trend is continuing; the 189 white full-time undergraduates at 
FAMU in the fall of 1980 were only 4.2% of total enrollment,
a substantial decrease from the 6.9% white enrollment of three 

64/
years earlier. Furthermore, plans to enhance FAMU and 
eliminate duplicative programs at other universities have not 
gone forward; indeed, the only efforts to reduce duplication 
thus far have eliminated far more programs at the predominantly 
black FAMU than at the predominantly white institutions, with 
the result that FAMU is today even weaker than before. (January 
15 letter. Attachment B, pp.3-9). DE initially required 
numerous specific remedial steps (Attachment A, pp.4-5), yet 
virtually none of them has been carried out. And DE admitted 
in response to plaintiffs' objections, that with respect to 
FAMU "specific strategies" would not be "identified and
implemented" until October 1, 1981 —  nearly six months after

. 65/DE's acceptance of Florida's response. Plaintiffs are
still waiting.

The January 15 letter charged (p.3) that Florida's 
traditionally white institutions have made "little or no 
progress" in desegregation of faculty, noting that continued 
lack of progress in this area "perpetuate[s] the prior racial

64/ HEGIS Fall Enrollment and Compliance Report of Institutions 
of Higher Education. Florida submissions on OE Form 2300-2.3 for 
Fall 1977 and NCES Form 2300-2.3A for Fall 1980.
65/ Thomas letter of Aug. 21, 1981, Attachment, p. 2.

- 39 -



identity of the schools." Again, specific commitments were
requested (Attachment A, p.7); again, none was forthcoming.
The latest data reveal that in 1980 blacks constituted 6.2% of 
all faculty within Florida's State University System, as opposed 
to 6.3% in 1977; at the primarily white institutions the per­
centage of black faculty increased only marginally during this

67/period, from 3.0% to 3.1%.—
In sum, Florida's system of public higher education is 

today at least as segregated, if not more so, than it was when 
Florida's Plan was accepted in 1978. DE identified the 
components of the problem in a thorough and detailed analysis 
in January of 1981, and required numerous specific actions 
mandated by the Criteria. Although these actions were not 
forthcoming, the current leadership of DE has failed to 
take any meaningful steps to follow through on the January 
1981 initiative. That initiative and the Criteria under which 
it was required have been abandoned.

PENNSYLVANIA
Defendants' conduct with respect to Pennsylvania bears 

many similarities to their abdication of responsibility in 
Florida. DE is diluting and retreating from a strong letter 
of findings issued against the Commonwealth in January 
1981. As a result, there is at present no statewide program

66/

66/ DE apparently decided to accept individual institutional 
plans approved by OFCCP in lieu of the statewide program 
required by the Criteria. Yet according to Florida's 1981 
Annual Report, plans have not yet been approved for all 
of the state's universities; and no information has been 
provided as to whether the plans that have been approved 
conform to the Criteria.
67/ Higher Education Staff Information (EEO-6) for Fall 1977 
and Fall 1980 submitted to Florida.

- 40



to eliminate the vestiges of de jure segregation in Pennsylvania.
By letter to Pennsylvania Governor Richard L. Thornburgh, 

dated January 16, 1981, DE Regional Director Dewey E. Dodds 
(Region III) advised the Commonwealth that its 1974 desegre­
gation Plan had failed to achieve compliance with Title VI of 
the Civil Rights Act of 1964. The letter charged (p.3) that 
the 1974 Plan had been unsuccessful not only because Pennsylvania 
had failed to implement it, but also because the Plan itself 
had been too limited and had not required participation by "all 
the institutions needed for a complete remedy."

The last of these findings was especially significant.
The 1974 Plan had not included four "state-related" universities 
(The University of Pittsburgh and Pennsylvania State, Temple 
and Lincoln Universities) which are subject to substantial 
control by the Commonwealth both financially and administra­
tively. These universities enroll more students than the 
state-owned schools, and, with the exception of Lincoln (a 
traditionally black institution), provide most of the graduate 
programs and all of the professional study opportunities in the 
Commonwealth's system. The 1974 Plan had also exempted all of 
Pennsylvania's 14 community colleges from coverage. DE con­
cluded in its January 1981 letter that inclusion of these 
institutions in a new Plan is "needed for a complete remedy" 
(p.3), because "[i]n order to desegregate the system effec­
tively the interrelationships among the various institutions 
over which the State has control must be taken into account"
(p.8).

As required by this Court's Order of December 29, 1977, in 
this case, DE advised the Commonwealth in its January 16, 1981, 
letter of findings (p.10) that the new Plan was to be submitted

41



within 60 days and that 60 days after that (i.e., within 120 
days of January 16th) defendants would have to "either accept 
the plan or initiate enforcement proceedings." However, the 
current Administration has made a mockery of this timetable. 
Defendants did not receive any formal response from the 
Commonwealth until May 27, 1981 —  after the full 120 days had 
passed —  and that response merely promised a supplemental 
plan with 60 days. DE acquiesced in this defiance and even 
granted several additional extensions before the supplemental 
plan was submitted on September 30, 1981.

On December 18, 1981, Regional Director Dodds sent a
letter and an 18-page staff evaluation to Pennsylvania Secretary
of-Education Robert Scanlon. In the letter DE advised the
Commonwealth that its new Plan was "incomplete in major areas"
and that modifications would be necessary. Nonetheless,
defendants did not initiate enforcement proceedings but instead
merely asked for yet another submission from the Commonwealth.
And while the 18-page evaluation discussed in detail numerous
deficiencies of the new Plan, it was totally silent concerning
Pennsylvania's failure to include the four state-related
universities and the 14 community colleges. The critical issue
of limited scope, which had been so central to the January 1981
letter of findings, was merely left for further "discussion"

6 8/between defendants and the Commonwealth.—
On February 15, 1982, Pennsylvania submitted an "addendum" 

to its September 1981 supplemental plan. Since the Commonwealth 
had not been required by the December 1981 evaluation to in­
clude the state-related universities and the community colleges

68/ Letter of Regional Director Dodds to Secretary Scanlon, 
Dec. 18, 1981, p.1.

-  4 2  -



in this latest response, it did not do so. By letter from
Regional Director Dodds to Secretary Scanlon, dated March 18,
1982, DE did reject one component of Pennsylvania's February
1982 submission: an exceedingly inadequate proposal for the
enhancement of Cheyney State College, the Commonwealth's state-
owned traditionally black institution. However, as to all
other aspects of the "addendum," the letter merely states (p.1)
that DE's review has not been completed and that further corre-

69/spondence will be forthcoming.—
Today, 16 months after the January 1981 letter of findings, 

and one year after DE was required by order of this Court 
either to accept a new plan or initiate enforcement proceedings, 
Pennsylvania still lacks a statewide desegregation plan that 
complies with the Criteria and the decisions of the Court of 
Appeals and this Court.

69/ DE's January 1981 letter of findings noted (p.8) that 
Cheyney State College is in the same service area (the Phila­
delphia region) as Temple, two Penn State campuses, and 
several community colleges. Lincoln University is also in 
this service area. Thus, it is futile to address the problems 
of Cheyney State in the absence of a comprehensive statewide 
plan.

-  4 3  -



IV. Conclusion

Defendants' flagrant disregard for the Criteria 
has been amply demonstrated above. Further relief from this 
Court is urgently needed to require defendants to i) implement 
the desegregation guidelines and timetables mandated by the 
Criteria and the orders in this case, and ii) initiate enforce­
ment proceedings, where necessary, with respect to those states 
which are defiant or perenially recalcitrant. Defendants' 
blatant refusal to comply with the Criteria and the decisions 
in this case must be ended once and for all if the vestiges of 
de jure segregation are to be at long last eliminated —  "root 
and branch" —  from America's public colleges and universities.

Respectfully submitted.

Jack Greenberg 
James M. Nabrit, III 
Joel Berger

10 Columbus Circle
New York, New York 10019
Tel. (212) 586-8397

Joseph L. Rauh, Jr.
John Silard 
Elliott C. Lichtman

1001 Connecticut Ave., N.W. 
Washington, D.C. 20036 
Tel. (202) 331-1795

Attorneys for Plaintiffs

-  44



APPENDIX



APPENDIX A
($653 -MOTICSS

n iim d to z  t h e  Tslu jiU an  an d  tsc iu sia n  
oi Is-iclnd In com e o n  In com e an d  p ov ­
erty  siailsU ca.-

T lie  s tu d y  'Ir s t  revlenred deflnitlotia. 
o< In com e  th a t  h a v e  te e n  tu e d  In th e  
e co n o m ic  lite ra tu re  and  fo u n d  th a t  
m oa t In c lu d e . m a n y  ty pes  o f  I n - ^ d  
In com e, p r iv a te  as tveU as so v e m m e n - 
tal. T h e  n e x t  o b je c t iv e  vras v aiu iu g  th e  
In com e to th e  rec ip ien t. W h e n  In com e 
Is re ce iv ed  In m o n e y , re c ip ie n t  fam ilies 
a re  fr e e , to  p u rch a se  ;o o d s  th e y  desire  
a t m a rh et pr ices . H ow ever, w h en  
In com e Is rece iv ed  In-kind, particu iar iy  
w h en  p r ice  su bsid ies o r  con s tra in ts  on  
a m ou n ts  are Involved , th e re  is no 
m a rk et  to  w h ic h  one. ca n  turn  f o r  a 
v alu e . T h e  stu d y  th u s  ev a lu a ted  sever­
a l v a lu a tion  possib liU es. pr im a rily  
v alu ation , a t g overn m en t o r  e m p lo y e r  
c o s t  and  ca sh  eq u iv a ien t o r  u tility  
term s (d e fin e d  as th e  m o n e y  th a t 
w ou ld  lea v e  a  rec ip ie n t  as w e ll -o ff  as 
th e  In-kind In com e). T h e  stu d y  fo u n d  
th a t  n o  v a iu stla n . a lte rn a tiv e  Is fu lly  
con s is ten t  w ith  m o n e y  Incom e, fu r th e r  
resu lts show - th a t g overn m en t o r  em ­
p lo y e r  co s t  m ay  b ear Uttie re latlors fa lp  
t o  r e a p le n t  values.

P recise, m a th em a tica l fo rm u la s  w ere 
derived  f o r  ca sh  e q u iv a len t values and 
a p p ro x im a tio n s  to  ca sh  equ iva len t 
values, w ere  d ev e lop ed . F in a lly , using 
re ce n tly  ava ilable  d a ta  fr o m  th e  1312- 
73 . C on su m er E x p e n d itu re  Su rvey , 
va lu es  w ere  est im a ted  fo r  fo o d  stam ps, 
lo w -re n t p u b lic  h ou sin g , M ed ica id  and 
em p loy er-p rov id ed  h e a lth  Insurance 
using ..various valu a tion  a ltem atives.. 
W h i le  th ese  estim ates are e x trem ely  
c r u d e .. .  th e y  do sh ow  th a t in -k lnd 
In com e  ca n . In som e cases, p rov id e  s i-  

.zeab ie  add ition s to  m on ey  In com e bu t 
a lso  th a t  va lu es  t o  th e  re c ip ie n t  ca n  b e  

. fa r  b e low  g o v e n u n e n t  a n d  e m p lo y e r  
co s ts .

A  c o p y  o f  th is re p o rt  w ill he filed  
and  a va ila b le  as s o o n  as possib le , from  

•the N a tion a l T e ch n ica l In fo rm a tio n  
. S erv lcs , TI.E. D ep a rtm en t o f  C om - - 

m erce , S p r in g fie ld , Vx, 22151
D a te d ! F ebru ary  10, 1973, . -

. . .; H a ra y  Aa b o s ,
A ssis ta n t S e e v e tc ry /o r  

. ; PTannirt  ̂a n d  SvaluatiOTU
CFR D oc. 7S-U4T FBed 1-14-18; 3: IS ami

C4iTo-ni • 'V̂ .1'
»svw*D aiTtsTA svtdrriNO -me in«*gDi.

ENTS O f  ACCS?TA8t£ M ANS TO 0E5ESSS- 
-  OATS TTAT* STST8WS O f  fU 8 llC  HIGH** 

EDOCATiON . ■

 ̂ In  la te  1369 and "early  1970, th e  D e­
p a rtm e n t. o f  H ea lth . E d u ca tion , and 

' W elfa re - (H S W l n o tifie d  Icn  sta tes  
th a t  th ey - h ad  n o t  d ism a n tled  th e ir  
statew ide- du al sy stem s o f  pu b lic 
h ig h e r  edu ca tion . T h e  letters  sen t by 
H E W  a t  th a t  tim e adivsed  ea ch  sta te

o f  Its fa i lu r e  to  a d o p t m ea su res  n e ce s ­
sary  to o v ercom e  th e  e ffe c ts  o f  past 
seg reg a tion  and n otU led  th e  sta tes  o f  
th e ir  o b lig a tio n  to  file  a  sta tew ide 
p la n  fo r  th e  deseg reg a tion  o f  their- 
p u b llc  sy stem s o f  h ig h e r  ed u ca tion .

F o r  th e  past  seven- years  th e  C ou rt 
rev iew ed  HETWs e f fo r t s  to  desegreg ate  
th e se  sy stem s o f  h ig h e r  e d u ca tion . In  
1977, th is  C ou rt, fo u n d  th a t  th e  D e­
p a rtm en t's  e f f o r t  h a d  n o t  b een  ade­
qu ate  a n d  o rd e re d  th e  D e p a rtm e n t to  
req u ire  s ix  o f  th e  orig in a l ten  sta tes  to  
su b m it n ew  d esegreg ation  p lan s a n d  to  
sec sp e c ific  sta n da rd s f o r  th o se  plans.

T h e  C ou rt  fo u n d  th a t  " s p e c if ic  com ­
m itm en ts (w ere ) n ecessa ry  fo r  a w ork ­
a b le  h ig h e r  ed u ca tio n  desegreg ation  
p la n  . . . co n ce rn in g  a dm ission , re­
cru itm en t a n d  re te n tio n  o f  stu d en ts, 
c o n ce rn in g  th e  p la ce m e n t and  d u p lica ­
tion  o f  p rog ra m  o ffe r in g s  a m on g  insti­
tu tion s , th e  ro le  and  th e  e n h a n cem en t 
o f  black, in stitu tion s, and  co n c s m in g  
ch a n g es in t h e  ra cia l c o m p o s itio n  o f 
th e  fa cu lt ie s  in volved . ..

S p e c ifica lly , th is  C o u r t  e n tered  a 
S e co n d  S u p p lem en ta l O rd e r  on  A p ril 
1- 1977 d irectin g  th e  D e p a rtm e n t to 
tran sm it to th e  six  sta tes  o f  .-Arkansas.. 
F lor id a . G eorg ia , N o r th  .. C aro lin a . 
O k la h om a , and  V irg in ia  as w ell as th e  
C ou rt and  th e  p ia n t li fs  cr ite r ia  sp ec i­
fy in g  th e  in gred ien ts  o f  a ccep ta b le  de­
seg reg a tion  p la n s fo r  th e ir  in stitu tion s 
o f  p u b lic  h ig h e r  ed u ca tion . A cco rd in g ­
ly . on  J u ly  3i 1977, th e  D e p a rtm e n t 
pu b lish ed  cr ite r ia  w h ic h  w e re  am en d­
ed  o n e  m o n th  la te r  to  ta k e  in to  a c ­
co u n t sug g estion s o f fe r e d  b y  som e  o f  
tfa esta ta a .

T h e  C ou rt  fu r th e r  d ire c te d "  th a t  
■ H E W  req u ire  e a ch  sta te  t o  subm it, 
w ith in  SO days o f  re ce ip t  o f  th e  cr ite ­
ria . a rev ised  d eseg reg a tion  p la n  and 
to  a cce p t  o r  r e je c t  su ch  plans w ith in  
120' days th e re a fte r . In  S ep tem b er 
137T, in  respon se  to , SETT’ S req u est, 
th e  s ix  sta tes su b m itted  desegreg ation  
plans. .-U ter m o n th s  o f  in ten sive  n e g o ­
tia t ion s . th e  D e p a rtm e n t a n n ou n ced  
o n  F e b ru a ry  2, 1973, th a t  it  w as ac­
cep tin g  th e  p la n s o f  .Arkansas. F lor ida , 
and O k la h o m a . and n o t  a ccep tin g  
plans su b m itted  b y  G eorg ia , N o r th  
C arolina , and  V irg in ia . C n  th e  sam e 
date , th e  D e p a rtm e n t a n n o u n ce d  th at 
it  w ou ld  p u b lish  in  th e  F zsrsA i. H s c is -  
Txa, revised cr ite r ia  w h ich  a re  su bstan ­
tia lly  sim ilar to  th e  cr ite r ia  pu b lish ed  
In J u ly . •»,

■Where H E W  h a s fo u n d  t h a t  a  s ta te  
has n o t  e lim in a ted  th e  rem a in in g  ves­
tig es  o f . seg reg a tion  In Its fo rm e rly  
d u a l system  o f  p u b lic  h ig h e r  edu ca ­
tion,. and  is,, th e re fo re , in  v io la tion  o f  
T it le  Tl o f  th e  C ivil H lg h ts  A c t  o f  
1364. it  is req u ired  firs t  to  a ttem p t to 
secu re com p lia n ce  b y  v o lu n ta ry  
m eans. ’W h en , th o se  e f fo r t s  fa il .  H E W  
Is requ ired  I c  seek  e n fo rce m e n t eith er- 
adm in istratlveiy  o r  th ro u g h  th e  
cou rts . 42 D .S .C , 206-U  43 C F R  2000<±-

1. 45 aO .T fdX l). 30.3. T h e se  re -' 
v ised cr ite r ia  are issued to assist su ch ; 
sta tes !h th e  p re p a ra tio n  o f  desegrega- - 
t ion  p la n s as p a rt  o f  th e  p rocess  o f  so- 
cur in g  vo lu n ta ry  com p lia n ce .

H E W  or ig in a lly  d e v e lo p e d  th e  crite­
r ia  m in d fu l o f  th e  in stru ction s, o f  the 
C ou rt th a t  th ey  co m p ly  w ith  consU tu- 
tlorm l sta n da rd s and  T it le  VT. con form  
w ith  sou n d  ed u ca tion a l p ractices, and 
take in to  a cco u n t th e  u n iqu e  im por­
ta n ce  o f  b la ck  co lleg es . E a sed  o n  its 
e x p er ien ce  In a p p ly in g  th e  c r ite r ia  to 
six. sta te  system s o f  h ig h e r  edu ca tion  
o v e r  t h e  past m o n th s . H E W  h a s  deter­
m in ed  th a t th e cr ite r ia  prov ide  sp ecif­
ic  an d  e ffe c t iv e  g u id an ce  to  th e  states 
and a t th e  sam e tim e, are su ffic ie n tly  
f le x ib le  to  p ro v id e  fo r  circu m stan ces 
w h ich  m a y  v a ry  fr o m  s la te  to state.

P axascsij;
I .  H T S T O R T  o r  L IO A I. PSOC3tS35IhC3

T h e  cr ite r ia  sec fo r th  b e lo w  in itia lly  
w ere  d e v e lo p e d  by th e  D ep a rtm en t o f  ' 
H ea lth . E d u ca tion , an d  W elfa re  
(H E W ) pu rsu a n t to  th e  sp e c ific  d ireo-- 
t lo n  o f  the U n ited  S ta tes  D istr ic t 
C ou r t  fo r  th e  D istr ic t o f  C lolum bia In 
Adams  V. Califano, C iv i l . A c t io n  N o, 
3095-70 , S e co n d  Supp iem e.oca l O rd er 
(D .D .C . A p r il I . 1977). T h e  C ou rt 's  
O rd e r  a rose  fro m  a law suit in itia ted  in  
1970 to requ ire  H E W  to m k e  a ctio n  to 
e n fo r ce  th e  prov is ion s o f  T it le  V I  o f  
th e  CiVU R ig h ts  .-Vet o f  1964.'

In  1969. th e  O ff ic e  f o r  C ivil R ig h ts  
(O C R ) d e term in ed  th a t  ten  S ta te s ' 
w ere co n tin u in g  to  op e ra te  seg reg a ted  
h ig h e r  ed u ca tio n  system s in 'r io latlon  
o f  T it le  V I  o f  th e  1984 C .’rtl R ig h ts  
A ct. .A lthou gh  th e  S ta tes  w ere  n o tif ie d  
o f  th is fin d in g  and  w ere req u ested  to 
su b m it co r re c tiv e  p lans, n o  a dm in istra ­
tive e n fo rce m e n t a ct ion s  w ere taken 
w h en  th e  S ta tes  fa iled  to  su b m it plans 
or  su b m itted  p lan s -unacceptable to 
H E W . In F eb ru a ry  1973, th e  AdaTos 
lit ig a tio n  resu lted  In a  ru lin g  req u irin g  
th a t  H E W  take a p p ro p r ia te  e n fo r ce ­
m en t a ction . A d am s v. P.ichardson, 356 
P. S u pp . 92 (D .D .C , 1973). T h a t  ru lin g  
was u n a n im ou s ly  a ffirm e d  by  th e  fu ll 
U n ited  S ta tes  C ou rt o f  A p pea ls fo r  th e  
D is tr ic t o f  C o lu m bia  C ircu it, althoug.h  
the C ou rt  o f  -Appeals m od ifie d  th e  D is­
tr ict C ou rt 's  o rd e r  and  d irected  H E W  
to  a ttem p t to secu re  a ccep ta b le  deseg ­
reg a tion  plans fro m  th e  ten  S ta tes  
b e fo re  co m m e n c in g  e n fo r ce m e n t  p ro ­
ceed in gs. Adams  V. XicAardsan. 430 F . 
2d U 5 9  (D .C . C ir. 1973).

'T id e  V7 o f the C.-vtl Rights Aat of 19«4 
proTides: "N o person in the United SlAies , 
snail, on the zrounxia at race, color, or nj- 
tionai origin, be eacluded from partlcioation 
In. be dented the beneiiU o(. or be subjected 
to discrimination under any orreram or sc- 
tlvltT receiving Federai (Ii'.anctaJ aeaLstanev., 
42 U.3.C. raood.

'Arkansas, Florida, Georgia, Ihulsiana, 
Maryland, Misstssippi, Nort.h Carolina. 
Okiaaoma, Fennsylvania, and '/'u-ginla.

FEDEKAl lEGUTEk. VOU ■«, NO. 32— W SSN ISD Ar, FEStUAgY JJ. W S



MOT1C2S 6639
'■.In. 1974. H E W  a ccen ted  desegresa - 

,'£ lon : plana fro m  e ig h t o f  t h e 't e n
- SUtea.* H eporta  c o v e n n g  th e  t o t  y ea r 

. -'o f  Imp le m e n ta tio n  w ere  su h m ltted  to 
.:3 E W  In I97S. S u baep u en tly . th e  p la ln -

ttffs in th e  /Jdam a caae so u g h t fu r t h e r  
■•"relief and o n  April. U 1977, th e  C ou rt 
■,;mied th a t  th e  1974 plana d id  n ot 
- c o in o ly  w ith  th e  cr ite r ia  prev iou s ly  an- 
vVnounced b y  H E W  and th a t  as im ple* 

aiented. th e  plana h ad  fa iled  to  a ch ieve  
r, s ign ifica n t p rog ress  tow ard  h ig h e r  
^ edu ca tion  ' d esegreg a tion . B ased  on  
- th ese- fin d in g s, the. C o u r t  o rd ered  
•HEW. to  d ev e lop  a n d  Issue w ith in  90. 
'  days sp e c ific  cr ite r ia  to g u id e  th e  six  
.3 ta tea ‘  in th e  p rep a ra tion  o f  rev ised  

;i. desegregation  plana.

vi'n . LZSAL AMO EDOCanOMAI. ?W M :c l? tI3  -

■ 'i .  .De fu r e  sep rep o flon  
_ T h e se  cr ite r ia  w ill b e  a p p lied  to  a
■ state w h ich  fo r m e r ly  op e ra te d  a du al 

system  o f  p u b lic  h ig h e r  ed u ca tio n
- u n d er sta te  law . If hhe O f f i c e  fo r  C ivil 
•R igh ts determ in es td ter  In vestigation  

. th at t h e  s ta te  has fa iled  to rem ov e  th e
■ vestiges o f  racia l s eg reg a tion  In Its 

system  in v io la tion  o f  T it le  ' ' f l . ..
B . A/Jirmative itUy £o take effective 

, steps ta eiimisiate d e  jvre seprega- 
_'C.> ( io n  .... . .

W h e r e  th e re  has- b e e n  past d e  Jure 
. seg reg a tion , sta tes  are req u ired  to  ta k e  

a ffirm a tiv e  rem ed ia l step s  and to 
a ch ieve  resu lts  In overc.om ln g  th e  ef -  

• fe e ls  o f  p r io r  d lscrira ln atlon . H E W ’ s
■ reg u la tion  Im plem en tin g  T it le  VT p ro- 

vldea th a t  ■

la  sdmlalnterlng a program, rwardlng vtUch-
- the recipient has prcTiously Olscrtmiaated 

aeamat penona on the ground of race • • •. 
the rectoient om it take alhrmattv* letloo

' to orcreom e the effects of prior dlacrtmlna- 
tlon. 4S CTR eoJtbkSX ll.

T h e  14th  A m en d m en t a lso rn.na f o r  
m ore  th a n  m ere  a b a n d on m en t o f  d is- 

A n im ln atlon  th ro u g h  l.be sta te 's  ad op ­
tion  o f  passive o r  n eu tra l po lic ies . T h e  
U n ited  S ta tes  S u p re m e  C ou rt  has h e ld  
th a t  p u b lic  sch o o l o ff ic ia ls  h a ve  “ t h e  
a ffirm a tiv e  d u ty  to  take w h atever 
steps m ig h t b e  n ecessa ry  to co n v e r t  to 
a  u n ita ry  system  In w h ich  d lscrim ina -

■ Louisiana refused td submit a plan and' 
was referred to the Deoaronent of fusdee; 
which filed a lawstut. ( United Elates v. L ou-’ 
tiioTuX Civil Action Mo. 74-es IM.D. La.) tn 
January 1974. The plan submitted by Mls-  ̂

. slsalpol was deemed unacceptable by HEW- 
and th e matter was referred to the Depart-; 
men! o f Justice, which filed a lawsuit, Ayers ̂ 
and United States r. .riruVv O vil Actlo'c Ko. 
D.C. TS-a-iC (NJ3, Miss.). In March 1973.

•The April i. 1977, Order excludes ?enn- 
sylTanla.<by agreement o f the parties to the 
Adonu lawsuit) and Maryland, which com­
menced a separate injunctive ssilt against 
HSW 'i enforcem ent proceedings now pend- 
log in. the United States Court of Appeals 
for -010 Peurth C rcu lt Llfondcf v. MS'V, No. 
TS-1494), as well as Louisiana and Mlssissip-

t lon  w o u ld  b e  e lim in a ted  r o o t ,  and 
b r a n ch ."  Green v. • County S ch oo l 
B o a rd  a/ New Kent County. 391 0 .3 .  
430, 437-38 (1968 ).

T h e  a ffirm a tiv e  d u ty  to  d esegreg ate  
a p p lies  w ith  equ al fo r c e  to  h ig h e r  edu­
c a t io n -  Norris V. S fa fe , Council a/ 
Jiigiier Sducation,' 327 F . S u p p . 1388 
(S -D-. V a . 1371), tiff’d, per curiam, 404 
U .S . 907 (1371): Lee v. H a e m  County 
Board of Sducation, 287 F . S u pp . 438 
( J t D .  A la . 19675, a fT d  369 U .S . 21S 
(1967 ); Geier v; Dunn, 337 F . S u p p . 573 
(M -D . T e n n . 1972). - id d lt lo n a lly , t h e  
S u p rem e  C ou rt has m a de  It c le a r  th a t 
d esegreg ation  p la n s a re  n o t  a d eq u ate  
u n less  th e y  are e ffe ct iv e . See Green v. 
County Sctuysl Board of New Kent 
County, supra;. Swann  v. Oiariotte- 
ilecJUenburg Board of Sducation. 402. 
U .3 . 1 .(19 7 1 )..

C on s isten t w ith ' t h e  req u irem en ts  o f  
U t l e  'VT th e se  cr ite r ia  se t fo r th  th e  
e lem en ts  o f  . a deseg reg a tion  p la n  
w h ich  w ou ld  e lim in a te  th e  e ffe c t s  o f  
past d iscrim in a tion .
C. Statewide approach " *;

T h e  C ourt: o f  .Appeals In Its en  b a n c  
o p in io n  In Adams  d ire c te d  H E W  to  un ­
dertak e  a  sta tew ide  a p p r o a c h  and 
noted, th e  ser iou s p ro b le m  crea ted  by 
th e  la ck  o f  v ia b le  sta tew id e  co o r d in a t ­
e d  p la n n in g  in  h ig h e r  e d u c a t io n ;.
The problem, o f thtegraflng higher educa­
tion. must b e  dealt with on a statewide 
rather than a sc.naol-by-echool basis. '*

" I t  Is Imnortantita note that we are aot 
here rltsnivrtng dlscrimlnatary admlsslan 
policies o f individual ihstitutlona. T o  the 
extent that auch practices ire  discovered. 
Immediate corrective i ctiog  la required, but 
we do aoc understand HEW to dispute that 
point. This conuovetay concerns the more 
com plex problem of systemwide racial Im­
balance; Adams 7. Riehardaon, ntprd, 430 P. 
2d at 11&4-U66 (footnote in original).

T h e  D e p a rtm e n t h a s fo l lo w e d  th is  ap-. 
p r o a c h  s in ce  1969 b eca u se  w e be lieve  
sta tew ide  p la n n in g  Is con s is ten t  w ith  
sou n d  edu ca tion a l p o licy . T h u s , these 
cr iter ia  re q u ire  n o t  o n ly  th a t  ea ch  In­
s titu tion  . pu rsu e  n on d lsc rim in a tory  
s tu d en t a dm ission  and fa cu lty  and 
s t a f f  e m p lo y m e n t . p ractices , b u t also 
that, th e  s ta te  sy stem  as a  w h o le  devel- 
o p  a  com p reh en s iv e  a n d  coord in a ted  
sta tew ide  desegreg ation  p la n  em b od y ­
in g  th ose  sp e c ific  a ffirm a tiv e , rem ed ia l 
step s  w h ich  w ill p r o v e  e f fe c t iv e  In 
a ch iev in g  s ig n ifica n t p ro g re ss  tow ard  
th e  d isesta b lish m en t o f  th e  stru ctu re  
o f  th e  du al system  an d  w h ic h  address 
th e  p ro b le m  o f  "sy stem w id e  racial Im­
b a la n ce ."  . rt.
D . Speeifirity^-^ais and timetables "

T h e  D is tr ic t  C ou rt In Adams can-
e lu ded  th a t  th e  p la n s  p rev iou sly  
a d op ted  by  th e  sta tes  h a d  fa iled  to  
a ch iev e  a dequ ate  d esegreg a tion  b ro - 
gress and  la ck ed  sp e c ific  com m itm en ts  
f o r  ch a n g e  as co n ce rn s  th e  desegrega^ 
t lo n  o f  stu d en t b od ies  a n d  fa cu lties .

e n h a n ce m e n t o f  tra d it io n a lly  b la ck  In­
s t itu tion s, an d  d esegreg ation  o f  th e  
g overn in g  b oards in h ig h e r  ed u ca tion  
sy stem s. _____

T h e  D is tr ic t  C ou r t  d irected  H E W  to 
p rep a re  o n te r ia  w h ich  w ou ld  id en tify  
fo r  th e  sta tes  th e  sp e c ific  e lem en ts  to 
b e  in c lu d ed  in  th e ir  revised desegreg a ­
tion . plans. -As t h e  D is tr ic t  C o u r t  
s ta ted  In respon se  to  p la in t iffs ' o ra l ar­
g u m en t o n  Jan u a ry  17, 1977:
■What I do want them to do though Is be 
under the- comoluslon of a court order to 
suOmit to the states certain rpeciAc require- 
.ments which the states must respond to and 
they should be given a timetable (or com­
municating with the statea and the states 
should be given some kind o f timetable 
within which to make response. (Transcripc. 
January nth ruling; emphasis supplied.)

, In  Geier v , Blanton, 427 F . S u pp . 344 
(M T3. T e n n . 1977), th e  C ou rt  q u oted  
Its O rd e r  o f  D e ce m b e r  23, 1969, ex ­
pressin g  Its d issa tis fa ction  w ith  a sta te  
su b m itted  d esegreg a tion  p la n  In th at 
th e  p la n  as su b m itted  “ lack s s p e c ific ­
ity ; In th a t  th e re  is n o  sh ow in g  o f  
fu n d s  to b e  e x p en d ed , n o  s ta te m e n t o f  
th e  n u m b er o f  stu d en ts to  be Involved, 
and  m ost Im porta n tly , n o  tim e sch e d ­
u les f o r  e ith e r  th e  im p lem en ta tion  o f  
th e  p r o je c ts  o r  th e  a ch ie v e m e n t o f  any 
g oa ls .'' 427 F . S u pp . at 346,

-  T h e  S u p re m e  C ou rt h a s m a in ta in ed  
th a t  in a  system  w ith  a  h is tory  o f  seg­
re g a tio n  th ere  la a  n eed  lo r  rem ed ia l 
cr ite r ia  o f  su ffic ie n t  sp e c ific ity  to  
assure co m p lia n ce  w ith  th e  law . S ee 
Swann, su p ra  at 25-28 .

In  k eep in g  w ith  Lhe C o u r t 's  v iew  
th a t  th e  D e p a rtm e n t shou ld , subm it 
sp e c ific  req u irem en ts  to  th e  sta tes, n u - 
m erioa i g oa ls  an d  tim eta b les  are sec 
fo r th  ta th e  cr ite r ia . T h e  goa ls  are es­
ta b lish ed  as Indices by. whic.h to ' m ea ­
sure- prog ress  tow ard  th e  o b je c t iv e  o f  
e lim in a tin g  th e  e ffe cts  o f  u n co n stitu ­
t ion a l d e  Jure racia l seg reg a tion  and  o f  
p rov id in g  equal ed u ca tion a l o p p o rtu n i­
ty  fo r  all citizen s o f  th ese  sta tes. T h e y  
are benc.hm arSs and prov ide  th e  states 
th e  c le a r  and sp e c ific  g u id an ce  ca lled  
fo r  b y  th e  C ou rt.

T h e se  goals are n o t  q u otas . T h e  D e­
p a rtm en t la op p o se d  ta a rb itrary  
qu otas . F ailu xe  to  a ch iev e  a goal is n o t  
s u ffic ie n t  ev id en ce , sta n d in g  a lon e , ta  
esta b lish  a vto ia tion  o f  T it le  V I . In  ad­
d ition . th e  O ff ic e  f o r  C ivil R ig h ts  
u p o n  a sh ow in g  o f  e x ce p tio n a l h a rd ­
sh ip  o r  sp ecia l c in rim ,stan ces by a 
sta te , m a y  m o d ify  th e  goa ls  an d  tim e­
tables. N everth eless , th e  sta tes  axe 
u n d e r  a sta tu tory  oh iig ation  ta devise 
and Im plem en t p lan s th a t  a re  e ffe c t iv e  
In a ch iev in g  th e  deseg reg a tion  o f  the 
system .

M oat Im porta n tly , u n d er th e s e  cr ite ­
ria  a n d  th e  goals th e y  set. a ll appli-. 
ca n ts  m ust b e  ab le  ta co m p e te  su ccess­
fu lly . S ta tes ’ e ffo r t s  u n d er th ese  cr ite ­
ria  n eed  n o t  and sh ou ld  n ot lead  to 
low er in g  a ca dem ic sta n da rd s. S ta tes  
m ay n eed  to In n ov ate  ta seek in g  ou t

FB3C3U1 1ES1S713. YO U  « ,  NO. 22— W lO N SiO A r, ftB k U A lY  13, 1979



5650 NOTICSS

ta len ted  stu d en ts  w h o w ill on sflt  'rora  
h ig h er edu ca tion . T h e y  m ay n eed  to 
b roa d en  d e fin it ion s  o f  p o ten tia l: to 
d iscou n t th e  e ffe c ts  o f  early  d isadvan­
tage  o n  th e  d ev e lop m en t o f  a cadem ic 
co m p e te n ce ; an d  to b roa d en  th e  tal­
ents m ea su red  In a dm issions tests. B u t 
n e w  an d  d iffe re n t  yardsticlcs fo r  m ea­
su rin g  p o te n tia l are n o t  lo w e r  stan­
dards. T h e y  ca n  be m o re  valid, m ea­
sures o f  tru e  p o ten tia l and  ta lent, 
talcen as a  w h o le , th ese  cr ite r ia  seek  to 
p reserv e  and p r o te ct  a ca dem ic stan­
dards o f  ex ce llen ce .
3 .  Special consideratiana In develop­

ing criteria /or deaegregation in 
higher education

A  sta te  sy stem  o f  h ig h e r  ed u ca tion , 
as w ith  an e lem en ta ry  and secon da ry  
s c h o o l d istr ict. Is h e ld  to  an  a ffirm a ­
tiv e  d u ty  to  tak e  rem ed ia l a ct io n  to  
co r re c t  past p ractices  o f  seg reg a tion  
a n d  d iscrim in a tion . H ow ever, the 
n a tu re  o f  th e  rem ed ia l a ction  requ ired  
o f  a . h ig h e r  ed u ca tion  system  w ill 
d i f fe r  fr o m  th a t requ ired  o f  a  lo ca l 
e d u ca tion  district.. T h e  co u r t  o f  .-ip- 
peals in Adama  n o ted : .
. However, we are also mindful that deseg­
regation problems in colleges and universi­
ties differ widely from those- In elementary 
and secondary schools, and that HHW ad­
mittedly lacks esoerlence in dealing with 
them .' • • As regrettable as these revelations 
are, the stark truth is that HST.V must csre- 
fuily assess the significance of a variety of 
new factors aa It moves into an onsccus- 
Comed area. ISO-?. Id at 1154.

