Adams v. Cavazos and Women's Equity Action League v. Cavazos Brief for Plaintiffs-Appellants, Kenneth Adams, and Plaintiff-Intervenors-Appellants, Jimmy Martinez

    SCHEDULED FOR ORAL ARGUMENT APRIL 11, 1989
No. 88-5068 
No. 88-5065

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

KENNETH ADAMS, et al.,
Plaintiffs-Appellants, 
vs.

LAURO F. CAVAZOS, Secretary of Education, et al.,
Defendants-Appellees.

WOMEN'S EQUITY ACTION LEAGUE, et al..
Plaintiffs-Appellants, 
vs.

LAURO F. CAVAZOS, Secretary of Education, et al.,
Defendants-Appellees.

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

BRIEF FOR PLAINTIFFS-APPELLANTS, KENNETH ADAMS, ET AL. 
AND PLAINTIFF-INTERVENORS-APPELLANTS, JIMMY MARTINEZ, ET AL.

JULIUS LEVONNE CHAMBERS 
JAMES M. NABRIT, III 
JANELL M. BYRD 

99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

ELLIOTT C. LICHTMAN 
MARY M. LEVY

Lichtman, Trister, Singer & 
Ross
1666 Connecticut Ave., N.W. 
Suite 501
Washington, D.C. 20009 
(202) 328-1666

Counsel for Plaintiffs-Appellants Kenneth Adams, et al.



SUSAN E. BROWN 
NORMA V . CANTU

Mexican American Legal 
Defense and Educational Fund 
140 East Houston Street 
San Antonio, Texas 78205 
(512) 224-5476

HADRIAN R. KATZ 
L. HOPE O'KEEFFE 
Arnold & Porter 
1200 New Hampshire 
Ave., N .W .

Washington, D.C. 20036 
(202) 872-6700

Counsel for Plaintiff-Intervenors-Appellants,
Jimmy Martinez, Ben Salazar, Pablo Ortega, and Arturo Gomez,



CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 
As Required by Rule 11(a) (1) of the General Rules of the 

United States Court of Appeals for the District of Columbia 
Circuit the undersigned, counsel of record for appellants, 
certifies:

A. The following listed parties appeared below:
1. As plaintiffs in Adams v. Cavazos (appellants herein): 

Kenneth Adams, Keith Buckhalter Adams, Linda Adams, Garry Quincy 
Adams, Lorie Ann Adams, Tony Ray Adams, John Quincy Adams, Henry 
Ayers, Gwendoline Ayers, Jake Ayers, Jack R. Gautreaux, Mary 
Fullenkamp, Waddia Ann Brown, Sandra Lee Wright, Cassandra 
Thurmon, Ethel Mae Thurmon, Terry Minnifield Thurmon, Bessie R. 
Thurmon, Elizabeth Ray, Belinda Ray, Bernice Ray, Robert F. 
Jordan, Wanda L. Brown, Euretha Lynn West, Myra West, Stephanie 
Halliburton, Iris Halliburton, Gerald Wayne Rainey, Carl Rainey, 
Helen Ruth Moore, James Edward Moore, Solomon V. Thompson, Dr. 
V.F. Thompson, Charlotte McDaniel, Ernest McDaniel, Dianne Young, 
Ora Lee Young, Linda Ford, Georgia Lee Ford, Sheila Faye Thomas, 
Edmonia Norris, Chester Fairley, Jr., Vera Fairley, Alice Moore, 
Madelyn Moore, Linda Lee Cody, A.B. Cody, Maurice Finkelstein, 
Virginia DeC. Frank, Barry McManus, Charles Collier, Craigory 0. 
Allen, Johnalynn Holland, Amy Lillian Garland, David L. Robinson, 
Darrian L. Bell, Armon Coleman, Keysha Porter, Stephanie A. Moss, 
Dolphanie D. Richard, Joseph Anthony Mitchell II, Michelle T. 
Battle, Michael Hargrove, Debra Hughes, Lewvenia Parks, Betty L.

iii -



Johnson, Sharon D. Bostic, Tracey L. Davis, Ginger Caprice 
Howington, Katian Colvin, Johnny Respus, Detrice Page, Melissa L. 
Eaddy, Dareather Ann Tilley, Robert Arrington, Felix Boyd, 
Marlene Johnson, Angela M. Waller, Tracy K. Adams, Jackie Waller, 
Kerry Martin, Tony Whittingham, Andrea Lynn Green, Brenda 
Collier, Darryl Bozeman, Christopher L. Mann, Elburn L. Brown, 
Anthony Johnson, Sondra G. Petty, Norris L. Greer, Denita V. 
Davis, Michele R. Williams, Doris Singleton, Morris Nellum.

This action was certified as a class action by Order of the 
District Court on May 9, 1984.

2. As intervenors in Adams v. Cavazos (appellants herein): 
Woman's Equity Action League, National Organization for Women, 
National Education Association, Federation of Organizations for 
Professional Women, Cynthia L. Buxton, Kay Paul Whyburn, Jimmy 
Martinez, Ben G. Salazar, Pablo E. Ortega, Arturo Gomez, Jr., 
National Federation of the Blind, Douglas J. Usiak, Joyce F. 
Stiff.

3. The following organizations and individuals were denied 
intervention in Adams v. Cavazos and have appealed:
Association For Retarded Citizens of Georgia, Venita Ellington, 
Robert P. Ellington, Steven Michael Tussey, Kelly Lynn Burns Katy 
Vevai, Christopher T. Socorso, Andrea D. Sheridan, Mary Margaret 
Riccio, Jill Kathryn Robleto, and Heidi Buchanon.

4. As defendants in Adams v. Cavazos (appellees herein): 
Lauro F. Cavazos, Secretary of the Department of Education and

- iv



LeGree Daniels, Assistant Secretary for Civil Rights of the
Department of Education.

5. As plaintiffs in WEAL v. Cavazos (appellants herein): 
Women's Equity Action League, National Education Association, 
Federation of Organizations for Professional Women, Association 
of Women in Science, United States Student Association, National 
Organization for Women, Elizabeth Farians, Dorothy Raffel.

6. As defendants in WEAL v. Cavazos (appellees herein):
Lauro F. Cavazos, Secretary of the Department of Education and 
LeGree Daniels, Assistant Secretary for Civil Rights of the
Department of Education; Dennis Whitfield, Acting Secretary of 
the Department of Labor; and Leonard Bierman, Acting Director of 
the Office of Federal Contract Compliance Programs, Department of 
Labor.

B. The ruling at issue in this Court was issued on December 11,
1987 by District Judge John H. Pratt, and is reported at 675 F.
Supp. 668.

C. This case has previously been before this Court as: 
Adams v. Richardson. No. 83-1273 
Adams v. Bell. No. 83-1590 
WEAL v. Bell. No. 83-1516.
It was also before this Court in other aspects as: 
Adams v . Mathews. No. 76-1395

v



Adams v. Bell. No. 81-1715
WEAL V. Bell. NO. 83-1516
The docket number 88-5068 above includes appeals 

consolidated on March 7, 1988, formerly docket numbers 88-5068
through 88-5071 and on May 24, 1988, formerly number 88-5088. 
Numbers 88-5068 (as enlarged) and 88-5065 were consolidated on 
May 24, 1988.

These representations are made in order that judges of 
this Court, inter alia, may evaluate possible disqualification or 
recusal.

Respectfully submitted,

Elliott C. Lichtman
Attorney of Record for Appellants

vi -



TABLE OF CONTENTS
Page

Certificate As To Parties, Rulings, And Related
Cases ............................................  iii

Table of Contents .....................................  vi
Table of Authorities ..................................  ix
Questions Presented .............................   1
Statutes and Regulations .............................. 2
Jurisdiction ..........................................  2
Statement Of The Case ...........................    2

Introduction ................................  2
Factual History ............................. 3
Efforts To Desegregate Higher

Education Institutions ................  7
The Mandated Timeframes To Counter Endless 

Delays In Processing Complaints and
Conducting Compliance Reviews .........  11

Government Appeal, Remand, Dismissal .......  14
Unravelling of Desegregation ...............  15

Summary Of The Argument ............................... 17
Argument ..............................................  21

I. The District Court Erred In Concluding
That Plaintiffs Lack Standing to
Pursue Their Claims ......................... 21
A. Legal Requirements for Standing .......  21
B. The District Court Erred In 

Ignoring Plaintiffs' Statutorily 
Enforceable Right Under Title VI
To Attend Schools Free Of Federally
Subsidized Discrimination .............  22

- vii -



TABLE OF CONTENTS-CONTINUED
Page

C. Alternatively, Injury to Plaintiffs'
Right To Be Educated In An Environment 
Free From Racial Discrimination Is 
Also Sufficient To Confer
Standing ............................... 31

II. The District Court Erred In Holding That
Plaintiffs Lack Standing Because The 
The Relief Granted In 1983 Violated The
Separation Of Powers Doctrine ..............  38
A. The Separation of Powers Doctrine

Does Not Bar This Action ..............  40
B. Plaintiffs' Consistent Claim And

The Remedial Orders Throughout This 
Action Have Been Based On An 
Undisputed Factual Record Establishing
Defendants' Continuing Violation
of Title VI ............................  43

C. The Law Of This Case Approves
Plaintiffs' Causes Of Action And The 
Relief Granted In The 1983
Orders .................................  46

Conclusion ............................................  49

viii



TABLE OF AUTHORITIES
Page

Cases:
Adams v. Bell, Civ. No. 3095-70 (D.D.C. March 24,

1983)   9/30
Adams v. Bell, Civ. No. 3095-70 (D.D.C. March

11, 1983) (Timeframes)............................ 14,18,30,44
Adams v. Bell, Civ. No. 3095-70 (D.D.C. March

11, 1983)(Denying Motion to Vacate) ..............  13,44
*Adams v. Bell, 711 F.2d 161 (D.C. Cir. 1983)

(en banc) ........................................  17,26,47
Adams v. Bennett, 675 F. Supp. 668 (D.D.C. 1987) ....  Passim
Adams v. Califano, 430 F. Supp. 118 (D.D.C. 1977) .... 9,10,44
Adams v. Califano, Civ. No. 3095-70 (December

29, 1977)   12,44
Adams v. Matthews, Civ. No. 3095-70 (D.D.C.

June 14, 1976)   12
Adams v. Richardson, 351 F. Supp. 636 (D.D.C.

1972) ......................................... 2,6,7,30,41,43
Adams v. Richardson, 356 F. Supp. 92 (D.D.C.

1973) ............................................  6,11
*Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.

1973) fen banc) .........  6,7,17,18,19,21,26,35,41,42,45,46
Adams v. Weinberger, 391 F. Supp. 269 (D.D.C.

1975)   11,44
Allen v. Wright, 468 U.S. 737

(1984) ....................  14,15,17,18,21,23,28,29,31,40,42
Animal Welfare Institute v. Kreps, 561 F.2d 1002 

(D.C. Cir. 1977), cert, denied. 434 U.S. 1013
(1978)   35

Association of Data Processing Organizations, Inc.
v. Camp, 397 U.S. 150 (1970)   29

*Autolog v. Regan, 731 F.2d 25 (D.C. Cir. 1984)   35

IX



Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985) ......  48
Brown v. Board of Education, 347 U.S. 483 (1954) ....  27
Brown v. Califano, 627 F.2d 1221 (D.C. Cir.

1980) ............................................  28,35
Brown v. Califano, Civ. No. 75-1068 (D.D.C.

January 10, 1978) ................................  4
Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C.

1976)   4,5,6,44
Bryant v. Yellen, 477 U.S. 352 (1980) ...............  33
Buckley v. Valeo, 424 U.S. 1 (1976) .................  40
♦Cannon v. University of Chicago, 441 U.S. 677

(1979) .......•......•......•.•••••••.....•.......17,24,25,26,28
♦Citizens for a Better Environment v. Gorsuch, 718 

F.2d 1117 (D.C. Cir. 1983), cert, denied.
467 U.S. 1219 (1984)    48

Community Nutrition Institute v. Block, 698 F.2d
1239 (D.C. Cir. 1983)   34

Cooper v. Aaron, 358 U.S. 1 (1958) ..................  27
Cort V. Ash, 422 U.S. 66 (1975) ...................... 28
Garrett v. City of Hamtramck, 503 F.2d 1236 (6th

Cir. 1974) .....................................  26
Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971),

later appeal Gautreaux v. Chicago Housing 
Authority, 503 F.2d 930 (7th Cir. 1974), 
aff'd sub nom. Hills v. Gautreaux, 425
U.S. 284 (1976) ..................................  26

Guardians Association v. Civil Service Commission
of New York City, 463 U.S. 582 (1983) ...........  28

Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982) ...........................................  24

♦Heckler v. Chaney, 470 U.S. 821 (1985) ..............  21,41

x



TABLE OF AUTHORITIES-CONTINUED
Page

International Ladies' Garment Workers' Union v.
Donovan, 722 F.2d 795 (D.C. Cir. 1983), cert
denied. 469 U.S. 820 (1984) ...................... 34,35

International Union, United Automobile, Aerospace 
and Agricultural Implement Workers of 
America, UAW v. Donovan, 756 F.2d 162 (D.C.
Cir. 1985) .......................................  48

*Japan Whaling Association v. American Cetacean
Society, 478 U.S. 221 (1986) ..................... 33

Legal Aid Society of Alameda County v. Brennan,
608 F.2d 1319 (9th Cir. 1979), cert, denied.
447 U.S. 921 (1980) .............................. 34

Linda R.S. v. Richard D., 410 U.S. 614 (1973) .......  24
Little Earth of United Tribes v. Department of

Housing, 584 F. Supp. 1292 (D. Minn. 1983) ......  26
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ....  40
Meese v. Keene, ___ U.S. ___, 107 S. Ct. 1862,

95 L. Ed. 2d 415 (1988) .......................... 19,33
Montgomery Improvement Association v. United 

States Department of Housing and Urban
Development, 645 F.2d 291 (5th Cir. 1981) .......  26

Morrison v. Olson, ___ U.S. ___, 101 L. Ed. 2d 569
(1988)   40

NAACP v. Medical Center, Inc., 599 F.2d 1247
(3d Cir. 1979) ..................................  27

NAACP v. Secretary of Housing and Urban Development,
817 F. 2d 149 (1st Cir. 1987) ..................... 26

Nader v. Federal Communication Commission, 520 F.2d
182 (D.C. Cir. 1975)    48

♦National Black Police Association v. Velde,
631 F.2d 784 (D.C. Cir. 1980), vacated on 
other grounds. 458 U.S. 591 (1982), 
on remand. 712 F.2d 569 (D.C. Cir. 1983)
cert, denied. 466 U.S. 963 (1984) ...............  17,26,35