In  Narria 7. State Council of Higher 
Education, 327 P . S u p p . 1368, 1373 
( 3 D .  V a . 1971, a f f d  p er  cu ria m , 404 
T -B . 907 (1971)., th e  co u r t  h e ld ;

T h e  means o f eliminating discrimination 
In public schools necessarily differ from Us 
elimination In colleges, but the state's duty 
is as exacting.

. ii id  !n  San'dera v i  EUington- 233 P . 
S u p p . 937, 943 ( M D . T e n m  1968), the- 
c o u r t  sta ted ; .

•How in considering Uhe time element -for 
presentation of a plan, I have thought of 
the comoiexlttes o f  the problem. I. recognize 
that t.he simple remedies which might be 
available to a county school board, where 
there is Involved a compulsory system o f 
education, a free system of education, and 
assignment o f students, are not avallaole- 
here. Colleges are not compulsory and er. 
eryone can testify that they're not free.

H ig h er ed u ca tion  d iffe rs  fr o m  e le ­
m e n ta ry , an d  se co n d a ry  ed u ca tion  in 
m a n y  o th e r  w ays. B esides b e in g  v o lu n ­
ta ry  ra th e r  th a n  co m p u lso ry , h ig h e r - 
ed u ca tio n  op era tes , o n  a sta tew ide  o r  
reg ion a l basis, n o t  lo ca l; th ere  are no 
"a tte n d a n ce  zo n e s "  In h ig h e r  edu ca ­
tion ; h ig h e r  ed u ca tion  prog ra m s vary  
fr o m  In stitu tion  to in stitu tion  and are 
n o t  u n ifo rm ; stu d en ts are fre e  to  leave 
th e  sta te  o r  to  a tten d  private co lleg es  ■ 
in  pu rsu it o f  a  h lg.her edu cation .

F u rth erm ore , from  sta te to  sta te sig­
n ifica n t d iffe re n ce s  are to b e  fo u n d

and m ust b e  ta k en  Into con s id era tion . 
In som e states ' strong, cen tra lized  
" s y s te m "  e.kists In cluding  fo u r  y ear 
and tw o y ear Institu tions; In oth ers , 
th e  fo u r  y e a r  and  tw o y ear in stitu tion s 
rep ort to  separate- b oards; In yet 
oth ers , ea ch  Ih stitu d o n  o p era tes  u n d er 
its ow n  In dep en den t b oard . W h ile  
non e , o f ' th ese  d iffe re n ce s  relieves a 
sta te  o f  Its ob lig a tion s  u n d er T it le  VT 
o r  Its co n s titu tio n a l duties, th e y  m ust 
b e  tak en  in to  a cco u n t in fa sh io n in g  an 
a p p rop r ia te  set o f  cr iteria  to  b e  a pp li­
cable, to  s ix  sta tes.

A ccord ing ly ,.: .• w h ile ' desegreg ation  
cases In voiv iag  Individua l e lem en ta ry  
and  secon d a ry  • sc h o o l d istr icts are a 
g u id e  to  a sta te 's  d u ty  to  take co r re c ­
tive a ction , th e y  are n o t  d b p o s lt lv e  o f  
th e  p a rticu lar  m eth od s  to  be design ed  
fo r  th e  d ism a n tlin g  o f  a du al sy stem  o f  
h ig h e r  edu ca tion , fo r  th e  desegrega ­
t io n  o f  a  sta tew ide  system , fo r  th e  re­
m oval o f  th e  vestiges o f  racia l segrega ­
t ion , and f o r  th e  co r re c tio n  o f  "sy s ­
tem w ide racia l im b a la n ce ."  A s th e  
cou rts  Adama  have n oted , th ese  are 
lindeed- "co m p ie x " ls su e s . T h e s e  cr ite ­
r ia  are des ig n ed  sp e c ifica lly  fo r  th e  
h igh er- ed u ca tion  system s o f  th ese six 
states b ased  on  a ca re fu l con s id era tion  
o f  re lev an t sta tu tes  and  co u r t  o p in ion s 
and  w ith  du e co n s id era tion  to  th e  
u n iqu e  ch a ra cter is tics  o f  h ig h e r  edu ca ­
tion.*
? .  The unigue role a/'the traditionally 

Hack collegea
• In  k e e p in g ..w it i th e  In stru ction s o f  

t h e  C ou rt, th e  cr ite r ia  recogn ize  th e 
u n iqu e  im p orta n ce  o f  tra d ition a lly - 
b la ck  co lle g e s  in m eetin g  th e  edu ca - 

• t lon a l needs o f  'b la c k  stu d en ts . M ore  
th a n  80 p ercen t o f  ail b la ck  co lle g e  
g radu ates have b een  tra in ed  a t ' b lack  
co lleg es . In . th e  m id -seventies, b lack  
colleges-, con tin u e ! to  graduate a lm ost 
lo r ty  p ercen t o f  a il blacks, w h o  re­
c e iv e ' co lle g e  degrees.

T h u s  It Is w ith  g o o d  rea son  th a t th e  
C ou rt o f  A p pea ls  in Adama  re cogn ized  
Che n eed  to take-in to a ccou n t " t h e  sp e­
cial problem s, o f  b la ck  coU egsa ."

Perhaps the most serloi« probieai In this 
area Is the lack of state-wide platmlhg ta 
provide more and better trained minority 
group doetors, lawyers, engineers and other 
profesalonais. A predicate for minority 
access to quality post-graduate programs is 
vlaOie, co-ordinated state-wide higher educa­
tion policy that takes Into account the spe­
cial problecds of minority students and o f  
Black colleges—* *.* (Tthese Black Instltu-'

‘ For a useful dlscasslon o f these Issues see' 
Mote. 'T h e  Affirmative Duty T o  Integrate- 
Higher Sducatlon.. "  70 Yale iaso  Journal 
558 (1970).

'S ee Silas Blake.- Fubilc Policy and the 
Higher Education ■ of Black ,Amencans_" 
S taff Report, Subcommittee on Constltu-, 
tlonsj Rlgnts of the. Committee on the Judl-' 
clary, 94th Cong, id  Sess. 1978,

' tfatlonal Center for Education Statistics. 
Earned Degrees Survey. 1975-78.

tlons currently fulfill a crucial need and eiB 
continue to play an Important role In Blaex 
.hlgner educauon. 480 F. 30 at US4-U85. -

A ga in  In 1977, th e  D istr ic t Court, la 
Its S e co n d  S u p p lem en ta l O rder, p. 4. 
q u oted  th e  above  Language o f the 
C ou rt o f ‘.Appeals and w en t on  to  state:

The process of desegregation most not 
place a greater burden on Black Insutuclcss 
or Black students' opportunity to .-eeelve a ■ 
quality public hlgner education. The deseg-. 
.’Wgatton process should take Into account 
the unequal status o f the Black colleges and 
the real danger that desegregation wlU dl* 
minish higher education opportunities for ■ 
Blacks. W ithout suggesting the answer to 
this complex problem, it is the responslbll- 
Ity o f HEW to devise criteria for higher edu- . 
cation desegregation plans which will ‘ake 
Into account the unioue imporrance cf 
Black colleges and at the same time comply 
with the Congresalonal mandate.

T h e  D e p a rtm e n t does n o t take this 
la n gu a ge  to m ean  th a t th e  traditional­
ly b la ck  in stitu tion s are e.xem pt from  
th e  C on s titu tion  o r  th e  requirem ents 
o f  T it le  V7. T o  th e  con tra ry , tradition ­
a lly  b la ck  and tra d ition a lly  w hite  in­
s t itu tion s are s u b je ct  to  th e  sam e con-.- 
s titu tlon a l and. con g ression a l m andate ' 
to p rov ide  an ed u ca tion  to a ll citizens 
w ith ou t d iscrim in a tion  or  segregation . 
W h ite  and  b la ck  In stitu tion s are to 
fu n c t io n  as part o f  a . u n itary  system  
fr e e  o f  th e  vestiges o f  state Im posed, 
racial seg reg a tion . H ow ever, as the 
C ou rt has in stru cted , th e  tra n sition  to 
a u n itary  system  m ust n o t  be a ccom ­
plish ed  b y  p la c 'jig  a d isp roportion a te- 
b u rd en  u p on  b lack  stu den ts, faculty ,, 
o r  In stitu tion s or  by  red u cin g  the edu­
ca tion a l op p ortu n it ies  cu rren tly  avail­
able to  b lacks. .

T o  a ch ieve  th e  ob je c t iv e s  o f  T it le  VT. 
p recise  m eth od s  w ill .need to be fa-, 
sh io n e d  fo r  in stitu tion s w ith in  a state, 
eac.h a p p rop r ia te  to  th e task  o f  o v er­
co m in g  th e  e ffe c ts  o f  p r io r  d iscrim in a ­
tion  in th e  particu lar  Instance. E ach  
m etl.-ad w ill be e n fo rce d  ■with equal 
fo r ce  and determ in a tion . E a ch  m eth od  
is design ed  to a ch ieve  th e  sam e co n s ti­
tu tion a l stan dard .

I I I .  cow s 'P x rA T iorr  y s o c s s s
In  th e  p rep a ra tion  o f  th e  cr iteria  

orig in a lly  prom u lg a ted  p u rsu an t to 
co u r t  in stru ction , th e D ep a rtm en t u n ­
dertook  an exten sive  con su lta tion  pro­
cess w ith in  th e  D e p a rtm e n t and w ith  
Interested ou tside  parties. In  an e ffo r t  
to assure th a t  th ese  cr iter ia  w ere  b o th  
leg a lly  and ed u ca tion a lly  sou n d , a de­
p a rtm en ta l task fo r c e  was esta b lish ed  
to g u id e  th e ir  dev e lop m en t. T h e  task 
fo r ce  co m b in e d  th e  m u ltip le  d isci-. 
pUnes and varied e.xpertlse need ed  to 
reso lve  th e  co m p le x  issues and edu ca ­
tio n a l po lic ies  Involved in th is desegre­
gation  process . S erv in g  on  th e task 
fo r ce  w ere t.he G en era l. C oiinsoi. the 
D ire cto r  o f  th e  O ff ic e  fo r  C ivil B igh ts , 
th e  .Assistant S ecre tary  fo r  E d u cation , 
th e '.C o m m iss io n e r  o f  E ducation ., and

FlDESAl g s s i m a .  V O t. 43, .MO. 32— WEDHtSOAY, FSagUAgY 13, 1773



NOTICES 6651
th e  A ssistan t S e cr e ta r y  f o r  PTanniny 
and  S v a iu a tion .

T h e  D ep a rtm en t also em darited o n  a 
p rog ra m  u{ op en  d ia log u e  an d  con su l­
ta tion  w ith  parties o t  Interest. T h e  
task fo r ce  m em bers  co n fe rr e d  w ith  
r e p re s e n u t lv e s  o f  th e  six  sta tes co l le c ­
t iv e ly  a n d  in d iv idu a lly . T h e  rep resen ­
ta tives In clu ded  co lle g e  presiden ts, 
ed u ca tio n  o ff ic ia ls , and  a ides to  G o v e r ­
n ors . A  sp ecia l m e e tin g  was h e ld  w ith  
stu d en ts  w h o a tten d  t h e  p u b lic  co l­
leg es  In th e  six  sta tes  and  rep resen ta ­
tives o f  sev era l n a tion a l s tu d en t o rg a ­
nizational P o u r  m eetin g s w ere  h e ld  
w ith  o ff ic ia ls  o f  th e  a m icu s cu ria e . N a­
tio n a l A ssocia tion  fo r  S o u a l O p p ortu ­
n ity  In H ig h e r  E d u ca tion , an  associ­
a tion  o f  th e  presiden ts  o f  UQ p re d o m i­
n a n tly  b la de  co lle g e s  an d  u n iversities, 
b o th  sta te  su p p o r te d  a n d  private. T w o  
pan els o f  n a tion a lly  recog n ized  edu ca ­
tors m et fo r  h a lf da y  session s to  advise 
th e  D ep a rtm en t.

P lh a lly . p ia in U ffs ' rep resen ta tives  
d e v oted  m a n y  h ou rs  to  rev iew in g  and 
co m m e n tin g  o n  d ra fts  o f  th e  en teria . 
T h e y  a lso con v en ed  a m eetin g  f o r  th e  
D e p a rtm e n t w ith , 28 c itizen s fro m  
th ese  s ix  sta tes w h o  are m ost  fa m ilia r  
w ith  th e  h ig h e r  ed u ca tion  desegrega ­
t io n  e ffo r t s  In th e ir  resp ectiv e  sta tes.

T h e  D ep a rtm en t assum es fu ll a n d  
so le  responsihU lty  f o r  th e  co n te n t  o f  
th ese  cr iteria . T h e  co n su lta tio n s  en u ­
m era ted  a bove  w ere e .xceedlng ly  h e lp ­
fu l  to  th e  D e p a rtm e n t In th e  prepara ­
t ion  o f  th e se  cr ite r ia , b u t th e se  discus-, 
s lon s d o  n o t  Im ply co n cu rre n ce  In th e  ■ 
cr ite r ia  In w h o le  o r  In p a rt  b y  o th e r  
pa rties .

H ig h er ed u ca tion a l sy stem s In th ese  
and  o th e r  sta tes  are u n d erg o in g  d iff i­
cu lt  a d ju stm en ts  cau sed  b y  fisca l a n d  
d e m o g ra p h ic  tren d s b e y o n d  th e  co n - , 
t ro l o f  Individual sta tes. .A ccord ingly , 
th e  cr iter ia  d ev e lop ed  fo r  th e  s ix  
sta tes u n d er th e  AdaTTts O rd e r , fo c u se d  
o n  deseg reg a tion  e ffo r t s  to  b e  u nder- 

' ta k en  w ith in  th e  n e x t  fiv e  years. S im i­
larly , O C H  wtU seelt p lans th a t  con ta in  
fiv e -y e a r  goals fr o m  o t h e r  sta tes 
w h ich  are fo u n d  to  h a ve  a d u ty  to 
elim in a te  th e  v estiges o f  du a lity  In 
th e ir  sy stem s o f  h ig h e r  edu ca tion .

-As ea ch  sta te a tta in s th e  goa ls  set 
fo r th  In Its p lan , O C H  w ill assess. In: 
c o o p e ra tio n  w ith  th a t  sta te ; th e  pro­
gress th e r e b y  m ade In o rd e r  to  d e te r ­
m in e  w h a t a d d ition a l steps,. If any. are 

.'necessary  to  co m p le te  th e  desegrega ­
tion  process . F urtherm ore^  O C H  w ill 
p er iod ica lly  rev iew  th ese  cr ite r ia  to  
asstire th e ir  a deq u acy  In m eetin g  o o n - 

, stltu tlon a l req u irem en ts , th e ir  consls- 
■ te n cy  w ith  ru lin gs o f  th e  cou rts  in  

h ig h e r  ed u ca tion  desegreg ation , and  
the m a n da te  o f  T it le  TL

th.TTvrrrrs  o r  a  Pt-u*

i, oisrsTaBLisTOrcTT or t h s  s r a g ern a x
o r  rm c p p a o  s r s m i

•-Ah a ccep ta b le  p la n  sh a ll co m m it th e  
state to  th e  goa l o f  org a n iz in g  an d  op­

era tin g  th e  system  a n d  'n s tltu tlo n s  o f  
h ig h e r  ed u ca tion  in a m a n n er th a t  
prom ises rea listica lly  to  o v e rco m e  th e  
e ffe c t s  o f  past d iscrim in a tion  and  to  
d isestab lish  th e  d u a l sy stem , a n d  
w h ich  assures th a t  s tu d en ts  w ill be a t­
tra cted  to  ea ch  In stitu tion  o n  th e  basts 
o f  ed u ca tion a l p rog ra m s and o p p o rtu ­
n ities u n in h ib ited  , b y  past p ra ctices  o f  
seg reg a tion .

T o  a ch iev e  th e  d isesta b lish m en t o f  
th e  stru ctu re  o f  th e  d u a l system , ea ch  
p la n  sha ll:

A . OeflTie-ihe m is s io n  of each in s il f  a -  
l io n  teifA in  the state system on a Oasis 
other than race.

E a ch  m ission  s ta tem en t sh a ll In­
c lu d e  a t  a  mlnlTnom-

1. T h e  level, ra n g e  an d  s c o p e  o f  pro­
gram s a n d  degrees o ffe r e d ;

2. G eog ra p h ic , a rea  served  b y  th e  in­
st itu tio n ; and

3. T h e  p r o je c te d  size o f  th e  stu d en t 
b o d y  and s ta ff, f o r  ea ch  y ea r o f  th e  
life  o f  th e  p la n . ■

3 ,  Specify steps to- ie taken to 
strengthen the role of traditionally 
black institutions in the state system.

In  su p p o r t  o f  th e  s p e c ific  step s re­
qu ired  b y  L 3 . ,  th e  p la n  sh a ll Include;

1. C om m itm en ts  th a t  n ecessa ry  im ­
p rov em en ts  WtU b e  m a de to  p erm it  th e  
tra d ition a lly  b la ck  in stitu tion s to  fu l­
f i l l  th e ir  d e fin e d  m ission . T h e se  Im­
prov em en ts  WtU e.-ctend to  p h y s ica l 
p la n t an d  eq-ulpm ent; q u a lity  and  
ra n g e  o f  p rog ra m  o ffe r in g s ; n u m b er 
a n d  q u a lity  o f  fa c u lty ,  s tu d en t, fa cu lty  
and  p ro fe ss io n a l s ta f f  servtcss; stu d en t 
fin an cia l assista n ce , and  o t h e r  fin a n ­
c ia l su p p ort;

2. C o m m itm en ts  t h a t  tra d it io n a lly
b la ck  In stitu tion s ' wtU h a ve  th e  re­
sou rces  (In clu d in g  th o se  en u m era ted  
in Item  1 a b ov e ), w h ich  a re  a t least 
co m p a r a b le  to  th o se  a t tra d it ion a lly  
w h ite  In stitu tion s h a v in g  s im ila r  m ls- 
sion s.. . -

3. A n  assessm ent o f  th e  p h y s ica l 
p la n t at tra d it ion a lly  b la ck  Institu­
tions; a n d  . ;

A . A  d e ta iled  d isc rip tlon  o f  th e  re­
sou rces . e x p ressed  In do lla rs an d  in  ' 
n u m b ers  o f  person n e l to  b e  assigned , 
w h ich  th e  sta te  sy stem  w iu  prov ide  
(a n d  th e  so u rce  f o r  su ch  fu n d s) In 
ord e r  to  tm piem en t th e  step s sp e c ifie d  
In 1 .3 . r e p o rte d  by  y e a r  fo r  th e  life  o f  
th e  s tep  o r  actl-vlty.

C . Commit the state to take specific- 
steps to eiiminate educationally un~ 
necessary program duplication among 
graditianaCy black and traditionally 
white institutions in the same service 
area.. r.,-,... ,
. T o  th is  en d ; th e  p lan  shaU  Id en tify  
ex istin g  d eg ree  p rog ra m s (o t h e r  th an  
co re  cu rr icu la ) a m on g  in stitu tion s 
h a v in g  Identica l o r  ov erla p p in g  service  
areas and In d ica te  sp eciflcaU y w ith  re­
sp ect to ea ch  area  w h at step s th e  sta te  
wlU take to  e iim in a te  su ch  du plica tion .. 
T h e  e lim in a tion  o f  su ch  p rog ra m  du­
p lica tion  sh a ll be  ca rr ied  o u t  con sis­

te n t  w ith  th e  o b je c t iv e  o f  s tre n g th e n ­
in g  t h e  tra d ition a lly  b la ck  coU egea,

D . Commit the state to give priority 
consideration to placing any new un­
dergraduate, graduate, or professional, 
degree programs, courses of study etc., 
which may be proposed, at traditional­
ly black institutions, consistent with 
their missions.

S . Commit the state to withhold ap­
proval of any changes in the operation 
of the state system or of any institu­
tions that may have the effect of 
thwarting the achievement of its deseg­
regation goals.

F . C o m m a  the State to advise O C R  
of proposed malar changes in the mis­
sion or the character of any institu­
tion within, the state system which 
may directly or indirectly affect the 
achievement of its desegregation goals, 
prior to their formal adaption.

S u ch  p rop o se d  citan g es in clu de  b u t  
are n o t  lim ited  to; th e e sta b lish m en t 
o r  m a jo r  ex p a n s ion  o f  p rog ra m s o f 
s tu d y , o f  dep artm en ts , o r  In stitu tions; 
th e  a lte ra tio n  o f  tw o y ea r to  fo u r  y ear 
In stitu tion s; th e  con v e rs io n  o f  a p ri­
v ate  t o  a  p u b lic  In stitu tion ; o r  th e  c los­
in g  o r  m e rg e r  o f  In stitu tion s o r  ca m ­
puses.

G . Specify timetables for segvential 
implementation of the actions neces­
sary to achieve these goals as soon as 
passible but no later than tcithin five 
years iby the close of the fifth full aca­
demic year after the plan is accepted) 
unless compelling fusiificatian far a 
longer period far compliance is pro­
vided to and accepted by the Depart­
ment

T h e  p la n  . sh a ll ta ciu d e  Interim  
b en ch m a rk s tmd goals fr o m  w h ich  p ro ­
gress tow ard  th ese  o b je c t iv e s  m a y  be 
m ea su red . T h e se  t im eta b les  and 
b en ch m a rk s  s h a ll b e  a p p rop r ia te  to 
th e  n a tu re  o f  th e  a ction  to be  taken . 
F o r  ex a m p le , s tu d ie s -o f p h y s ica l p lan t 
and  resou rces  com p a ra b ility  sh ou ld  b e  
co m p le te d  p r o m p t ly  correctiv e  a ction s 
(In clu d in g  ca p ita l co n s tru c tio n ) wtU re­
qu ire  lo n g e r  Ume p er iod s .

H . Commit the state and all its in- 
voived agencies and subdivisions to 
specific measures for achievement of 
the above objectives.

S u ch  m easures m a y  Include b u t are 
n o t  lim ited  to e s ta b lish in g  coop era tiv e  
p rog ra m s co n s is ten t w ith  In stitu tion a l 
m ission s; rea ss ign in g  sp ecified  pro­
gram s. cou rse  o ffe r in g s , resou rces  
a n d /o r  se rv ices  a m o n g  in stitu tion s: 
rea lig n in g  th e  la n d  gra n t a ca dem ic 
p rog ra m s so  th a t  research , ex p er im en t 
and  o th e r  ed u ca tion a l services are re­
d istr ib u ted  o n  a n on ra c la l basis: and 
m erg in g  in stitu tion s  o r  b ra n ch es  
th e re o f , pa rticu la r ly  w h e re  Institu­
tion s o r  ca m pu ses h a ve  th e  sam e o r  
ov e r la p p in g  serv ices  areas. T h e  m ea­
sures ■ taken  p u rsu a n t to  th is .section 
sh ou ld  be con s is ten t  w ith  t.he o b je c ­
tive o f  s tre n g th e n in g  th e  tra d ition a lly  
b la ck  co lleg es . A  de ta iled  d escrip tion

HSBfSAi woiyrnt, vou. -o, ncj. m — wroNCOAr, f*s*ua»t is, wa



S662 NOTIC2S
o f  th e se  m easures n eed  n o t  b e  su b m it­
ted at th e  tim e th e  p la n  Is filed , b u t 
sh ou ld  be file d  as a su p p lem en ta ry  
s ta tem en t w ith in  30 days th e re a fte r  
fo r  review  and com m e.nt by O C R . M ea- 
s w e s  th a t  o f f e r  n o  rea son a b le  possib il­
ity o f  a ch iev in g  th e  goals listed  above 
w ill b e  re je cted _by  O C R . R ev ised  m ea­
sures w ill b e  req u ired  b e fo re  th e  p lan  
ca n  be a ccep ted .

n .  D t s E o a iO A T io t t  o r  S T m i p r r  ..
C fB O U S O P iT

A n  a cce p ta b le  p la n  sh a ll co m m it th e  
sta te  to th e  goal o f  a ssu rin g  th a t th e  
sy stem  as a  w h o le  and  ea ch  In stitu tion  
w ith in  th e  sy stem  p rov ide  an equ al 
e d u ca tion a l o p p o rtu n ity , are op e n  an d  
a ccessib le  to  a il s tu d e n ts  and  op era te  

• w ith o u t reg a rd  to  race  a n d  o n  a  deseg ­
reg a ted  basis.

T o  a ch ieve  th e  desegreg ation  o f  stu­
den t en ro llm en t, ea ch  p lan  shall;

.4_ A d o p t £Ae goal that for two gear 
and /our year undergraduate pubiia 
higher education institutione in the 
state system, 'taken as a whale, the pro­
portion of black high school graduates 
throughout the state who enter such 
institutions shall be at least eguai to 
the proportion of white high school 
graduates throughout the state who 

■ enter such institutions.
B , (1 ) Adopt the goal that there shall 

be an annual increase, to be specified 
by each state system in the proportion 
of black students in the traditionally 
white four year undergraduate public 
higher education institutions in the 
state system taken as a whole and in 
each such iTistitution; and

(25 Adopt Che objective of reducing 
the disparity between the proportion 

. of black high .school graduates and the 
proportion of white high school gradu­
ates entering' iraditionally white four 
year and upper division undergrad­
uate. public higher education institu­
tions in the state system and adopt 
the goal of reducing the disparity by at 
least-fifty per_ cent by the final aca­
demic year of'the plan. However, this 
shall not reguire any state to increase 
by that date black student admissions 
by more than 150% above the admis­
sions for the academic year preceding 
the year in which the plan is reguested 
bvHHW.'  . ........................

‘ For the purposes o f this subsection, the 
tern , entering Includes first-time transfers 
from  two year and ocher Institutions,
. •Thus, where the present entry by blach 
students In four year traditionally white In­
stitutions is at a rate at l.COO students per 
year and a  fully proportional rate would be 
3.000 stisdencs per year, the state's goal 
would be an entry rate o f  2.000 students per 
year five years thereafter. A  state where the 
present entry Is at a rate o f only JOO stu­
dents per year and full proponlonallty 
would be 3.000 students per- year would not 
by that date have to close half the gap (by a 
rate o f  UTSO per year) but only- achieve an 
entry rate of 1.2S0 students, which Is 150% 
over Its present rate- of 500.

C , A d o p f the goal that the proportion 
of black state residents who graduate 
from undergraduate institutions in  >Jie 
state system and. enter graduate study 
or professional schools in the state 
system shall be at least eguai to the 
proportion of white state residents 
who graduate from undergraduate in­
stitutions in the state system and enter 
such schools.

T h is  goal (a n d 'In te r im  b enchm arim  
o r  g oa ls) sh a ll b e  s e p a r a t ^  sta ted  fo r  
ea ch  m a jo r  f ie ld  o f  g ra du a te  and  pro­
fession a l stu d y . T o  assure th a t, th is 
goal ca n  b e  m et In th e  Im m ediate 
fu tu r e  sp ecia l rec ru itm en t e ffo rts  
sh o u ld  be  con s id ered  at tra d ition a lly  
b lade In stitu tion s, P a r ticu la r  a tten tion  
sh o u ld  b e  g iven  to  Increasing  b la de  
stu d en t e n ro llm en t and  gra du a tion  

‘ fr o m  th ose  tra d it ion a lly  w h ite  fo u r  
y ea r u n d erg ra du a te  In stitu tion s w h ich  
serve as the feed er In stitu tions fo r  th e  
g radu ate  and  p ro fe ss io n a l . sch oo ls . 
A ch ie v e m e n t o f  th is g oa l is o f  p a rticu ­
la r Im porta n ce  In lig h t  o f  th e  sp e c ific  
c o n ce rn  ex pressed  b y  th e  C ou rt  o f  .Ap­
pea ls In A dam s, In  assessing progress  
tow ard  th is goal, O C R  w ill give con s id ­
era tion  to  th e  n u m b e r  o f  b la d ts  fr o m  
each  state w h o  en ro ll in  g radu ate  and 
p ro fe ss io n a l sc h o o ls  o u tsid e  th e  sta te  
system .

D . Adept Che goal of increasing the 
total proportion of white students at­
tending traditionally black institu­
tions.

In crea sed  p a rtic ip a tion  b y  w h ite  stu ­
d e n ts  at tra d it ion a lly  b la d i. Institu­
t ion s m u st b e  a  pa rt o f  th e  p rocess o f  
deseg reg a tion  o f  th e  sta tew ide  sy stem  
o f  h ig h e r  ed u ca tion . H ow ev er, pu rsu ­
an t to  th e  a d m on ition  o f  th e  cou rts  In 
Adams,. " T h e  desegreg ation : p rocess 
s h o u ld  take Into a cco u n t th e  u n eq u a l 
sta tu s o f  th e  B la d t  co lle g e s  and th e 
rea l da n g er th a t  d esegreg a tion  w ill di­
m in ish  h ig h e r  ed u ca tion  op p ortu n it ies  
fo r  B la ck s ."  ClvU A c t io n  N o. 3095-T0. 
S e co n d  S u p p lem en ta l O rd er at p. A. 
T h e  fo llo w in g  steps are des ig n ed  to 
g u ard  again st- th e  . d im in u tion  o f  
h ig h e r  ed u ca tion a l op p o rtu n it ie s  fo r  
b la ck  stu den ts, to  take in to  a ccou n t 
th e  u n iq u e  Im porta n ce  o f  tra d it ion a lly  
b la ck  co lleg es  a n d  to  co m p ly  w ith  th e 
m a n da te  o f  T it le  ’ /T. B sta b llsh m en t o f  
n u m erica l goals fo r  th e  e n ro llm en t o f  
w h ite  stu den ts at tra d it io n a lly  b lack  
In stitu tion s m ust be p reced ed  b y  an in ­
creas in g  e n ro llm en t o f  b la ck  stu d en ts  
in  th e  h ig h e r  ed u ca tion  sy stem  and at 
th e  tra d it ion a lly  w h ite  In stitu tions, as 
la req u ired  b y  S e ct io n  II  o f  th ese  cr ite ­
ria. I t  m ust a lso b e  p reced ed  b y  th e  a c- 
com p U sh m en t o f  Specific step s to 
stren g th en  t h e  ro le  o f  tra d it ion a lly  
b la ck  InsU tutlona, e lim in a te  prog ra m  
d u p lica tion . lo c a te  n ew  prog ra m s at 
b la ck  Institu tions.--and b y  su ch  o th e r  
m easu res as are se t  fo r th  In S e ctio n  L

O C R  sh a ll a n n u ally  review  th e  p ro ­
gress m ade by  ea ch  sta te In Increasing  
p a rtic ip a tion  by  b la ck  stu d en ts  In

h ig h e r  e d u ca tion  and In th e  d£sestab->- 
llsn m en t o f  th e du al s c h o o l system . 
T w o  years a fte r  th e  co m m en cem en t of 
th e  p lan , and co n s is ten t 'with su ch  pro­
gress, ea ch  sta te  system  sh a h  sp ecify  
annual, n u m erica l goals fo r  Increasing 
th e  p a rtic ip a tion  o f  w h ite  stu d en ts  at- 
te n d in g  th e  tradition aU y b lack  in stitu ­
tions.

H. Commit the state to take all rea­
sonable steps to reduce any disparity 
between the proportion of black and 
white students completing and gradu­
ating from the two year, four year and 
graduate public institutions of higher 
education, and establish interim goals; 
to be specified by the state system for 
achieving annual progress.
?. Commit the state to eepand mo-, 

bility between two year and four year 
institutiOTis as a means of meeting the 
goals set forth in these criteria.

G . Specify numeric goals for [I. A, 3, 
and C, and timetables for seguential 
implementation of actions necessary 
to achieve these goals as soon as possi­
ble but not later than within five years 
unless another date is specified in this 
section.

H. Commit Che state and all its in­
volved agencies and subdivisions to 
specific measures to ac.h.ieve Uiese 
goals.

S u ch  m easu res m ay  Include, b u t are 
n o t  lim ited  to  review ing, m o n ito r in g . ' 
and  revising , as n ecessa ry , p roced u res  
fo r  s tu d en t recru itm en t, adm ission s, 
c o m p e n sa to ry  in stru ction , cou n selin g , 
fin a n cia l aid, and s ta ff  and fa cu lty  de­
v e lo p m e n t prog ra m s. T h e  d e ta h ed  de­
sc r ip tio n  o f  th ese  m easures need  n o t  
b e  su b m itted  at th e  tim e th e  p lan  is 
filed , b u t sh o u ld  be file d  as a su p p le ­
m en ta ry  sta tem en t w ith in  30 days 
th e re a fte r  fo r  rev iew  and co m m e n t by 
O C R , M easures th a t o f f e r  n o  rea son ­
ab le  p o ssib ility  o f  a ch iev in g  th e  nu­
m erica l goals w ill be  re je cte d  by  O C R . 
R ev ised  m easures wUl be requ ired  
b e fo r e  th e  p la n  ca n  be a ccep ted .

m .  DESEcaxoATiorr o r  yACObrr. .u t ic x -isTXAmrr ST.irrs, .voNAC.ujEr.tic ?es-SONNEt, AND OOVSHNIhC 30AiU3S
-An a ccep ta b le  p la n  sh a h  dam m it the 

sta te  system  to th e goal o f  in crea sin g  
th e  n u m b er and  p r o p o r tio n  o f  b lack  
em p loy ees , a ca dem ic a n d  n on -a ca ­
d e m ic  th ro u g h o u t  th e  sy stem  a n d  o f  
Increasing  rep resen ta tion  o f  b la ck  c it i­
zen s a m o n g  a p p o in tiv e  pos it ion s  on  
th e  g ov ern in g  h oards o f  t-he sta te 
sjjstem  and o f  tndlvtduaJ in stitu tion s.

T o  a ch ieve  th e  d esegratlon  o f  fa cu l­
ty . adm in istra tors , o th e r  person n e l, 
an d  g o vern in g  b oards, ea ch  p la n  sh ah :

A. Adopt the goal that the proportion 
of black faculty and of administrators 
at each institution and an the staffs of 
each governing board, or any other 
state higher education entity, in posi­
tions not reguiring the doctoral degeee, 
shall al least eguai the proportion of 
black students graduating with mas-

R O S S A l t E h i S r a .  V O L  « ,  n o .  32— '.iVEDN SSPA r. F t S * U A * Y  IS .  1971



NOTICES 6663
i m  decrees in avpropriaie disci- 
pane /Tom instU-ations 'mthin the 
state tysiem, or ttie provortion af black 
individuals vrith the recixiTed creden­
tials far such positions in the relevant 
labor market area, vshichever is great­
er.

3 .  Adopt the goat that the proportion 
at ilac-k /acuity and af administrators 
at each institution and on the staffs of 
each governing board or any other 
state higher education entity, in posi-. 
tions requiring the doctoral degree, 
shall Hi least ecual the proportion a/ 
black individstals istith the credentials 
repuired for such positions in the rel­
evant labor market area.

C. Adopt the goat that the proportion 
0/ black non-academia personnel iby 
jab category} at each institution and 
on the staffs af each governing board 
or any other state higher education 
entity, shall at least epual the propor­
tion af black persons in the relevant 
labor market area.
■ D . Assure hereafter and 'until the 
foregoing goals are met that far the 
' tsaditionahy white institutions as a 
whale, the proportion af blacks hired 
to fill faculty and administrative va­
cancies shall not be less than the pro-- 
portion af black individuals with the 
credentials repuired far such positions 
in the relevant labor market area.

2 .  Specify numeric goals and timeta­
bles for sepuential implementation of 
the actions necessary to achieve these 
objectives including interim bench- , 
marks from which progress toward the 
objectives may be measured.

T h e se  goals, t im e ta tle s , and  b e n ch ­
m arks sh a ll b e  e sta b lish ed  In lig h t  o f , 
and sh a ll sp e c ify , th e  cu rre n t and  pro­
je c te d  ra tes  o f  v acan cies In th e  v ariou s 
Job ca teg ories , p resen t an d  p r o je c te d  
la b or, m a rk et ava ila bility , and o th e r  
re lev an t fa cto rs .

p . Commit the state system to take 
specific measures la ahieve these objec­
tives.