- xi -



TABLE OF AUTHORITIES-CONTINUED
Page

National Railroad Passenger Corp. v. National 
Association of Railroad Passengers, 414
U.S. 646 (1974)   28

♦National Wildlife Federation v. Hodel, 839 F.2d
694 (D.C. Cir. 1988) ............................. 19,33,34,35

Nixon v. Administrator of General Services, 433
U.S. 425 (1977)   40

Pennell v. San Jose, ___ U.S. ___, 99 L. Ed. 2d 2
(1988)     36

Securities Investor Protection Corp. v. Barbour, 421
U.S. 412 (1975)   28

Shannon v. United States Department of Housing and
Urban Development, 436 F.2d 809 (3rd Cir. 1970) .. 26

Sierra Club v. Morton, 405 U.S. 727 (1972) ..........  24
Simkins v. Moses H. Cone Memorial Hospital, 323 

F.2d 959 (4th Cir. 1963), cert, denied, 376
U.S. 938 (1964)   27

Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26 (1976)   23

Southern Christian Leadership Conference, Inc. v.
Connolly, 331 F. Supp. 940 (E.D. Mich. 1971) ....  26

Telecommunications Research and Action Center v.
Federal Communications Commission, 750
F. 2d 70 (D.C. Cir. 1984) ........................ 48

Trafficante v. Metropolitan Life Insurance
Company, 409 U.S. 205 (1972)   24

United States v. Nixon, 418 U.S. 683 (1974) .........  40
♦United States v. Swift & Company, 286 U.S. 106

(1932)...........................................  49,50
Valley Forge Christian College v. Americans

United for Separation of Church and State,
Inc., 454 U.S. 464 (1982)   21

♦Warth v. Seldiri, 422 U.S. 490 (1975) ................  17,22,24
xii



TABLE OF AUTHORITIES-CONTINUED
Page

Watt v. Energy Action Educational Foundation,
454 U.S. 151 (1981) .............................. 33

Weinberger v. Catholic Action of Hawaii/Peach
Education Project, 454 U.S. 139 (1981) ..........  48

Women's Equity Action League (WEAL) v. Bell, 743
F. 2d 42 (D.D.C. 1984) ............................14,20,32,39

Women's Equity Action League v. Califano, Civ.
No. 74-1720 (D.D.C. December 29, 1977) ..........  12

Wright V. Miller, 480 F. Supp. 790 (D.D.C. 1979) 
rev'd sub nom. Wright v. Regan, 656 F.2d 
820 (D.C. Cir. 1981), rev'd sub nom
Allen v. Wright, 468 U.S. 737 (1984) ...........  23

Young v. Pierce, 544 F. Supp. 1010 (E.D. Tex.
1982)   26

Statutes and Court Rules:
♦Administrative Procedure Act, 5 U.S.C.

§§ 701-706 .......................................  2,41
5 U.S.C. § 706(1) ....................................  41
♦Title VI of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000d et seq...................................  passim
42 U.S.C. § 2000d-l ..................................  41
Civil Rights Restoration Act of 1987, 42 U.S.C.

§ 2000d-4a .......................................  28
Title IX of the Education Amendments of 1972,

20 U.S.C. §§ 1681, et seg ........................ 4,12,26
Executive Order No. 11246, 3 C.F.R. 339 (1965) ......  4,12
Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794 .....................................  4,12
28 U.S.C. § 1291 .....................................  2
28 U.S.C. § 1331 .....................................  2

- xiii -



TABLE OF AUTHORITIES-CONTINUED
Page

28 U.S.C. § 1343 (4) ..................................  2
28 U.S.C. § 1361 .....................................  2
28 U.S.C. § 2201 .....................................  2
28 U.S.C. § 2202 .....................................  2
Morrill Act of 1862, Ch. 130, § 4, 12 Stat. 503

(1862)   20,36
Morrill Act of 1890, Ch. 814, § 1, 26 Stat.

417 (1890)   20,36
Hatch Act Of 1877, Ch. 314, 24 Stat. 440 (1877) .....  20,37
Smith-Lever Act of 1914, Ch. 79, 38 Stat. 372

(1914)   20,37

Rules and Regulations:
Fed. R. Civ. P. 15(c)   22
Fed. R. Civ. P. 15(d)   22
D.C. Circuit Rule 11(a)(1)   iii
Revised Criteria Specifying the Ingredients of 

Acceptable Plans to Desegregate State 
Systems of Public Higher Education, 43 Fed.
Reg. 6658 (Feb. 15, 1978)   8,16

Legislative Materials
51 Cong. Rec. 2519 (1914)   37
51 Cong. Rec. 2652 (1914)   37
51 Cong. Rec. 2945 (1914)   37
51 Cong. Rec. 2946 (1914)   37
51 Cong. Rec. 2922-34 (1914)   37
51 Cong. Rec. 7417-27 (1914)   37

- xiv -



TABLE OF AUTHORITIES-CONTINUED
Page

110 Cong. Rec. 1519 (1964)   26
110 Cong. Rec. 2467 (1964)   27,37
110 Cong. Rec. 2481 (1964) ........................... ' 19,33
110 Cong. Rec. 5255 (1964)   25
110 Cong. Rec. 5256 (1964)   26
110 Cong. Rec. 6544 (1964)   28
110 Cong. Rec. 6545 (1964)   34
110 Cong. Rec. 7055 (1964)   19,27,34
110 Cong. Rec. 7056 (1964)   19,34
110 Cong. Rec. 7057 (1964)   19,34,37
110 Cong. Rec. 7060 (1964)   19,34
Failure and Fraud In Civil Rights Enforcement By 

the Department of Education, House Committee 
on Government Operations, H. Rep. No. 334,
100th Cong., 1st Sess. (1987)   9,15,46

H.R. Rep. No. 914, 88th Cong., 2d Sess. (1964), 
reprinted in 1964 U.S. Code Cong. & Admin.
News 2391 ........................................  26

S. Rep. No. 64, 100th Cong., 2d Sess. (1988), 
reprinted in 1988 U.S. Code Cong. & Admin.
News 3 ...........................................  28

President Kennedy's Special Message to Congress,
June 19, 1963, transmitting Title VI, 
reprinted in 1963 U.S. Code Cong. & Admin.
News 1526 ........................................  27

- xv



TABLE OF AUTHORITIES-CONTINUED
Page

Other Authorities:
Avins, Black Studies, White Segregation, and

Reflected Light on College Segregation and the 
Fourteenth Amendment from Early Land Grant 
College Policies, 10 Washburn L.J. 181
(1971)    37

Bureau of Census, U.S. Department of Commerce, Federal 
Expenditures by State for Fiscal Year 1987
(1988)   38

Bureau of Census, U.S. Department of Commerce, Federal 
Expenditures by State for Fiscal Year 1986
(1987)   38

Kujovich, Equal Opportunity in Higher Education 
and the Black Public College: The Era of
Separate But Equal, 72 Minn. L. Rev. 29 • - ■ ■ —
(1987)   37

W. E. Trueheart, The Consequences of Federal and State 
Resource Allocation and Development Policies for 
Traditionally Black Land-Grant Institutions:
1862-1954 (University Microfilms International,
Ann Arbor, Michigan 1979)   37

Payne, Forgotten ... but not gone: The Negro 
Land-Grant Colleges, Civil Rights Digest 12
(Spring 1970)   37

6 C. Wright & A. Miller, Federal Practice &
Procedure § 1474 (1971)   22

9 C. Wright & A. Miller, Federal Practice &
Procedure § 2410 (1971)   36

Saperstein, Nonreviewability, 82 Harv. L. Rev.
367 (1968)   41

♦Authorities primarily relied upon.

- xv i -



UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

KENNETH ADAMS, et al., )
)Plaintiffs-Appellants, )
) No. 88-5068

V. )
)LAURO F. CAVAZOS, Secretary of Education, )

et al., )
)Defendants-Appellees. )

_______________________________________________________ )
)WOMEN'S EQUITY ACTION LEAGUE, et al., )
)Plaintiffs-Appellants, )
) No. 88-5065

V. )
)LAURO F. CAVAZOS, Secretary of Education, )

et al., )
)Defendants-Appellees. )
)

_______________________________________________________ )

BRIEF FOR PLAINTIFFS-APPELLANTS KENNETH ADAMS, ET AL., 
AND PLAINTIFF—INTERVENORS-APPFT.T.ANTS JIMMY MARTINEZ. ET AL.

QUESTIONS PRESENTED
1. Whether the district court erred in dismissing this 

action for lack of standing where it recognized that plaintiffs 
were suffering discrimination in the federally funded schools and 
colleges they attend, but disregarded plaintiffs' claim under 
Title VI to be free from federally subsidized discrimination.

2. Whether the district court erred in concluding that 
plaintiffs lack standing to continue this action on the grounds 
(a) that the discrimination in plaintiffs' educational programs 
could not fairly be traced to defendants' failure enforce Title 
VI, and (b) that it was purely "speculative" whether the discrimina­



tion was likely to be redressed by a credible threat of fund 
termination or actual fund termination.

3. Whether the district court erred in concluding, in 
addition, that plaintiffs lack standing on the ground that certain 
relief granted in 1983 violates the separation of powers doctrine.

STATUTES AND REGULATIONS
The relevant statutes are reproduced in the Addendum to this 

brief: Title VI of Civil Rights Act of 1964, 42 U.S.C. §§ 2000d
et sea.; Administrative Procedure Act, 5 U.S.C. §§ 701-706.

JURISDICTION
The basis of subject matter jurisdiction in this Court is 28 

U.S.C. § 1291. On December 11, 1987, the district court issued a 
final opinion and order. Adams v. Bennett. 675 F. Supp. 668 (D.D.C. 
1987). The bases of jurisdiction in the district court were 5 
U.S.C. §§ 702-704 and 28 U.S.C. §§ 1331, 1343(4), 1361, 2201 and
2202. Adams v. Richardson. 351 F. Supp. 636, 640 (1972). Timely 
notice of appeal was filed on February 9, 1988.

STATEMENT OF THE CASE 
Introduction

Over eighteen years ago, black students attending racially 
discriminatory, federally funded schools initiated this action 
challenging the Department of Health, Education and Welfare ("HEW")1 
for its persistent and substantial failure to comply with Title 
VI of the Civil Rights Act of 1964, which declares for individuals

1 The Department of Education subsequently was substituted 
for HEW as a defendant.

2



an absolute right to be free from discrimination in programs that 
receive federal funds. During the course of the litigation the 
district court and this Court found that defendants had defaulted 
on their statutory duty under Title VI and approved relief, which 
defendants in significant measure designed themselves, to correct 
the default. Defendants, however, failed in substantial respects 
to comply with the court-approved remedy and. as a result the 
systemic default has never been corrected. Thus plaintiffs' injury 
remains unabated.

In 1987, on remand from this Court for reconsideration of 
plaintiffs' standing in light of a recent Supreme Court decision, 
the district court dismissed the entire action. The court concluded 
that plaintiffs lacked standing because the racial discrimination 
could not fairly be traced to federal officials who admittedly 
continue federal funding with full knowledge of the discrimination, 
and that no relief —  not even fund termination or the credible 
threat of it required by Title VI —  could redress the denial of 
the Title VI right. In an opinion with potentially broad and 
disturbing ramifications, the district court, in essence, rewarded

o

defendants' recalcitrance by ruling that Title VI is ineffective 
in eliminating the federal complicity in racial discrimination, 
and therefore is unenforceable against the federal agencies that 
subsidize the discrimination. Dismissal of this case flies in 
the face of uniform findings and rulings over more than a decade 
and must be reversed on appeal.

3



Factual History
The complaint in this action charged2 that defendants were 

violating Title VI,3 the Fifth Amendment, and the Fourteenth 
Amendment "through continued assistance to public schools and 
colleges" in seventeen southern and border states that were engaging 
in racial segregation and discrimination in education. Amended 
Complaint, November 17, 1970, 5 8; see. e.g.. 2,3,7.4 Individual
class representatives include students who attend historically

2 Plaintif f-Intervenors-Appellants Jimmy Martinez, Ben 
Salazar, Pablo Ortega, and Arturo Gomez, Jr. join in this brief. 
Their standing, which is based upon defendants' failure to enforce 
Title Vi's prohibition of national origin discrimination in federal­
ly funded programs (Complaint filed Jan. 22, 1976), is factually 
and legally indistinct from the original plaintiffs' standing 
based on Title VI rights relating to racial discrimination. The 
remaining intervenors in Adams and plaintiffs in WEAL v. Cavazos 
are filing separate briefs.

3 Title VI, in addition to creating an individual right to 
be free from federally funded discrimination, restricts federal 
agencies from advancing federal funds to any program that dis­
criminates on the basis of race or national origin and requires 
them, where discrimination is found, to seek voluntary compliance, 
and then, if unsuccessful, to terminate federal funds. 42 U.S.C. 
§§ 2000d et sea.

4 A separate class action, Brown v. Weinberger. 417 F. Supp. 
1215 (D.D.C. 1976), arose from a similar complaint filed with 
respect to 33 northern and western states. Pursuant to a settlement 
agreement in 1977, that case was largely consolidated with Adams. 
Order of Dec. 29, 1977 in Adams; Brown v. Califano. Civ. No. 75- 
1068 (D.D.C. Jan. 10, 1978). The Women's Equity Action League 
("WEAL") also brought a similar action against HEW and the Depart­
ment of Labor for failure to comply with Title IX of the Education 
Amendments of 1972, 20 U.S.C. §§ 1681, et seg.. and Executive 
Order 11246. That action was reassigned to District Judge Pratt 
in March 1977 and treated in a parallel fashion with Adams. In 
1976 and 1977, female, Hispanic (alleging a violation of Title 
VI) , and handicapped (alleging a violation of Section 504 of the 
Rehabilitation Act of 1973, 29 U.S.C. § 794) individuals and 
organizations intervened in Adams. The "common thread underlying 
each . . . complaint . . . [is] the alleged improper grant of 
federal funds in violation of various statutes and regulations." 
Adams v . Bennett. 675 F. Supp. at 671 n.l.