S u ch  m easu res m a y  In clu de, b u t are 
n o t  lim ited  to  em p lo y m e n t prog ra m s 
prov id in g  centrU Ized re cru itm en t, va­
ca n cy  and  a p p lica n t listings ; tra n sfer  
o p tion s; fa cu lty  d ev e lop m en t pro­
gram s p e rm ittin g  release tim e fo r  

’ b lack  fa cu lty  to  a tta in  th e  term in a l . 
degree; and th e  In terch an g e  o f  facu lty- 
on  a te m p o ra ry  o r  p erm an en t basis 
a m on g  tra d it ion a lly  w h ite  and  tra d l- , 

.tlonaU y b la ck  In stitu tion s w ith in  th e 
. state sy stem . T h e  d e ta iled  d escrip tion
■ o f  th ese  m easu res n eed  n o t  b e  su bm it- 
. ted a t th e  tim e th e  p la n  Is filed , bu t 
. sh ou ld  be- fi le d  as a su p p lem en tary  
^ s ta tem en t w ith in  30 days th e re a fte r  
•' fo r  rev iew  and co m m e n t b y  O d .  M ea- 
--surea th a t  oiler n o rea son a b le  posslb ll-
■ Ity o f  a ch iev in g  th e  goals listed  a bov e  

will b e  re lu cte d  by  O C 3 .  'Revised m ea­
sures w m  b e  req u ired  b e fo r e  th e  p lan  
can b e  a ccep ted ,

G . Adapt the goal of increasing the 
numbers of black persons appointed to

systemwide and institutional govern­
ing boards and agencies so that these 
boards may be more representative of 
the racial population of the state or of 
the area served.

.. IT. stra icissiow  OT 7I-SHS a jm  .- , MomsoBiao
,-i. AftCT HETW h a s d e term ln eh  th a t  a  

sta ts  has n o t  e ilm in a tsd  th e  vestiges 
o f  desegreg ation  in Its fo r m e r  du al 
system  o f  p u b lic  h ig h e r  ed u ca tio n , th e  
sta te -sh a ll su b m it to  O C R  a desegreg a ­
t io n  p la n  f o r  Its sy stem  o f  pu b lic  
h ig h e r  ed u ca tion  to Im plem en t th e 
fo r e g o in g  criteria . . ,
, L  T h e  p la n  sh a ll c o m m it th e  sta te  t o  
substa n tia l prog ress  tow ard  e a ch  o f  
th e  goals in  th e  firs t  tw o  years o f  th e 
p la n . - _

2. T h e  p la n  sh a ll b e  s ign ed  b y  th e  
g o v e rn o r  and b y  ea ch  o f f ic ia l o r  des ig ­
n a ted  p erson  rep resen tin g  th e  agen ­
cies, associa tion s, com m ission s, o ffice s , 
a n d /o r .  in stitu tion s resp on sib le  fo r  
a d o p tin g  th e  system w id e  a n d  Insltu-; 
t lo n a l goals describ ed  th ere in . S u ch  
p erson s o r  en titles m u st b e  a u th orised  
u n d er sta te law  to  p e r fo rm  aU a ction s 
n ecessa ry  to  a ch ieve  th ese  g oals.
. 3. , T h e  p la n  sh a ll ce r t ify  th a t  

a ch ievem en t o f  th e  goa ls  an d  Interim  
b en ch m a rk s  sp e c ifie d  th e re in  has been  
a d op ted  as o ff ic ia l p o l ic y  o f  ea ch  o f f i ­
cia l o r  agen cy .

B . It  !s r e co m m e n d e d  th a t  e a ch  sta te  
e sta b lish  a  b ira cia l c itizen s a d v is o ry / 
m o n ito r in g  co m m itte e  to  assist th e  
sta te  in  m on itor in g - th e  Im plem en ta ­
t io n  o f  th e  p lan .

C. S a ch  sta te  sh a ll su b m it to  O C B
b y  .-iugust .13 o f  ea ch  y e a r  a fte r  a 
p la n 's  a ccep ta n ce , a co m p re h e n s iv e  
n a rra tiv e  assessm en t o f  Its d esegreg a ­
t io n  e ffo r ts  In th e  m o s t  re ce n t aca­
d e m ic -y e a r .-T h is  n a rra tiv e  assessm ent 
sh a ll I n c lu d e ;. .
, 1. A  d escr ip tio n  o f  th e  s p e c ific  m ea ­

sures w h ich  h a ve  b een  ta k en  to 
a ch iev e  th e  o b je c t iv e s  en u m era ted  In 
th e  p la n  an d  In th e  cr ite r ia ;
2. .A . d escr ip tio n  o f  th e  resu lts  

ach ieved , tn clu d ln g  q u a n tita tive  Indi­
ces w h e re  a p p rop r ia te  o r  req u ired ;

3. .-in analysis o f  th e  reason s w h y  
a n y  s tep s  tak en  prov ed  Inadequ ate o r  
In su ffic ien t; and  .

•. 4. .A d escr ip tio n  o f  th e  step s th e  
sta te  w ill take to a ch ieve  prog ress  and 
to  m a in ta in  th e  tim eta b les  set fo r th  in 
th e  plan .

- - D . O C R  sh a ll rev iew  su ch  n a rra tiv e  
rep orts . I f 'g o o d  cause f o r  th e  fa ilu re  
to  m e e t . In terim  goals Is n o t  dem on - 
s t r a c e d _ O C R  m a y  Im pose m o re  str in ­
gent, req u irem en ts ,, in clu d in g  a dvan ce  
a pprov a l b y  O C R  o f  d esegreg a tion  
m e th o d s ,' In- o rd e r  to assure a ch ieve ­
m en t o f  th e  goals o f  th e  plan . In  th e  
a ltern ative , th e  D ep a rtm en t m a y  in iti­
a te  e n fo rce m e n t proceed in g s u n d er 
T it le  'VT o f  th e  ClvU R ig h ts  A c t  o f  
1984, If oom pU an ce w ith  T it le  'VT 
ca n n o t b e  a ch ieved  b y  voluntary , 
m eans.

S . E a ch  p la n  sh a ll p ro v id e  th a t  th e  
sta te  w in  fu rn ish  to  O C R  sta tistica l 
re p o rts , assessm ents, and su ch  o th e r  
tn lo rm a tlo n  as O C R  m a y  d eem  n eces­
sary  fr o m  tim e to tim e in o rd e r  to  de­
term in e  th e  e ffe ct iv e n e ss  o f  th e  sta te 's  
e f fo r ts  to  a ch ieve  th e  goals describ ed  
la  th e se  cr iteria . S u ch  In form a tion  
sh a ll in clu d e  a n n u al s ta tis tica l r e p o rts  
tn su b sta n tia lly  th e  sa m e  fo r m a t  used 
p rev iou sly  b y  th e  a ffe c te d  sta tes  pu r­
su a n t to  e a r lie r  d eseg reg a tion  plans. 
S p e c if ic  da tes fo r  th e  su b m ission  o f  
th e  re p o rts  w ill be  esta b lish ed  by  
O C R . In  th e  ev en t th a t  su b seq u en t de­
v e lop m en ts  ca ll fo r  th e  su b m ission  o f  
a d d ition a l data , su ch  req u irem en ts  
w ill be a n n o u n ce d  a fte r  co n s u lta tio n  
w ith  th e  sta tes, an d  th e  sta tes and  in­
s t itu tio n s  sh a ll h a ve  s u ffic ie n t  t im e  to  
d ev e lop  th e  sy stem  n eed ed  fo r  th e  
g a th e r in g  o f  a d d ition a l d ata . ...

V. DU’LJUTIOPrS
A s u sed  in  th ese  cr ite r ia ;

: .A. ' ‘ D e p a r tm e n t"  re fers  to  th e  'D'.S. 
D e p a rtm e n t o f  H ea lth . E d u ca tio n , and  
W e lfa r e .  In  in stan ces  w h ere  th e  ‘‘D e ­
p a rtm e n t '’  is to  tak e  certa in  a ction s, 
th e y  m a y  b e  p e r fo rm e d  b y  th e  O ff ic e  
fo r  C ivil R ig h ts  o r  th e  D ire cto r . O ff ic e  
fo r  C lvii R igh ts , on  b e h a lf  o f  th e  D e ­
p a rtm en t.

3 .  ‘‘ In s t itu tio n "  m ean s a n y  sch o o l, 
co lleg e . Jun ior o r  co m m u n ity  co lleg e , 
u n iversity , p ro fess ion a l o r  g radu ate  
s c h o o l, ad-m inistered b y  o r  as an 
a g e n cy  o f  th e  sta te  g o v e m m e n L  F ou r  
y e a r  in stitu tion  m eans a n y  s c h o o l, c o l ­
leg e , o r  u n iversity  th a t o f fe r s  a b a cca ­
la u reate  o r  g ra du a te  degree . F o r  th e  
pu rp ose  o f  th ese  cr iteria , ‘‘ In stitu tio n "  
does n o t  re fe r  to p rivate s c h o o ls  o r  c o l­
leges,

C. ‘ ‘ S ta te  sy s te m " 'm e a n s  th e  aggre­
g ate  o f  aU sta te  p u b lic  in stitu tion s o f  
h ig h e r  e d u ca tion  w ith in  the sta te, 
w h e th e r  o r  n o t  u n d er th e  g ov ern a n ce  
o f  th e  sam e sta te  a g e n cy  o r  b oard .

D . " S tu d e n t "  m ean s any p e rso n  en ­
ro lle d  in  an In stru ction a l p rog ra m , 
w h e th e r  fu ll-t im e  or  pa rt-tim e, su b je ct  
to e x ce p tio n s  to be  sp e c ifie d  by  th e  
O ff ic e  F o r  C ivil R ig h ts .

E. “ F a c u lty "  m ean s all p e r s o r j  em ­
p lo y e d  b y  an in stitu tion  as fu ll-t im e  
ih s t r jc t lo n a i person n e l.

F . "L a b o r  m a rk et area”  m ean s th e 
g eog ra p h ica l area  in w h ich  an in stitu ­
tion  o r  ca m p u s tra d it ion a lly  recru its  
o r  draw s a pp lican ts  possess in g  th e  req ­
u isite  cred en tia ls  fo r  v acan cies  In fa c ­
u lty , a dm in istrative , o r  n on -a ca d em ic  
p erson n e l pos ition s.

G . "G o v e r rJ n g  b o a r d "  m ean s th a t 
a p p o in te d  or  e lected  b ody , w h e th e r  o r  
n o t  resp on sib le  to  th e  g o v e rn o r  o f  a 
sta te  o r  to  th e  sta te ieg lslaru re, w h ich  
Is ch a rg e d  u n d er sta te  law w ith  th e  ul­
tim a te  resp on s ib ility  fo r  th e  adm in is­
tra tion  and  o p era tion  o f  In stitu tions 
w ith in  th e  sta te sy stem  o f  p u b lic  
h ig h e r  edu ca tion . .A "g o v e r n in g  b o a rd "

'm a y  be  resp on sib le  fo r  th e  entire

FlBSSA i JIG O TIS . V O L  43, NO. W — WtDNSSOAY, fE3*U A *Y 13, 1973



6664 jw n c s s
system . Tor i  s in g le  ca m pu s -or in stitu ­
tion  t iie reo f. o r  lo r  a, sp e c ifie d  grou p  
o f  cam puses o r  in sU tu tlon s - 

D ated : P ebru ary  Z  1975. ' " .
- .  , D avto S . T a t h .

nirecior. O /f lc e  for Civil RitihLs.' 
'  [ ? R  D o t  7S-MJSI Filed J-14-78: atiS mU

1 4 2 1 0 -0 1 ]

OEPASTTMENT OF HOUSING AND 
. ^  . URBAN DEVELOPMENT
I '  ' ‘ .O ffice ^  11i# Secr elq r y

! ■ CDodtet Ko. N-7S-MU

■ FSO aU U . W U A l  HOUSIN O O ry O fT t lN lT Y
, . . , . ,y - , . c o u n a L

'  liiqoUihtnqfTf and Fvn<Honm̂ .

A G E T fC T ; D e p a rtm e n t o f  H ou sin g  
and U rban  D e v e lo p m e n t .- 
-A CTIO N ; .'lo t ice . . ,
S U M M .A R Y ; T h e  'p u rp o se  o f  th is 
n o t ic e  is to 'P iaoe in th e  pu b lic  record  
In form a tion  reg a rd in g  th e  esta b lish ­
m en t and  fu n c tio n in g  o f  th e  F ederal 
Equal H ou s in g  O p p o rtu n ity  C ouncil.

.FO R - F U R T H E R . E N F O R h tA T IO N  CONT-ACT. . .
■ ■ Luoyd D avis. D ire cto r , O ff ic e  o f  V ol- 

-u n ta ry  C om p lian ce , 451, 7 th  S tree t 
S W „  R o o m  5223, W a sh in g ton . D ,C .

■ 20410, P h o n e , 202-755-5904.
S ection  1—E sta b lish m en t o f  the Couri-

oil.
T h e  p rov is ion s o f  .Ebcecutive O rd e r  

11063 <27 F H  11527, e ffe c t iv e  N ov em ­
b e r  20. 1962. a n d -s e c t io n  308 o f  T it le  
V III o f  th e  C ivil R ig h ts  -Act o f  1968, as 
am en ded  (42 U ,S ,C . | 36 08 ) set fo r th  
req u irem en ts  th a t  F edera l agencies 
fu n c t io n  in  a m a n n e r  th a t deters h ou s­
in g  .d iscr im in ation  a n d  a ffirm a tiv e ly  
p rom otes  fa ir  housing, and equ al op­
portu n ity . F u rth er , u n d er T it le  VT o f 
th e CIvU R ig h ts  .Act o f  1964 (42  U-S.C.
J 200Qd) ea ch  a gen cy  is resp on sib le  fo r  
assu rin g  n on d iscrim in a tion  In pro­
gram s Involv ing F edera l fin an cia l as­
sistance. In  a ccord a n ce  tvith th ese  au­
th orities , and In an e f f o r t  to  assist 
F ederal agencies In fu lfi ll in g  th e ir  fa ir  
h ou sin g  and -equal o p p o rtu n ity  respon ­
sib ilities . th e  D e p a rtm e n t o f  H ousing  
and  U rban  D ev e io p m e n t (h e r e a fte r  

■H UD), e sta b lish ed  th e  F ed era l E qual 
H ou sin g  O p p o rtu n ity  C ou n c il ("C o u n ­
c i l " ) . . .  ■. , . .
S e c t io n 2 —F u n ct io n s ’ ' .  '

• ./.T he (Council Is ch a ired  b y ,th e .H U D  
-A ssistant S ecre ta ry  f o r  F a ir  H ou sin g  
,an d  E qu a l O p p o rtu n ity , and Is op e n  to 
a ll F edera l a gen cies  and departm ents.. 
T h e  C ou n cil has dev e lop ed  t.bree pri­
m ary  goals lo  be ac.hleved by  eac.h 
m em ber agen cy :

A . P la n n in g  fe d e ra l fa cu lt ies  in lo ca ­
tion s w h ere  th e r e  is sh ow n  to ex ist, on

a n on d lscrin u n a tory  basis, an  adeq u ate  
su p p ly  o f  low  a n d  m o d e ra te  in com e  
housing, w ith  adeq u ate  a ccess  by 
p u b lic  tra n sp orta tion  fr o m  o t h e r  areas 
o f  th e  u rban  cen ter  a n d  a dequ ate  
park in g  fa cilities.

B. E sta b lish in g  a n d  m a in ta in in g  an 
E qual H ou sin g  L o ca to r  S e rr ic e . e ith er 
separaW iy  or  In co o p e ra t io n  w ith 
agen c ies  In c lose  p r o x im ity , ava ilable  
to  a ll a gen cy  e m p loy ees . In h e a d q u a r­
te rs  and  Held o ffices .

C  M a k in g  a ffirm a tiv e  n s e  o f  a gen cy  
fu n d in g  a u th o r ity  w ith  re sp e ct  to gov­
ern m en t sp on sored  p r o je c ts  t o  fu r th e r  
t h e  pu rposes o f  T it le  V m  o f  th e  C ivil 
R ig h ts  A ct o f  1968 (s s  a m en ded ).

T o  in stitu tion a lize  th e  p r o ce s s  o f  
a gen cy  pu rsu it o f  C on n ell goals. H U D  
n eg otia tes  and  ex ecu tes  In tera g en cy  
P air H ou sin g  . .A g reem en ts .. w ith  
m e m b e r  agencies.: In  v iew  o f  H D D 's  
lea d ersh ip  ro le  u n d er T it le  VTIl. p r i­
m ary s ta ff  resportsibU lty  fo r  th e  C ou n ­
cil rests w ith  t.he H U D  .Assistant S e c ­
re ta ry  fo r  F air H ou s in g  and E qual O p ­
p o r tu n ity  and th e  O ff ic e  o f  V o lu n ta ry  
C om p lian ce . ..,
S e ctio n  3— M e e t ic s s , F roced u res . and 

R e p o rts  .
T h e  C ou n c il m e e ts  q u a r te r ly  d u rin g  

th e  fisca l year. T h e  tim e and p la ce  o f  
ea ch  m eetin g  -and th e  m a tters  to  b e  
con s id ered  w ill b e  pu b lish ed  in  ad­
van ce  o f  th e  m eetin g . BTUD requ ests 
b iannual p rogress  rep orts  o n  a gen cy  
a ctiv ities to  a ch iev e  C o u n c il goals, 
w ith  u pdates ss req u ired . H U D  issues 
an an n u al rep ort o n  th e  a ccom p lish ­
m en ts o f  th e  C ou n cil, titled  T h e  F ed ­
eral -Agencies and  F a ir  H ou s in g . H U D  
a lso  su b m its  rep orts  to  O M 3  re la tiv e  
to  estim ated  cos t Incurred  fo r  the 
C ou n cil to fu n c tio n . In te ra g e n cy  F air 
H ou sin g  A g reem en ts  s ign ed  w ith  H U D  
w ill be p u b lish ed  In th e  P m caA i, R ze - 
ISTTS and m ade ava ilable  th ro u g h  the 
m ail to in terested  p u b lic  a n d  private 
org a n iza tion s . .. -
S ection  4—C o u n c il M e m b e rs . ’ '  ’ . i

H U D  has requ ested  th a t  th e  h ea d  o f  
an a gen cy  o r  d ep artm en t com m en c in g  
its p a rtic ip a tion  o n  th e  C ou n cil ap­
p o in t  a  rep resen ta tive  and  an a lter­
n a te  to a tten d  Co u n c il -meeclngs and  
w ork w ith  H U D  In pu rsu it o f  th e 
C ou n cil goals. -As an a p p o in tee  fo r  th e  
a gen cy  or  d ep artm en t h ead , e a ch  re p ­
resen tative  has dec is ion m a k in g  au­
th o r ity  w ith  respect to m a tters  u n d er 
con s id era tion - T h e  lev e l o f  a p p o in t­
m e n t  allow s f o r  t im e ly  im p lem en ta ­
t io n  o f  C ou n cil e f f o r t s . .............
S ection  5—T ra ve l E x p en ses ;-A d m in is ­

tra tive S u p p o r t -F in a n c in g
F in a n cia l and a dm in istrative su p p ort  

f o r  th e  C ou n cil is p rov ided  by  th e  D e ­
pa rtm en t o f  .H U D , O ffice  , o f .  F air 
H ou sin g  a n d .. .  E qual. O p p o rtu n ity . 
T ra vel expen ses Incurred  b y  represen ­
ta tives In a tten d in g  q u arterty  m eet­
ings is b orn e  by  th e  -individual agen ­
c ie s  -  . .

.AtJTHoarrr; (Section 7(di of the Deoart- 
dsenc of Housing m d  Creen Oeyetooment 
.act. 42 a s -C . is is fd i) .

Issued at W a sh in g ton . D .C M U anuary 
31 . 1973. '

C H E sisa  C . M cO tn sx . 
A j j i i f q n f  Secretary far Fair 

Jicueingand Scaal Opportunity.
(7R  Doe. 75-4087 Filed 2-14-78; 8:41 eral

[4 3 1 0 -8 4 ]  .

DEPARTMENT Of THE INTERIOR
Suroov o f la n k  M anaq em anl

U A T i O IR SC IO *. (tA U FO gN A  

ge d eiaq a tie n  a f  AuHionlY

U n d er  th e  a u th o r ity  o f  S ecre ta r ia l 
O rd er N o. 3003, dated  -April 25. 1977, 
s u b je ct  to  U m itations o f  section  4 (b ) o f  
t.bat ord er, th e  S ta te  D irector . C a li fo r ­
nia. is a u th orized  to issue ail in itia l 
grants, p e im its . and am en dm en ts  
th ere to , across pu b lic and  och e r  a ppro­
pr ia te  F ed era l lands fo r  th e  S O H IO  
p ip e lin e  and a ssocia ted  a n cillary  fa c ili­
ties In th e  S tates o f  .Arizona, C a li fo r ­
n ia. N ew  M e.-dco. and T exa s. T h is  au­
th or iza tion  is pu rsu an t to se c t io n  28 o f  
th e  M in era l L easing  .Act o f  1920, as 
am en ded , 30 U .S.C . 185.

T h e  C a lifo rn ia  S ta te  D ir e c to r  sh a ll 
n o t  red eiega te  th is a u th ority .

O e o R cz  L . T tra corr .
Acting Director.

a F t s h o a s t  3, 1978.
tPH Doc. 73-4124 Piled 2-14-7S: 3:48 ami

[4 4 1 0 -0 1 ]

DEPARTMENT OF JUSTICE
Onjq Enforenmont Adm4ai««rakan 

(Docket No. 77-14) 

tO O SE V E U  M A C X S O N

N otice  is h ereb y  given th a t  on  N o­
v em ber 9. 1977, th e D ru g  E nforcem e-nt 
A d m in istra tion . D ep a rtm en t o f  Jus­
tice . Issued to R o o s e v e lt  ? .  Jackson , 
M .D .. .Atlanta. G a ,  an O rd er to S h ow  
C ause as to w hy his DE.A C ertifica te  
o f  R eg is tra tion , .A J U 7 24 7 Z  sh o u ld  not 
b e  revoked .

T h ir ty  days hairing elapsed  s in ce  th e 
said  O rd er to  S h ow  C ause was received  
b y  th e  R esp o n d e n t, and w ritten  re­
quest fo r  a h ea rin g  havin g  been  filed  
wit.h th e  D ru g  E n fo rce m e n t .Adminis­
tra tion , n o tice  Is h e re b y  given  th a t  a 
h ea rin g  in  th is m a tter  w ill b e  held 
co m m e n c in g  at 10 a-m. o n  W edn esday , 
M a rch  1, 1973, in C ou rtro o m  N o. 305, 
S ta te  C ou rt o f  F u lton  C ou n ty  C ou rt­
h ou se . 160 P ry o r  S tree t S W „  A tlan ta . 
O x

D atedr F e b r u a r y  9, 1973.
F l i 'in  3 . BEXstnocR.

Administrator,
Drag Dn/orcement Administration.

■ IFR Doc. 7S-U31 Filed 2-14-78: 3:4S laU

EEDERAi UdlSTESi V O l. JO. HO. 32— WSONESDAT, fSSgU A gy i j ,  197*



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al.,
Plaintiffs,

V.

TERREL H. BELL, et al. , 
Defendants.

)
) Civil Action No. 70-3095
)

POINTS AND AUTHORITIES IN SUPPORT OF 
PLAINTIFFS* MOTION FOR FURTHER RELIEF

Plaintiffs have moved for further relief requiring de­
fendants to enforce the Revised Criteria Specifying The Ingre­
dients of Acceptable Plans To Desegregate State Systems of 
Public Higher Education (hereinafter "the Criteria"), 43 Fed. 
Reg. 6658 (Feb. 15, 1978). As demonstrated in the motion, the 
Department of Education ("DE") has completely abandoned the 
Criteria. Plans have been approved that do not begin to meet 
the Criteria's requirements, and non-implementation of previ­
ously approved plans is being substantially ignored or condoned.

To appreciate fully the disastrous impact of defendants' 
actions upon the desegregation of America's public colleges and 
universities, it is necessary to trace briefly the history of 
this 12 year-old litigation. This case was filed in 1970 as a 
result of the failure of the former Department of Health, Edu­
cation and Welfare to enforce the provisions of Title VI of 
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d ^  seq. More 
than nine years ago, in November of 1972 and February of 1973, 
this Court held that HEW had failed to meet its statutory 
obligations under Title VI. Adams v. Richardson, 351 F.Supp.



636 (D.D.C. 1972) and 356 F.Supp. 92 (D.D.C. 1973). HEW had 
between January 1969 and February 1970 concluded that ten 
states which previously practiced de jure segregation were 
still operating racially segregated systems of public higher 
education, and had required each state to submit a desegrega­
tion plan within 120 days. However, HEW had then completely 
ignored the failure of those states to submit adequate plans; 
indeed, five states had submitted no plan at all. HEW had 
taken no administrative enforcement action whatsoever, and 
had continued to advance federal funds to the higher education 
systems of all ten states. Adams v. Richardson, supra, 356 
F.Supp. at 94. This Court granted declaratory and injunctive 
relief to compel HEW to comply with Title VI, including a 
requirement that the defendants commence enforcement proceed­
ings or utilize other lawful means to achieve desegregation 
of the states' higher education systems. Ibid.

In June of 1973, the en banc Court of Appeals affirmed 
this Court's order with minor modifications. Adams v. Richard­
son, 480 F.2d 1159 (D.C. Cir. 1973)(en banc). The Court found 
it "regrettable" that HEW had "not yet formulated guidelines 
for desegregating state-wide systems of higher learning," id. 
at 1164, and declared that defendants would no longer be per­
mitted to neglect their responsibility under Title VI, ibid.

In a passage of particular importance to the instant 
motion, the Court of Appeals further held in its 1973 en banc 
decision that "[t]he problem of integrating higher education 
must be dealt with on a state-wide rather than a school-by­
school basis." at 1164. Thus for nine years the law of
this Circuit has required defendants to compel not merely 
elimination of "discriminatory admissions policies of individual

-  2 -



institutions," but more importantly comprehensive planning to 
remedy effectively "the more complex problem of system-wide 
racial imbalance" in each state. at 1164-65 n.10.

The Court of Appeals additionally declared in 1973 that
[p]erhaps the most serious problem in 
this area is the lack of state-wide 
planning to provide more and better 
trained minority group doctors, lawyers, 
engineers and other professionals. A 
predicate for minority access to qua­
lity post-graduate programs is a viable, 
coordinated state-wide higher educa­
tion policy that takes into account 
the special problems of minority stu­
dents and of Black colleges.

Id. at 1164-65. The Court thus indicated to defendants both 
the type of planning and the type of results which they must 
require of the states in order to achieve compliance with Title 
VI.

Pour years after the decision of the Court of Appeals, this 
Court held that plans accepted by defendants in compliance with 
that decision were inadequate because they "did not meet impor­
tant desegregation requirements" and had "failed to achieve 
significant progress toward higher education desegregation."
Adams v. Califano, 430 F.Supp. 118, 119 (D.D.C. 1977). Holding 
that defendants were required to obtain from each state "speci­
fic commitments necessary for a workable higher education 
desegregation plan," the Court directed defendants to formulate 
final guidelines for acceptable desegregation plans and to 
require each state to submit within 60 days thereafter a revised 
plan in compliance with those guidelines. Î . at 121. The Court 
further cited and quoted the en banc Court of Appeals' holdings 
requiring statewide planning to provide more black professionals 
and to deal with the special problems of traditionally black 
institutions. at 120. And the Court specifically directed

- 3 -



defendants "to devise criteria for higher education desegrega­
tion plans which will take into account the unique importance of 
Black colleges and at the same time comply with the Congressional 
mandate [of Title VI]." Ibid.

The Criteria were thus promulgated under compulsion from
this Court and the Court of Appeals. Indeed, the language of
the Criteria reflects this fact and concedes that the specific
terms of the guidelines are to a considerable extent controlled
by the decisions in this case. For example, the Criteria
recognize that "[t]he Court of Appeals in its en banc opinion
in Adams directed HEW [now DE] to undertake a statewide
approach and noted the serious problem created by the lack of
viable statewide coordinated planning in higher education."
43 Fed. Reg. at 6659. On this basis, the Criteria require

not only that each institution pursue 
nondiscriminatory student admission and 
faculty and staff employment practices, 
but also that the state system as a whole 
develop a comprehensive and coordinated 
statewide desegregation plan embodying 
those specific affirmative, remedial 
steps which will prove effective in 
achieving significant progress toward 
the disestablishment of-the structure , 
of the dual system and which address 
the problem- of "systemwide racial im­
balance" [quoting Adams, 480 F.2d at 
1165 n.10] .

Ibid. Similarly, the Criteria cite and quote the holdings of
this Court and the Court of Appeals requiring plans that will
produce greater numbers of black professionals and enhance the
traditionally black colleges. 43 Fed. Reg. at 6660. The
Criteria expressly concede that

as the Court has instructed, the transi­
tion to a unitary system must not be ac­
complished by placing a disproportionate 
burden upon black students, faculty, or 
institutions or by reducing the educa­
tional opportunities available to blacks.

Ibid.
-  4 -



As pointed out in the Motion for Further Relief, the 
specific requirements of the Criteria themselves, as set 
forth in a summary issued by defendants on the day of their 
release, are the following:

—  Traditionally black institutions must be 
strengthened in quality so that they attract 
students for non-racial reasons;

— State systems must eliminate educationally 
unnecessary program duplication;

—  Some new "high demand" programs must be placed 
on traditionally black campuses;

—  The state must achieve parity in the rate of 
black and white students entering the higher 
education system;

—  The state must increase the number of black 
students at traditionally white institutions;

—  The state must achieve parity in the number
of black and white graduates of state colleges 
who enter state graduate schools;

—  The proportion of white students attending 
traditionally black colleges must be increased;

—  the state must increase mobility of students 
between the state's two-and four-year institutions;

—  The state must increase the percentage of black 
academic and nonacademic employees in the system 
and increase the number of black representatives 
on governing boards.

HEW Involvement in Desegregation of State Higher Education 
Systems, HEW NEWS, Office for Civil Rights, U.S. Department of 
Health, Education and Welfare, February 2, 1978. Defendants 
have paid little attention, as the Motion for Further Relief 
makes abundantly clear, to these specifics as well as to the 
general thrust of the Criteria.

- 5 -



Perhaps of paramount importance to this motion is the
Criteria's recognition that the decisions in this case require
defendants not only to promulgate guidelines but also to enforce
them rigorously. For example, the Criteria cite the Court's
oral directive of January 17, 1977:

what I want them [defendants] to do 
... is be under the compulsion of a 
court order to submit to the states 
certain specific requirements which 
the states must respond to...

Id. at 6659 (emphasis added). The Criteria thus reflect the 
Court's very clear intent in requiring their creation: to end
once and for all the defendants' long-standing failure to 
operate under standards.

As we demonstrate in the instant motion, defendants have 
abandoned the Criteria and especially the above-quoted 
passages. Many of the original Adams states are not comply­
ing with the Criteria, yet DE has not initiated enforcement 
proceedings. Findings as to a second group of states were 
finally issued in January of 1981, pursuant to a consent
order entered only after plaintiffs had filed a motion for

1/further relief demanding their issuance; but some of those 
findings did not uniformly require submission of statewide 
plans, and several states to this day have not yet submitted 
such plans. The current Administration has accepted plans 
which do not meet the Criteria, and has failed to require 
corrective measures to implement earlier approved plans 
even where it is obvious that the plans and the Criteria are 
being flouted. Defendants simply treat the Criteria as

1/ See Consent Order of December 18, 1980,

- 6 -



though they do not exist.
Thus, after 12 years of litigation, we must regrettably 

seek relief from this Court once again. Nine years after this 
Court's original decision and its affirmance by the Court of 
Appeals, and five years after this Court's Second Supplemental 
Order requiring promulgation of the Criteria, we are faced with 
an Administration that has ignored the holdings of this case.
The law of this case requires that defendants promulgate and 
enforce guidelines for desegregation of public higher education, 
and at present those guidelines are the Criteria. The Adminis­
tration now in office may not like the Criteria, but it is 
under a duty to apply them unless and until such time as they 
are formally revised and amended through proper procedures 
subject to review by the courts in this case; any such revision 
or amendment would, of course, have to comport fully with the 
holdings of the Court of Appeals and this Court described above.

The one thing that defendants clearly cannot do under the 
law of this case is precisely what they are doing at present. 
Defendants may not simply sit on their hands and pretend that 
the Criteria are inoperative or need not be enforced. By 
so doing, defendants have regressed to the era without standards 
that existed for many years before the decisions in this case. 
They have, in effect, treated those decisions as a nullity.

2 /

In one state. North Carolina, an enforcement proceeding 
initiated by the previous Administration with respect to the 
State's four-year colleges and universities was aborted pursuant 
to a settlement that flagrantly disregarded the Criteria. On 
June 25, 1981, this Court denied on jurisdictional grounds 
plaintiffs' motion for a temporary restraining order and pre­
liminary injunction enjoining defendants from entering into the 
settlement agreement. Plaintiffs' appeal from the Court's order 
was argued on January 8, 1982, and is still pending.

- 7 -



This Court should grant further relief to require defendants 
to obey the holdings of this case and to live up to their legal 
obligation to desegregate this Nation's system of public higher 
education.

Respectfully submitted,
Jack Greenberg 
James M. Nabrit, III 
Joel Berger

10 Columbus Circle
New York, New York 10019
Tel. (212) 586-8397

Joseph L. Rauh, Jr.
John Silard 
Elliott C. Lichtman
Rauh, Silard and Lichtman, P.C, 
1001 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
Tel. (202) 331-1795

Attorneys for Plaintiffs

- 8



CERTIFICATE OF SERVICE

I hereby certify that a copy of the Points of Authorities 
in Support of Plaintiffs' Motion for Further Relief was served 
by hand this ____ Day of May, 1982, upon

Department of Justice, Room 3734, Constitution Avenue beteeen 
9th and 10th Streets, N.W., Washington, D.C. 20530.

Joseph L. Rauh, Jr.



IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al..
Plaintiffs,

V.

TERREL H. BELL, et al.. 
Defendants.

) Civil Action No. 70-3095
)
)

ORDER
Plaintiffs having filed a Motion for Further Relief re­

quiring defendants to enforce the Revised Criteria Specifying 
the Ingredients of Acceptable Plans to Desegregate State 
Systems of Public Higher Education, 43 Fed. Reg. 6658 
(February 15, 1978), the Court having considered said Motion 
and the Points of Authorities filed by plaintiffs in support 
thereof, and the Court having further considered all papers 
submitted by defendants in opposition, and

This Court finding that the defendants have abandoned 
the Revised Criteria of February 15, 1978, without public 
notice and without order of this Court, and have accepted 
plans which violate said Revised Criteria,

IT IS HEREBY ORDERED this ___ day of ____________ , 1982,
that defendants, their successors, agents and employees, are 
directed

1. To announce publicly and notify each of the previ­
ously dje jure segregated states within 10 days from the date 
of this Order that the Revised Criteria of February 15, 1978, 
are in full force and effect;



2. To require any state not in compliance with said 
Revised Criteria to submit within 90 days a new plan for 
coming into compliance with said Revised Criteria;

3. To determine within the following 60 days whether 
the newly submitted plan complies with said Revised Criteria, 
and

4. To commence no later than 150 days from the date of 
this Order enforcement proceedings with respect to any state 
failing to submit a plan that complies with said Revised 
Criteria.

UNITED STATES DISTRICT JUDGE

-  2 -



IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al.,
Plaintiffs,

V.

TERREL H. BELL, et al.. 
Defendants.

)
) Civil Action No. 70-3095
)

MOTION FOR FURTHER RELIEF
Plaintiffs move for further relief requiring defendants to 

enforce the Revised Criteria Specifying The Ingredients of 
Acceptable Plans To Desegregate State Systems of Public Higher 
Education (hereinafter "the Criteria"), 43 Fed. Reg. 6658 
(Feb. 1 5, 1 978) (see Appendix A, infra) , promulgated by defen- 
dants in compliance with this Court's Second Supplemental Order 
of April 1, 1977, in this case. Adams v. Califano, 430 F.Supp. 
118, 121 (D.D.C. 1977). Today, more than five years since the 
date of this Court's seminal order, the United States Department 
of Education ("DE") has abandoned the Criteria. Even though 
the Criteria were adopted to comply with an order of this 
Court, and even though they cannot be formally abandoned 
without this Court's permission, defendants cavalierly treat 
the Criteria as a dead letter and act as though they can ignore 
and disregard the Criteria at will. In state after state, DE 
has accepted plans which do not meet the Criteria and has 
failed to impose sanctions where previously accepted plans 
are not being implemented pursuant to the Criteria.



I. Introduction
Pursuant to this Court's Second Supplemental Order of 

April 1, 1977, the Department of Health, Education and Welfare 
("HEW") promulgated specific standards for desegregation plans 
for six states that were subsequently amended and published as 
Amended Criteria Specifying Ingredients of Acceptable Plans to 
Desegregate State Systems of Public Higher Education. 42 Fed. 
Reg. at 40780-85 (August 11, 1977). In February 1978, HEW 
re-published the standards as Revised Criteria, having concluded 
that they were providing specific and effective guidance:

HEW originally developed the criteria mindful 
of the instructions of the Court that they comply 
with constitutional standards and Title VI, conform 
with sound educational practices, and take into 
account the unique importance of black colleges.
Based on its experience in applying the criteria 
to six state systems of higher education over the 
past months, HEW has determined that the criteria 
provide specific and effective guidance to the 
states and at the same time are sufficiently 
flexible to provide for circumstances which may 
vary from state to state.