4



black public colleges that have yet to receive equal treatment, 
black students who continue to suffer discrimination at historically 
white public colleges, and other black students who attend elemen­
tary and secondary schools that practice racial discrimination 
but continue to receive federal funding.5

Plaintiffs alleged that defendants were systemically defaulting 
on their statutory duty under Title VI by failing to initiate 
investigations, by delaying investigations in progress, and by 
failing to initiate fund termination proceedings against schools 
found to be practicing discrimination, including those schools 
and school systems that had reneged on their commitments under 
negotiated desegregation plans.6

Defendants responded by asserting that they had "discretion” 
to determine the method of securing compliance, including the 
discretion to continue to rely primarily upon voluntary means of 
compliance —  however unsuccessful —  to fulfill their respon-

5 For a description of the plaintiffs see Amended Complaint, 
55 2,3,4; Motion to Add Parties, Appendix A, Nov. 12, 1982 and 
Order approving Nov. 16, 1982; Motion for Certification of Class 
and to Add Plaintiffs, Appendix A, Mar. 19, 1984 and Order of May 
9, 1984, granting class certification and defining the class as 
follows:

Black students who now or in the future attend public 
schools or colleges in the 17 Southern and Border states, 
which schools or colleges segregate or discriminate on 
the basis of race but continue to receive federal finan­
cial assistance in violation of Title VI of the Civil 
Rights Action of 1964, and the Fourteenth Amendment of 
the United States Constitution.

A similarly defined class was certified in Brown v. Weinberger. 
417 F. Supp. at 1218; Verified Second Amended Complaint in Brown. 
H 4.

6 E.q.. Amended Complaint, 55 8-11, 18-19, 23, 33, 35-39,
43; Brown v. Weinberger. 417 F. Supp. at 1217-18.

5



sibilities under Title VI. Adams v. Richardson. 351 F. Supp. 
636, 640 (D.D.C. 1972). Describing in some detail HEW's broad- 
scale failure to comply with Title Vi's mandatory requirements,7 
the district court held that defendants did not have further 
discretion, but were under an affirmative duty to commence enforce­
ment proceedings when efforts toward voluntary compliance failed. 
Id. at 641.8 The district court directed HEW's Office for Civil 
Rights ("OCR") to commence enforcement proceedings within specific 
time limits in pending cases and to report to the court on any 
failures to meet judicially specified timeframes in processing 
future cases. Adams v. Richardson. 356 F. Supp. 92 (D.D.C. 1973).

In 1973, this Court, sitting en banc, unanimously affirmed. 
Adams v. Richardson. 480 F.2d 1159 (D.C. Cir. 1973) . The Court 
held that "affirmatively continuing] to channel federal funds to 
defaulting schools" is unlawful. It mandated that if the agency 
could not obtain voluntary compliance "within a reasonable time," 
it must enforce Title VI by starting fund termination proceedings 
(or by referring the case to the Department of Justice) , and stated

7 In addition to the detailed findings of noncompliance, 
the district court considered HEW's prior record of enforcement 
from 1964 to 1970, which, in contrast to the later inaction, 
reflected 600 administrative hearings initiated against noncomplying 
school districts and 44 school districts subject to fund termination 
in 1968-69. The court noted that from March 1970 to February 
1971, no enforcement proceedings had been initiated, and that 
after February 1971 only a "token" number had been initiated. 
Adams v. Richardson. 351 F. Supp. at 640.

8 The district court in Brown v. Weinberger also made detailed 
findings of HEW's record of noncompliance and in reliance on those 
findings concluded that HEW had failed to fulfill its statutory 
duties under Title VI. 417 F. Supp. at 1219.

6



that "consistent failure to do so is a dereliction of duty review- 
able in the courts." Id. at 1162-63.

Efforts to Desegregate Higher Education Institutions 
In 1969 and 1970 HEW found that ten states were operating 

segregated systems of higher education in violation of Title VI. 
Despite the agency's own findings, however, it took no effective 
action to require desegregation or to stop federal funding until 
required to do so by court orders in this case.9

Following the 1973 Orders of this Court and the district 
court, OCR in 1974 obtained desegregation plans from eight states.10 
By the following year, however, the agency found widespread default 
in state performance of plan commitments, and reiterated the finding 
that the states were not in compliance with Title VI, but nonethe­
less took no enforcement action. Ex. I-P to the Affidavit of 
Peter Holmes, Sept. 8, 1975. Plaintiffs again moved for further 
relief,11 and after reviewing substantial documentary evidence

9 Between January 1969 and February 1970, HEW requested 
ten states to submit desegregation plans within 120 days. The 
district court found in its Amended Order of February 1973 that 
five of the states had totally ignored HEW's requests and that, 
the other five had submitted plans that HEW considered unacceptable. 
Moreover, despite the fact that from 18 to 36 months had passed 
since the submissions by the states, HEW had not commenced ad­
ministrative enforcement actions against any of the states nor 
had any of the matters been referred to the Justice Department. 
HEW had even failed to comment to the states on their inadequate 
submissions. Nonetheless, HEW continued to advance "substantial 
amounts" of federal funds for the benefit of institutions of higher 
education in these states. Adams v. Richardson. 351 F. Supp. at 
637-38.

10 Adams v. Califano. 430 F. Supp. at 119-20. Two state 
systems of higher education systems were referred to the Justice 
Department for enforcement.

11 Plaintiffs' Motion for Further Relief, Aug. 12, 1975.

7



and holding oral argument, the district court concluded that
defendants had failed to enforce Title VI, and ruled that the
1974 plans were inadequate under defendants' own reguirements.
Adams v. Califano. 430 F. Supp. 118 (D.D.C. 1977).12 Under the
court's Order, OCR first developed and adopted criteria to guide
formulation of new higher education desegregation plans,13 and
then in 1978 obtained significantly .improved five-year plans.

Before the plans expired in 1982-83, OCR concluded that the
states were in default and "virtually certain" not to achieve
desegregation.14 Nonetheless, defendants still refused to initiate
enforcement proceedings. Plaintiffs again sought relief,15 and
on March 24, 1983, the district court found that

[e]ach of these states has defaulted in major respects 
on its plan commitments and on the desegregation require­
ments of the Criteria and Title VI. Each state has not 
achieved the principal objectives in its plan because 
of the state's failure to implement concrete and specific 
measures to ensure that the promised desegregation goals

12 Noting that it had waited months in vain for OCR to act, 
the district court concluded that "it is time that HEW has to be 
reminded . . . .  I think they act a little better when they have 
a[n] . . . order staring them in the face." Hearing, Jan. 17, 
1977, Tr. at 44. Even the Government's counsel agreed with the 
court that "in the past a court order was necessary . . .  to get 
the Office of Civil Rights to do anything." Id. at 47.

13 Revised Criteria Specifying the Ingredients of Acceptable 
Plans to Desegregate State Systems of Public Higher Education, 43 
Fed. Reg. 6658 (Feb. 15, 1978).

14 See Reply of Plaintiffs In Support of Renewed Motion for 
Further Relief Concerning State Systems of Higher Education, Feb. 
23, 1983, (verified) at 5.

15 Plaintiffs' Renewed Motion for Further Relief Concerning 
State Systems of Higher Education, Dec. 14, 1982.

8



would be achieved by the end of the five year desegrega­
tion period.16

The court directed OCR to require the states to submit new measures 
sufficient to achieve full desegregation or commence proceedings 
to terminate federal funding.17

During the implementation of desegregation plans prompted by 
the district court's orders, there was some —  albeit little—  
progress.18 For example, traditionally black institutions (TBIs) 
were strengthened with construction, renovation, and upgraded 
programs, though not nearly to the point of comparability with 
their white counterparts.19 Black enrollment in and graduation

16 Adams v. Bell. Civ. No. 3095-70, at 2 (D.D.C. Mar. 24,
1983) (cited hereinafter as "Order of March 24, 1983 (Higher
Education)").

17 Id_j_ at 3.
18 Since the submission of evidence and the hearing in 1983,

upon which the 1983 orders were based, there has been no opportunity 
to present evidence regarding performance under the plans and the 
district court's order. Significant events have occurred since 
that time and since dismissal of this case (including events 
reflected in public documents released by the Department of Educa­
tion, such as letters to state governors), as indicated in plain­
tiffs' motions for a stay pending appeal. These events are relevant 
and informative to this Court, particularly with respect to the 
district court's judicially noticed "explanations," 678 F. Supp. 
at 680, for OCR's ineffectiveness, and are referenced in several 
succeeding paragraphs. See also generally Failure and Fraud In 
Civil Rights Enforcement By the Department of Education. House 
Committee on Government Operations, H. Rep. No. 334, 100th Cong., 
1st Sess. (1987). The report is cited by the district court, 675 
F. Supp. at 675 n.16, 678 n.18. Plaintiffs-appellants would be
happy to tender copies of particular underlying documents to the 
Clerk of the Court if requested by the Court or any member of the 
Court.

19 Attachment A to Plaintiffs' Motion for Stay of Order of 
Dismissal, Feb. 8, 1988. For example, at Virginia State University 
("VSU"), attended by several of the plaintiffs, despite renovations 
that are being performed, only 60 percent of the education and 
general space will be classified as satisfactory at its completion,

(continued...)
9



from professional schools improved modestly, as did the proportion 
of black faculty members in the traditionally white institutions 
(TWIs).20 Most important, where states or institutions mounted 
strong efforts in particular areas, they succeeded in increasing 
black participation and in meeting their goals in those areas.21

However, when the plans expired in 1985 and 1986, the states 
had defaulted on many of their desegregation plan commitments to 
equalization and desegregation.22 Measures not implemented included 
promises to enhance and equalize traditionally black schools.23 
In addition, in most cases the states had not met their own enroll­
ment and hiring goals for blacks.24 Indeed, many defaults in

19(...continued)
compared to 80 percent to 95 percent at comparable white schools; 
VSU has not had a new academic building constructed in fifteen 
years. Faculty salaries were raised but are still lower than 
those in comparable white schools, and fewer faculty members hold 
doctorates. Id. at 4.

20 A substantial financial aid program and individualized 
recruitment of minority undergraduates with high grade point 
averages in Georgia brought blacks into graduate studies at a 
rate equal to or higher than that of whites. Id. at 15.

21 For example, Norfolk State University in Virginia, a 
TBI, has good facilities, a number of attractive enhancement 
programs, and small but increasing white enrollment. Old Dominion 
University, a TWI in the same city, with a black student recruitment 
program described by OCR as "very ambitious," has exceeded its 
recruitment goals. Id. at 4, 15.

22 States disregarded promised measures to narrow the gap 
between black and white college-going rates and retention rates. 
Id. at 13-15. Florida, for example, planned only three modest 
statewide programs for black students1 recruitment and did not 
fully implement even these. Id.

23 Id. at 3-6.
24 College remediation and retention programs for black 

students are usually available only to a small number, in Georgia, 
for example, OCR found that for nine of ten colleges with the

(continued...)
10



both measures and goals were simply due to the states' failure to 
spend money on the equalization of TBI's, financial aid for minority 
students, and retention and recruitment programs.25

The Mandated Timeframes To Counter Endless Delays 
In Processing Complaints and Conducting Compliance Reviews
A cyclical pattern of OCR inaction and court orders followed 

by OCR action has characterized OCR's general processing of com­
plaints and compliance reviews. The district court's initial 
1973 order mandated time limits for enforcement proceedings and 
required reports to the Court. Adams v. Richardson. 356 F. Supp. 
92. In 1975, the court granted supplemental relief, including 
timeframes for future Title VI enforcement activities, finding, 
inter alia, progress in response to the specific actions directed 
by the 1973 order, but continued "over-reliance" on negotiations 
"over protracted time periods." Adams v. Weinberger. 391 F. Supp. 
269, 271 (D.D.C. 1975). The court also found that

having failed during a substantial period of time to 
achieve voluntary compliance [for some 39 school dis­
tricts], [HEW] has not commenced enforcement proceedings 
by administrative notice of hearing or any other means

24(...continued) -
highest black attrition rates, the 1983-84 budget for remedial 
skills and counselling programs declined from the previous year's 
funding. Only six institutions offer a summer enrichment program 
that has produced better test scores and positive ratings from 
participants. Florida provides an average of only $5000 per 
institution for its program to help prepare disadvantaged students 
for college. Id. at 17-18.

25 At the University of Florida, for example, state grants 
for minority and economically disadvantaged pupils average only 
$366 per pupil, while in-state tuition, room, and board combined 
average $3,430 a year. Id. at 16. Arkansas' fund for need-based 
scholarships gives a maximum of $500 per student, although in­
state tuition-, room, and board combined average $2,694 a year. 
Black students receive these need-based scholarships in proportion 
to their number among high school seniors, no more. Id. at 16-17.

11



authorized by law. Apart from the school districts 
expressly covered by this Court's February 16, 1973 
order, HEW has not initiated a single administrative 
enforcement proceeding against a southern school district 
since the issuance of this Court's Order 25 months ago.

Id. at 273. The government did not appeal this order. A year 
later in 1976, pursuant to a consent agreement entered by the 
Ford Administration, the district court extended the timeframes 
order with modifications to reflect experience in implementing 
it. That order was designed to cover defendants' compliance with 
Title VI, Title IX, Executive Order 11246, and Section 504 of the 
Rehabilitation Act of 1973.26

In 1977, plaintiffs filed a Motion for Further Relief alleging 
that defendants still had not corrected thoir chronic delay in 
complying with Title VI.27 Upon completion of an evidentiary 
hearing, the parties engaged in substantial and protracted negotia­
tions, which resulted in entry of a Consent Decree on December 
29, 1977 that modified the 1976 decree.28

Following this series of Orders, large backlogs of unresolved 
complaints were significantly reduced. For example, just before 
the 1977 Order, OCR had a backlog of over 3100 cases. Thereafter, 
it was reduced to about 360.29 By 1980 and 1981, however, OCR

26 Adams v. Mathews. Civ. No. 3095-70 (D.D.C. June 14, 1976); 
Hearing, June 14, 1976, Tr. at 21.

27 Plaintiffs' Motion for Further Relief, Jan. 17, 1977.
28 See joint Order in Adams v. Califano. Civ. No. 3095-70 

and Women's Equity Action League v. Califano. Civ. No. 74-1720 
(Dec. 29, 1977), indicating that it was also entered pursuant to 
the settlement of Brown v. Califano.