43 Fed. Reg. at 6658. HEW expanded the coverage of the 
standards beyond the six states to apply to states with a 
history-, of de jure segregation:

These criteria will be applied to a state 
which formerly operated a dual system of public 
higher education under state law, if the Office 
for Civil Rights [OCR] determines after investi­
gation that the state has failed to remove the 
vestiges of racial segregation in its system in 
violation of Title VI.

Id. at 6659.
In the preamble to the Criteria, the legal principles 

underlying their issuance were set forth. As described more 
fully in the Points and Authorities filed in support of this 
motion, HEW recognized that 1) states which formerly practiced 
de jure segregation must take affirmative remedial actions 
which are "effective" and which "achieve results" in overcoming

-  2 -



the vestiges of that practice (43 Fed. Reg. at 6659); 2)
the states must engage in statewide rather than institution- 
by-institution planning if this objective is to be realized 
(ibid. ); 3) for plans to be accepted they must contain
specific goals and timetables rather than vague, general 
promises (ibid.); and 4) to avoid the danger that desegrega­
tion might actually diminish higher educational opportunities 
for blacks, it must be accomplished in such a manner as to 
enhance and strengthen rather than weaken the traditionally 
black institutions in each state (ĵ . at 6660).

The key requirements of the Criteria themselves, as set 
forth in a summary issued by defendants on the day of their 
release, are the following:

—  Traditionally black institutions must be 
strengthened in quality so that they attract 
students for non-racial reasons;

—  State systems must eliminate educationally 
unnecessary program duplication;

—  Some new "high demand" programs must be placed 
on traditionally black campuses;

—  The state must achieve parity in the rate of 
black and white students entering the higher 
education system;

—  The state must increase the number of black 
students at traditionally white institutions;

—  The state must achieve parity in the number
of black and white graduates of state colleges 
who enter st'ate graduate schools;

—  The proportion of white students attending 
traditionally black colleges must be increased;

—  the state must increase mobility of students 
between the state's two-and four-year institutions;

—  The state must increase the percentage of black 
academic and nonacademic employees in the system 
and increase the number of black representatives 
on governing boards.

-  3 -



HEW Involvement in Desegregation of State Higher Education 
Systems, HEW NEWS, Office for Civil Rights, U.S. Department of 
Health, Education and Welfare, February 2, 1978.

As we shall demonstrate below, defendants are today 
ignoring these requirements. The exact manner of abandon­
ment varies from state to state depending upon the history, 
structure and operational program of each complex state 
system, but in each state the overall result has been 
the same: defendants have failed to enforce the Criteria 
which the Court of Appeals and this Court required them to 
establish many years ago.

Furthermore, in several respects defendants are violating 
not only the Criteria, but also the specific holdings of the 
Court of Appeals and this Court cited in the preamble as the 
very reasons for their issuance. For example, as set forth 
more fully in the accompanying Points and Authorities, the 
very foundation of the law of this case is the principle that 
in each state

[t]he problem of integrating higher 
education must be dealt with on a 
state-wide rather than a school-by-school 
basis.

Adams v. Richardson, 480 F.2d 1159, 1164 (D.C. Cir. 1973) (en 
banc). This principle was the mandate for this Court's order 
of April 1, 1977, and it became the cornerstone of the 
Criteria adopted by defendants in compliance with that order. 
See 43 Fed. Reg. at 6659 ("the state system as a whole 
[must] develop a comprehensive and coordinated statewide de­
segregation plan"). Yet in virtually every state DE has aban­
doned this controlling principle of law and has accepted frag­
mented efforts as sufficient. As a result, the vestiges of de

-  4 -



jure segregation in public higher education are not being eli­
minated .

Defendants have also ignored the requirement of the Court 
of Appeals and this Court that effective statewide measures be 
taken to increase the number of black professionals and de­
segregate the professional staffs of public higher educational 
institutions. Nine years ago, the en banc Court of Appeals 
declared that

[p]erhaps the most serious problem 
in this area is the lack of state-wide 
planning to provide more and better 
trained minority group doctors, lawyers, 
engineers and other professionals. A 
predicate for minority access to quality 
post-graduate programs is a viable, co­
ordinated state-wide higher education 
policy that takes into account the 
special problems of minority students 
and of Black colleges.

Adams v. Richardson, supra, 480 F.2d at 1164-65 (D.C. Cir.
1973) (en banc). This Court's 1977 order specifically cited 
and quoted the above holding, Adams V. Cal ifano, 430 F.Supp. at 
120 (D.D.C. 1977), and the Criteria contain numerous provisions 
for its implementation, 43 Fed. Reg. at 6662-63.

State systems of higher education are key sources for 
credentialling persons to become candidates for professional 
positions, not only in their own institutions but also in the 
public and private sectors of their states and the nation.
State systems are also major employers. One would expect 
therefore that DE would require and vigorously monitor the 
states' performance in the enrollment and graduation of black 
professionals and in the hiring of blacks for administrative, 
academic and nonprofessional positions in the state system.
Yet, the generally and pervasively weak programs to recruit, 
enroll, retain and graduate blacks in graduate and professional

- 5 -



programs are clear evidence that defendants are not implement­
ing the mandate of the Court of Appeals that dismantling dual 
systems of higher education result in the credentialling 
of substantially increased numbers of black professionals. 
Furthermore, since January 1981, defendants have abandoned 
their responsibility to assure effective statewide measures 
which result in substantial increases in the number of blacks 
employed by state postsecondary institutions as administrators, 
faculty and professional nonfaculty staff members.”^

Additionally, DE is failing to require expeditious 
enhancement of the traditionally black institutions to enable 
them to contribute to the development of black professionals, 
to serve an increasing number of nonblacks and to ensure that 
they are not bearing a disproportionate share of the burden of 
desegregating the statewide system. This also is required by 
the decisions of both the Court of Appeals and this Court,
Adams v. Richardson, supra, 480 F.2d at 1165; Adams v. Califano, 
supra, 430 F.Supp. at 120, and is specifically provided for in 
the Criteria, 43 Fed. Reg. at 6660.

Finally, despite the clear requirements of the Criteria,
DE has abandoned any effort to secure realignment of programs 
and to eliminate educationally unnecessary duplication of pro­
grams and curriculum as vehicles for the enhancement of the 
traditionally black institutions and the desegregation of both 
traditionally black and white institutions.

Today, as in the era of de jure segregation, most of the 
states still have two public land-grant institutions which are

V  Defendants have accepted from almost every state mere 
promises that institutional affirmative action plans will be 
filed with the Labor Department's Office of Federal Contract 
Compliance Programs (OFCCP) without determining whether these 
plans have been approved and are in compliance with the 
Criteria.

-  6 -



racially identifiable. The historically black institutions 
have always been the weaker of the pair, having never shared 
equitably in federal and state funds for educational, research, 
extension and public service programs. Nonetheless, in vio­
lation of the decisions in this case and the Criteria, 
defendants have failed to address this historic pattern of 
discrimination.

We summarize below defendants' abandonment of the
Criteria in a broad cross-section of states covered by this

. 2 /litigation.

II. The "Second Tier" Adams States 3/

Although defendants announced in February 1978 that inves­
tigations would be undertaken to ascertain the compliance status 
of states with a history of de jure segregation other than the 
six covered by this Court's Second Supplemental Order, no 
formal action was taken with respect to those states for nearly 
three years. Defendants neither issued letters of findings 
nor commenced enforcement proceedings, and many efforts by 
plaintiffs to prod defendants into action proved fruitless. 
Finally, as a result of plaintiffs' November 1980 Motion for 
Further Relief, a Consent Order was agreed to by the parties 
and signed by this Court on December 17, 1980. The Consent

_2/ The documentation set forth below is illustrative of 
defendants' wholesale abandonment of the Criteria throughout 
the entire country. The failure to mention a particular state 
or particular problems within any one state is not a concession 
that defendants are in compliance with respect to that state 
or that problem. ;
_3/ By "first tier" states, we refer to the original six I
states covered by this Court's Second Supplemental Order in j
1977. They are the subject of Section III infra of this 
Motion. "Second tier" states are described in the text above. |

- 7



Order (paragraph one) required defendants to issue letters of 
compliance or non-compliance no later than January 15, 1981, 
and to observe the same time-frames for subsequent negotiation 
and enforcement mandated by the Court's previous order of 
December 29, 1977, in this case.

Although letters of findings were issued in timely 
fashion pursuant to the Consent Order, virtually everything 
else done by defendants has violated either that Order, the 
Criteria, or both.

KENTUCKY
The Court will recall that in the case of Kentucky,

DE did not secure a Plan from the Commonwealth in timely
fashion. Although DE cited Kentucky in January 1981 for
failing "to eliminate the vestiges of its former de jure

4/racially dual system of public higher education,"” defendants 
failed to require submission of a Plan within the mandatory 
120-day time period.—^ Defendants first secured a 105-day 
extension of time by order of this Court entered May 21, 1981, 
and then on August 27, 1981, sought another extension to 
January 15, 1982. In view of the sworn assertion of Assistant 
Secretary Clarence Thomas that this second extension would 
"result in a plan sufficient to bring Kentucky's system of

6/public higher education into full compliance with Title VI, 
the Court granted the extension on September 17, 1981, but wrote

£/ Letter from DE Regional Civil Rights Director William H. 
Thomas (Region IV) to Governor John Y. Brown, Jr., January 15, 
1981, p.2.
V  See this Court's Orders of December 18, 1980, 1[ 1 , and 
December 29, 1977, K 22.
6_/ Declaration of August 26, 1981 , p. 3.

- 8 -



onto its Order that date in its own handwriting that more
extensions will be granted" (emphasis in original).

Unable to obtain further extensions, DE circumvented the 
Court's September 1981 Order, by granting only "provisional" 
acceptance to a Kentucky Plan and unilaterally granting the 
Commonwealth until August 31, 1982, before final approval is 
considered. By DE's own admission, its action had to be "provi­
sional" because the Commonwealth had not yet made "all decisions
necessary to the completion and successful implementation of 

7/the plan."~
Given all of the foot-dragging described above, it should 

come as no surprise that the provisionally approved proposal is 
grossly inadequate. Indeed, the proposal is openly defiant 
toward the Criteria, stating that they "were written in
cooperation with and as guidance for other states, are not re-

87gulations, and do not have the force of law.
Kentucky's provisionally approved Plan is anything but a 

comprehensive, statewide program. There are absolutely no 
statewide measures, developed, coordinated and funded by the 
Commonwealth, in any of the areas critical to desegregation: 
student recruitment, retention, and financial aid, and faculty 
and staff recruitment, retention and development. There is no 
statewide desegregation budget or even a commitment to seek one 
from the legislature. There is no commitment to spend the funds 
necessary to upgrade the Commonwealth's traditionally black 
institution, Kentucky State University (KSU); and while KSU is

2/ Letter of Antonio J. Califa, DE's Director for Litigation, 
Enforcement and Policy Service, to Governor Brown, dated January 
29, 1982. We note that this letter of "provisional" acceptance 
was written 2 weeks after the Court's deadline of January 15th 
had expired.
8/ Kentucky Plan pp. 5-6.

- 9 -



promised a revised curriculum including high demand programs, 
those programs are not even identified. The Commonwealth makes 
a general commitment to eliminate unnecessary program dupli­
cation, but does not identify the specific programs it deems 
duplicative and does not detail how they will be eliminated 
and/or reassigned to KSU. The proposal contains no statewide 
employment desegregation plan, but rather sets forth a collec­
tion of statistical reports from some institutions and makes 
general assurances with very few goals and timetables.

In short, Kentucky has not yet submitted a Plan. It has 
submitted little more than a plan to plan. At this late date, 
nearly one year after a Plan was due in response to DE's 
January 1981 letter finding that the vestiges of de jure 
segregation have not yet been eliminated, that submission is 
totally unacceptable. DE's willingness to condone such a 
response vividly demonstrates the extent to which defendants 
have departed from the requirements of the Criteria and this 
Court's Orders.

TEXAS
By letter of January 15, 1981, former DE Assistant Secretary 

Cynthia G. Brown advised Texas Attorney General Mark White 
that "the State of Texas has failed to eliminate the vestiges 
of its former de jure racially dual system of public higher 
education, a system that segregated blacks and whites." The 
letter charged (p.3) that judging by virtually every one of 
the significant indicia —  student enrollment, faculties, 
staffs, governing boards, resource allocation and program 
duplication —  Texas' state-supported colleges and universities 
continue "to reflect the racial identity assigned by law to 
Texas public institutions prior to 1954."

10 -



The Assistant Secretary's letter acknowledged (p.4) that 
on January 14, 1981, DE had received a submission from Attorney 
General White setting forth various measures which Mr. White 
"expect [ed] appropriate state officials to undertake voluntarily 
to achieve full compliance with Federal law." The letter 
identified many deficiencies in Texas' submission, including 
the critical fact that "the extent and sources of the funding 
necessary to carry out all aspects of the Texas plan have yet 
to be determined" (p.5). Nonetheless, the letter stated 
(p.5) that DE had "provisionally" accepted the deficient 
Plan. Texas was merely directed to submit additional informa­
tion and commitments by June 15, 1981.

Not only did DE grant "provisional" acceptance to a set of 
inadequate proposals without any firm commitment from state 
officials to implement them statewide, but it has taken no 
formal action since January 15, 1981. The June 15, 1981, 
deadline passed without any final approval of a statewide 
Texas Plan, and no final approval has been granted since that 
date. Thus despite this Court's Order of December 18, 1980 
(II 1), which explicitly requires enforcement proceedings 
against Texas within 120 days of DE's January 14, 1981 
letter of findings, DE has chosen to disregard that Order, 
manifesting further its contempt of this Court's directives.

In short, DE has allowed the Texas problem to lapse into a 
state of limbo. There is no accepted statewide final Plan, and 
not even a repeatedly extended "provisionally" accepted plan, 
at this time. DE has not compelled Texas to meet the require­
ments of the Criteria, and the vestiges of de jure segregation 
identified by Assistant Secretary Brown 15 months ago remain 
as strong as ever.

-  1 1 -



To appreciate fully DE's abandonment of the Revised 
Criteria with respect to Texas, it is necessary to summarize 
briefly the deficiencies of Texas' January 1981 proposal.
The Court need look no further than Assistant Secretary 
Brown's letter of January 15, 1981, to identify most of those 
deficiencies. DE charged that Texas had failed to address: 1) 
enhancement of the state's two traditionally black institutions 
(Prairie View A & M University and Texas Southern University), 
including a) the development of academic programs that 
promise to attract students of all races to those institutions 
and b) specific additional commitments to insure a funding 
level for those institutions comparable to that enjoyed by 
similar white institutions; 2) identification and elimina­
tion of educationally unnecessary program, duplication on a 
specific schedule, combined with allocation of new high- 
demand, unduplicated programs to strengthen Prarie View and 
Texas Southern; 3) adoption of numerical goals for recruitment 
of black and Hispanic students at all institutions statewide 
(only some of which had proposed such goals as of January
1981); 4) adoption of specific statewide plans for increasing 
both the number and proportion of black and Hispanic employees 
throughout the state's public higher education system; 5) an 
increase in the numbers of black and Hispanic persons appointed 
to the governing boards of Texas' traditionally white institu­
tions; and 6) the funding of Texas' Plan, complete with specific 
commitments by state and higher education officials and 
agencies who have the power to make and implement such

- 12 -



commitments. All of these actions are required by the Criteria; 
none had been done as of January 15, 1981; and none has been
done as of this date.—9/

DELAWARE
In a letter to Governor Pierre S. DuPont IV, apparently

11/dated January 15, 1981, de Regional Civil Rights Director 
Dewey E. Dodds (Region III) directed submission of a plan for 
desegregation of the traditionally white University of Delaware 
(UD) and the traditionally black Delaware State College (DSC). 
However, Mr. Dodds did not require the state to specifically 
address the problems of desegregation within Delaware's 
Community College System, claiming (p. 6) that the community 
colleges were exempt from coverage in part "[b]ecause the 
schools in the Delaware Community College System were not 
established as part of the State's former de jure system."

Such reasoning is entirely specious, and dangerously so. 
State-supported systems of higher education have expanded 
by leaps and bounds since the days of de jure segregation; if 
every campus opened since the de jure era were exempted from 
Title VI and the Criteria, the decisions of this Court and the

9_/ Additionally, Texas' January 1981 proposal was totally 
silent with respect to desegregation of the state's numerous 
junior and community colleges. By not including the two-year 
institutions, DE has not required the statewide plan demanded 
by the Criteria and the decisions of the Court of Appeals and 
this Court in this case.
10/ Although plaintiffs' copy is undated, it is our under­
standing that the letter was mailed on January 15, 1981.

-  13 -



Court of Appeals in this case would lose all meaning.
The failure to address the Delaware system of public

higher education on a statewide basis seriously undermines the
effort to desegregate UD and DSC. For example, plaintiffs
alleged in their objections to the Delaware plan, filed on
September 28, 1981, that there is duplication of programs
between the primarily white Delaware Technical and Community
College (DTCC) Terry campus in Dover and the traditionally
black DSC (also located in Dover). Secretary Bell did not
deny this claim in his response to plaintiffs' objections.
(DE Response of November 18, 1981, p.3). With DTCC in Dover
operating at a 78.3% white enrollment in 1980, and DSC still

1 2/63% black (74.6% black in full-time enrollment),—  any 
educationally unnecessary duplication of programs could be 
fatal to the effort to attract white students from the area 
to DSC.

Similarly, DTCC's Wilmington campus is 30.5% black at a time 
when UD, also located in the Wilmington region, still has an 
undergraduate enrollment of only 3.2% black.— Yet the inter­
relationship of DTCC Wilmington and UD is ignored by the Delaware

1 1 /

11/ Although Mr. Dodds requested the state to "take account 
of the effect that remedial measures applied to one institu­
tion will have on other institutions (two-year and four-year) 
sharing the same service area," he added that the community 
colleges "should have a relatively minor role in a statewide 
plan" and directed that they be discussed only to the extent 
necessary "for an effective remedy." (Letter of January 15, 
1981, to Governor DuPont, p.6.) The Delaware authorities, 
taking their cue from DE, submitted a plan on September 17, 
1981, which focuses almost exclusively upon UD and DSC and 
virtually ignores the community colleges.
12/ Delaware Title VI Compliance Plan, Exhibit One (Sept.
28, 1981).
13/ Ibid.

-  14 -



Plan. With the population of Wilmington at 46% black (see plain­
tiffs' objections to the Delaware plan, p.1), the inability of 
UD to attract black enrollment cannot possibly be addressed in a
comprehensive fashion without taking into account the existence

11/of a 30.5% black community college in the same region. None­
theless, the current Administration of DE persists in allowing 
Delaware to operate its higher education system under this pal­
pably deficient Plan.

MISSOURI
In a letter to Governor Christopher Bond, dated January 

-15, 1981, DE Regional Civil Rights Director Jesse High (Region 
VII) directed submission of a plan for desegregation of only 
three of Missouri's 28 institutions of public higher education; 
the University of Missouri at Columbia (the state's flagship 
institution), the University of Missouri at Rolla (the state 
engineering school), and Southeast Missouri State University 
(one of nine State campuses serving regional and commuter 
service areas).

As noted in plaintiffs' objections, filed with DE on 
August 13, 1981,.enrollment data annexed to Mr. High's letter 
itself (Table I) establish the inadequacy of DE's failure to 
require a statewide plan. These 1978 data reveal, for 
example, a wide disparity in the black enrollment rate at the 
two four-year institutions in St. Louis: the University of
Missouri at St. Louis is 12.4% black, whereas Harris-Stowe

14/ Curiously, Exhibit One to Delaware's plan reveals that a 
smaller DTCC campus in the Wilmington region, located at 
Stanton, has a black enrollment of only 8.3%. This suggests 
the emergence of dualism within the DTCC system itself, and 
belies Mr. Dodds' assertion (p. 6) that "no community college 
campus is racially identifiable."

-  15 -



College, which traces its roots to the traditionally black 
Stowe Teachers College of the de jure era, remains 75.1% 
black. Similarly, there are significant disparities in the 
black enrollment rates at the various community colleges 
within the Kansas City and St. Louis regions; the four 
Kansas City area community colleges range from 0.9% black at 
Maplewoods to 66% black at Pioneer, and the three St. Louis 
area community colleges range from 3.7% at Meramec to 54% at 
Forest Park.

Plaintiffs' objections to DE also cited a recent report,
prepared by the Missouri Commission on Human Rights, which
further demonstrates the need for statewide planning addressing
the problems of the St. Louis and Kansas City areas as well as
the three institutions for which DE required a Plan. The
Commission's February 1980 report. Graduates from the University
of Missouri, Missouri State Universities and Colleges in May
and June 1979, reveals that only 7% of the bachelor's degrees
granted by the University of Missouri at St. Louis in the
spring of 1979 were conferred upon black students; thus, while
the 1978 black enrollment rate set forth in Table I of Mr.
High's letter is 12.4%, there appear to be serious retention

1 5/and promotion problems for blacks at that institution.—

15/ The Criteria, § II E, require the State to take all 
steps to reduce any disparity in retention rates between 
black and white students. Retention is clearly a problem 
not confined to one institution in Missouri. The University 
of Missouri-Columbia "acknowledged the fact that the area 
requiring priority attention is retention ... based on data 
accumulated between fall, 1978 to fall, 1980, the total 
fulltime undergraduate retention rate for black students was 
57 percent compared to 78 percent for whites." (University of 
Missouri-Columbia, Plan for Continuing the Achievement of 
Equal Opportunity for Students and Faculty, Part One, p. 30.) 
Yet DE approved a Plan without measures for addressing this 
serious problem and has not required a statewide approach 
to retention.

-  16 -



Given the fact that the City of St. Louis is 45.6% black 
according to the 1980 census, the adequacy of Missouri's 
desegregation efforts in that region is highly suspect. 
According to the Commission, the University of Missouri at 
Kansas City granted only 5.4% of its bachelor's degrees to 
blacks, in contrast to the 7.7% black enrollment rate stated 
in Mr. High's letter. Kansas City is 27.4% black according to 
the 1980 census.

Quite apart from the failure to address the problems of 
St. Louis and Kansas City, the absence of a statewide plan 
could undermine the state's efforts to achieve desegregation 
on the three campuses cited by DE as requiring remedial 
action. For example, the 96.7% white University of Missouri 
at Columbia is near Moberly College, which at 11% black 
enrollment is the most integrated community college outside of 
St. Louis and Kansas City (see High letter. Table I). A com­
prehensive statewide plan would seek to benefit from the 
presence of a two-year institution that appears to be progress­
ing toward integration in the region of a substantially 
segregated university, by relying upon the two-year school as 
a "feeder" institution to help integrate the nearby university. 
Additionally, there are two and four-year institutions of 
public higher education in the general vicinity of the other 
universities cited by DE. Thus, the piecemeal approach of DE 
not only ignores the serious problems existing in the St.
Louis and Kansas City regions, but will also hinder progress 
even at the three institutions which were declared in violation 
of Title VI in January of 1981.

-  17 -



WEST VIRGINIA
In a letter to Governor John D. Rockefeller IV, apparently 

16/dated January 6, 1981, de Regional Civil Rights Director 
Dodds directed submission of a plan limited to only one of 
that state's sixteen institutions of public higher educa­
tion: the traditionally white West Virginia University (WVU).
In footnote 3 on page 3 of that letter, Mr. Dodds conceded 
that thirteen other state-supported institutions of higher 
education in West Virginia "employ very few blacks on their 
faculties and staffs." Nonetheless, DE did not require West 
Virginia to submit a statewide plan.

The Criteria, 43 Fed. Reg. at 6662, require that each 
state "commit the state system to the goal of increasing the 
number and proportion of black employees, academic and non- 
academic, throughout the system ..." The thirteen institutions
cited by Mr. Dodds constitute 65.1% of the West Virginia higher

17/educational system in terms of enrollment, yet DE chose to 
ignore the problem. DE merely announced in footnote 3 of Mr. 
Dodds' letter that it would turn the matter of employment dis­
crimination over to the Office of Federal Contract Compliance 
Programs of the Department of Labor, a gross abdication of re­
sponsibility which is totally at odds with the Criteria and 
with DE's obligations before this Court. Both the Court of 
Appeals and this Court have expressly held that progress in

16/ Plaintiffs' copy is undated. Secretary Bell's letter of 
June 22, 1981, to counsel for plaintiffs, rejecting plaintiffs' 
objections, states that the letter was dated January 6, 1981.
17/ See Appendix A to Mr. Dodds' letter. Employment statistics 
were not provided.

- 11



desegregating faculty and other professional staff positions 
is crucial to the overall progress of desegregation (see pp. 
2-3, above).

The Plan submitted by West Virginia on May 5, 1981, in 
response to Mr. Dodds' letter, is limited solely to WVU. No 
statewide remedial effort is proposed, and indeed the sub­
mission provides no data concerning the state's 15 other 
public institutions of higher education. Concerning the 
employment of blacks which DE has noted as a problem at the 
non-WVU institutions, affirmative action at WVU will have a 
major impact upon those other schools. Since WVU's 1978 
enrollment of 14,581 constitutes 24.7% of the statewide total 
(see Appendix A to Mr. Dodds' letter), it is the very heart of 
the state's system. A genuine effort by WVU to attract 
black students and faculty would invariably draw blacks from 
the other institutions. Accordingly, the need for a statewide 
and state-funded program remains critical.

III. The "First Tier" Adams States ^
Pursuant to this Court''s Second Supplemental Order of 

April 1, 1977, paragraph four (430 F. Supp. at 121), early in 
1978 defendants approved the plans of several of the states 
covered by that Order. And Virginia's plan was approved in 
January of 1979. However, on the basis of plaintiffs' review 
of reports filed by those states with the Office for Civil 
Rights, it is apparent that there is widespread noncompli­
ance with the plans that were approved. The Criteria ex­
plicitly spell out what defendants must do in that eventuality;

- 19 -



OCR shall review such [annual] narrative 
reports. If good cause for the failure 
to meet interim goals is not demonstrated,
OCR may impose more stringent require­
ments, including advance approval by OCR 
of desegregation methods, in order to 
assure achievement of the goals in the 
plan. In the alternative, the Depart­
ment may initiate enforcement proceedings 
under Title VI of the Civil Rights Act 
of 1964, if compliance with Title VI 
cannot be achieved by voluntary means.

43 Fed. Reg. at 6663.
As we shall demonstrate below, defendants have totally 

ignored their responsibilities under this provision of the 
Criteria. Despite substantial evidence of noncompliance with 
state plans and Title VI, defendants have neither imposed 
more stringent requirements nor initiated enforcement proceed­
ings against the "first tier" Adams states.

ARKANSAS
Arkansas has no statewide and state-funded programs 

to assure effectiye implementation of the Criteria's key 
requirements for desegregation of state systems of higher 
education. Consequently, Arkansas has not only failed 
to meet the goals of the Plan accepted by defendants in 1978, 
but is actually achieving less in virtually every category 
than was true at the time the Plan was submitted. Even 
though Arkansas' system of public higher education remains as 
segregated as ever, DE has failed to require the statewide 
remedial measures mandated by the Criteria.

Arkansas adopted the Criteria's required college-going 
parity among black and white high school graduates, and 
further promised in its Plan to "implement corrective measures' 
to address any disparities (Plan, p. 55). However, the 
racial disparity actually increased from 5.7 percentage points

- 20 -



in 1977-78 to 9.1 in 1980-81, and black enrollment in
postsecondary institutions statewide decreased from 16.9% in

19/
1976 to 15.7% in 1980-81. Indeed the decline in some 
institutions such as Henderson State University, whose black 
enrollment dropped from 30.3% to 19.5% within four years, was
j ■ 11/drastic. DE's 1980 evaluation letter noted the problem 
and requested information on proposed corrective measures. Yet 
Arkansas has implemented no corrective measures specifically 
targeted to blacks, and confronted with this lack of initiative, 
DE has failed to impose more stringent requirements.

Concerning the State's traditionally white 4-year institu­
tions, the Arkansas Plan committed the State to reduce by 50% 
by 1982-83 the racial disparity in the proportion of black and 
white enrollees in these institutions. But the racial disparity
in first time students in these institutions actually increased

21 /from 11.1 percentage points in 1977-78 to 14.1 in 1980-81.—  
Nonetheless, Arkansas has no statewide and state-funded 
program for the special recruitment of black students into 
the higher education system in general, and into the tradi­
tionally white institutions in particular; and DE has not 
required any such programs.

The Criteria require promotion of opportunities for blacks 
to transfer from two-year institutions to the Junior class of 
four-year institutions. Yet Arkansas' latest annual desegrega-

1 1 /

18/ Arkansas College and University Plan for Compliance with
1981 ) Table 4, p. 6.
19/ Id. at Table 5,
20/ Ibid.
21/ Id. at Table 4,

- 21 -



tion report admits a growing racial disparity in the proportion
of students who complete their studies at the two-year colleges
and receive associate degrees. The same report documents an
alarming decrease in the proportion of black students who
graduated from two-year colleges and entered four-year institu-

22/tions from 59.4% in 1977-78 to 23.1% in 1979-80.—  The State's
report of the previous year identified this problem and conceded
that while "[S]ome policies have been developed [to combat it]
. . . they are not formal in nature and they are not enforced 

23/by all institutions." Yet DE has taken no action to require 
Arkansas to adopt a statewide program to address this serious 
problem.

Arkansas' performance has been equally dismal in the 
enrollment of blacks in graduate and professional programs.
The Criteria (II C) require the goal of parity in the propor­
tion of black and white baccalaureate graduates enrolling in 
the state's graduate and professional schools. Arkansas 
acknowledged in its 1980 Annual Report that the disparity was 
16 percentage points, and that only "limited progress" has been 
made in reducing disparities overall as well as in those pro­
grams, where blacks have traditionally been underrepresented.
In fact, the state had only four more fulltime black graduate
students in 1980 than in 1977 and the black percentage in

25/graduate enrollment declined.—

24/

22/ Id. at Table 9, p. 11.
23/ Arkansas College and University Plan for Compliance with 
Title VI of the Civil Rights Act of 1964, Annual Report (Fall 
1980), p. 14.
2A/ W. at 16.
25/ Higher Education General Information Survey (hereinafter 
"HEGIS") Fall Enrollment and Compliance Report on Institutions 
of Higher Education. Source: Arkansas submission on OE 2300-2.3
for 1977 and NCES Form 2300-2.3A for 1980.

- 22 -



By Arkansas' own admission, desegregation of staff posi-
26/tions is the area in which "progress has been slowest.—

The Criteria require Arkansas to achieve a black proportion in
positions not requiring the doctorate equal to the percentage
of black recipients of master's degrees. Blacks were 10.3% of
master's recipients in 1978-79, but constituted only 5.3% of
administrative and 4.7% of faculty new hires in 1979-80 at the

27/traditionally white institutions. Although black recipi­
ents of master's degrees declined to 8.2% in 1979-80, 13 of the 
18 predominantly white institutions failed to meet even this 
lesser goal for administrators and 13 failed it for faculty.
Seven of the nine two-year institutions had no black administra-

28/tors at all in positions not requiring the doctorate. For 
positions requiring the doctorate, 16 of the 18 predominantly 
white institutions did not meet a modest 2.2% goal for black
faculty and 15 did not meet that goal for administrators in 

29/1980-81 .- Between 1977 and 1980 the percentage of blacks in
administrative and professional non-faculty positions at pre-

30/dominantly white four-year institutions declined.

26/ 1 980 Annual Report at 17.'
27/ Letter from Arkansas Director of Higher Education T.
Michael Elliott to DE Regional Director Taylor D. August 
(Region VI), February 3, 1981, p. 9.
28/ 1981 Annual Report at Table 11, p. 13.
29/ Id. at Table 12, p. 14.
30/ Source: Higher Education Staff Information (EEO-6) for 1977
and 1980 submitted by Arkansas. DE's evaluation letter merely 
noted Arkansas' failure to meet the employment goals in its 
Plan but did not assess the effectiveness of the State's 
implementing measures because they "were not approved by OCR 
until May 1979" (TAB B, p. 6) —  fully 15 months after defen­
dants' approval of the Plan. DE compounded its failure to 
insist upon measures prior to Plan approval by not imposing 
more stringent requirements when the delayed measures were 
clearly not working.

- 23



with Arkansas regressing on practically every front, the 
need for a vigorous statewide desegregation program is greater 
than ever before. Yet DE has done nothing to force Arkansas 
into compliance with the goals of that state's own Plan and to 
bring about adherence to the Criteria. The holdings of the 
Court of Appeals and this Court in this case, the Criteria 
promulgated pursuant to those holdings, and the Plan submitted 
by Arkansas pursuant to those Criteria, are all rendered 
meaningless by DE's inaction.

VIRGINIA
With the acquiescence of DE, Virginia has followed a

fragmented, institution-by-institution approach to desegregation
rather than a statewide program. The results since approval of
the Virginia Plan three years ago have been disastrous.

Virginia has no statewide and state-funded programs for
the recruitment and retention of black students into under--
graduate, graduate and professional programs, as required
by the Criteria. DE expressed concern that Virginia had
regressed in compliance with the Criteria's requirement for
parity in college-going rates:

According to the Commonwealth's August 1979 Report, 
the student enrollment data for 1978 indicate a 
disparity of 7.6% between the proportion of white 
and black high school graduates who entered Virginia's 
two-year and four-year state-supported institutions.
This represents an increased disparity from the time 
the Plan was accepted (4.6% for academic year 1976-77).
Of particular concern is the decline in freshman within- 
state black students enrollment from 5,294 in 1977 to 
4,292 in 1978. During this same period, the percentage 
of white student enrollment (freshmen, within-state) 
decreased by less than 1%. 31/

31/ Letter from D.E. Regional Director Dewey E. Dodds (Region 
III, to Virginia Secretary of Education, J. Wade Gilley, Nov. 
28 , 1 980, TAB B, p. 12) .

-  2 4  -



Although DE compared the 18.9% decline in one year in black 
within-state freshmen to the 1% white decrease, it did not 
translate its concern into a requirement for remedial action. 
Virginia reported the following year that the college-going

32/rate disparity had risen even higher to 8.7 percentage points.—
The proportion of black fulltime undergraduates that was 16.3%

33/in 1 977 remained precisely 16.3% in 1 980.—
To promote desegregation of the traditionally white four- 

year institutions, the Criteria require substantial movement 
toward parity in the entrance rates of black and white high 
school graduates and transfer students. However, Virginia's 
predominantly white institutions are not achieving a black 
proportion in enrollment sufficient to ensure that the Cri­
teria's minimum requirements and the Plan's desegregation goals 
for 1982 will be met. The black/white disparity of 15.3% per­
centage points in first-time enrollees at these institutions 
in 1980 was an insignificant change from 1978. Eleven of the 
13 traditionally white four-year institutions did not meet their 
1980 goals for first-time black enrollees and most of these did
not fully utilize the other-race scholarships provided by the 

34/Commonwealth. Given this poor rate of progress that resulted 
from reliance upon institutional initiatives, DE cited Virginia's 
failure "to assess the effectiveness of institutional recruitment
the Plan" submitted by the Commonwealth in 1978. 35/ Nonetheless,

32/ State Council of Higher Education for Virginia, Annual 
Report (Aug. 31, 1981), p. 27.
33/ HEGIS Fall Enrollment and Compliance Report of Institutions 
of Higher Education. Virginia submission on OE 2300-2.3 for Fall 
1977 and NCES Form 2300-2.3A for Fall 1980.
34/ 1981 Annual Report at 37, 40 and 13.
35/ Letter from DE Regional Director Dewey E. Dodds (Region
III) to Virginia Secretary of Education J. Wade Gilley, Nov.
17, 1981, Attachment A p. 14-15.

-25 -



DE has taken no action to bring Virginia into compliance with 
the Criteria's requirement of progress toward parity.

Responsive to the Court of Appeals' special concern to 
increase the pool of black professionals, the Criteria set the 
goal of parity in the proportion of black and white state 
residents who complete baccalaureate studies and enroll in 
graduate programs. In Virginia black fulltime graduate enroll­
ment statewide slipped from 5.1% in 1977 to 4.9% in 1980,
largely due to an almost 56% decline in black graduate enroll-

36/ment at one of the traditionally black universities. The pro-
poE’tion of blacks enrolled in professional programs was stagnant
between 1977-1980 and no blacks were among the 64 students to
enroll in Virginia Polytechnic Institute's first class in 

... 37/veterinary medicine.—  in November 1981 OCR noted the 
continuing black/white disparities in post-baccalaureate 
enrollments and the absence of special recruitment efforts 
targeted to blacks for graduate and professional study at 7 of

38/the 10 insitutions offering graduate or professional programs.— ' 
Yet DE has failed to require any comprehensive statewide 
program to recruit, and, if necessary, provide financial 
assistance for black graduate and professional students in 
order to implement the Criteria's requirement for parity "in 
the immediate future" in the proportion of black and white 
state residents who complete baccalaureate studies and enter 
graduate or professional programs in the state system (43 Fed.
Reg. at 6662 ) .

36/ HEGIS Fall Enrollment and Compliance Report of Institutions 
of Higher Education. Opcit.
22/ Ibid.
38/ Dodds letter of Nov. 17, 1981, Attachment at 15.

- 26 -



Even at those institutions where some progress in black 
enrollment has been made, the alarming disparity in graduation 
rates between white and black students threatens to wipe out 
any meaningful progress. According to a study commissioned by 
the Commonwealth, the graduation rate of whites statewide 
exceeds that of blacks by an astonishing 27.4 percentage 
points. DE reprimanded Virginia for not reporting whether 
senior institutions have adopted measures to address this 
disparity, as well as attrition in graduate and professional
programs, but did not require any statewide approach to this
' ■ . 39/serious problem.—

Nowhere has Virginia's performance relative to its Plan
been more disappointing than in the effort to desegregate the
Commonwealth's two traditionally black four-year institutions,
Virginia State University and Norfolk State University.
Indeed, Virginia State's white undergraduate headcount actually

40/decreased -from 190 in 1978 to 151 in 1980. de has charged 
the Commonwealth with failure to "explore recruitment techni­
ques and other ways to increase the proportion of white stu-

41/dents attending the traditionally black institutions," but 
has taken no action against the state for that failure. Simi­
larly, Virginia's failure to meet the Plan's commitments for 
enhancement o f facilities at the traditionally black schools, 
especially the promise of a four-year School of Engineering
Technology and a Continuing Education Center on Virginia State's

42/campus, has been noted by DE but has not been corrected.

39/ Dodds letter of Nov. 17, 1981, Attachment A at 16, 17. 
40/ 1981 Annual Report at 30.

£2/ £d. at 2.
41/ Dodds letter of Nov. 17, 1981, Attachment A at 16.

- 27 -



Finally, Virginia's performance in the effort to dese­
gregate faculty, administrative and professional non-faculty 
staff has been nothing short of dismal. The percentage of 
blacks employed fulltime in administrative positions at the
traditionally white four-year institutions was 4.81% in 1977;

43/It was still 4.81% in 1980. The percentage of blacks in
professional non-faculty positions at these institutions was
8.95% in 1977; by 1980 it had dropped to 7.66%.— '̂ Despite
small gains in the percentage of blacks on faculty, most
institutions have not met the goals upon which the Plan was
accepted and show no signs of meeting those goals in the 
 ̂ 45/future. When asked by DE for a statewide report on
employment in 1981, Virginia simply refused to comply;

An aggregation of these goals to assess 
statewide progress was not deemed ap­
propriate due to the initial understand­
ing between the federal and state officials 
involved that objectives were to be set 
on an institution by institution, and 
department by department basis.

Letter of Secretary Gilley to DE Regional Director Dodds, Dec. 
31, 1981, p. 5. Virginia still has no statewide and state- 
funded program for recruitment of black faculty, administrators 
and professional staff, and DE has required none.

GEORGIA
The state of Georgia, like Arkansas and Virginia, has 

regressed with respect to virtually all significant indicia of 
desegregation since approval of its Plan in 1979. Georgia has

43/ Source; Higher Education Staff Information (EEO-6) for Fall 
1977 and Fall 1980 submitted by Virginia.
44/
45/ 1981 Annual Report, Vol. IV, Employment Assessment.

- 28 -



admitted as much in its reports, and DE specifically cited
46/many areas of deficiency in its 1980 evaluation.—  Nonethe­

less, in the last seventeen months DE has not required Georgia 
to adopt more stringent measures and has taken no formal action 
to achieve compliance-

In the 1980 letter, DE concluded that Georgia had made
"no real assessment of its progress in meeting the requirement
of Section II [Desegregation of Student Enrollment] of the 

. „47/Criteria. in the Georgia Plan (p. 167), the Board of
Regents had endorsed the "objective of proportionate first year 
enrollments in public institutions of higher education." Yet 
in its 1981 Annual Report, Georgia admitted that there had been 
only "a very modest decline" in the racial disparity in college­
going rates statewide, from 25.2 percentage points in 1977 to 
22.8 in 1980, and that "most institutions have consistently 
fallen below their projections, some disproportionately below" 
(p. 6). According to the report (Table II-A-3), there were 
1,366 fewer blacks enrolled in the System in 1980 than in 1977, 
a decline of 6.7%; and black enrollment was 27.4% less than the 
Plan's projection for 1980. None of the universities met its 
1980 black enrollment goal and only one junior college exceeded 
its goal. The 22.7% decrease in black enrollment at the 
traditionally black institutions was not compensated by 
increases elsewhere in the System.

Nor is Georgia achieving parity in the enrollment and 
retention of black students. According to the 1981 Annual

46/ Letter from DE Regional Director William H. Thomas (Region 
IV) to Georgia University System Chancellor Vernon Crawford. 
Although plaintiffs' copy is undated, we believe that the letter i  
was sent in November or December of 1980. j
47/ Ibid, TAB, p. 18.

29 -



Report (p. 94), black recipients of bachelor's degrees in 1980 
were 18.9% of black freshman enrollment in 1976; the comparable 
figure for nonblacks was 37.8%.

In the 1981 Annual Report Georgia also conceded that 
black graduate enrollment had "consistently decreased" since 
1977; indeed, black enrollment in 1980 was 22.2% less than in 
1977 (pp. 13-14). During this same period, black recipients 
of master's degrees declined almost 32% —  from 796 in 1976-77 
to 542 in 1979-80.

The pattern is the same in the area of employment where 
Georgia has not made progress. Black administrators statewide 
decreased from 9.4% in 1977 to 8.9% in 1980; black faculty 
decreased from 6.7% in 1977 to 6.6% in 1980. ^ Black professional 
non-faculty personnel remained constant at 10.0% between 1977-80, 
but only by virtue of the hiring of more blacks at the tradi­
tionally black institutions; at the tradi tionally white 
schools, blacks in this category decreased from 7.1% in 1977 to 
6.9% in 1980.—

DE's 1980 evaluation letter commented on the lack of 
progress in employment and the inadequacy of the state's 
institution-by-institution approach. DE observed that all 
institutions had not revised their affirmative action plans 
and that most of the plans that had been received were inade­
quate under "the Adams-guidelines" (i.e. , the Criteria); DE 
criticized the state for providing "no information regarding

48/ Source: Higher Education Staff Information (EEO-6) sub­
mitted by Georgia for Fall 1977 and Fall 1980.
49/ Ibid.

- 30 -



progress in implementing those measures to be taken to aid in
50/the achievement of employment goals."—  Nonetheless, DE

has taken no steps to require Georgia to remedy the situation.
Under the Criteria, DE's obligation to impose a plan

51/with more stringent requirements or to initiate enforce­
ment proceedings against Georgia is clear. 43 Fed. Reg. at 
6663. If these provisions are to have any meaning at all, DE 
cannot stand idly by as the state of Georgia slips backward 
toward a more segregated system of public higher education.
The failure of DE to take action in Georgia is yet one more 
example of the wholesale abandonment of the Criteria by 
defendants.

OKLAHOMA
It has been more than thirty years since the Supreme Court 

ruled unconstitutional racial segregation in Oklahoma's graduate 
and professional schools. Sipuel v. Board of Regents, 332 U.S. 
631 (1948); McLaurin v. Oklahoma State Regents, 339 U.S. 637 
(1950). In 1978 HEW determined that a desegregation plan 
submitted by Oklahoma conformed to the Criteria and was there­
fore acceptable.

50/ Letter of Regional Director Thomas to Chancellor Crawford, 
p.23.
51/ Although plaintiffs here complain of DE's failure to secure 
compliance with Georgia's modest Plan, we have consistently 
taken the position that the Plan itself is inadequate, fails 
to comply the requirements of the Criteria, and should not 
have been approved in the first place. The Plan is especially 
weak in its failure to eliminate program duplication and to 
strengthen the state's traditionally black institutions. See 
letter of plaintiffs' counsel to Secretary Califano, February 
9, 1979.

-  31 -



However, in 1980 defendants transmitted an evaluation 
52/letter to Oklahoma which identified major areas in which 

the state was not meeting the commitments and goals in its Plan 
and was actually regressing in the desegregaton of its system 
statewide. DE requested explanations but did not impose more 
stringent requirements. Nor has it done so in the succeeding 
two years.

In its Plan (p. 19) Oklahoma had agreed to a "five-year 
aggregate goal of parity" in the proportionate enrollment of 
black and white first-time entering undergraduates. But 
in their 1980 letter, defendants found a disparity of 4.9 
percentage points in 1978 and concluded that the state was not 
progressing toward a parity goal. The college-going rate 
disparity actually increased to 7.2 percentage points in 1980 
(1981 Annual Report, TABLE TWO, p. 8). By 1980 fewer black 
students were enrolled statewide relative to three years 
earlier (See Table XIV attached infra).

The Plan (p. 20) also committed Oklahoma "to completely 
eliminate the disparity between the proportion of black and 
white first-time entering freshmen and transfer students at 
its traditionally white four-year institutions by 1982-83."
In 1980, the traditionally white institutions failed as a 
group to meet the goals for black Oklahoma first-time fresh­
men and transfers. Seven of these 11 institutions did 
not achieve their goals; and the University of Oklahoma and 
Oklahoma State University, the two largest white institutions

52/ Letter from Taylor D. August, Regional Civil Rights 
Director, Region IV, U.S. Department of Education, to Dr. E. T. 
Dunlap, Chancellor, Oklahoma State Regents for Higher Education, 
November or December 1980. Plaintiffs' copy is undated.

-  3 2  -



on which the Plan placed major reliance for achieving parity, 
were substantially below their goals (1981 Annual Report, TABLE 
FIVE, p. 12).

Concerning black enrollment in graduate programs which 
DE's letter identified as "a major problem area," Oklahoma had 
failed to reach the Plan's goal in 1980 (TAB B, pp. 10-11). 
There were fewer black graduate students in 1980 than in 1977 
(see Table XIV infra). Although the Plan had projected 37 
black professional students from Oklahoma by 1980 (see II C of 
the Criteria), fewer than half of the 35 blacks then enrolled 
were residents of the State. Yet Oklahoma has not instituted, 
and defendants have not required, any new statewide measures to 
address these problem areas.

Oklahoma's Plan had committed the State "to an absolute
reduction of any disparity between the population of black and
white students graduating with baccalaureate, master's and
doctor's degrees" (Plan, p. 25). However, in th-eir 1981 Annual
Report (p. 13) the Regents admitted:

In 1979-80, not only was the doctoral 
degree goal not met, but the Black/White 
ratio of doctoral degrees conferred in­
creased by almost 300 percent over the 
previous year (i.e. from 1:13.6 to 1:37.6)
... . The master's degrees conferred goal 
was not met this year... . In actuality 
428 bachelor's degrees were granted to 

. Black students. This was 197 degrees or 
32 percent less than the number needed to 
meet the ratio goal.

Although Oklahoma's failure to meet the graduation goals indi­
cates a problem concerning the retention of black students, the 
state has no statewide and state-funded retention program, and 
defendants have not required one.

In conformity with 1l III A of the Criteria, Oklahoma 
agreed to achieve a proportion of blacks in positions not 
requiring the doctorate equal to the percentage of black

- 33 -



recipients of master's degrees and to set goals for positions 
requiring the doctorate that conform to black availability for 
these positions. However, betwen 1977 and 1980 the number of, 
blacks in such administrative and faculty positions statewide 
did not increase. Although the number and percent of black 
tenured faculty grew, that was due largely to an increase at 
the traditionally black college. Moreover, the decrease 
statewide in black faculty "nontenured but on track" during 
this period reduced the pool for potentially tenured black 
faculty. There was also a sharp decrease of blacks in "pro­
fessional nonfaculty" positions (See Table XIV infra).

The number of black academic employees in 1980-81 was far 
short of the stated goals. For administrative, faculty, pro­
fessional and teaching/research positions requiring the doctorate, 
the traditionally white institutions had 29.4 fulltime equivalent 
(FTE) blacks (compared to the promised 43.4); for the positions 
in those categories requiring^the master's degree, there were 
116.4 FTE blacks (compared to the promised 137.8); for academic 
positions requiring less than a master's, the 87.5 FTE blacks 
did not reach the goal of 91.4. (1981 Annual Report, p. 41)
Although Oklahoma fell short of the Plan's goals by almost 
40 black academic staff members in its predominantly white 
institutions statewide in 1980, the defendants have not required
more effective measures to implement the goals in the Plan and 
u • • 53/the Criteria. For Oklahoma, as for the other states, defen­
dants have simply refused to enforce the Criteria.

53/ DE's 1980 evaluation letter also criticized Oklahoma's 
delay "in initiating several critical actions related to 
strengthening the academic program at Langston [University, 
the State's traditionally black institution,] and implementing 
its new mission" (TAB A, p. 1). Because the promised corrective 
steps involving Langston are still in process, we will reserve 
any objections until the completion of that process.

- 34



FLORIDA
In a letter of findings to Florida Conunissioner of Edu­

cation Ralph D. Turlington, dated January 15, 1981, Assistant 
Secretary Brown stated (p. 2);

Florida has not made satisfactory pro­
gress in implementing several .., pro­
visions of the Plan [approved by DE in 
1978]. Moreover, vestiges of the State's 
formerly segregated public higher educa­
tion system persist and in some respects 
the system has become more segregated....
... Florida has not made satisfactory 
progress toward dismantling its formerly 
dual system of public higher education.

Noting that the specific problems identified in the letter and 
attachments are "substantial" and that "issues central to the 
success of the Plan have not been resolved over a protracted 
period of time," the letter warned (pp.4-5) that enforcement 
proceedings would commence "unless Florida corrects the defi­
ciencies identified herein within 45 days from the date of this 
letter." '

Florida responded with a series of submissions which did
not even begin to address in any comprehensive fashion the
numerous deficiencies identified by defendants on January
15, 1981. DE itself later admitted that Florida "did not
respond in full to each of the requests made in our January 15 

54/letter." Nonetheless, in an astonishing about-face, the 
new Administration declared on April 20, 1981, that Florida had 
made "an acceptable response" to the January 15th letter. 
Commissioner Turlington then openly boasted that "[tjhere's not a

54/ Letter of Assistant Secretary Thomas to plaintiffs' counsel, 
August 21, 1981.
55/ Letter of Antonio J. Califa, Deputy Assistant Secretary, 
to Commissioner Turlington, April 20, 1981.

-  3 5  -



thing that's new” in the submissions filed in response to DE's
, 56/charges.—

Defendants' determination to back down from the strong 
language of the January 1981 letter of findings is one of the 
most vivid and most powerful illustrations of this Admini­
stration's disregard for the Criteria- Florida has not met 
the requirements of the Criteria and shows no sign of meeting 
them in the future, yet DE refuses to take corrective measures.

For example, the January 15th letter noted that the dis­
parity between the proportion of white and black high school 
graduates entering Florida's public colleges and universities 
increased alarmingly between 1977-78 and 1978-79, from 9.85% to 
15.47% (Attachment B, p.11); Florida was required to describe 
specific additional measures to combat this problem (Attachment 
A, p.1). Nonetheless, DE withdrew this requirement and instead 
accepted Florida's general promises to improve recruitment 
efforts. Plaintiffs objected to the inadequacy of Florida's 
response, noting the substantial decline of black first-time 
freshmen in Florida from 3,429 in 1977 to 2,971 in 1 980.— ^
Yet DE, while admitting that Florida's response does "not 
necessarily [require] actions that are statewide in scope,"

C O /
refused to take any further action.—

The Criteria require states "to expand mobility between 
two year and four year institutions as a means of meeting the 
goals set forth in these criteria," 43 Fed. Reg. at 6662.

56/ The Tampa Tribune, April 21, 1981.
57/ Letter of Plaintiffs' counsel to Secretary Bell, June 11, 
1981, Appendix One, p.2.
58/ Letter of Assistant Secretary Thomas to plaintiffs' counsel, 
Aug. 21, 1981, Attachment p.1.

- 36 -



Defendants' general failure to secure statewide approaches to
desegregation that effectively involve the public community
college is especially critical in Florida because of the nature
of the State's postsecondary system. Florida expects fully
80% of the students entering public postsecondary education to
enroll initially in one of its 28 community colleges. Five of
its 9 senior institutions provide only upper division and
graduate programs. Any decrease in black enrollment in, or
impediments to their upward mobility from, community colleges
must merit special remedial action. Yet the racial disparity
in the college-going rate into the Community College System was

59/actually higher in 1980 than in 1977.—  Also, between
1977 and 1980 enrollment of blacks in the community colleges,
decreased 19.2%, with the largest institution registering a

fin/staggering loss of 42.9% of its black enrollment;— ^and
during this period black recipients of associate degrees (i.e.,
those qualifying for admission to the universities as juniors) 

61/declined 6.7%. Thus, DE's refusal to require actions 
from Florida that are statewide in scope, impacting throughout 
the Community College System, effectively undermines the 
potential for any meaningful desegregation in Florida.

Similarly, Florida has failed to make any commitment of 
state funds to promote enrollment of a larger number of blacks 
in the upper division of predominantly white four-year uni­
versities. Between 1977-78 and 1978-79 the percentage of

59/ See Equal Access-Equal Opportunity Data for Florida 
Community Colleges, Parity Analysis Tables (1979 and 1982 
Editions).
60/ Id. at Opening Fall Enrollment College Level Headcount 
Tables.
61/ Id. at Associate Degrees Earned Tables.

- 37 -



blacks entering the upper division fell from 8.68% to 8.19% 
(Letter of January 15, 1981, Attachment B, p. 12), and DE 
specifically required additional measures to reverse this 
trend (^. at Attachment A, p.2). Yet DE subsequently accepted 
Florida submissions that lacked any statewide and state-funded 
programs to increase black enrollment.

The latest available data establish that in 1980 blacks 
enrolled as undergraduates in Florida at lesser rates than in 
1977. Within the state university system, blacks constituted 
11.5% of the enrollment in 1980 as opposed to 12.3% in 1977;
and within the primarily white universities, blacks were 6.1%

6 2/of the enrollment in 1980 as opposed to 6.3% in 1 977.— '

DE's January 15 letter to Florida revealed inadequate 
black enrollment in graduate and professional programs (Attach­
ment B, p. 13). There were 298 fewer black graduate students 
in 1980 than in 1977, a decrease of 26.7%; and there were 
fewer blacks enrolled in professional programs at the pre­
dominantly white universities in 1980 than in 1977. The 
drastic reduction in the number of black recipients of advanced 
degrees is therefore not surprising: 170 fewer blacks were
awarded master's degree's in 1 980 than in 1977, and the 26 
blacks who received doctorates in 1980 were one-third fewer 
than their counterparts in 1977.— ' Nonetheless, Florida 
has not committed itself to any new statewide measures and DE 
has not required any. The Court of Appeals' plea for a

62/ HEGIS Fall Enrollment and Compliance Report of Institutions 
of Higher Education. Source; Florida submission on OE Form 
2300-2.3 for Fall 1977 and NCES Form 2300-2.3A for Fall 1980.
63/ HEGIS Degrees and Other Formal Awards Conferred. Florida 
submissions on NCES Form 2300-2.1A for 1976-77-and 1979-80.
When plaintiffs called the latest data to DE's attention, 
including a substantial decrease in number of graduate and 
professional degrees awarded to black students, DE responded 
merely that the data would be considered "in our ongoing 
monitoring of Florida's plan implementation." Thomas letter of 
Aug. 19, 1981, Attachment p. 1.

- 38 -



substantial increase in black professionals has been permitted 
to fall on deaf ears in Florida.

According to the January 15 letter, overall white enroll­
ment at the traditionally black Florida A & M University (FAMU) 
had fallen by 1979-80 to 8.94% —  the lowest percentage since 
1975. (Attachment B, p.14). The latest data suggest that this 
trend is continuing; the 189 white full-time undergraduates at 
FAMU in the fall of 1980 were only 4.2% of total enrollment, 
a substantial decrease from the 6.9% white enrollment of three

64/years earlier. Furthermore, plans to enhance FAMU and 
eliminate duplicative programs at other universities•have not 
gone forward? indeed, the only efforts to reduce duplication 
thus far have eliminated far more programs at the predominantly 
black FAMU than at the predominantly white institutions, with 
the result that FAMU is today even weaker than before. (January 
15 letter. Attachment B, pp.3-9). DE initially required 
numerous specific remedial steps (Attachment A, pp.4-5), yet 
virtually none of them has been carried out. And DE admitted 
in response to plaintiffs' objections, that with respect to 
FAMU "specific strategies" would not be "identified and
impl'emented" until October 1, 1981 —  nearly six months after

. 65/DE's acceptance of Florida's response. Plaintiffs are
still waiting.

The January 15 letter charged (p.3) that Florida's 
traditionally white institutions have made "little or no 
progress" in desegregation of faculty, noting that continued 
lack of progress in this area "perpetuate[s] the prior racial

64/ HEGIS Fall Enrollment and Compliance Report of Institutions 
of Higher Education. Florida submissions on OE Form 2300-2.3 for 
Fall 1977 and NCES Form 2300-2.3A for Fall 1980.
65/ Thomas letter of Aug. 21, 1981, Attachment, p. 2.

- 39 -



identity of the schools." Again, specific commitments were 
requested (Attachment A, p.7); again, none was forthcoming.— ^ 
The latest data reveal that in 1980 blacks constituted 6.2% of 
all faculty within Florida's State University System, as opposed 
to 6.3% in 1977; at the primarily white institutions the per­
centage of black faculty increased only marginally during this 
period, from 3.0% to 3.1%.— ^

In sum, Florida's system of public higher education is 
today at least as segregated, if not more so, than it was when 
Florida's Plan was accepted in 1978. DE identified the 
components of the problem in a thorough and detailed analysis 
in January of 1981, and required numerous specific actions 
mandated by the Criteria. Although these actions were not 
forthcoming, the current leadership of DE has failed to 
take any meaningful steps to follow through on the January 
1981 initiative. That initiative and the Criteria under which 
it was required have been abandoned.

PENNSYLVANIA
Defendants' conduct with respect to Pennsylvania bears 

many similarities to their abdication of responsibility in 
Florida. DE is diluting and retreating from a strong letter 
of findings issued against the Commonwealth in January 
1981. As a result, there is at present no statewide program

66/ DE apparently decided to accept individual institutional 
plans approved by OFCCP in lieu of the statewide program 
required by the Criteria. Yet according to Florida's 1981 
Annual Report, plans have not yet been approved for all 
of the state's universities; and no information has been 
provided as to whether the plans that have been approved 
conform ,to the Criteria,
67/ Higher Education Staff Information (EEO-6) for Fall 1977 
and Fall 1980 submitted to Florida.

- 40 -



to eliminate the vestiges of de jure segregation in Pennsylvania.
By letter to Pennsylvania Governor Richard L. Thornburgh, 

dated January 16, 1981, DE Regional Director Dewey E. Dodds 
(Region III) advised the Commonwealth that its 1974 desegre­
gation Plan had failed to achieve compliance with Title VI of 
the Civil Rights Act of 1964. The letter charged (p.3) that 
the 1974 Plan had been unsuccessful not only because Pennsylvania 
had failed to implement it, but also because the Plan itself 
had been too limited and had not required participation by "all 
the institutions needed for a complete remedy."

The last of these findings was especially significant.
The 1974 Plan had not included four "state-related" universities 
(The University of Pittsburgh and Pennsylvania State, Temple 
and Lincoln Universities) which are subject to substantial 
control by the Commonwealth both financially and administra­
tively. These universities enroll more students than the 
state-owned schools, and, with the exception of Lincoln (a 
traditionally black institution), provide most of the graduate 
programs and all of the professional study opportunities in the 
Commonwealth's system. The 1974 Plan had also exempted all of 
Pennsylvania's 14 community colleges from coverage. DE con­
cluded in its January 1981 letter that inclusion of these 
institutions in a new Plan is "needed for a complete remedy"
(p.3), because "[i]n order to desegregate the system effec­
tively the interrelationships among the various institutions 
over which the State has control must be taken into account"
(p.8).

As required by this Court's Order of December 29, 1977, in 
this case, DE advised the Commonwealth in its January 16, 1981, 
letter of findings (p.10) that the new Plan was to be submitted

-  41 -



within 60 days and that 60 days after that (i.e., within 120 
days of January 16th) defendants would have to "either accept 
the plan or initiate enforcement proceedings." However, the 
current Administration has made a mockery of this timetable. 
Defendants did not receive any formal response from the 
Commonwealth until May 27, 1981 —  after the full 120 days had 
passed —  and that response merely promised a supplemental 
plan with 60 days. DE acquiesced in this defiance and even 
granted several additional extensions before the supplemental 
plan was submitted on September 30, 1981.

On December 18, 1981, Regional Director Dodds sent a
letter and an 18-page staff evaluation to Pennsylvania Secretary
of Education Robert Scanlon. In the letter DE advised the
Commonwealth that its new Plan was "incomplete in major areas"
and that modifications would be necessary. Nonetheless,
defendants did not initiate enforcement proceedings but instead
merely asked for yet another submission from the Commonwealth.
And while the 18—page evaluation discussed in detail numerous
deficiencies of the new Plan, it was totally silent concerning
Pennsylvania's failure to include the four state-related
universities and the 14 community colleges. The critical issue
of limited scope, which had been so central to the January 1981
letter of findings, was merely left for further "discussion"

6 8/between defendants and the Commonwealth.—
On February 15, 1982, Pennsylvania submitted an "addendum" 

to its September 1981 supplemental plan. Since the Commonwealth 
had not been required by the December 1981 evaluation to in­
clude the state-related universities and the community colleges

68/ Letter of Regional Director Dodds to Secretary Scanlon, 
Dec. 18, 1981, p.1.

- 42 -



in this latest response, it did not do so. By letter from
Regional Director Dodds to Secretary Scanlon, dated March 18,
1982, DE did reject one component of Pennsylvania's February
1982 submission: an exceedingly inadequate proposal for the
enhancement of Cheyney State College, the Commonwealth's state-
owned traditionally black institution. However, as to all
other aspects of the "addendum," the letter merely states (p.1)
that DE's review has not been completed and that further corre-

69/spondence will be forthcoming.—
Today, 16 months after the January 1981 letter of findings, 

and one year after DE was required by order of this Court 
either to accept a new plan or initiate enforcement proceedings, 
Pennsylvania still lacks a statewide desegregation plan that 
complies with the Criteria and the decisions of the Court of 
Appeals and this Court.

69/ DE's January 1981 letter of findings noted (p.8) that 
Cheyney State College is in the same service area (the Phila­
delphia region) as Temple, two Penn State campuses, and 
several community colleges. Lincoln University is also in 
this service area. Thus, it is futile to address the problems 
of Cheyney State in the absence of a comprehensive statewide 
plan.

- 43



IV. Conclusion

Defendants' flagrant disregard for the Criteria 
has been amply demonstrated above. Further relief from this 
Court is urgently needed to require defendants to i) implement 
the desegregation guidelines and timetables mandated by the 
Criteria and the orders in this case^ and ii) initiate enforce* 
ment proceedings, where necessary, with respect to those states 
which are defiant or perenially recalcitrant. Defendants' 
blatant refusal to comply with the Criteria and the decisions 
in this case must be ended once and for all if the vestiges of 
de jure segregation are to be at long last eliminated —  "root 
and branch" from America's public colleges and universities.

Respectfully submitted.

Jack Greenberg 
James M. Nabrit, III 
Joel Berger

10 Columbus Circle 
New York, New York 10019 
Tel. (212) 586-8397

Joseph L. Rauh, Jr.
John Silard 
Elliott C. Lichtman

1001 Connecticut Ave., N.w. 
Washington, D.C. .20036 
Tel. (202) 331-1795

Attorneys for Plaintiffs

-  44



APPENDIX



<S653 ■ NOTICIS

a p p e n d i x  a

re u n d tn r  th a  T s iiu U a n  an d  in ciu aiaa  
ot in *U ad In com e o n  In com e a n d  gov* 
erty  siailstlca .-

T lie  s tu d y  ilr s t  r e r ie v e d  d e f in it io n s  
o i  in co m e  tim e h a v e  Oeen u sed  In t h e  
e co n o m ic  U terscu re and fo u n d  U iat 
n o s e  in c lu d e . m a n y  ty pes  o f  in -iln d  
in com e ; p r iy ste  as T e ll a s  y ovem m en * 
tsL  T h e  n e x t  o b je c t iv e  <aras vn lu ln s  t h e  
in com e  to  th e  rec ip ien t. W h e n  in co m e  
is rece iv e d  In m o n e y , re c ip ie n t  fa m ilies  
a re  fr e e  to  p u rch a se  g o o d s  th e y  desire- 
a t  m a rh et pr ices . H ow ev er, w h en  
In com e  is rece iv ed  In-kind, p a rticu la r ly  
w h en  p r ic e  subsid ies o r  con s tra in ts  o n  
a m o u n ts  are in vo lved , th e re  is n o  
m a rk e t  to  w h ich  one. ca n  tu rn  f o r  a 
v a lu e . T h e  stu d y  th u s  ev a lu a ted  sever­
a l v a lu a tion  possibU ties. p r im a rily  
v a lu a tion  a t  g overn m en t o r  em p lo y e r  
c o s t  a n d  ca sn  e q u iv a len t o r  u tility  
term s (d e fin e d  as th e  m o n e y  th a t  
w ou ld  lea v e  a  re c ip ie n t  as w e ll -o ff  as 
th e  In-kind in co m e ). T h e  s tu d y  fo u n d  
t h a t  n o  v a lu a tion , a lte rn a tiv e  is fu lly  
co n s is te n t  w ith  m o n e y  in com e, fu r th e r  
resu lts  sh o w  th a t g overn m en t o r  em ­
p lo y e r  co s t  m a y  b ea r little  re la tion sh ip  
to  re c ip ie n t  values.

P recise, m a th em a tica l fo r m u is s  w ere 
derived  f o r  ca sh  eq u iv a len t values and  
a p p ro x im a tio n s  to  ca sh  eq u iv a len t 
values, w ere  d e v e lo p e d - F in a lly , using 
re ce n tly  ava ila b le  d a ta  fr o m  th e  1312- 
73 , C on su m er E x p e n d itu re  S u rvey , 
va lu es  w ere  est im a ted  f o r  fo o d  stam ps, 
lo w -re n t p u b lic  h ou sin g , M ed ica id  a n d  
em p loy er -p rov id ed  h e a lth  in su ra n ce  
using  .. variou s valu a tion  a lternatives . 
W h ile  th ese  estim ates axe e x trem ely  
c r u d e . .. th e y  do sh ow  th a t in -k in d  
In com e  ca n . In som e  cases, p rov id e  s l -  

.zea b le  a d d ition s to  m on ey  In com e b u t 
a lso  th a t  valu es t o  th e  re c ip ien t  ca n  b e  
fa r  b e low  g o v e rn m e n t a n d  e m p loy er  
co s ts .
A  c o p y  o f  th is re p o rt  w in  b e  fU ed 

an d  a va ila b le  as s o o n  as possib le , from  
•the N a tion a l T e ch n ica l In fo rm a tio n  
. Serv ice . I7.H. D e p a rtm e n t o f  C o m -- 

m erce , S p r in g fie ld , V a . 221S1 
D a te d i F ebru ary  10, 1978, . -

. HiPniT Aahoiv, 
Aiaistani Seerttary/or 

'■ PUmninya-TuiSvaLuatiem. 
(pa Doc. TS-UST FUed J-14-78; 3:1S anU
[4110-121 ■; ,V '
M visxo a iT taiA  s r e c r n n o  -me iN oaspi- 
atrs o #  A C s rv A a u  nj.m  to  D ssioaz .■ - SAT? STATI SrSTIAtS 0? T08UC MI<5H*8 '-tPOCATIOH
In  la te  1369 a n d 'e a r ly  1370. th e  D e -  

. pa rtm en t, o f  H ea lth . S d u ca tlo n . and 
W e lfa re  IH H W ) n o tif ie d  ton  sta tes 
th a t  t h e y  h a d  n o t  d istn a rtled  th e ir  
s ta te w id e  dual sy stem s o f  pu b lic  
h igh e r  edu ca tion . T h e  letters sen t by  
HSIW a t  th a t  tim e adlvsed ea ch  sta te

o f  Its fa f lu r e  t o  a d o p t m ea su res  n e ce s ­
sa ry  to o v e rco m e  t h e  e f fe c t s  o f  past 
seg reg a tion  and. n o t i f ie d  th e  sta tes  o f  
th e ir  o b lig a t io n  to  file  a  sta tew ide  
p la n  fo r  t h e  d eseg reg a tion  o f  their- 
p u b lic  system a  o f  h ig h e r  e d u ca tion .

F o r  th e  past  seven- y ea rs  th a  C ou rt 
rev iew ed  H E W ’ s e f fo r t s  to  d esegreg a te  
th e se  sy stem s o i  h ig h e r  ed u ca tio n . I n  
1977, th is C ou rt, fo u n d  th a t  th e  D e­
p a rtm en t 's  e f f o r t  h a d  n o t  b een  ade­
q u a te  a n d  ord e re d  th e  D e p a rtm e n t to 
req u ire  s ix  o f  th e  or ig in a l ten  sta tes  to  
su b m it n ew  d eseg reg a tion  p lan s an d  to  
set sp e c ific  sta n da rd s f o r  th o se  plans.

T h e  C ou rt  fo u n d  th a t  " s p e c i f ic  co m ­
m itm en ts  (w e re ) n ecessa ry  fo r  a  w ork ­
ab le  h ig h e r  ed u ca tio n  d esegreg a tion  
p la n  . . . c o n ce rn in g  adreiaalon . re­
cru itm en t a n d  re te n tio n  o f  stu d en ts, 
c o n ce rn in g  th e  p la ce m e n t an d  d u p lica ­
tion  o f  p rog ra m  o ffe r in g s  a m on g  Insti­
tu tion s , th e  r o le  and  th e  en h a n ce m e n t 
o f  b la ck  In stitu tion s, and  co n e s m in g  
ch a n g e s  in t h e  ra cia l c o m p o s it io n  o f 
the fa cu lt ie s  Ihvolved . ..

S p e d flc a lly .  th is  C o u r t  en te re d  a 
S e co n d  S u p p lem en ta l O rd e r  o n  A p ril
1. 1377 d ire c t in g  th e  D e p a rtm e n t to  
tra n sm it to  th e  s ix  sta tes  o f  .Axkansas.. 
F lor id a . G e o rg ia . N o r th  . C a ro lin a , 
O k la h om a , a n d  V irg in ia  as w e ll as th e  
C ou rt and  th e  p la n tllfa  cr ite r ia  sp eci­
fy in g  th e  Ingredien ts o f  a ccep ta b le  de­
se g reg a tion  p lan s f o r  th e ir  In stitu tion s 
o f  pu b lic  h ig h e r  ed u ca tion . A cco rd in g ­
ly , o n  J u ly  5i 1977, th e  D e p a rtm e n t 
p u b lish ed  cr ite r ia  w h ic h  w e re  a m end­
ed  o n e  m o n th  la te r  to  ta k e  in to  a c­
co u n t sug g estion s o f fe r e d  b y  som e  o f  
th e  s ta tes..

T h e- C ou rt  fu r th e r  ' d ire c te d "  th a t  
H E W  req u ire  e a ch  s ta te  to- subm it, 
w ith in  50 da ys o f  r e c e ip t  o f  th e  cr ite ­
ria , a  rev ised  d eseg reg a tion  p la n  a n d  
to a cce p t  o r  re je c t  su ch  p lan s w ith in  
120- days th erea fter . ->In S e p te m b e r  
1377, In respon se  to , H E 'W s req u est, 
th e  six  states su b m itted  desegreg ation  
plana, .-U ter m o n th s  o f  In tensive n eg o - 
U atlon s. th e  D e p a rtm e n t a n n ou n ced  
o n  F e b ru a ry  2, 1378, th a t  It w as ac­
cep tin g  th e  p la n s o f  .-Arkansas, F lor ida , 
and O k la h o m a  and n o t  a ccep tin g  
p lan s su b m itted  b y  G e o rg ia , N o r th  
C arolina , an d  V irg in ia . O n  th e  sam e 
da te , th e  D e p a rtm e n t a n n o u n ce d  th a t  
it  w ou ld  p u b lish  In th e  F roraA i. R s o is -  
Tsa, rev ised  cr ite r ia  w h ich  a re  su b sta n ­
tia lly  sim ilar to  th e  cr ite r ia  pu b lish ed  
I n J u ly .  ^  ,

W h e re  H E W  h a s fo u n d  th a t  a sta te  
has n o t  e lim in a ted  th e  rem a in in g  ves­
tig es  o f . seg reg a tion  In its  fo rm e rly  
d u a l system  o f  p u b lic  h ig h e r  edu ca ­
tion . and  Is,, th e re fo re . In v io la tio n  o f  
T it le  ■'/I o f  th e  C ivil R ig h ts  A c t  o f  ■ 
1954. It Is requ ired  firs t  to  a ttem p t to 
sec-ore co m p lia n ce  by  v o lu n ta ry  
m eans. W h en , th o se  e f fo r t s  fadl, H E W  
Is requ ired  to. s e e r  e n fo r ce m e n t  eith er- 
a dm in istratlve ly  o r  th ro u g h  t h e  
cou rts . 42 U E .C , 200-1; 43 C F R  2Q0Od-

1. 45 C P H  3 0 .7 fd X l) . 30.3. T h e se  re -‘ 
v ised cr ite r ia  are issued to assist su ch , 
sta tes  in th e  p re p a ra tio n  o f  desegrega-- 
tlon  p lan s as p a rt o f  th e  p ro ce ss  o f  s«- 
cur in g  vo lu n ta r y  com p lia n ce .