29 OCR Report to Court, Nov. 2, 1979, Exh. I, p. 1.

12



again regressed, incurring massive delays in all stages of complaint 
processing and compliance reviews, prompting plaintiffs to file a 
Motion for an Order to Show Cause directed to defendants requiring 
them to show why they should not be held in contempt of court.30

In response to plaintiffs' motions, on February 10, 1982,
the district court issued an Order directing defendants to show 
why they should not be held in contempt for failure to adhere to 
the requirements of the 1977 order.31 After taking evidence from 
both sides, the court concluded that the December 1977 Decree 
"has been violated in many important respects."32 The court also 
found that if the government were "left to its own devices, . . . 
the substance of compliance will eventually go out the window."33 
In August of that same year, after negotiations proved fruitless, 
defendants moved to vacate the 1977 Consent Decree in its en­
tirety.34 The district court denied that motion on March 11, 1983, 
finding that defendants had not made the requisite showing of 
"grievous wrong evoked by new and unforseen conditions;" nor had 
defendants shown that the purposes of the litigation had been 
accomplished.35 That same day, in response to the arguments raised

30 Plaintiffs' Motion for an Order to Show Cause, Apr. 22, 
1981, pp. 2-4,and Plaintiffs' Reply In Support of Motion to Show 
Cause, Tabs A and B, June 23, 1981.

31 Order to Show Cause, Feb. 10, 1982.
32 Hearing, Mar. 15, 1982, Tr. at 3 (emphasis added).
33 Hearing, July 13, 1982, Tr. at 11-12.
34 Defendants' Motion To Vacate, Aug. 10, 1982.
35 Adams v. Bell. Civ. No. 3095-70, at 2 (D.D.C. Mar. 11,

1983)(cited hereinafter as "Order of March 11, 1983 (Denying Motion 
to Vacate)").

13



by the government, the district court issued an order reaffirming 
but "modify[ing] the terms of the 1977 Consent Order."36

After entry of the 1983 Timeframes Order, OCR delays again 
decreased.37 In sharp contrast to its practice in earlier years, 
OCR commenced, within about a year, administrative enforcement 
proceedings against 23 recalcitrant school districts and referred 
another 18 districts to the Department of Justice for civil suit. 
Recently, however, enforcement activity sharply declined once 
again; only nine districts were noticed for hearing in fiscal 
1986.38

Government Appeal. Remand. Dismissal
Defendants appealed the two orders entered on March 11, 1983, 

which refused to vacate the 1977 Consent Order and modified the 
timeframes. Defendants did not appeal the March 24, 1983 higher 
education Order. In 1984 this Court, without reaching the merits, 
remanded for consideration of plaintiffs' standing to continue 
the case in light of a recent Supreme Court decision in Allen v. 
Wright. 468 U.S. 737 (1984). Women's Equity Action League (WEAL) 
v. Bell. 743 F.2d 42 (1984).

On December 11, 1987, the district court dismissed the case 
in its entirety. Adams v. Bennett. 675 F. Supp. 668. The court 
found plaintiffs' injury in the denial of an education free from

36 Adams v. Bell. No. 3095-70, (D.D.C. Mar. 11, 1983) (cited
hereinafter as "Order of March 11, 1983 (Timeframes)").

37 See Singleton Deposition, Apr. 12, 1985, at 25-26.
38 Office for Civil Rights Sixth Annual Report Fiscal Year 

1986, p. 30. Assessment of recent violations of the timeframes 
is hindered by OCR's decision, after the district court's 1987 
dismissal, to cease its semi-annual reporting to plaintiffs.

14



discrimination could not fairly be traced to the federal defendants 
but was caused by the individual states and schools, and concluded 
that racial segregation and discrimination were not likely to be 
redressed by enforcement of Title VI because the effect of cutting 
off funds was "speculative.” Id. at 677-79. Additionally, the 
court ruled that plaintiffs lack standing because the March 1983 
orders violated the separation of powers doctrine. Id. at 679-80.

Unravelling of Desegregation
Since dismissal of the case, OCR has effectively abandoned 

Title VI enforcement in higher education, damaging the modest 
gains so far recorded. In an oversight hearing on OCR's compliance 
with Title VI, the House Committee on Government Operations con­
cluded:

The subcommittee reviewed the history of the expired 
desegregation plans —  including the original findings 
of violation of Title VI —  the OCR regional summaries 
of each expired plan, and the OCR staff site visits of 
every institution covered by the plans. Based on this 
review, the committee concludes that the original viola­
tions of law have not been corrected and the factors 
that OCR found to constitute illegal vestiges of segre­
gated systems of higher education remain.39

The committee also found OCR biased in favor of finding the states
free of Title VI violations:

[OCR's] factual summaries contained a bias toward finding 
the States free from Title VI violations, despite the 
fact that racial identifiability, the major factor which 
led to findings of discrimination in 1969, still exists 
in the 10 States. . . . Substantial evidence also exists 
that this bias will lead OCR to ignore Title VI violations 
. . .  by hinging its final decision on the implementation 
of measures, and ignoring statistical factors in evaluat­
ing the success of the desegregation plans. . . . The

39 Failure and Fraud In Civil Rights Enforcement By the 
Department of Education, supra note 18 at 8.

15



4

committee finds that OCR's policy is in flagrant disregard 
of congressional intent.4(3
Two months after dismissal of the case, despite its own 

acknowledgements of state defaults in implementing higher education 
desegregation measures and failures in meeting the established 
goals of their own plans, OCR released four states outright from 
further obligations under Title VI,41 asserting that they were in 
compliance with Title VI. OCR found six other states in "substan­
tial compliance" and promised that if certain minor measures were 
"implemented" by the end of 1988, they too would be regarded as 
having eliminated the vestiges of their dual systems.42 These 
actions signal OCR's effective abandonment of civil rights enforce­
ment in higher education.43 Thus, despite defendants' knowledge 
that fund recipients are discriminating, they continue each year 
to advance hundreds of millions of dollars in support of these 
discriminatory programs. The district court's ruling effectively

40 Id. at 31-32.
41 See Dept, of Education News Release, Feb. 10, 1988, Exh. 

A to plaintiffs' Motion for Stay Pending Appeal, filed in this 
Court June 1, 1988.

42 Id.
43 For years defendants maintained, in accordance with 

constitutional and Title VI law, that the states must disestablish 
their dual systems and eliminate the vestiges of segregation, and 
that the desegregation plans must contain measures that reasonably 
ensure that the goals will be met. See e.g.. Revised Criteria, 
43 Fed. Reg. 6658. Sadly, defendants now ignore the states' 
widespread default on the plan objectives. And, as to implementation 
of measures to achieve goals, where once partial performance was 
unacceptable, the Secretary has downgraded the standard to "substan­
tial" implementation of "significant" measures, permitting disregard 
of many measures on which the states have defaulted. Letters to 
State Governors from Assistant Secretary of Civil Rights, LeGree 
S. Daniels, February 9, 1988.

16



rendering Title VI unenforceable against defendants virtually 
guarantees continuation of this substantial and illegal federal 
subsidization of discrimination.

SUMMARY OF THE ARGUMENT
A. The district court erred in disregarding the injury to 

plaintiffs' rights as declared by Congress in Section 601 of Title 
VI, which is an independent and sufficient basis for plaintiffs' 
standing in this case. It is settled law that Congress can create 
legal rights by statute, the invasion of which is sufficient to 
establish standing under Article III.44 Here, Congress in Title 
VI has declared for individuals an absolute right to be free from 
federally subsidized discrimination in their educational programs,45 
and it is the law of this case and others that Title VI may be 
enforced by individuals against a federal agency.46

Allen v. Wright. 468 U.S. 737 (1984), upon which the district 
court relied in dismissing this action, is inapposite to plaintiffs' 
Title VI claims. The Court in Allen did not consider whether 
Section 601 of Title VI creates a basis for judicially cognizable 
injury. Moreover, plaintiffs suffer distinct and palpable injury 
to this Title VI right because, they, unlike the plaintiffs in 
Allen. attend the very schools that are alleged to practice racial 
discrimination, yet continue to receive federal funds.47 Causation

44 Warth v. Seldin. 422 U.S. 490, 500 (1975).
45 Cannon v. University of Chicago. 441 U.S. 677, 690-94,

715 n. 15 (1979).
46 Adams v. Bell. 711 F.2d 161 (D.C. Cir. 1983) (en banc);

Adams v. Richardson. 480 F.2d 1159 (D.C. Cir. 1973) (en banc) ;
National Black Police Ass'n v. Velde. 631 F.2d 784 (D.C. Cir. 1980).