H E W  or ig in a lly  d e v e lo p e d  th e  crite­
r ia  m in d fu l o f  th e  in stru ction s, o f  the - 
C ou r t  th a t  th ey  co m p ly  w ith  consUt-o- 
t lon a i sta n da rd s an d  T it le  VT. con form  
w ith  so u n d  e d u ca tion a l p ractices , and 
take Into a cco u n t th e  u n iqu e  Im por­
ta n ce  o f  b la ck  co lle g e s . B ased  o n  its 
ex p e r ie n ce  In a p p ly in g  th e  c r ite r ia  to 
six. sta te  sy stem s o f  h ig h e r  edu ca tion  
o v e r  t h e  past m o n th s . H E W  h a s  deter­
m in ed  th a t th e  c r ite r ia  p rov id e  s p e c if­
ic  a n d  e f fe c t iv e  g u id an ce  to  th e  states 
and a t th e  sam e tim e, axe su ffic ie n tly  
f le x ib le  to  p ro v id e  l o r  c lrcu m staiw es 
w h ich  m a y  v a ry  fr o m  s ta te  to sta te.

PaSAMBLS

I. HISTOkT o r  thOAl, ?ROC5SnihCS
IT ie  cr ite r ia  set fo r th , b e lo w  tniU afly 

w ere  d ev e lo p e d  b y  Lhe D e p a rtm e n t o f  ' 
H ea lth . E d u ca tion , a n d  W e lfa re  
(H E W ) p u rsu a n t to  th e  sp e c ific  d lreo -- 
tlon  o f  th e  U n ited  S ta tes  D istr ic t 
C ou r t  fo r  the- D is tr ic t o f  C o lu m b ia  In 
A d am s v. Caii/ano, C iv i l . A c t io n  N o, 
3095-70 , S e co n d  S u p p lem en ta l O rd er 
(D .D .C . A p ril 1. 1377). T h e  C ou rt 's  
O rd e r  a rose  fro m  a law suit In itiated  in  
1970 to req u ire  H E W  to  tak e  a ct io n  to 
e n fo r ce  th e  pro-rislons o f  T it le  V I  o f  
th e  C ivil R ig h ts  .act o f  1364.‘

In  1369, the O ff ic e  f o r  C ivil R ig h ts  
(O C R ) d e term in ed  th a t  ten  S tates* 
w ere co n t in u in g  to op e ra te  seg reg a ted  
h ig h e r  ed u ca tio n  system s in  -rioiatlon  
o f  T it le  V I  o f  th e  1934 a v t l  R ig h ts  
A c t . .-although th e  S ta tes  w ere  n o t if ie d  
o f  th is f in d in g  an d  w ere req u ested  to  . 
su b m it co r re c tiv e  p lan s, n o  a dm in istra ­
tive e n fo rce m e n t a ct ion s  w ere taken 
w h en  th e  S ta tes  fa iled  to  su b m it plans 
or su b m itted  p lan s u n a cce p ta b le  to 
H E W . In  F e b ru a ry  1373. th e  Adams 
lit ig a t io n  resu lted  In a  ru lin g  req u irin g  
th a t  H E W  take s o p r o p n a t e  e n fo r ce ­
m en t a ct ion . Adams  v. R ich a rd so n , 333 
P. S u pp . 92 (D .D .C . 1973). T h a t  ru lin g  
w as u n a n im ou sly  a ffirm e d  b y  th e  fu ll 
U n ited  S ta tes  C ou rt o f  A p pea ls fo r  th e  
D is tr ic t o f  C o lu m bia  C ircu it, a lth o u g h  
th e  C ou rt o f  .-Ippeals m od ifie d  th e  D is­
tr ict  C ou rt 's  o rd e r  and  d irected  H E W  
to  a ttem p t to sec-sre a ccep ta b le  deseg ­
reg a tion  p lan s fr o m  th e  ten  S ta tes  
b e fo r e  co m m e n c in g  e n fo r ce m e n t  p ro - 
ceed ln g s. Adams  v. Jtichardsan, 430 F . 
2d 1159 (D .C . C ir. 1373).

‘Title-VI of the C.-rtl Rights Acs of 19«4 
pro-rides: "No person in the United States , 
ahaii, on the grounds ol race, color, or n*. 
tionai origin, be ersciuded from participation 
in, be denied the benefits of. or be subjected 
to discrimination under any program or .-so- 
UvttT receiving Federal ihianet-d *uu.sUnce.. 
42 a3.C . JOOOd.

•Arkansas. Florida. Georgia. Louisiana. 
Maryland. Mhsueipoi. Nortn CaroUna. 
Okiaboraa, Feansylvama. and V'xrinia.

F lP g K A t  3 K I S T S I .  v e t .  ■«, A O . 32— W S S N 8 S P A Y , fS S tO A g T  13, IV T S



MOTICSS 8659
1974» H E W  a ccep ted  d e se «re «a - 

(ion- plana from  e ig h t o f  th e  ten  
•'States.' R e p o rts  c o v e r j ig  th e  firs t  year 
o f  Imp le m e n ta tio n  w ere  su P m ltled  to 

: '.SSW In 1373. S u iisedu en tly , th e  o la ln - 
-;'tlffs In th e  v ldam s ca se  so u g h t  fu r t h e r  
‘ . 'le ile f and o n  April. 1. 1977, th e  C ou rt 
■jraled th a t  th e  1374 p lan s d id  n ot 
io o m p ly  w ith  th e  crite r ia  prev iou sly  a a - 
■;%nounced b y  H E W  and th a t  as im ple* 
> m en ted -th e  p lans h a d  fa iled  to  a ch ieve  
r. s ign ifica n t p rog ress  tow ard  h ig h e r  
:>edueatlon ' d esegreg a tion . B ased  on  

these- fin d in g s, the. C o u r t  ordered .
• h e w , ' to dev e lop  a n d  Issue w ith in  90. 
:.d a y s  sp e c ific  cr ite r ia  Co gu id e  th e  six 

S la tes* In th e  p rep a ra tion  o f  rev ised  
(.d eseg reg ation  p la n s.
t' 11. LSSAt. AXD SOOCanONAt ?SX!IIC£?tZS - 
'A .  D e fu reseprepa flo rt

T h e se  cr ite r ia  w ill b e  ap p lied  to  a 
'  state w h ich  fo r m e r ly  o p era ted  a du al 
'• system  o f  p u b lic  h ig h e r  e d u ca tion  
- u n d er sta te  law . If th e  O ff ic e  fo r  C ivil 
■R igh ts determ in es a fte r  in vestig ation  

: th at t h e  s ta te  has fa iled  to  rem ov e  th e  
■ vestiges o f  racia l se g re g a tio n  In its 

system  in  v lo ia tlon  o f  T it le  V I. ,
B . 'AffiTmaiive duty £o take effective 

.  steps lo  eliminate de fare seprepa- . 
_-c.r tion .... .. . _ ■-

W h e re ' th e re  has- b e e n  past d e  Jure 
. seg reg a tion , sta tes  are req u ired  to  ta k e  

a ffirm a tiv e  rem ed ia l step s  and to 
a ch ieve  resu lts In o v e rco m in g  th e  e f- 

. .fe c ta  o f  p r io r  d lscrim ln ation t H E W ’ s  
. reg u la tion  Im plem en tin g  T it le  VT pro* 

v ld e a th a t -

*a idmlnieterfng a program, resardlzig -vnich- 
the recipient has pieviously dlscrnninated 
against p ^ o n s  oo  the ground of race * * *, 
th e rethpient must taSe athmaClve icU od 

’ Co overcome the effects ot prior diacrlintna- 
t io n .«  c y i t  e o j t b x s x n .  .

T h e  14th  A m e n d m e n t a lso ca lls  f o r  
m ore- th an  m ere  a b a n d on m en t o f  d ls- 

43dm lnatlon  th rou g h  th e  sta te 's  a d op ­
tion  o f  passive o r  n eu tra l polic ies . T h e  
U nited. S ta tes  S u p rem e  C ou rt  has held  
th a t  p u b lic  s c h o o l o ff ic ia ls  h a ve  “ t h e  
a ffirm a tiv e ’ d u ty  to  take w h a te v e r  
steps, m ig h t b e  n ecessary  to co n v e r t  to  
a  u n ita ry  system  In w h ich  d lscrlm lna -

■ Louisiana rehaed CO submit a plan u id ' 
was referred M the Deoarcment of Jusdcm 
which filed a lawsuit ( yntfed. Statee r. tow -' 
trtonok ClvU Action Jfo. 74-48 <Md3. Ls-J In 
January 1974. The plan submitted by Mis-- 

. sisaippl was deemed unacceptable by HEW- 
and the matter was referred to the Depart. - 
raent of Justice, which filed a lawsuit Avers- 
and. United Stitta r. lincK' ClvU Action No.

. D .C  75-9-S  (NJ3. J4!ss.J. In ila rch  1975.
•Tbe April i. 1977. Order excludes ? e n n - ' 

: lylTania-lby agreement of tbe parties to the 
Adonu lawsuit) and Maryland, which com­
menced a separate Inlonctlve suit against 
HEW 'i enforcement proceedings now pend­
ing In. the United States Court of Appeals 
for th e  Fourth Circuit ijdandei v. ffSW ; No. 
78-14941, aa well as Louisiana and .Mlsaisaio 
»*• , . -

t ion  w ou ld  b e  e lim in a ted  r o o t ,  and 
b ra n ch .”  Green v. ■ County S ch oo l 
Board 0/ Neui Kent County, 391 0 .3 .  
430. 437-38  (1968 ). .

T h e  a ffirm a tiv e  du ty  to  d esegreg ate  
a pp lies  w ith  equal fo r ce  to  h ig h e r  edu­
ca tion ,. Norria v. S fs fe ,  C o u n c il o/ 
Higher Sduaatiton,' 327 P . S u p p . 1368 
(SJ3.. V a. 19711, d / r i  per curiam, 404 
U .3.. 907 (1371): Lee V, Haeon County 
Board o /  Bducatian,. 287 P . S u pp . 438 
(M JD. A la . 19675, .a f f d  389 U.S. 215 
(19671: (Jeter T. Dunn, 337 ? .  S u p p . 573 
(M J3 . T e n n . 19721. A d d itio n a lly , t h e  
S u p rem e  C ou rt has m a de It c le a r  th a t 
desegreg ation  p lan s a re  n o t  adeq u ate  
u n less  th e y  are e ffe ct iv e ; See Green v. 
County School Board 0/ Hew Kent 
County, ruprtii. Swann  v. Chariotte~ 
Meckienirurg Board of Bducatian, 40Z 
U - 3 .1 (1 9 7 1 )..

C on s isten t -with t h e  requirm H ents o f  
T it le  VT th e se  cr ite r ia  se t  fo r t h  th e  
elem en ts o f  . a deseg reg a tion  p la n  
w h ich  w ou ld  elim in a te  th e  e ffe c ts  o f  
past d iscrim in a tion .
C  Statewide a p p ro d ch  ‘

T h e  Court-, o f  A p p ea ls  in  Its en  b a n c  
op in ion , in  Adame  d ire c te d  H E W  to  un­
d ertak e  a  sta tew ide  a p p r o a c h  and 
n o te d  th e  seriou s p ro b le m  crea ted  by 
th e  la ck  o f  v iah ie sta tew id e  co o rd in a t­
e d  p la n n in g  in  h ig h e r  e d u c a t io n :.
The problem, o f thtegraUng higher educa­
tion. must be- dealt with aa a state-wide- 
rsther than a achodl-by-achooi basis.'*

»Et Is tm portantito note that we are not 
here discussing discriminatory admission 
pollclca at Individual institutions. To the 
extent that such practices are discovered. 
Immediate oorrectlTe action la required, but 
we da not understand HEW to dispute that 
point.. This conuoversT concerns the more 
com plex problem of systemwide racial tm- 
balanee. Adame v. Aicfiardson, ntpm, 480 ? . 
id  a t US4-US5 (footnote in oiiglnsl).

T h e  D ep a rtm en t h a s fo l lo w e d  th is ap­
p r o a c h  s in ce  1969 b eca u se  w e b e lieve 
sta tew ide  p la n n in g  la con s is ten t  w ith  
sou n d  edu ca tion a i p o licy . T h u s , these 
cr iteria  req u ire  n o t  o n ly  th a t  ea ch  In­
s t itu tion  . pu rsu e  n on d lscrim in a tory  
s tu d en t adm ission , and  fa cu lty  and 
s ta ff  e m p lo y m e n t . p ractices , b u t also 
th a t  t h e  sta te  sy stem  as a  w h o le  d ev el­
o p  a  co m p reh en s iv e  a n d  coord in a ted  
sta tew ide  desegreg ation  p lan  em b od y -. 
Ing th o se  s p e c ific  a ffirm a tiv e , rem ed ia l 
step s w h ich  wUl p rov e  e ffe o tlv e  In 
a ch iev in g  s ig n ifica n t p rog ress  tow ard  
th e  d isesta b lish m en t o f  th e  stru ctu re  
o f  th e  du al system  a n d  w h ic h  address 
th e  prob lem  o f  “ system w id e  racial Im­
b a lan ce .”   ̂ ;
D . H p e c l/ic ify u lim o ii a ji2  timetabled —■

T h e  D is tr ic t  C ou rt In Adams  con ­
clu d ed  th a t th e  plans- p rev iou s ly  
a d op ted  b y  th e  sta tes h a d  fa iled  to 
a ch ieve  a dequ ate  desegregaU on  pro­
gress and la ck ed  sp e c ific  com m itm en ts  
f o r  ch a n g e  as con cern s  th e desegrega- 
t io h  o f  s tu d en t b od ies  an d  fa cu lties .

en h a n ce m e n t o f  tra d it ion a lly  b la ck  In­
stitu tion s, and  desegregaU on  o f  th e  
g o v e m u ig  b oa rd s  in h ig n e r  edu caU on  
system s. ______

T h e  D is tr ic t  C ou r t  d irected  H E W  lo  
prepa re  cr ite r ia  w h ich  w ou ld  id en tify  
fo r  th e  sta tes  th e  sp e c ific  e lem en ts  lo  
b e  in clu d ed  in  th e ir  revised desegreg a ­
U on . plans. -As t h e  D is tr ic t C ou r t  . 
sta ted  In respon se  to  o ia in U ffs ' o ra l ar­
g u m en t on  Jan u a ry  17. 1977;
■What I do want them to do though Is be 
under the comoluslon of a court order lo  
submit lo the stales certain xpetri/lc require­
ments which Che states must resoond to and 
they should be given a timetable for com­
municating with the states, and the states 
should be given some kind of timetable 
within which to make resodnse. CTrenaertat. 
January n t h  ruling; emphasis suoplied.1

In  (Jeter v. Blanton, 427 P . S u pp . 644 
(M T3. T an n . 19771, th e  C ou rt q u oted  
Its O rd e r  o f  D e ce m b e r  23, 1969, ex ­
pressing  Its d issa tis fa ction  w ith  a sta te  
su b m itted  desegreg ation  p la n  in th at 
th e  p la n  aa su b m itted  " la ck s  s p e c ific ­
ity ; In th a t  th e re  is n o  sh ow in g  o f  
fu n d s  to be ex p en d ed , n o  sta tem en t o f  
th e  n u m b er o f  stu d en ts to  be in volved , 
and  m ost im oortan U y . no tim e sc.hed- 
u les fo r  e ith e r  th e  im p lem en ta tion  o f  
th e  p ro je c ts  o r  th e  a ch iev em en t o f  a n y  
g oa ls .”  427 P . S u pp . at 646.

-  T h e  S u p rem e  C ou rt  has m a in ta in ed  
th a t In a  sy stem  w ith  a  h istory  o f  seg- 
rega U on  th e re  is a need  fo r  rem ed ia l 
cr ite r ia  o f  su ffic ie n t  s p e c ific ity  to 
assure co m p lia n ce  w ith  tn e  law . S ee 
Swann, su p ra  at 22-26 .

In  k eep in g  w ith  th e  C o u rt 's  view  
th a t  the D e p a rtm e n t s lio u ld  subm it 
sp e c ific  req u irem en ts  to th e  states, nu­
m erica l goals an d  tim eta bles are set 
fo r th  In th e  cr ite r ia . T h e  goals are es­
ta b lish e d  as in dices by. w h ich  to ' m ea ­
sure- p rogress  tow ard  th e  o b je c t iv e  o f  
e lim in a tin g  th e  e ffe cts  o f  u n con stitu - 
tlonaJ de Jure racia l se g reg a tion  and  o f  
prov id in g  equal edu ca tion a l o p p o r tu n i­
ty  fo r  ail c itizen s o f  th ese  sta tes. T h e y  
are benc.hm arSs and prov ide  th e  states 
th e  c le a r  and sp e c ific  g u id an ce  ca lled  
fo r  b y  th e  C o u r t

T h e se  goals are n o t  q u otas . T h e  D e­
p a rtm en t is op p o se d  to  a rb itrary  
quotas . F a ilu re  to  a ch ieve  a goa l is n o t  
su f fic ie n t  ev id en ce , sta n d in g  a lon e , to  
establish  a v io la tion  o f  T it le  V X  In  ad­
d ition , th e  O ff ic e  f o r  ClvU R ig h ts  
u p on  a sh ow in g  o f  e x ce p tio n a l h a rd ­
sh ip  o r  sp ecia l c ircu m sta n ces  by  a 
sta te, m a y  m o d ify  th e  g oa ls  and tim e­
tables. N everth eless , th e  sta tes  are 
u n d e r  a sta tu tory  oO ilga lion  to devise 
and im p lem en t p lan s th a t axe e ffe c t iv e  
In a ch ievin g  th e  deseg reg a tion  o f  the 
system .

M o st  im p orta n tly , u n d er th e se  cr ite ­
ria  an d  the goala th ey  set. a ll a ppli­
ca n ts  m ust be able  to co m p e te  su ccess­
fu lly . S ta tes ’ e ffo r ts  u n d er th ese  cr ite ­
ria  n eed  n o t  and s.hould n o t  lead  to 
low er in g  a ca dem ic sta n da rd s. S ta tes  
m ay n eed  to in n ova te  in seek in g  ou t

FGOeSAi. l e s i s n s -  VOU -id, n o .  S2— WtONESOAr, FfBCUAXY id . 1978



S650
ta ien ted  s tu d en ts  w h o  w ill p r o fit  fr o m  
h ig h e r  ed u ca tion . T h e y  m ay n eed  to 
b roa d en  deflh ition a  o f  p o ten tia l: to 
d iscou n t th e  e ffe c ts  o f  early  disadvan­
tage o n  the- d ev e lop m en t o f  a cadem ic 
co m p e te n ce ; an d  to  b roa d en  the. tal­
ents m ea su red  In adm issions tests. 3 u t  
n e w  and d iffe re n t  yardstlclcs fo r  m ea­
su r in g  p o te n tia l are n o t  lo w e r  stan ­
dards. T h e y  ca n  b e  m o re  valid, m ea­
sures o f  tru e  p o ten tia l and  ta lent, 
tak en  as a  w h o le , th ese  cr ite r ia  seele to 
p reserv e  and p r o te ct  aca dem ic stan ­
dards o f  ex ce ilen ce .
3 .  Sptciai eonsidemtlona in develop^ 

ing criteria / o r  destgregaiian in
. higher education
A  sta te  system  o f  h ig h e r  e d u ca tion , 

as w ith  an e lem en ta ry  and  secon d a ry  
s c h o o l d istr ict. Is h e ld  to  an  a fflrm a - 
tlve  d u ty  to  tak e  rem ed ia l a ct io n  to  
co r re c t  past practices  o f  se g reg a tion  
an d  d iscrim in a tion . H ow ever, th e 
n a tu re  o f  th e  rem ed ia l a ct io n  req u ired  
o f  a  . h ig h e r  ed u ca tion  system  w ill 
d i ffe r  fro m  that, requ ired  o f  a  lo ca l 
ed u ca tion  district,. T h e  co u r t  o f  .-ip- 
pea ls in  Adame  n oted :
. However, we are noindful that deseg- 
regaclon prooiems La coiieges and universi­
ties differ widely from t.hose- Ln elementary 
and secondary schools, and that HSW id - 
mltzediy lacla experience in dealing with 
them.* • • .is regrettable as these reveiationa 
are. the staric a-uth !s that liS'.V must care­
fully assess the significance of a variety of 
new factors as It moves into an -unaccua- 
tomed area. -(30 P . 2d at t l3 (. -

In  Horrie v. State Council of Higher 
Sducation, 327 P . S u pp . 1388. 1373 
(STD. V a . 1971. i f P d  p er cu ria m . 404 
tJ.H. 907 (1 9 7 1 ). th e  co u r t  h e ld ;

T h e  means o f eliminating discrimination 
in public schoots necessarily differ from its 
elimination tn eoUegea.. but the state’s duty 
is ss exacting.

.-ind fh  Sandere v_ SUingtoTU 233 P. 
S u p p . 937. 943 (I/fJD. T e n m  1963). th e  
co u r t  sta ted ;

■How In considering th e time element fo r  
presentation of a plan, 1 have thought of 
the complexities of the problem. I recognize 
that Che simple remedies which .might be 
available to a county school board -where 
there is Involved a compulsory system of 
educaUon. a free system of education, and 
aasignmenc of students, are not avallaole- 
here. Colieges are not compulsory and ev­
eryone can testify that they're not free.

H ig h er e d u ca tion  d iffe rs  fr o m  e le ­
m e n ta ry  and  se co n d a ry  ed u ca tion  in 
m a n y  o th e r  w ays. B esides b e in g  v o lu n ­
ta ry  ra th e r  th a n  co m p u lso ry , h igh er- 
e d u ca tion  op era tes , o n  a  sta tew ide  o r  
reg ion a l basis, n o t  loca l; th e re  are n o  
"a tte n d a n ce  to n e s ’ ’  in  h ig h e r  edu ca ­
t ion : h ig h e r  ed u ca tion  prog ra m s '/a ry  
fr o m  In stitu tion  to in stitu tion  and are 
n o t  u n ifo rm ; stu d en ts are fr e e  to  leave 
th e  sta te o r  to a tten d  private co lleg es- 
In pu rsu it o f  a  h ig h e r  edu ca tion .

P u rth e rm o re . from  sta te  to  sta te  sig­
n ific a n t  d iffe re n ce s  a re  to be fo u n d

NOT1C2S
and m ust b e  tak en  In to con s id era tion . 
In  som e states ■ s tr o n g  cen tra lized  
" s y s te m "  e.xists Including  fo u r  y ear 
and  tw o y ear In stitu tions: in o th e rs , 
th e  fo u r  y e a r  and  tw o y ear in stitu tion s 
rep o rt  to  sep arate  b o a n ls ; In y e t 
oth ers , ea ch  in stitu tion  o p era tes  u n d er 
its ow n  In dep en den t b o a rd . W h ile  
n on e, o f ' th ese  d iffe re n ce s  relieves a 
s ta te  o f  Its o b liga tion s u n d er T it le  V I 
or- Its co n s titu tio n a l du ties, th e y  m u st 
be  taken  in to  a cco u n t In fa sh io n in g  an 
a p p rop r ia te  set o f  cr iter ia  to  b e  a pp li­
ca b le  to -s ix  sta tes.

A c co rd in g ly ,.: . w h ile  ' desegreg ation  
cases In voiv la g  Individua l e lem en ta ry  
and se c o n d a ry ' s c h o o l d istr icts are a 
gu id e  to a sta te ’s d u ty  to  take c o r re c ­
tive a ct ion , th e y  a re  n o t  d isp ositive  o f  
th e  pa rticu la r  m e th o d s  to  be des ig n ed  
fo r  th e  d ism a n tlin g  o f  a du al sy stem  o f  
h ig h e r  edu ca tion , fo r  th e  desegreg a ­
t io n  o f  a sta tew ide  sy stem , fo r  th e  re­
m oval o f  th e  vestiges o f  racial segrega ­
tion , and fo r  the co r re c t io n  o f  "sy s ­
tem w ide  racia l Lm halance.”  As th e  
cou rts  in  AdacTie have n oted , th e se  are 
Imdeed- "co m o ie x " !s s u e s . T h e s e  cr ite ­
r ia  are des ig n ed  sp e c ifica lly  fo r  th e 
h igh er- edu ca U on  system s o f  th ese  six 
states b ased  on  a ca re fu l con s id era tion  
o f  re lev an t sta tu tes  and  cou r t  o p in ion s  
a n d  w ith  d u e . con s id era tion  to  th e  
un iqu e  ch a ra cter is tics  o f  h ig h e r  edu ca - 
tlon .* .
P . The unique role of the traditionuUg 

black coUegee
■ In  k eep in g  .w ith  th e  in stru ction s o f  

t h e  C ou rt, th e  cr ite r ia  recogn ize - th e 
u n iqu e  Im porta n ce  o f  trad ition a lly - 
b la ck  co lleg es  in m eetin g  th e  ed u ca ­
tio n a l need s o f  b la ck  stu d en ts. M ore  
th a n  30 p e rce n t o f  a ll. b la ck  co lleg e  
g radu ates have b een  tra in ed  a t ’  b la ck  
co lleg es . In  th e  m id -seventies, b lack  
co lleg es : cb n tln u ei to g radu ate  a lm ost 
fo r ty  p ercen t o f  a ll b lacks, w h o  re ­
c e iv e ' c o lle g e  degrees.

T h u s  it Is w ith  g o o d  rea son  th a t  th e  
C ou rt o f  .-Appeals in Adajne re cogn ized  
th e  n eed  to tak e-in to  a cco u n t “ t h e  sp e ­
cia l p r o b le m s o f-b la ck  co lleg es .'"

Perhaps the most serious problem in this 
ares is the lack of state-wide biannltig to 
provide more and better trained minortty- 
group doctprs, lawyers, engineers and other 
profeaalonais. .4 . predicate for m lnonty 
access to quality post-graduate programs Is 
vlaPie. co-ordinated state-wide higher educa­
tion policy that takes into account the spe-. 
dai probiems of ailnortty students and of 
Black colleges..* '.*  (T ihese Black Institu-'

• Par a useful dlscassiotj o f  these issues see' 
Note, "T he .-affirmative Duty T o  Integrate- 
Higher Bducatlon, “  70 7aU haio Joumai 
363(1970). -T -

■See Silas Blake.- Public Policy and the 
Higher Sducation - of Black .(mesicans_" 
S taff Report, Subcommittee an Conatltu-. 
tlonai Rights of the Committee on the Judi-’ 
clary. 9(tn Cong. 20 Seas. 1978,

' National Center for Sducation Statistics, 
Sam ed Degrees Survey, 1978-73.

tlons currently fulfill a cruclai need and vin, 
continue to play an Important role la Black 
higher education. (30 P. 2d at U34-U8S. ■ •

A ga in  In 197T, th e  D istr ic t C ou r i la 
Its S e co n d  S u p p lem en ta l O rder, p. (. 
q u o te d  th e  a bov e  Language o f the 
C ou rt o f '.4 p p e a is  and w en t on  to state.

The process of desegregation moat not 
place a greater burden on Black Insdtudoas 
or Black students' opportunity to receive a - 
quality public higher education. The deaeg- 
.-egacion process should cake into account 
the unequal status o f the Black colleges and 
ths real danger that desegregation wiu di- 
mlnlsh higher- education opportunities for ' 
Blacks. W ithout suggesting the answer to 
this oomplex problem, it is. the responslbll-, 
Ity of HSW to devise criteria for higher edu. . 
cation desegregation plana which will take 
Into account the unioue importance of 
Black colleges and at the same time comply 
with the Congressional mandate.

T h e  D e p a rtm e n t does n o t  take this 
la n gu a ge  to m ea n  th a t th e  traditional­
ly b la ck  in stitu tion s are- a.xem pt from  - 
th e  C o n s titu tio n  o r  th e  requ irem ents 
o f  T it le  V I. T o  th e  co n tra ry , tradition ­
a lly  b la ck  and  tra d it ion a lly  w h ite  in­
stitu tion s  are su b je c t  to  th e  sam e con-- 
st itu tlon a l and. con g ress ion a l m andats ' 
to p rov ide  an ed u ca tion  to aU citizens 
w ith o u t d iscrim in a tion  o r  segrega tion . 
W h ite  and  b la ck  in stitu tion s are to 
fu n c t io n  as part o f  a .u n ita ry  system  
fr e e  o f  t h e  vestiges o f  s ta ts  Im posed, 
racia l seg reg a tion . H ow ever, as the 
C ou rt  has in stru cted , th e  tra n sition  to 
a  u n itary  sy stem  .must n o t  be a ccom ­
plish ed  by  p la cin g  a d isp roportion a te- 
b u rd en  u p on  b la ck  stu den ts, facu lty ., 
o r  in stitu tion s o r  by  red u cin g  th e  edu- 
cationsd op p o rtu n it ie s  cu rren tiy  avail­
able  to  b lacks.

T o  a ch ieve  th e  ob je c t iv e s  o f  T it le  VT. 
p recise  m eth od s  w ill n eed  to he fa-, 
sh io n e d  fo r  h istitu tlon s w ith in  a state, 
ea ch  a p p rop r ia te  to the task o f  o v er­
co m in g  th e  e ffe c ts  o f  p r io r  discrim in a ­
tion  tn th e  p a rticu lar  in stance. E ach  
m e th o d  w iil be e n fo r ce d  w ith  equal 
fo re s  and  d eterm in a tion . E a ch  m e th o d  
is design ed  to a ch ieve  th e  sam e con s li- 
tu tion a i stan dard .

in. cojfstiL-ATiotr ?so<nss
In  th e  p rep a ra tion  o f  th e  cr iteria  

o rig in a lly  p rom u lg a ted  p u rsu an t to 
co u r t  in stru ction , th e D e p a rtm e n t u n ­
d ertook  an e.xtenslve con su lta tio n  p ro ­
cess w ith in  th e  D e p a rtm e n t and  w ith  
in terested  ou tside  parties. In  an e ffo r t  
to assure th a t th ese  cr ite r ia  w'ere b o th  
leg a lly  and e d u ca tion a lly  sou n d , a de­
partm en ta l, task fo r ce  was esta b lish ed  
to  g u ide th e ir  d ev e lop m en t. T h e  task 
fo r c e  co m b in e d  th e  m u ltip le  d isci-, 
p lines and  varied ex p ertise  n eed ed  to 
reso lv e  th e  o om p lex  issues and edu ca ­
tio n a l po lic ies Involved in th is desegre­
gation  process . S erv in g  on  th e  task 
fo r ce  w ere th e  G e n rra l. C oiin so i, t.he 
D ire cto r  o f  th e  O ff ic e  fo r  Civil -lig h ts , 
th e  -Assistant S ecre tary  fo r  E d u cation , 
th e '.C o m m iss io n e r  o f  E du cation ., and

FHJOiAi siGirna. vot. no;'k —'eieDNesaAY, mttjAtr is, ittj



MOTJCS5 6661
th e  A ssistan t S e c r e ta r r  f o r  H a n n ln s  
and E v a lu a tion .

T h e  O ep a rtm en t also em harlced on  a 
p rog ra m  o f  op e n  d ia log u e  a n d  con su l­
ta tion  w ith  parties o f  Interest. T h e  
task fo r ce  m em bers  co n fe rre d  w ith  
rep resen ta tives  o f  th e  s ix  sta tes co l le c ­
tive ly  a n d  n d iv ld u a lly . T h e  rep resen ­
ta tives n c lu d e d  co lle g e  presidencs- 
ed u ca tlon  o ffic ia ls , and  a ides to  G o v e r ­
n ors . A  sp ecia l m e e tin g  was h e ld  w ith  
s tu d en ts  w h o  a tte n d  t h e  p u b lic  co l­
le g e s  n  th e  six  sta tes  and  rep resen ta ­
tives o f  sev era l n a tion a l s tu d en t orga ­
n izations, P o u r  m eetin g s w ere  h e ld  
w ith  o ff ic ia ls  o f  th e  am icu s cu r ia e . K a- 
t lon a l A ssocia tion  f o r  E puai O p p o rtu ­
n ity  n  H ig h er E d u ca tion , an  associ­
a t io n  o f  th e -p resid en ts  o f  110 p red om i­
n a n tly  b la ck  co lleg es  a n d  un iversities, 
b o th  sta te  su p p o r te d  a n d  private . T w o  
panels o f  n a tion a lly  recogn ized  edu ca ­
tors m et fo r  h a lf  da y  sessions to  advise 
th e  D ep a rtm en t.

F in a lly , p la in tiffs ' rep resen ta tives 
d e v oted  m a n y  h ou rs  to  rev iew in g  and  
co m m en tin g  o n  d ra fts  o f  th e  cr iteria . 
T h e y  a lso con v en ed  a  m e e tin g  fo r  th e 
D ep a rtm en t w ith. 23 c itizen s fro m  
th ese  s'oc sta tes w h o are m ost fa m ilia r  
w ith  th e  h ig h e r  ed u ca tion  desegreg a ­
t io n  e f fo r ts  In th e ir  respectiv e  states.

T h e  D epa rtm en t assum es fu ll and  
so le  resp on sib ility  f o r  th e  co n te n t  o f  
th ese  cr iteria . T h e  co n su lta tio n s  en u ­
m era ted  above w ere ex ce e d in g ly  h e lp ­
f u l  to  th e  D ep a rtm en t la  th e  prepara ­
tion  o f  th ese  cr ite r ia , b u t  th ese  discus­
sion s d o  n o t  im p ly  co n cu rre n ce  In th e  
cr ite r ia  In w h o le  o r  In  p a rt by  och er 
pa rties.

H ig h e r  ed u ca tion a l system s In th ese  
and  o th e r  sta tes are u n d erg o in g  d iff i­
cu lt  ad ju stm en ts  ca u sed  b y  fisca l a n d  
d e m o g ra p h ic  tren ds b e y o n d  th e  co n ­
tro l o f  In dividua l s ta tes . A cco rd in g ly , 
th e  cr iter ia  d ev e lop ed  fo r  th e  six  
sta tes u n d e r  th e  Adams  O rd e r , fo c u se d  
o n  d esegreg a tion  e ffo r t s  to  b e  u nder- 

• ta k en  w ith in  th e  n e x t  fiv e  years. S im i­
larly . O C R  w ill seeic plans th a t  con ta in  
fiv e -y e a r  goa ls  fr o m  o t h e r  states 
w h ic h  are fo u n d  to  h ave a d u ty  to  
elim in a te  th e  v estiges o f  d u a lity  In 

. th e ir  system s o f  h ig h e r  edu ca tion .
,4s ■ ea ch  sta te  a tta ins th e  goa ls  set 

fo r th  Ih Its p la n , O C H  w ill assess. In 
co o p e ra tio n  w ith , th a t  sta te ; th e  p ro ­
gress th e re b y  m a de In ord e r  to  de ter - 

' m in e  w h at add ition a l step s. If any. are 
‘ n ecessary  to  co m p le te  th e  desegrega- 
■ t lon  process . P u rth erm ore i O C R  wlH 

per iod ica lly  review  th ese  cr ite r ia  to  
assure th e ir  a d eq u a cy  In m eetin g  co n - 

;; stltu tlon a l req u irem en ts, th e ir  consis- 
te n cy  w ith  ru lin gs o f  th e  cou r ts  In 

: h ig h e r  ed u ca tion  d esegreg ation , and 
' th e m a n da te  o f  T it le  V L

' ■ El-rifCTTS or A PLAII 
:. aisssTABtisTrMmrr or ms srsocroax

o r  THX P P A i STSTCII

" " A n  a ccep ta b le  p la n  sbaH  co m m it th e  
state to th e  goal o f  organ izin g  an d  op ­

era tin g  th e  system  and in stitu tion s o f  
h ig h e r  edu ca tion  in a m a n n er th a t 
prom ises  rea listica lly  to  o v e rco m e  th e  
e ffe c ts  o f  past d iscrim in a tion  and to  
d isestab lish  th e  d u a l system , a n d  
w h ich  assures th a t stu d en ts  w ill b e  a t­
tra cted  to ea ch  in stitu tion  on  th e  basis 
o f  edu ca tion a l p rog ra m s and op p o rtu ­
n ities u n in h ib ited , b y  past p ractices  o f  
segrega tion .

T o  ach ieve ’ th e  d isesta b lish m en t o f  
th e  stru ctu re  o f  th e  d u a l sy stem , ea ch  
p la n  sha ll:

A -D e /tn e  the mission a/each insiitii- 
H on iciihin the state system on a. iasis 
other than race.

E a ch  m ission  s ta tem en t sh a ll In­
c lu d e  at" a  m in im u m :

1. T h e  level, ra n g e  an d  s c o p e  o f  p ro ­
gram s an d  degrees o f fe re d ;

2. G e o g ra p h ic  , a rea  served  b y  th e  In­
s titu tion : and

3. T h e  p r o je c te d  s ize o f  th e  stu d en t 
b o d y  an d  s ta ff, f o r  ea ch  y e a r  o f  th e  
Ufe o f  th e  p l a n . '

B . Specify steps to Se taken to 
strengthen the role of traditionaily 
black institutions in the state system.
.. In  su p p o r t  o f  th e  sp e c ific  step s re­

qu ired  b y  L 3 „  th e  p la n  sh a ll Include:
1. C om m itm en ts  th a t n ecessa ry  Im­

prov em en ts  w ill b e  m a de to  perm it th e  
tra d ition a lly  b la ck  in stitu tion s to  fu l­
f i l l  th e ir  d e fin e d  m ission . T h e se  Im­
prov em en ts  w ill ex ten d  to  p h y s ica l 
p la n t and  eq u ip m en t: q u a lity  an d  
ra n ge  o f  p rog ra m  o ffe r in g s ; n u m b er 
a n d  q u a lity  o f  fa cu lty ts tu d e n t . fa cu lty  
and  p ro fe ss io n a l s ta f f  servioes; stu d en t 
fin a n cia l assistance, and  o t h e r  fin a n ­
cia l su p p ort;

2. C om m itm en ts  t h a t  tra d it io n a lly  
b la ck  in stitu tion s w ill h a v e  th e  re­
sou rces  (In clu d in g  th o se  en u m era ted  
in ite m  1 a b ov e ), w h ich  are a t least 
co m p a r a b le  to  th o se  at tra d ition a lly  
w h ite  In stitu tion s h a v in g  sim ilar m ls- 
slona..

3. A n  assessm ent o f  th e  p h y s ica l 
p la n t at tra d ition a lly  b la ck  in stltu - 
tlon s; a n d  - ;

A . A  d e ta iled  d lscrip clon  o f  th e  re­
sou rces . ex pressed  in  do lla rs  a n d  In 
n u m b ers  o f  p erson n e l to  b e  assigned , 
w h ich  th e  sta te  sy stem  w ill p rov ide  
(a n d  th e  so u rce  f o r  s u c h  fu n d s) in 
o rd e r  to tm plem enC th e  step s sp ecified  
In L 3 .  re p o rte d  by  y e s r  fo r  th e  Ufe o f  
th e step  o r  a ctiv ity .

C . C om m it the state to-take svecifio
steps to eliminate educationally un­
necessary program duplication among 
graditionalZy black and traditionally 
ichite iststitutions in the same service 
area- .. . .
, T o  th is  en d . th e  p la n  sh a ll Iden tify  
ex istin g  d eg ree  p r o g r a m s ,(o th e r  than  
co re  cu rricu la ) a m on g . Instltu tiona 
h a v in g  Identica l o r  ov erlap p in g  service  
areas and  In d ica te  sp e c ifica lly  w ith  re ­
sp ect to  ea ch  area  w h at steps th e  sta te  
w ill tak e  to  elim in a te  s u c h  du plica tion .. 
T h e  e lim in a tion  o f  su ch  p rog ra m  du­
p lica tion  sh a ll b e  ca rr ied  o u t  con s is­

te n t  w ith  th e  o b je c t iv e  o f  s tre n g th e n ­
ing th e  tra d ition a lly  b la ck  co lleg es .

D . Commit the state to give priority 
consideration to placing any new un­
dergraduate. graduate, or professional 
degree programs, courses of study etc., 
which may be proposed, at traditional­
ly black institutions, consistent with 
their missions.

H. Commit the state to withhold ap­
proval of any changes In  the operation 
of the state rgstem or of any institu­
tions that may have the effect of 
thwarting the a^ievement of its deseg­
regation goats.
?. Commit the State to advise O C R  

of proposed major changes in the mis­
sion or the character of any institu­
tion within, the state system which 
may diseotly or indirectly affect the 
achievement of its desegregation goals 
prior to their formal adoption.

S u ch  p rop o se d  ch a n g es  Include b u t 
axe n o t  lim ited  to: t.he esta b lish m en t 
o r  m a jo r  ex p a n sion  o f  prog ra m s o f  
stu d y , o f  dep artm en ts , o r  Institu tions: 
th e  a ltera tion  o f  tw o year to  fo u r  y ea r 
In stitu tions; th e  con v ersion  o f  a  pri­
v ate  to  a  p u b lic  In stitu tion ; o r  th e  c lo s ­
in g  o r  m erg er o f  In stitu tion s o r  ca m ­
puses.

G . Specify timetables for seguential 
implementation of the o c i lo n s  neces­
sary to a ch iev e  these goals as s o o n  as 
passible but no later than within five 
years (by the close of the fifth full aca­
demia year after the plan is accepted^ 
unless compelling justification for a 
longer p e r io d  for compliance is pro­
vided to and accepted by the Depart­
ment
The  p la n  sh a ll In clu de  Interim  

benc.hm axics and  goals fr o m  w h ich  pro­
gress tow ard  these ob je c t iv e s  m ay  be 
m ea su red . T h e se  tim eta b les ’ and 
b en ch m a rk s  sh a ll b e  a p p ro p r ia te  to 
th e  n a tu re  o f  th e  a ct ion  to b e  taken. 
F o r  ex am p le , stu d ies o f  p h ys ica l p lan t 
and  resou rces  com p a ra b ility  sh ou ld  b e  
co m p le te d  prom p tly ; cor rec tiv e  a ction s 
(In clu d in g  ca p ita l c o n s tru c tio n ) w ill re­
qu ire  lo n g e r  tim e p er iod s-

H. Commit the state and all its in­
volved agencies and subdivisiar-s to 
specific measures for achievement of 
the above objectives.

S u ch  m easures m a y  Include bu t are 
n o t  lim ited  to  e sta b lish in g  coop era tiv e  
p rog ra m s co n s is ten t w ith  In stitu tion a l 
m ission s; reassign in g  sp ec ified  pro­
gram s, cou rse  o ffe r in g s , resou rces 
a n d /o r  se rv ices  a m o n g  tnstltuU ons: 
r e a l !g :^ .g  th e  la n d  g ra n t a cadem ic 
p rog ra m s so th a t  research , ex p er im en t 
and  o th e r  ed u ca tion a l services are re­
d istr ib u ted  o n  a n on rac ia i basis: and 
m erg in g  In stitu tion s o r  b ra n ch es 
th e re o f, p a rticu la r ly  w h ere  Institu­
tion s o r  cam pu ses .have th e  sa.me o r  
ov e r la p p in g  services areas. T h e  m ea- 

• sures ■ taken pu rsu a n t to  th is .section 
sh ou ld  b e  con s is ten t  w .th  tihe o o je c -  
tive o f  stren g th en in g  th e  tra d ition a lly  
b lack  co lleg es . A  deta iled  d escrip tion

r e n e s A i M o i s n a .  v e t .  « .  m o .  32— ’e r tP N tso A r , n s s u A i T  15,  me



6662 NOTICSS
o f  th e se  m easures n eed  n ot  b e  su b m it­
ted  St th e  tim e  th e  p la n  !s filed , bu t 
sh ou ld  be file d  ss a  su p p lem en ta ry  
sta tem en t w ith in  30 days th e re a fte r  
fo r  review  and co m m e n t by  O C H . M ea- 
s-Bfes th a t  o f f e r  n o  rea son a b le  possib il­
ity o f  a c h le v ln j  th e  jo a is  listed  a bove  
wtU b e  re je cte d  b y  O C H . R ev ised  m ea­
sures w ill b e  re q u ire d  b e fo r e  th e  p la n  
ca n  be a ccep ted .

n t  DtsiOHiCArroN o r  s r m ji ir r  .CfBOLLanrt
A n a cce p ta b le  p la n  s h a ll co m m it th e  

sta te to th e  goa l o f  a ssu r ln ? th a t th e  
sy stem  as a w h o le  a n d  e a c h  In stitu tion  
w ith in  the system  prov ide  an equ al 
e d u ca tion a l o p p o r tu n ity , are o p e n  an d  
a ccess ib le  to  a il stu d en ts , an d  op erate  

■ w ith o u t reg a rd  to  ra ce  a n d  o n  a  desea- 
re s a te d  basis.

T o  a ch ieve  th e  d e se g rssa tlo n  o f  stu ­
den t en ro llm en t, ea ch  p lan  sh a ll;

A- Adopt tfie god that for two year 
and four year undergraduate pudlia 
high^ education instituiione in the 
date system , taJcen os a whole, the p ro ­
p o r t io n  of black high school graduates 
throughout the state who enter such  
institutions shall be at least egud to 
the proportion of white high school 
graduates throughout the state who 

. enter such institutions.
B . (1 ) Adopt the god that there shall 

be an annud increase, to be specified 
by each state system, in the proportion 
of black students in  the traditionally 
white four year undergraduate public 
higher education institutions in the 
state system taken as a whole and in 
each such institution; and

(2 ) Adopt the objective of reducing 
the disparity between the proportion 

. of black high.schooi graduates and the 
proportion of while high s ch o o l gradu­
ates entering' traditionally white four 
year and upper division undergrad­
uate- public higher education institu­
tions in the state system' and adopt 
the god of reducing the disparity by at 
least-fifty per cent by the find aca­
demic year of the plan, However, this 
shall not reguire any state to increase 
by that date black student admissions 
by more than IS0% above the admis­
sions for the academic year preceding 
the year in whiah the plan 'Is reguested byaZVJ.' ..............

•For the purposes o f tills subaectlon. the 
term, esterins Includes Uist-clrae cransiers 
from  two year and other Instltudons,

•Thus, where the present entry by blach 
students In four year traditionally white In- 
sUtutlons Is at a rate of 1,000 students per 
year and a  fully proportional .-ate would be 
3,000 studenta per year, the state's soal 
would be an entry rate o f  3.000 students per 
year five yeara thereafter. A state wnere the 
present entry Is- at a rate o f only 500 stu­
dents per year and full proporUonailty 
would be 3.000 studenta per year would co t  
by that date have to  close hail tne la o  (by a 
rate o f  1,750 per year) but only achieve an 
entry rate o f l.OSO students, which Is 130% 
over Its present rat* of 500,

C. Adapt the gad that the proportion 
of black state residehta who graduate 
from undergraduate institutions in the 
state system and enter graduate study 
or professiand schools in the state 
system shall be at least egud lo the- 
proportion of white state residents 
who graduate from, undergraduate in­
stitutions in the state system and enter 
such schools.

T h is  *o a i (a n d 'In te r im  ben ch m arlcs 
o r  soa is ) sh a ll b e  s e p a r a t e  s ta ted  fo r  
ea ch  m a jo r  fie ld  o f  g radu ate  a n d  p ro ­
fes s ion a l stu d y . T o  assure th a t, th is 
goal ca n  b e  m et In th e  Im m ediate 
fu tu r e  sp ecia l rec ru itm en t e ffo r ts  
sh o u ld  b e  con s id ered  at tra d it ion a lly  
biaclc In stitu tion s. P a r ticu la r  a tte n tio n  
sh o u ld  b e  g iven  to  tn crea s ln ? b lacit 
stu d en t en ro llm e n t a n d  g ra d u a tion  

'f r o m  th o se  tra d it io n a lly  w h ite  fo u r  
y ear u n d erg ra du a te  In stitu tion s w h ich  
serve as th e  fe e d e r  In stitu tion s fo r  th e  
g radu ate  and  p ro fe ss io n a l . s ch o o ls . 
-A chievem ent o f  th is g oa l is o f  p a rticu ­
la r  Im porta n ce  In lig h t  o f  th e  sp e c ific  
co n c e rn  e x p re sse d 'b y  th e  C o u rt  o f  .Ap­
peals in  A dam s, In  assessing prog ress  
tow ard  th is goal, O C R  w ill g ive co n s id ­
era tio n  to th e  n u m b e r  o f  b la ck s fr o m  
ea ch  sta te w h o  en ro ll In g ra du a te  and 
p ro fe ss io n a l sc h o o ls  ou ts id e  th e  sta te  
system .

D . Adopt the goal of increasing the
toed proportion of white students at­
tending traditiondly black, institu­
tions. .  .

In crea sed  p a rtic ip a tio n  b y  w h ite  s tu ­
d e n ts  at tra d it io n a lly  b la ck . Institu­
t io n s  m u st b e  a  pa rt o f  th e  p rocess o f  
d eseg reg a tion  o f  th e  sta tew ide  systerd  
o f  h ig h e r  ed u ca tion . H ow ev er, p u rsu ­
ant to th e  a d m on ition  o f  th e  cou rts  In 
Adams, - " T h e  d eseg reg a tion  process  
s h o u ld  take Into a cco u n t th e  u n eq u a l 
sta tu s o f  th e  B la ck  co lle g e s  an d  th e  
rea l da n g er th a t  deseg reg a tion  w ill di­
m in ish  h ig h e r  e d u ca tion  o p p o rtu n it ie s  
fo r  B la ck s."  ClvU A c t io n  N o, 3095-70, 
S e co n d  S u p p lem en ta l O rd er at p. -4. 
T h e  fo llo w in g  steps are des ig n ed  to 
g u ard  again st th e  . d im in u tion  o f  
h ig h e r  ed u ca tion a l op p o rtu n it ie s  fo r  
b la ck  stu d en ts, to  taka Into a ccou n t 
th e  u n iq u e  Im porta n ce  o f  tra d it ion a lly  
b la ck  co lleg es  an d  to  co m p ly  w ith  th e 
m a n da te  o f  T it le  'fl. E sta b lish m en t o f  
n u m erica l goals f o r  th e  e n ro llm en t o f  
w h ite  stu d en ts at tra cd tlon a ily  b la ck  
In stitu tion s m ust be p r e ce d e d  b y  an In­
creas in g  en ro llm en t o f  b la ck  stu d en ts  
In th e  h ig h e r  e d u ca tion  sy stem  and at 
th e  tra d it io n a lly  w h ite  Institu tions, as 
Is req u ired  b y  S e ct io n  I I  o f  th ese  cr ite ­
ria . It  m ust a lso be p r eced ed  b y  th e  a c ­
co m p lish m e n t o f  S p ec ific  step s  to 
s tre n g th e n  t h r  ro le  o f  tra d it ion a lly  
b la ck  Institu tions, e lim in a te  progratn  
d u p lica tion , lo c a te  n ew  p rog ra m s at 
b la ck  Instltu tlonsv-and b y  su ch  o th e r  
m easu res as are sec fo r th  In S e ct io n  I,

O C R  sh a ll a n n u ally  review  th e  pro­
gress m ade b y  ea ch  sta te  In in crea sin g  
p a rtic ip a tion  b y  b la ck  stu d en ts  In

h ig h e r  ed u ca tio n  and  In th e  d isestab­
lish m en t o f  th e  dual s c h o o l system . 
T w o  yeans a fte r  th e  co m m e n ce m e n t o f ■ 
th e  p lan , an d  co n s is ten t w ith  su ch  pro­
gress, ea ch  sta te  system  sh a ll sp ecify  
annual, n u m erica l goals fo r  in creasing 
th e  p a rtic ip a tion  o f  w h ite  stu d en ts  at­
ten d in g  th e  tra d ition a lly  b la ck  Instltu- • 
tlon s.

E . Commit the state to take alt rea­
sonable steps to reduce any disparity 
between the proportion of black and 
white students completing and gradu­
ating from the two year, four year and 
graduate public insiilutions of higher 
education, and establish interim goals; 
to be specified by the state system far 
achieving annud progress.
F. Commit the stale to ewpand m o -. 

bility between two year and four year - 
institutions as a means of meeting the 
gods set forth in these criteria.

G . Specify numeric goals for II. A, 3, 
and C, and timetables for seguentid 
implementation of actions necessary 
to achieve these goals as soon as possi­
ble but not later than 'within five years 
unless another date is specified in this 
section.

H. C om m it the state and all its in­
volved agencies and subdivisions to 
specific measures to achieve these 
goals.

S u ch  m easures m a y  Include, b u t  are 
n o t  lim ited  to  rev iew ing , m o n ito r in g . ' 
an d  revising , as. n ecessa ry , p roced u res  
fo r  s tu d en t recru itm en t, adm ission s, 
c o m p e n sa to ry  in stru ction , cou n se lin g , 
fin a n c ia l aid . and s ta ff  and fa cu lty - de­
v e lo p m e n t prog ra m s. T h e  deta iled  de­
sc r ip tio n  o f  th ese  m easu res n eed  n o t  
b e  su b m itted  at th e  tim e th e  p la n  is 
filed , b u t  sh o u ld  be file d  as a su p p le ­
m en ta ry  sta tem en t w ith in  30 days 
th e r e a fte r  fo r  rev iew  and co m m e n t  by  
O C R . M ea su res th a t  o f f e r  n o  rea son ­
able  p o ssib ility  o f  a ch ie r in g  th e  nu- 
.merical goals w ill b e  re je cte d  b y  O C R . 
R ev ised  m easures w ill b e  requ ired  
b e fo r e  th e  p la n  ca n  b e  accep ted .

n i .  DssEoascATTOir o r  ? .icp i.rT , a o ia n -
isTaA rrvz statts , x onacapem io  ?s3 -
soNifEL, Atm oovtpuinra eoauds

-An a ccep ta b le  p lan  sh a ll Com m it th e 
sta te  system  to th e  goa l o f  in crea sin g  
th e  n u m b er and  p r o p o r t io n  o f  b lack  
e m p loy ees , a ca d em ic an d  a on -a ca - 
dem ic,. th ro u g h o u t  th e  sy stem  an d  , o f  
Increasing  rep re se n ta tio n  o f  b la ck  c iti­
zen s a m o n g  a p p o in tiv e  pos it ion s  on  
th e  g o vern in g  b oards o f  th e  sta te 
system  an d  o f  Individual In stitu tion s,

T o  a ch ieve  th e  deseg ra tlon  o f  fa cu l­
ty,. a dm in istra tors , o th e r  person n el, 
a n d  g ov ern in g  b oards, e a ch  p la n  sha ll:

A. Adapt the god that the proportion 
of black faculty and of administrators 
d  each institution and an the staffs of 
each governing board , o r  a n y  other 
state higher education entity, in posi­
tions not reguiring the doctord degsee, 
shdl at least egud the proportion of 
black students graduating with mas-

TfBfajj. tzdiSTta, vot. id, no.- 32—wroNtspAT, ftsauAsr is. ivra



NOTK2S 6663
ttrt’ de^ma in the- avpropriate dUci- 
pline fTpm inatUniions pnthin the 
itate Tustem, or the proportion of black 
individual! urith the rttruired creden- 
tiaix far ruch potiliant in Che- reievant 
labor market area, 'Whichever ie great­
er.

3 .  Adopt the goat that the proportion 
of black faculty and of administraian 
at each institution and on the staffs of 
each governing board or any other 
state higher education entity, in posi­
tions reguiring the doctor^ degree, 
shall at least egaal the proportion of 
black individuals uiith the credentials 
reguired for such positions in the rel­
evant labor market area.
C. Adopt the goal that the proportion 

of black non-academic personnel iby 
Job category} at each institution and 
on the staffs of each governing board 
or any other state higher education 
entity, shall at least egual the propor­
tion of black persons in the relevant 
labor market area.
■ D . Assure hereafter and 'untH the 
foregoing goals are met that for the 
' traditionally white institutions as a 
whole, the proportion of blacks hired 
to fill faculty and administrative va­
cancies shall not be less than the pro­
portion of black indimduals with the 
credentials reguired for such positions 
in the relevant labor market area.

S . Specify numeric goals and timeta­
bles for seguential implementation of 
the actions necessary to achieve these 
objectives including interim bench-.. 

. • marks from which progress toward the 
objectives may be measured.

T h e se  goals, t t o e t a t le s ,  a n d  b e n c li- 
m a rss  sh a ll b e  esta b lish ed  tn lig h t ot. 
and  sh a ll sp ec ify , th e  ctirren t a n d  p ro ­
je c te d  ra tes at vacancies ta th e  variou s 
jo b  ca teg ories , p resen t an d  p r o je c te d  
la b or, m arhet ava ilability , and  o th e r  
re lev an t fa ctors .

? .  C om m it the state system to take 
specific measuses to ahieve these objec­
tives.

S u ch  m easures m a y  in clu de , b u t  are 
n o t  lim ited  to em p loy m en t pragram s 
p rov id in g  cen tr illzed  re cru itm en t, va­
ca n cy  an d  a p p lica n t listings ; tra n sfer  
op tio n s : fa cu lty  d ev e lop m en t p ro ­
gram s p e rm ittin g  release tim e fo r  

' b lach  fa cu lty  to a tta in  th e  te rm in a l.. 
degree; and th e  in terch a n g e  o f  faculty- 
on  a te m p o ra ry  or  p erm an en t basis 
am ong  tra d ition a lly  w h ite  and tradl- , 

-.tlon aily  blacic In stitu tion s w ith in  th e  
. state sy stem . T h e  d e ta iled  d escrip tion  

■■ o f  th ese m easu res n eed  n o t  be subm lt- 
", ted at th e  tim e th e  p la n  Is Hied, bu t 
- sh ou ld  b e : fi le d  as a su p p lem en tary  
restatem ent w ith in  30 days th e re a fte r  
•' fo r  review  and co m m e n t b y  O C H . M ea- 
--su res th a t  o f f e r  n o rea son a b le  posslbU -
■ Ity o f  a ch iev in g  th e  goals Listed a b o v e  

will b e  re lu cte d  b y  O C R , R ev ised  m ea­
sures w ill be req u ired  b e fo r e  th e  pian 
can be accep ted .

G . Adapt the goal of increasing the 
num bers of black persons appointed to

systemwide and i-nstitutional govem- 
ing boards and agencies to that these 
boards may be more representative of 
the racial population of the state or o /  
the area, served.

.. IT, IDaaCSSIOH OeTLASS AhD 
—  : . itourroRE So

.4. A f te r  H2TW h a s  d eterm ln efl th a t  a  
sta te  has n o t  e lim in a ted  th e  vestiges 
o f  desegreg ation  In Its fo r m e r  d u e l 
system  o f  p u b lic  h ig h e r  e d u ca tion , th e  
sta te -sh a ll su b m it to  O C R  a  desegreg a ­
t io n  p la n  fo r  Its sy stem  o f  p u b lic  
h ig h e r  ed u ca tion  to Im plem en t th e 
fo r e g o in g  cr ite r ia . .
. 1. T h e  p la n  sh a ll c o m m it th e  sta te  to  
su b sta n tia l p rogress  tow ard  ea ch  o f  
th e  goals in  th e  firs t  tw o  years o f  th e 
p la n . • _

2. T h e  p la n  sh a ll b e  sign ed  b y  th e  
g ov ern or  and  b y  ea ch  o f f ic ia l  o r  desig­
n a ted  person  rep resen tin g  th e  agen­
cies, assoc ia tion s, com m ission s, o ffice s , 
a n d /o r .  in stitu tion s resp on sib le  fo r  
a d o p tin g  th e  system w id e  an d  Insitu^ 
tio n a i goals d escrib ed  th ere in . S u cli 
person s o r  en titles m u st b e  a u th orised  
u n d er sta te  law  to p e r fo rm  all a ction s 
n ecessa ry  to  a ch ieve  th ese  goals.
. 3. .T h e  p la n  sh a ll ce r t ify  th a t 

a ch iev em en t o f  th e  goals a n d  in terim  
b en ch m a rS s sp e c ifie d  th e re in  has been  
a d op ted  as o ff ic ia l p o l ic y  o f  e a ch  o f f i ­
c ia l o r  a gen cy . . ■

3 .  It  is reco m m e n d e d  th a t e a ch  sta te
establish , a  b ira cia l c itizen s a d v is o ry / 
m o n ito r in g  co m m itte e  to  assist th e  
sta te  tn m on itor in g - th e  im p lem en ta ­
t io n  o f  th e  p lan . - .

C. S a c h  sta te  sh a ll su b m it to  O C R  
b y  A u g u st 15 o f  e a ch  y e a r  a fte r  a 
p la n 's  a ccep ta n ce , a  com p reh en s iv e  
n a rra tiv e  assessm ent o f  Its desegreg a ­
t ion  e ffo r ts  tn th e  m o s t  re ce n t aca­
dem ic-yea r.. T h is  n a rra tiv e  assessm ent 
sh a h  I n c lu d e :. . .

1. A  descrip tion  o f  th e  sp e c ific  m ea­
sures w h ich  have b een  ta k en  to 
a ch ie v e  th e  o b je c t iv e s  en u m era ted  in  
th e  p la n  and  tn th e  cr iteria ;

2. A  , d es crip tion  o f  th e  resu lts 
ach ieved , tn clu d in g  q u an tita tive  in d i­
ces w h ere  a p p rop r ia te  o r  req u ired ;

3. .-in analysis o f  th e  reasons w h y  
an y  step s tak en  p rov ed  Inadequ ate o r  
In su ffic ien t; and

■ . 4. A  d escrip tion  o f  th e  steps th e  
sta te  w in  tak e  to a ch ieve  progress  and 
to m ain ta in  th e  tim eta bles set fo r th  In 
th e  plan . . ■

-. D . O C R  sh a ll rev iew  su ch  n a rra tiv e  
rep orts . I f 'g o o d  ca u se  f o r  th e  fa ilu re  
to  m e e t . in ter im  goals Is n o t  d em on ­
stra ted ., O C R  m ay  Im pose m ore  str in ­
g en t requ irem en ts,, in clu d in g  advance 
a pprov a l by  O C R  o f  d esegreg a tion  
m e th o d s .' In. o rd e r  to  assure a ch ieve­
m en t o f  th e  goals o f  th e  plan . In  th e  
a ltern ative, th e  D ep a rtm en t m ay in iti­
a te  en fo rce m e n t p roceed in g s u n d er 
T it le  VT o f  th e  C ivil R ig h ts  A c t  o f  
1964. i f  c o m p lia n c e  w ith  T it le  V I 
ca n n ot b e  a ch ieved  b y  voluntary , 
m eans.

S . 3 a c h  p la n  sh a ll p rov id e  th a t  th e  
sta te  w ill fu rn ish  to  O C R  sta tistica l 
rep orts , assessm ents, and  su ch  o th e r  
In form a tion  as O C R  m a y  d eem  neces­
sa ry  fr o m  tim e to  tim e tn ord e r  to de­
term in e  th e  e ffe ct iv e n e ss  o f  th e  sta te 's  
e ffo r ts  to  a ch ieve  th e  goals d escrib ed  
in  th ese  cr iteria . S u ch  in fo rm a tio n  
sh a ll in c lu d e  a n n u al sta tis tica l re p o rts  
tn su b sta n tia lly  th e  sa m e fo r m a t  used 
p rev iou sly  b y  th e  a ffe c te d  sta tes p u r­
su a n t to  e a r lie r  deseg reg a tion  plans. 
S p e c if ic  da tes fo r  th e  su b m ission  o f  
th e  re p o rts  w ill be esta b lish ed  by  
O C R . In  th e  ev en t th a t  su b seq u en t de­
v e lop m en ts  ca ll fo r  th e  su b m ission  o f  
a d d ition a l data , su ch  req u irem en ts  
w ill be a n n ou n ced  a fte r  con su lta tio n  
w ith  th e  sta tes, and th e  sta tes and  in­
stitu tion s  sh a ll h a ve  su ffic ie n t  tim e to 
d ev e lop  th e  sy stem  n eed ed  fo r  th e  
g a th er in g  o f  a d d ition a l data . . .

V. PEfmrtXIOHS - ^

A s u sed  In th ese  cr iteria ;
. Al. ' ‘ D e p a r tm e n t"  re fers  to  th e  U .S . 
D e p a rtm e n t o f  H ea lth , E d u ca tion , and  
W e ifa re . In  in stan ces w h ere  th e  “ D e ­
p a rtm e n t"  Is to  tak e  certa in  a ction s, 
th e y  m a y  b e  p e r fo rm e d  b y  th e  O ff ic e  
fo r  C l'/ll R ig h ts  o r  th e  D irector . O ff ic e  
fo r  C ivil R ig h ts , on  b e h a lf  o f  th e  D e ­
pa rtm en t.

3 .  " I n s t itu t io n "  m ean s any sch o o l, 
co lleg e . Jun ior o r  co m m u n ity  co lleg e , 
u n iversity , p ro fess ion a l o r  graduate 
s c h o o l, adm in istered  by  o r  as an 
a g e n cy  o f  th e  sta te  g overn m en t. F o u r  
y e a r  in stitu tion  m eans any s c h o o l, c o l­
leg e , o r  u m v ersity  th a t o ffe rs  a bacca ­
la u reate  o r  g radu ate  degree . F o r  th e 
pu rp ose  o f  th ese  cr iteria , “ In stitu tio n "  
does n o t  r e fe r  to  private sc h o o ls  o r  c o l­
leges,

C . “ S ta te  s y s te m " ' m eans th e  aggre­
g ate  o f  a il sta te  p u b lic  In stitu tion s o f  
h ig h e r  ed u ca tio n  w ith in  th e  state, 
w h e th e r  o r  p o t  u n d er th e  g overn a n ce  
o f  th e  sam e sta te  a g e n cy  o r  b oard .

D . “ S tu d e n t"  m eans any p erson  en ­
ro lle d  In an !r,stru ctlon a i p rogra m , 
w h e th e r  fuU -tlm e or  part-tim e, su b je ct  
to e x ce p tio n s  to  be sp e c ifie d  b y  th e  
O ff ic e  F o r  ClvU R ig h ts .

E . ' “ F a c u lty "  m eans ail person s em ­
p lo y e d  by  an In stitu tion  as fu ll-tim e  
In stm ctlo n a l person n el.

P . “ L a b o r  m a rk et a rea ”  m eans the 
g eog ra p h ica l area in w h ich  an in stitu ­
tion  o r  ca m pu s tra d ltion a ily  recru its 
o r  draw s a pp lican ts  possessin g  th e  req ­
u isite  creden tia ls  fo r  vacan c ies  tn fa c ­
u lty , a dm in istrative , o r  n on -a ca d em ic 
p erson n e l position s.

C . "G o v e m ln g  b o a r d "  m eans th at 
a p p o in ted  or  e lected  b od y , w h e th e r  o r  
n o t  resp on sib le  to th e  g ov ern or  o f  a 
sta te  o r  to  th e  sta te leg isla tu re , w h ich  
Is ch a rg ed  u n d er sta te  law w ith  th e  u l­
tim a te  re sp on sib ility  fo r  th e  adm in is­
tra tio n  and  o p era tion  o f  Institu tions 
w ith in  th e state syste.m o f  pu blic 
h ig h e r  edu ca tion . .4. “ g o v e m ln g  b o a r d "  

'm a y  b e  resp on sib le  fo r  th e  entire

f*SfaAt »£SISra«. VOC 43, no. 32—WSDNESOAy, Fi3R0ASr is. 197a



5664 Noncss

rN P O R M A T IO N

sy stem , J or  i  j in s l e  ca m p u s o r  in sd tu - 
U on t iie re o /, o r  .'or a  sp e c ifie d  jr o u p  
o f  cam pu ses o r  in sU tutions..

D ated : P e o ru a ry  2 , 1373. '
D a t is  S . T a t t u

DimUir. XOfflct for Civil Highisl 
tPK Doe. :3 -* 0 » l Piled 2-14-78; 3;4i im j

1 4 2 1 0 -0 1 ]

OHPARTMENT OF HOUSING AND 
.. . URBAN DEVELOPMENT

' .Ofa«e the Seoefery '

! ■CDocit«N o..'f-7S-34U

■ rSD«Al. K3UA1 HOUIINS OPPOtTUNITr__ COONat.
'  ■ . Es*eetis>emen4 end ^neHeetn^ .

A G ID IC T : D e p a r tm e n t  o f  H ou sin g  
and  U rban  D e v e lo p m e n t .- 
.A C T IO N : N otice . .
S U M M .A R T : T i le  'p u rp o se  o f  th is 
n o tice  is to  p la ce  in tiie  pu b lic  record  
In form a tion  reg a rd in g  th e  esta b lish ­
m en t and fu n c t io n in g  o f  th e  F ederal 
S d u a l H ou s in g  O p p o rtu n ity  C ou n cil. 

.F O R  F U R T H E R .
C O N T .A C T ; .  .

■ L lo y d  D avis. D ir e c to r , O f f i c e  o f  V o l- 
-u n ta ry  C om p lian ce , 451, 7 th  S tree t
S W „  R o o m  5223, W a sh in g to n . D .C . 
20410, P h o n e , 202 -755-5904.

S ection  1— E sta b lish m en t o f  the C ou n ­
cil.

T h e  p rov is ion s o f  E x e cu tiv e  O rd e r  
11063 <27 F R  11527, e f fe c t iv e  N ov em ­
b e r  20. 1SS2. and .se ct io n  303 o f  T it le  
v m  o f  th e  C ivil R ig h ts  A c t  o f  1968, as 
a m en ded  (42  U E .C . 5 3508) s e t  fo r th  
re o u ire m e n ts  th a t  F ede.-al agencies 
fu n c t io n  in  a m a n n er th a t  deters h o u s ­
in g  .d iscr im in ation  a n d  a ffirm a tiv e ly  
p rom otes  fa ir  housing, and ecrual o p - 
porxunity . F u rth er , u n d er T it le  V I o f  
t-be C ivil R ig h ts  .Act o f  1964 (4 2  U .S .C . 
5 2000d) eac.h a gen cy  is resp on sib le  fo r  
assuring  n on d lsc r .m in a tion  in pro­
gram s in volv in g  F ede-m i fin a n cia l as­
sistan ce. In  a ccord a n ce  "vlth th ese  au­
th orities , and  in an e f f o r t  to  assist 
F edera l a gen cies in fu lfi ll in g  th e tr  fa ir 
h ou s in g  and  e q u a l o p p o rtu n ity  respon ­
sib ilities . th e  D e p a rtm e n t o f  H ou sin g  
an d  U rban  D e v e lo p m e n t (h e r e a fte r  
a u u ) .  e sta b lish ed  th e  F ed era l E qu a l 
H ou s in g  O p p o rtu n ity  C ou n c il ("C o u n ­
c i l " ) . . -  . . » .  . .
S e ct io n  2 —F u n ctio n s  . ,1' :

•'...The C o u n c il Is ch a ire d  'o y ,th e .H U D  
-A ssistant S e cre ta ry  f o r  F a ir  H ousing  
an d  E qu a l O p p o rtu n ity , and is op en  to 
a il F ed era l agen cies and dep artm en ts . 
T h e  C o u n c il .has d ev e lop ed  th ree  pri- 
iPiary goals to be  ac.hieved by  each 
m em b er agen cy :

A . p la n h in g  fe d e ra l fa c ilit ie s  in loca ­
t ion s w h ere  th e re  is sh ow n  to  ex ist, on

a n o n d lsc r im in a to fy  basis, an a deq u ate  
su p p ly  o f  low  a n d  m o d e ra te  in com e  
h ou s in g  w ith  a d eq u ate  a cce ss  by 
p u b lic  tra n sp orta tion  fr o m -o th e r  areas 
o f  th e  im ban ce n te r  a n d  adeq u ate  
p a rs in g  facilities.

3 . E sta b lish in g  an d  m a in ta in in g  an 
E qual H ousing  L o ca to r  S e rv ice , e ith e r  
sep arate ly  o r  In co o p e ra t io n  w ith  
a gen c ies  In c lose  p r o x im ity , ava ilable  
to  a ll a gen cy  e m p loy ees . In h e a d q u a r­
te rs  and  fie ld  o ff ice s .

C  M alting a ffirm a tiv e  .use o f  a gen cy  
fu n d in g  a u th o r ity  w ith  re s p e ct  to gov ­
ern m en t sp on sored  p r o je c ts  t o  fu r th e r  
t h e  pu rposes o f  T it le  V t l l  o f  th e  C ivil 
R ig h ts  A c t  o f  1963 (s a  a m en ded ).

T o  in stitu tion a lize  th e  p r o c e s s  o f  
a gen cy  pu rsu it o f  C on n ell g oa ls . H'UD 
n eg otia tes  a n d  e x ecu tes  In tera g en cy  
F a ir  H ou s in g  .-A g re e m e n ts .- w ith  
m e m b e r  agencies.: In  v iew  o f  H U D 's 
lea d ersh ip  ro le  u n d er T it le  V m .  p r i­
m ary  s ta ff  re s p o n s ib ility  f o r  th e  C o u n ­
c il rests w ith  th e  H U D  -A ssistant S e c ­
re ta ry  fo r  F air H ou s in g  and  E quai O p ­
p o r tu n ity  and th e  O ff ic e  o f  V o lu n ta ry  
C om p lian ce . . ,
S e ct io n  3— M eetin g s. P roced u res , and 

R e p o rts  . .
T h e  C ou n c il m e e ts  q u a r te r ly  du rin g  

th e  fisca l year. T h e  tim e and  p la ce  o f  
e a ch  m eetin g  a n d  th e  m a tters  to  be 
con s id ered  w ill b e  pu b lish ed  in  ad­
v an ce  o f  th e  m eetin g . H U D  req u ests  
b ia n n u a l p rogress  rep orts  on  a gen cy  
a ctiv ities to  a ch ie v e  C o u n c il goals, 
w ith  up da tes  as req u ired . H U D  issues 
an an n u al r e p o r t -o n  th e  a cco m p lish ­
m en ts  o f  th e  C ou n cil, titled  T h e  P ed- 
era l .Agencies and  F a ir  H ou s in g . STUD 
also su b m its  rep orts  to  C M B  re la t iv e  
to  estim ated  cos t Incurred  fo r  th e  
C ou n cil to  fu n c tio n . In te ra g e n cy  F a ir  
H ou sin g  A g reem en ts  s ign ed  w ith  H U D  
w ill be p u b lish ed  In th e  F eucrai, R zo- 
ISTXS and m ade ava ilable  th ro u g h  th e  
m ail to in terested  p u b lic  a n d  private 
org a n iza tion s . .. -■
S ection  4 - lC o u n c i lM e m b e r s . ’ , /  '  '

H U D  has req u ested  th a t  th e  h ea d  o f  
an  a gen cy  o r  d ep a r tm en t co m m e n c in g  
Its p a rtic ip a tion  o n  th e  C o u n c il ap­
p o in t  a  ,-epresentative and  an a lter­
n a te  to a tten d  C o u n c il m eetin g s and  
woris w ith  H U D  in pu rsu it o f  th e  
C ou n cil goals. .As an a p p o in te e  fo r  t.be 
a gen cy  or  d ep artm en t h ea d , e a ch  re p - 
,-esentaU ve has d ec is ion m a k in g  au­
th o r ity  w ith  respect to m a tters  u n d er 
co n s id e ra tio n . T h e  lev e l o f  appoLne- 
m e n t a llow s f o r  t im e ly  Im plem en ta ­
t io n  o f  C ou n cil e f f o r t s .  . . . .
S ect ion  5— T ra ve l E x p e n se s ; -Adm inis­

tra tive S u p p o r t , F in a n cin g
F in a n cia l and adm lnlstrsLtlve'su’p p o r t  

fo r  th e  C ou n cil is p rov id ed  by  th e  D e­
p a rtm en t o f  .£TUD. C f f lc e  . o f .  F air 
H ou s in g  a n d .... E qual, C p p o rtu n ity . 
T ra v e l expen ses in cu rred  b y  represen ­
ta tives In a tten d in g  q u arteriy  m e e t­
ings is b o m e  by  th e  in d iv id u ^  a gen ­
cies, . . . .

.AoTHQ»rrr (Section 7(d) of Uie Deoart- 
cient of Housing rod U--S«n Development 
.Act, 42 U.S.C 552S<U)).

Issued at W a sh in g ton , D . C ,  J a n u a ry  
3 1 . 1973. -

C h es te r  C , M cG thRE, 
Ajiisiant Secreiary/or Fair 

H oitrin sron d  Zaval Opportv-Tiity.
(FR  Doe. 73-4<ia7 -eied 2-14-78 : 3:48 roil

[4 3 1 0 -8 4 ]  .

DEPARTMENT OF THE INTERIOR
Suiieera isn4 Mcneqewwrt

STATE DIRSCIO*. CAUHPSNIA 
ledeleqfliiee e( Authevity

U n d er th e  a u th o r ity  o f  S ecre ta r ia l 
O rd er N o. 3003, dated  -April 26. 1977, 
su b je ct  to lim ita tion s o f  sec t ion  4 (b ) o f  
th a t  ord er, th e  S ta te  D irector , C a li fo r ­
n ia. Is a u th orized  to issue ail in itia l 
grants, perm its, and  am en dm en ts  
th ere to , a cross pu b lic  and o th e r  a p p ro ­
p r ia te  F edera l lands fo r  th e  3 0 H I O  
p ip e lin e  and associa ted  a n cillary  fa c ili­
ties in th e  S ta tes  o f  -Arizona. CaiiXor- 
n ia. N ew  M e.xioo, and T e x a s . T h is  au­
th or iza tion  is p u rsu an t to  se c t io n  28 o f  
th e  M in era l L easin g  .Act o f  1920, as 
a m en ded , 30 U .S .C . 135.

T h e  C a lifo rn ia  S ta te  D ir e c to r  sh a ll 
n o t  red elega te  th is a u th o r ity .

G z o r c z  L . T tra co rr .
Acting Director,

\PP3ROART 3. 1973.
CFH Doc. 73-4134 Filed 2-14-73; S:4S im l

[4 4 1 0 -0 1 ]

DEPARTMENT OF JUSTICE
Dma AdmMivTrcVioiv

[Docket J7o. 77-543 

UCOSSVSir F, JACX50H 

Haonna
N otice  is h e re b y  g iven th a t on  N o­

v em ber 9. 1977, the D ru g  £ .d lo r ce m e n t 
.A dm in istration . D e p a rtm e n t o f  Jus­
tice , issued to R o o se v e lt  P. J ack son . 
M .D .. .Atlanta, Ga_. an O rd er to S n ow  
C ause as to w h y  his DE.A C ertifica te  
o f  R eg is tra tion , -A JU 72472, sh o u ld  .dot 
b e  revoked .

T h ir ty  days h a v in g  e lapsed  s in ce  the 
said O rd er to S h ow  C ause was rece ived  
b y  th e  R e sp o n d e n t, and w ritten  re­
quest fo r  a h ea rin g  h a v in g  been  filed  
wit.b th e  D ru g  E n fo rce m e n t  A dm in is­
tra tion , n o tice  is h e re b y  g iven  th a t  a 
h ea rin g  In th is m a tter  w ill b e  he ld  
co m m e n c in g  a t 10 a..m. on  W ed n esda y , 
M a rch  1, 1973, In C o u rtro o m  N o. 303, 
S ta te  C ou rt o f  F u lto n  C o u n ty  C ou rt­
h ou se . 130 P ry o r  S tree t 3 W ., A tlan ta , 
G a .

D ated ; F e b r u a r y  9. 1973,
P rn s t  B, BErfsthors.

A d m in istra tor ,
D re q  En/orce77ienf .id .-n in istm tion ,

■ CPR Doc. 73-4131 F le d  2-14-73: 3:45 roaj

■•IDIkAl. gtOlSTEib VOU 43, H O. 32— ASDNESDAT, .“ SgU ART 15, 1973



VERIFICATION

STATE OF NEW YORK )
) ss :

COUNTY OF NEW YORK )

JEAN FAIRFAX, being first duly sworn, deposes and says;
1. I am Director of the Division of Legal Information and 

Community Services of the NAACP Legal Defense and Educational 
Fund, Inc. My office address is 10 Columbus Circle, Suite 
2030, New York, New York 10019.

2. I have read the foregoing Motion For Further Relief of 
plaintiffs and know the contents thereof, and the same are true 
to my own knowledge except as to the matters therein stated to 
be on information and belief, and as to those matters I believe 
them to be true.

JEAN FAIRFAX

Sworn to before me this 
day of May 10, 1982

Notary Publi-^^
., ,tL  BERGtft

Notaiy Public, of New Yori<
No. 31-52S1197

Qualified io New Yol-k County ^ 
Comiswssio.T Expires March 30, 19s r



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al.,
Plaintiffs,

V.

TERREL H. BELL, et al., 
Defendants.

)
) Civil Action No. 70-3095
)

POINTS AND AUTHORITIES IN SUPPORT OF 
PLAINTIFFS' MOTION FOR FURTHER RELIEF

Plaintiffs have moved for further relief requiring de­
fendants to enforce the Revised Criteria Specifying The Ingre­
dients of Acceptable Plans To Desegregate State Systems of 
Public Higher Education (hereinafter ".the Criteria"), 43 Fed. 
Reg. 6658 (Feb. 15, 1978). As demonstrated in the motion, the 
Department of Education ("DE") has completely abandoned the 
Criteria. Plans have been approved that do not begin to meet 
the Criteria's requirements, and non-implementation of previ­
ously approved plans is being substantially ignored or condoned.

To appreciate fully the disastrous impact of defendants' 
actions upon the desegregation of America's public colleges and 
universities, it is necessary to trace briefly the history of 
this 12 year-old litigation. This case was filed in 1970 as a 
result of the failure of the former Department of Health, Edu­
cation and Welfare to enforce the provisions of Title VI of 
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. More 
than nine years ago, in November of 1972 and February of 1973, 
this Court held that HEW had failed to meet its statutory 
obligations under Title VI. Adams v. Richardson, 351 F.Supp.



636 (D.D.C. 1972) and 356 F.Supp. 92 (D.D.C. 1973). HEW had 
between January 1969 and February 1970 concluded that ten 
states which previously practiced de jure segregation were 
still operating racially segregated systems of public higher 
education, and had required each state to submit a desegrega­
tion plan within 120 days. However, HEW had then completely 
ignored the failure of those states to submit adequate plans; 
indeed, five states had submitted no plan at all. HEW had 
taken no administrative enforcement action whatsoever, and 
had continued to advance federal funds to the higher education 
systems of all ten states. Adams v. Richardson, supra, 356 
F.Supp. at 94. This Court granted declaratory and injunctive 
relief to compel HEW to comply with Title VI, including a 
requirement that the defendants commence enforcement proceed­
ings or utilize other lawful means to achieve desegregation 
of the states' higher education systems. Ibid.

In June of 1973, the en banc Court of Appeals affirmed 
this Court's order with minor modifications. Adams v. Richard­
son , 480 F.2d 1159 (D.C. Cir. 1973)(en banc). The Court found 
it "regrettable" that HEW had "not yet formulated guidelines 
for desegregating state-wide systems of higher learning," id. 
at 1164, and declared that defendants would no longer be per­
mitted to neglect their responsibility under Title VI, ibid.

In a passage of particular importance to the instant 
motion, the Court of Appeals further held in its 1973 en banc 
decision that "[t]he problem of integrating higher education 
must be dealt with on a state-wide rather than a school-by­
school basis." at 1164. Thus for nine years the law of
this Circuit has required defendants to compel not merely

elimination of "discriminatory admissions policies of individual

- 2 -



institutions," but more importantly comprehensive planning to 
remedy effectively "the more complex problem of system-wide 
racial imbalance" in each state. at 1164-65 n.10.

The Court of Appeals additionally declared in 1973 that
[plerhaps the most serious problem in 
this area is the lack of state-wide 
planning to provide more and better 
trained minority group doctors, lawyers, 
engineers and other professionals. A 
predicate for minority access to qua­
lity post-graduate programs is a viable, 
coordinated state-wide higher educa­
tion policy that takes into account 
the special problems of minority stu­
dents and of Black colleges.

Id. at 1164-65. The Court thus indicated to defendants both 
the type of planning and the type of results which they must 
require of the states in order to achieve compliance with Title 
VI.

Four years after the decision of the Court of Appeals, this 
Court held that plans accepted by defendants in compliance with 
that decision were inadequate because they "did not meet impor­
tant desegregation requirements" and had "failed to achieve 
significant progress toward higher education desegregation."
Adams v. Califano, 430 F.Supp. 118, 119 (D.D.C. 1977). Holding 
that defendants were required to obtain from each state "speci­
fic commitments necessary for a workable higher education 
desegregation plan," the Court directed defendants to formulate 
final guidelines for acceptable desegregation plans and to 
require each state to submit within 60 days thereafter a revised 
plan in compliance with those guidelines. at 121. The Court
further cited and quoted the en banc Court of Appeals' holdings 
requiring statewide planning to provide more black professionals 
and to deal with the special problems of traditionally black 
institutions. Id. at 120. And the Court specifically directed

- 3 -



defendants "to devise criteria for higher education desegrega­
tion plans which will take into account the unique importance of 
Black colleges and at the same time comply with the Congressional 
mandate [of Title VI]." Ibid♦

The Criteria were thus promulgated und^r compulsion from 
this Court and the Court of Appeals. Indeed, the language of 
the Criteria reflects this fact and concedes that the specific 
terms of the guidelines are to a considerable extent controlled 
by the decisions in this case. For example, the Criteria 
recognize that "[t]he Court of Appeals in its en banc opinion 
in Adams directed HEW [now DE] to undertake a statewide 
approach and noted the serious problem created by the lack of 
viable statewide coordinated planning in higher education."
43 Fed. Reg. at 6659. On this basis, the Criteria require

not only that each institution pursue 
nondiscriminatory student admission and 
faculty and staff employment practices, 
but also that the state system as a whole 
develop a comprehensive and coordinated 
statewide desegregation plan embodying 
those specific affirmative, remedial 
steps which will prove effective in 
achieving significant progress toward 
the disestablishment of the structure 
of the dual system and which address 
the problem of "systemwide racial im­
balance" [quoting Adams, 480 F.2d at 
1165 n.10].

Ibid. Similarly, the Criteria cite and quote the holdings of
this Court and the Court of Appeals requiring plans that will
produce greater numbers of black professionals and enhance the
traditionally black colleges. 43 Fed. Reg. at 6660. The
Criteria expressly concede that

as the Court has instructed, the transi­
tion to a unitary system must not be ac­
complished by placing a disproportionate 
burden upon black students, faculty, or 
institutions or by reducing the educa­
tional opportunities available to blacks.

Ibid.
-  4 -



As pointed out in the Motion for Further Relief, the 
specific requirements of the Criteria themselves, as set 
forth in a summary issued by defendants on the day of their 
release, are the following:

—  Traditionally black institutions must be 
strengthened in quality so that they attract 
students for non-racial reasons;

—  State systems must eliminate educationally 
unnecessary program duplication;

—  Some new "high demand" programs must be placed 
on traditionally black campuses;

—  The state must achieve parity in the rate of 
black and white students entering the higher 
education system;

—  The state must increase the number of black 
students at traditionally white institutions;

—  The state must achieve parity in the number
of black and white graduates of state colleges 
who enter state graduate schools;

—  The proportion of white students attending 
traditionally black colleges must be increased;

—  the state must increase mobility of students 
between the state's two-and four-year institutions;

—  The state must increase the percentage of black 
academic and nonacademic employees in the system 
and increase the number of black representatives 
on governing boards.

HEW Involvement in Desegregation of State Higher Education 
Systems, HEW NEWS, Office for Civil Rights, U.S. Department of 
Health, Education and Welfare, February 2, 1978. Defendants 
have paid little attention, as the Motion for Further Relief 
makes abundantly clear, to these specifics as well as to the 
general thrust of the Criteria.

- 5 -



Perhaps of paramount importance to this motion is the
Criteria's recognition that the decisions in this case require
defendants not only to promulgate guidelines but also to enforce
them rigorously. For example, the Criteria cite the Court's
oral'directive of January 17, 1977:

what I want them [defendants] to do 
... is be under the compulsion of a 
court order to submit to the states 
certain specific requirements which 
the states must respond to...

Id. at 6659 (emphasis added). The Criteria thus reflect the 
Court's very clear intent in requiring their creation; to end 
once and for all the defendants' long-standing failure to 
operate under standards.

As we demonstrate in the instant motion, defendants have 
abandoned the Criteria and especially the above-quoted 
passages. Many of the original Adams states are not comply­
ing with the Criteria, yet DE has not initiated enforcement 
proceedings. Findings as to a second group of states were 
finally issued in January of 1981, pursuant to a consent
order entered only after plaintiffs had filed a motion for

1/further relief demanding their issuance;” but some of those 
findings did not uniformly require submission of, statewide 
plans, and several states to this day have not yet submitted 
such plans. The current Administration has accepted plans 
which do not meet the Criteria, and has failed to require 
corrective measures to implement earlier approved plans 
even where it is obvious that the plans and the Criteria are 
being flouted. Defendants simply treat the Criteria as

1/ See Consent Order of December 18, 1980,

- 6 -



though they do not exist.
Thus, after 12 years of litigation, we must regrettably 

seek relief from this Court once again. Nine years after this 
Court's original decision and its affirmance by the Court of 
Appeals, and five years after this Court's Second Supplemental 
Order requiring promulgation of the Criteria, we are faced with 
an Administration that has ignored the holdings of this case.
The law of this case requires that defendants promulgate and 
enforce guidelines for desegregation of public higher education.

2/

and at present those guidelines are the Criteria. The Adminis­
tration now in office may not like the Criteria, but it is 
under a duty to apply them unless and until such time as they 
are formally revised and amended through proper procedures 
subject to review by the courts in this case; any such revision 
or amendment would, of course, have to comport fully with the 
holdings of the Court of Appeals and this Court described above.

The one thing that defendants clearly cannot do under the 
law of this case is precisely what they are doing at present. 
Defendants may not simply sit on their hands and pretend that 
the Criteria are inoperative or need not be enforced. By 
so doing, defendants have regressed to the era without standards 
that existed for many years before the decisions in this case. 
They have, in effect, treated those decisions as a nullity.

2/ In one state. North Carolina, an enforcement proceeding 
Tnitiated by the previous Administration with respect to the 
State's four-year colleges and universities was aborted pursuant 
to a settlement that flagrantly disregarded the Criteria. On 
June 25, 1981, this Court denied on jurisdictional grounds 
plaintiffs' motion for a temporary restraining order and pre­
liminary injunction enjoining defendants from entering into the 
settlement agreement. Plaintiffs' appeal from the Court's order 
was argued on January 8, 1982, and is still pending.

-  7 -



This Court should grant further relief to require defendants 
to obey the holdings of this case and to live up to their legal 
obligation to desegregate this Nation's system of public higher 
educat ion.

Respectfully submitted.
Jack Greenberg 
James M. Nabrit, III 
Joel Berger

10 Columbus Circle
New York, New York 10019
Tel. (212) 586-8397

Joseph L. Rauh, Jr.
John Silard 
Elliott C. Lichtman
Rauh, Silard and Lichtman, P.C. 
1001 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
Tel. (202) 331-1795

Attorneys for Plaintiffs



CERTIFICATE OF SERVICE , ,

I hereby certify that a copy of the Points of Authorities 
in Support of Plaintiffs' Motion for Further Relief was served 
by hand this ____ Day of May, 1982, upon

Department of Justice, Room 3734, Constitution Avenue beteeen 
9th and 10th Streets, N.W., Washington, D.C. 20530.

Joseph L. Rauh, Jr.



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al..
Plaintiffs,

V.

TERREL H. BELL, et al.. 
Defendants.

)
)
) Civil Action No. 70-3095
)
)

ORDER
Plaintiffs having filed a Motion for Further Relief re­

quiring defendants to enforce the Revised Criteria Specifying 
the Ingredients of Acceptable Plans to Desegregate State 
Systems of Public Higher Education, 43 Fed. Reg. 6658 
(February 15, 1978), the Court having considered said Motion 
and the Points of Authorities filed by plaintiffs in support 
thereof, and the Court having further considered all papers 
submitted by defendants in opposition, and

This Court finding that the defendants have abandoned 
the Revised Criteria of February 15, 1978, without public 
notice and without order of this Court, and have accepted 
plans which violate said Revised Criteria,

IT IS HEREBY ORDERED this ___ day of ____________ , 1 982,
that defendants, their successors, agents and employees, are 
directed

1. To announce publicly and notify each of the previ­
ously ^  jure segregated states within 10 days from the date 
of this Order that the Revised Criteria of February 15, 1978, 
are in full force and effect;



2. To require any state not in compliance with said 
Revised Criteria to submit within 90 days a new plan for 
coming into compliance with said Revised Criteria;

3. To determine within the following 60 days whether 
the newly submitted plan complies with said Revised Criteria, 
and

4. To commence no later than 150 days from the date of 
this Order enforcement proceedings with respect to any state 
failing to submit a plan that complies with said Revised 
Criteria.

UNITED STATES DISTRICT JUDGE

- 2 -



M E M O R A N D U M

March 9, 1982

TO: Jean Fairfax
FROM: Joel Berger
RE: Motion for Further 

Plans of Delaware,
Relief in Adams v. Bell: 
West Virginia and Missouri

Introduction

In Adams v. Richardson, 480 F.2d 1159, 1164 (D.C. Cir. 1973) (en 
banc), the Court explicitly held that "[t]he problem of integrating 
higher education must be dealt with on a state-wide rather than a 
school-by-school basis." Adams requires not merely elimination of 
"discriminatory admissions policies of individual institutions," but 
rather comprehensive planning to effectively remedy "the more complex 
problem of system-wide racial imbalance" in each state. 480 F.2d at 
1164-65 n. 10.

The Revised Criteria Specifying The Ingredients of Acceptable 
Plans To Desegregate State Systems of Public Higher Education, 43 Fed. 
Reg. 6658, 6659 (Feb. 15, 1978), state that "[t]he Court of Appeals in 
its en banc opinion in Adams directed HEW [now the Department of Edu­
cation (DE)] to undertake a statewide approach and noted the serious 
problem created by the lack of viable statewide coordinated planning in 
higher education." Accordingly, the Revised Criteria



require not only that each institution pursue 
nondiscriminatory student admission and faculty 
and staff employment practices, but also that 
the state system as a whole develop a compre­
hensive and coordinated statewide desegregation 
plan embodying those specific affirmative, re­
medial steps which will prove effective in 
achieving significant progress toward the dis­
establishment of the structure of the dual system 
and which address the problem of "systemwide 
racial imbalance" [quoting Adams, 480 F.2d 
at 1165 n.lO] .

Ibid.
In total disregard of this requirement, the Department of 

Education in 1981 directed the states of Delaware, Missouri and VJest 
Virginia to submit plans that were not statewide in scope but rather 
dealt with only a handful of institutions within the complex public 
higher educational systems of those states. As a result, DE has failed 
to ensure that the systems in question will be effectively desegregated 
on a statewide basis.

Delaware

In a letter to Governor Pierre S. DuPont IV, apparently dated
VJanuary 15, 1981, DE Regional Civil Rights Director Dewey E. Dodds 

(Region III) directed submission of a plan for desegregation of the 
traditionally white University of Delaware (UD) and the traditionally 
black Delaware State College (DSC). However, Mr. Dodds did not re-

1/ Although our copy is undated, it is my understanding that most of 
the letters from DE regional directors to governors of the "second 
tier" Adams states were dated January 15, 1981.



quire the state to specifically address the problems of desegregation 
within Delaware's Community College System. Mr. Dodds claimed (p.6) 
that "[b]ecause the schools in the Delaware Community College System 
were not established as part of the State's former ^  jure system, and 
no community college campus is racially identifiable by its current 
student enrollment or faculty employment, they are not included as part 
of the violation of Title VI [of the Civil Rights Act of 1964]."

Such reasoning is, of course, entirely specious. Most state sup­
ported systems of higher education have expanded by leaps and bounds 
since the days of ^  jure segregation, and if every campus opened since 
the ^  jure era were exempted from Title VI Adams would lose all mean­
ing. As for the failure of Delaware to provide DE with data concerning 
the community colleges, that is hardly grounds for exempting them from 
coverage.

Although Mr. Dodds requested the state to "take account of the 
effect that remedial measures applied to one institution will have on 
other institutions (two-year and four-year) sharing the same service 
area," he added that the community colleges "should have a relatively 
minor role in a statewide plan" and directed that they be discussed 
only to the extent necessary "for an effective remedy." (Letter of 
January 15, 1981 to Governor DuPont, p.6.) The Delaware authorities, 
taking their cue from DE, submitted a plan on September 17, 1981, which 
focuses almost exclusively upon UD and DSC and virtually ignores the 
community colleges.

The failure to address the Delaware system of public higher edu­
cation on a statewide basis seriously undermines the effort to dese-

3 -



segregate UD and DSC. For example, we alleged in our objections to the 
Delaware plan, filed on September 28, 1981, that there is duplication 
of programs between the primarily white Delaware Technical and Commu­
nity College (DTCC) Terry campus in Dover and DSC (also located in 
Dover). DE did not deny this claim in its response to our objections, 
but rather stated only that UD does not offer courses at the DTCC Dover 
branch (DE Response of November 18, 1981, p.3). This response is com­
pletely inadequate. With DTCC in Dover operating at a 78.3% white
enrollment in 1980, and DSC still 63% black (74.6% black in full-time

2/enrollment), any duplication of programs could be fatal to the effort 
to attract white students from the area to DSC.

Similarly, DTCC's Wilmington campus is 30.5% black at a time when 
UD, also located in the Wilmington region, still has an undergraduate 
enrollment of only 3.2% b l a c k . Y e t  the interrelationship of DTCC 
Wilmington and UD is ignored by the Delaware plan. With the population 
of Wilmington at 46% black (see our objections to the Delaware plan, 
p.l), the inability of UD to attract black enrollment cannot possibly 
be addressed in a comprehensive fashion without taking into account the
existence of a 30.5% black community college in the same region.”'4/

2/ See Delaware Title VI Compliance Plan, Exhibit One (Sept. 28,1981) .
3/ Ibid.
£/ Curiously, Exhibit One to Delaware's plan reveals that a smaller 
DTCC campus in the Wilmington region, located at Stanton, has a black 
enrollment of only 8.3%. This suggests the emergence of dualism within 
the DTCC system itself.

-  4



Missouri

In a letter to Governor Christopher Bond, dated January 15, 1981, 
DE Regional Civil Rights Director Jesse High (Region VII) directed 
submission of a plan for desegregation of only three of Missouri's 28 
institutions of public higher education: the University of Missouri at
Columbia (the state university's flagship institution), the University 
of Missouri at Rolla (the state engineering school), and Southeast 
Missouri State University (one of nine State campuses serving regional 
and commuter service areas).

As noted in our objections, filed with DE on August 13, 1981, 
enrollment data annexed to Mr. High's letter itself (Table I) esta­
blishes the inadequacy of DE's directive. The data reveals, for ex­
ample, a wide disparity in the black enrollment rate at the two four- 
year institutions in St. Louis: the University of Missouri at St.
Louis is 12.4% black, whereas Harris-Stowe College, which traces its 
roots to the traditionally black Stowe Teachers College of the ^  jure 
era, remains 75.1% black. Similarly, there are significant disparities 
in the black enrollment rates at the various community colleges within 
the Kansas City and St. Louis regions: the four Kansas City area com­
munity colleges range from 0.9% black at Maplewoods to 66% black at 
Pioneer, and the three St. Louis area community colleges range from 
3.7% at Meramec to 54% at Forest Park.

Our objections to DE also cited a recent report, prepared by the 
Missouri Commission on Human Rights, which further demonstrates the 
need for statewide planning addressing the problems of the St. Louis 
and Kansas City areas as well as the three institutions for which DE

- 5 -



required a plan. The Commission's February 1980 Report on Graduates 
from the University of Missouri, Missouri State Universities and 
Colleges in May and June 1979 reveals that only 7% of the bachelor's 
degrees granted by the University of Missouri at St. Louis in the 
spring of 1979 were conferred upon black students; thus, while the 1978 
black enrollment rate set forth in Table I of Mr. High's letter is 
12.4%, there appear to be serious retention and promotion problems for 
blacks at that institution. Given the fact that the City of St. Louis 
is 45.6% black according to the 1980 census, the adequacy of Missouri's 
desegregation efforts in that region is highly suspect. According to 
the Commission, the University of Missouri at Kansas City granted only 
5.4% of its bachelor's degrees to blacks, in contrast to the 7.7% black 
enrollment rate stated in Mr. High's letter. Kansas City is 27.4% 
black according to the 1980 census.

Quite apart from the failure to address the problems of St. Louis 
and Kansas City, the absence of a state-wide plan could undermine the 
state's efforts to achieve desegregation on the three campuses cited by 
DE as requiring remedial action. For example, the University of 
Missouri at Columbia is relatively near Moberly College, which at 11% 
black enrollment is the most integrated community college outside of 
St. Louis and Kansas City (see High letter. Table I). A comprehensive 
statewide plan would seek to benefit from the presence of integrated 
two-year institutions in the region of a segregated university, while 
at the same time guarding against the possibility of erosion of the 
two-year school's programs. There are several two and four-year 
institutions of public higher education in the general vicinity of the

- 6 -



three universities cited by DE. Thus, the piecemeal approach of DE not 
only ignores the serious problems existing in the St. Louis and Kansas 
City regions, but will also hinder progress even at the three insti­
tutions which have been declared in violation of Title VI by DE.

West Virginia

In a letter to Governor John D. Rockefeller IV, apparently dated
VJanuary 6, 1981, DE Regional Civil Rights Director Dodds directed 

submission of a plan limited solely to the traditionally white West 
Virginia University (WVU). In footnote 3 on page 3 of that letter, Mr. 
Dodds conceded that thirteen other state-supported institutions of 
higher education in West Virginia "employ very few blacks on their 
faculties and staffs." Nonetheless, DE did not require West Virginia 
to submit a statewide plan.

The Revised Criteria, 43 Fed. Reg. at 6662, require that each 
state "commit the state system to the goal of increasing the number 
and proportion of black employees, academic and non-academic, through­
out the system ..." The thirteen institutions cited by Mr. Dodds
constitute 65.1% of the West Virginia higher educational system in

6/terms of enrollment, yet DE chose to ignore the problem. DE merely 
announced in footnote 3 of Mr. Dodds' letter that it would turn the

5/ Our copy is undated. Secretary Bell's letter of June 22, 1981, to 
Elliot Lichtman, rejecting our objections, states that the letter was 
dated January 6, 1981.
6/ See Appendix A to Mr. Dodds' letter. Employment statistics were 
not provided.

- 7



matter of employment discrimination over to the Office of Federal 
Contract Com.pliance Programs of the Department of Labor, a gross 
abdication of responsibility which is totally at oods with the Revised 
Criteria and Adams. It goes without saying that a college's progress 
in desegregating faculty and other professional staff positions is 
crucial to the overall progress of desegregation.

The plan submitted by West Virginia on May 5, 1981, in response to 
Mr. Dodds' letter, is limited solely to W U  and provides absolutely no 
data concerning the state's 15 other public institutions of higher 
education. Accordingly, it is impossible for us to evaluate DE's claim 
that progress is satisfactory at all institutions except ViVU. We can 
only note that since WVU's 1978 enrollment of 14,581 constitutes 24.7% 
of the statewide total (see Appendix A to Mr. Dodds' letter), it is 
inconceivable that affirmative action at that institution will have no 
impact upon the others. WVU is the very heart of this state's system, 
rather than one of several large facilities. Even assuming arguendo 
that the other schools are making adequate progress at this time, a 
genuine effort by WVU to attract black students and faculty will in­
variably draw blacks from these schools. Accordingly, the need for 
statewide planning and monitoring remains critical.

Conclusion

The failure of DE to require statewide plans for Delaware, 
Missouri and West Virginia is a radical departure from the Revised 
Criteria and a violation of the holding of the D.C. Circuit in Adams. 
Progress in each of these three states will suffer severely because of



DE's refusal to direct the submission of comprehensive and coordinated 
plans that address desegregation on a statewide basis.

cc: Joseph L. Rauh, Jr,, Esq.
Elliot C. Lichtman, Esq.

- 9 -





'̂V£ ka s (X-c- ĉ. jtr^ .Lt sj ~~ft^ ut c-c .  S’jr / I

3^L

O/JLla,

0^ /I /f'
/ho'î  o! 11 >/''

t-' ĉxĵ -T

(/-?(->; f w j Ic-j (ĵ  ^

y  7 ? ^  /iCi<L- /H .y' } y \ ^ s  acc-e^ t x

JtjxL^ Oki^^ W -

id x x t .  LAJ Cî  Icî

/ji 11 * (̂ 1 c u t ^  ^  I n A /  ^  L^ f iuC j A  -  ^ c n  A

ot !I OLt^ Az>/'jciX̂

v OhvX X i a i l r h t ^ J

1k al^oo-c s e c  fh >ke_ a c < u i i l l ,u ^
CP! , o u u ^  " A 'u  I L  a v i  i i = ^  h L , ^X CA^m -U S  (  fy\C)CU\̂

j4 r - s  /l4t c> 1 1 I ~C" X  ^  l /  ( (~~̂  I '

(X Q ul^ 'Ap   ̂ itC L  c^ j  j  ( CJ?_ l l i T j  /VHUL^Ly,^ 1 

a7 ~  ' / i l7 3  OF^F^ ilT ~  6 u  , Q .y J li„ ;j---Hr S Ouu^ Luja. If UJ /cr 7^ 7"
/ b
iA-t-

/  -• C A L )  s/ I ou a J!-^  ̂ c7 S ' ( Id I -c

rfe z . X  ' c x u X  I

s L - < ^  X  X  t '~ h  I l A ~ h r ^  X - t  a \  y U ^ t r x ^  ^ c x s i  ^ l i s"jAij<L>-1''̂ C 0- I ̂
(A ( T I  tXTX  la/̂ ( ĉ
a P y X r L o  t

J T  X L c . c c ,  - f t r

C o x  XA .

J.



M E M O R A N D U M

February 9, 1982

TO: Joseph Rauh
James Nabrit 
Joel Berger 
Bill Lee 
Brent Simmons

FROM: Jean Fairfax
RE: Adams V .  Bell: MOTION FOR FURTHER RELIEF

The purpose of this memo is to set forth what we can document 
and how we can make this a manageable task if the Motion is 
to be filed on March 19. I have tens of thousands of pieces 
of paper, statistical and narrative reports, received from 
the Adams states through the Department of Education (DE), 
plus other materials from other sources. All of this cannot 
be analyzed so my objective is to isolate the essential issues 
and concentrate on the data that will support our charges. 
Listed below is my outline of the charges - not in any order 
of priority - and my recommendations for documenting them 
within our timeframe:
1. Having identified in the Criteria the key indicies for 

progress toward eliminating vestiges of the dual system 
and having required commitments and measures from six 
states, DE has repeatedly failed to take action against 
states that have not shown sufficient progress or have 
regressed in the implementation of their plans.
A. Re: Virginia, Georgia, Oklahoma, Arkansas, North

Carolina Community College System
1. A checklist of the indicies of progress listed 

below will be used to ascertain non-implementa­
tion of the state plan or regression. Where we 
have letters from DE regional offices that re­
veal that DE knew of noncompliance but has not 
exercised or threatened sanctions or that DE
is not pressing any more on certain issues, 
this lack of enforcement will be noted. I plan 
to review the letters sent to these states 
late in 1980, their responses and their summer 
1981 reports.

2. Indices:
a. Reducing disparity in college going rates
b. Increasing black enrollment in 4-year TWI 

and reducing black/white disparities in



rates of enrollment by 50%
c. Reducing disparity in retention
d. Increasing black enrollment in graduate/pro- 

fessional programs and reducing disparities 
in black/white rates of enrollment from bac­
calaureate level.

e. Increasing the black presence in positions 
not requiring the doctorate to equal pro­
portion of black recipients of master's de­
grees

f. Increasing blacks in all positions to equal 
their availability in the labor market; 
focus v;ill be on faculty, administrative 
and professional nonfaculty positions and 
will include hiring statistics

g. Increase of blacks in governance
h. Enhancement of the TBI's: facilities, new

programs, elimination of program duplication
i. Integration goals for TBI's
j. Statewide measures to accomplish the above: 

state funds; state level monitoring.
2. Responsibility: Fairfax
3. Deadline: March 1

II. Having made a finding that Florida was not making sufficient 
progress and indeed had become more segregated, DE approved 
a revised plan that was weaker than the 1977 plan in key 
respects.

1. My analysis of spring 1981 should be updated with
information from the summer 1981 report from Florida.

- 2 -

2. Responsibility: Fairfax
3. Deadline: March 8

III. Having determined that voluntary negotiations could not result 
in an acceptable plan from North Carolina, HEW and later DE 
proceeded with administrative hearxngs. These hearings were 
abruptly ended with the negotiation of a consent agreement 
that was signed into an order by Judge Dupree. The plan in 
that order ignores key requirements of the Criteria, does not 
address issues raised in the hearing, has established a bad 
precedent for Title VI compliance and undermines the jurisdic­
tion of this Court and the Court of Appeals.



1. Responsibility: All of us. Most of the work
has been done in papers already filed with the 
Court. I would be willing to read UNO's report 
to Dupree to ascertain whether it provides fur­
ther evidence of the danger of withdrawing 
Federal oversight. Should we ask Brent to do
a memo on DE's major charges in the hearings 
that are not addressed in the consent order.

2. Deadline: March 8
IV. DE has approved new plans that violate the Court of Appeals 

Order requiring a statewide approach. (Delaware, Missouri, 
West Virginia)

1. Responsibility: Joel Berger
2. Deadline: March 1

V. DE has approved new plans that ignore key requirements in 
the Criteria. (Kentucky, South Carolina)

1. Responsibility: Fairfax
2. Deadline: Depends on how much reworking of my

earlier analyses will be required.

- 3 -

VI. DE is in contempt of court for violating deadlines. 
Pennsylvania)

(Texas

These states may have moved into earlier categories by 
March 1. Communications between DE and Pennsylvania 
strongly indicate that both parties will come up with 
a plan substantially short of requirements in the 
January 1981 letter from DE to Pennsylvania.

VII. What can we charge re Alabama and Ohio. DE could legally 
turn them over to Justic although we are convinced this was 
a stalling trick.

VIII. Can we make a charge re Maryland?

JF/11