47 675 F. Supp. at 675-76.
- 17 -



i J
 •
 

? 
» 

».
« 

« 
• 
1 

I 
, 

I 
»•

and redressability follow directly from this injury, for substantial 
federal funding of discriminatory programs continues,48 and defen­
dants have failed in substantial respects to comply with the courts' 
order which they agreed would correct their systemic default in 
complying with the statute.49 The injury is redressable by agency 
compliance with Title VI which would make credible the threat of 
fund termination, recognized as effective in the past,50 or by 
actual termination of funds.

B. Alternatively, plaintiffs have standing based upon injury 
to their right to be educated in an environment free from dis­
crimination, which the district court properly found.51 The court 
erred, however, in concluding, that because the educational institu­
tions and states themselves practice discrimination, the injury 
could not fairly be traced to any action or inaction of the federal 
defendants, and that it was "speculative" whether enforcing ad­
ministrative deadlines and initiating fund termination proceedings 
would remedy the injury. These conclusions do not sguare with 
governing law, the established record in this case, or prior court 
decisions.

First, contrary to the district court's assumption, both 
this Court and the Supreme Court recognize standing where the

48 Id̂ . at 678.
49 Order of March 11, 1983 (Timeframes).
50 Adams v. Richardson. 480 F.2d at 1162 n. 4.
51 675 F. Supp. at 675-76.

18



injury is inflicted by a third party in conjunction with or against 
the background of the challenged action.52

Second, the district court gave no weight to the fact that 
Congress itself drew the causal link between federal funding of 
discriminatory practices and their continuation, and concluded 
that Title Vi's measures would be effective in remedying the 
discrimination.53 It is the law of this Circuit that the court 
must give "great weight" to these congressional findings.54 The 
courts' conclusion about the "speculative" nature of the relief 
sought contradicts the record in this case of states and school 
districts taking steps to eliminate racial discrimination when 
actually threatened with fund termination, and this Court's findings 
that the threat of fund termination is effective.55

Additionally, the district court erroneously concluded, based 
upon judicial notice, that the federal defendants had nothing to 
do with causing and maintaining segregated and discriminatory 
systems of higher education. The history of the land-grant colleges 
and universities, which comprise a significant portion of the 
higher education component of this litigation, shows direct federal 
involvement in the establishment of the separate system and in

52 Meese v. Keene. ___ U.S. ___, 107 S. Ct. 1862 (1988);
National Wildlife Federationv. Hodel. 839 F.2d 694 (D.C. Cir. 1988) .

53 110 Cong. Rec. 2481, 7055-57, 7060 (1964).
54 Autolog v. Regan. 731 F.2d 25 (D.C. Cir. 1984).
55 Adams v. Richardson. 480 F.2d at 1163 n.4.

19



the unequal funding of black and white institutions.56 Further, 
federal funding plays a substantial ongoing role in subsidizing 
and maintaining these discriminatory systems. Thus the district 
court's theory that defendants have "clean hands" is not based on 
an accurate accounting of history.

In failing to credit the record in this case as well as the 
judicial and congressional findings on causation and redressability, 
and instead relying on "judicial notice," the district court 
committed clear error. The injury plaintiffs suffer to their 
right to be educated in an environment free from discrimination 
is fairly traceable to the federal defendants and redressable by 
requiring them to fulfill their statutory and constitutional 
obligations.

C. It was also error for the district court to hold alterna­
tively that plaintiffs lack standing on the ground that the relief 
granted in 1983 violates the separation of powers doctrine. The 
remand in 1984 directed the district court to consider the "thres­
hold" separation of powers concerns with respect to Article III 
standing. The Court cautioned that the "threshold" and "merits" 
separation of powers determinations were distinct, and directed 
the remand only to those threshold issues. WEAL v. Bell. 743 
F.2d at 44. The district court apparently missed the distinction 
made by this Court. Denying standing based on the merits of relief 
already granted was error.

56 Morrill Act of 1862, Morrill Act of 1890, Smith-Lever 
Act of 1914, Hatch Act of 1877 all cited infra notes 90-93.

20



Moreover, the separation of powers discussion in Allen v. 
Wright did not bar judicial review of agency actions. The Court 
has, since Allen, approved such review where Congress has limited 
agency discretion.57 This Court in its 1973 en banc decision 
ruled that Congress had in Title VI limited the agency's discretion 
and that a challenge to the failure to comply with statutory duties 
under Title VI was properly reviewable.58 Plaintiffs' claims 
and the relief granted in this case have been based consistently 
on the undisputed factual record of defendants' continuing violation 
of Title VI by incessant delay tantamount to non-compliance with 
Title VI. Those claims and the relief consented to by defendants 
are not now properly subject to challenge on separation of powers 
grounds. ARGUMENT
I. THE DISTRICT COURT ERRED IN CONCLUDING THAT

PLAINTIFFS LACK STANDING TO PURSUE THEIR CLAIMS.
A. Legal Requirements for Standing.
Article III of the Constitution requires that in order to 

pursue a claim in federal court a party must have standing to 
sue. Standing exists where a person demonstrates (1) that he or 
she personally has suffered some actual or threatened injury, 
(2) that the injury is "fairly traceable" to the defendants' alleged 
illegal conduct, and (3) that the injury is "likely" to be redressed 
by appropriate relief from the court. Allen v. Wright. 468 U.S. 
737, 751 (1984); Valiev Forge Christian College v. Americans United 
for Separation of Church and State. Inc.. 454 U.S. 464, 472 (1982).

57 Heckler v. Chanev. 470 U.S. 821, 839 (1985).
58 Adams v. Richardson. 480 F.2d at 1163.

21



In resolving a motion to dismiss for lack of standing, the court 
must accept as true all material allegations of the Complaint and 
must construe them in favor of the complaining party. Warth v. 
Seldin. 422 U.S. 490, 501 (1975).59

B. The District Court Erred In Ignoring Plaintiffs' 
Statutorily Enforceable Right Under Title VI 
To Attend Schools Free of Federally Subsidized 
Discrimination.

The district court relied primarily on Allen v. Wright. 468 
U.S. 737 (1984), in concluding that plaintiffs lack standing to
pursue this litigation. In doing so, however, the court disregarded 
plaintiffs' claim that they have a statutorily enforceable right 
to attend schools free of federally subsidized discrimination 
declared in Section 601 of Title VI of the 1964 Civil Rights Act,60 
as to which Allen v. Wright is inapposite.

In Allen, parents of black children attending public schools 
undergoing desegregation alleged that they were injured by the 
failure of the IRS to institute standards and procedures sufficient 
to assure denial of tax exemption to racially discriminatory private 
schools. The plaintiffs argued that the tax-exempt status reduced 
the cost for white pupils to leave desegregating public systems

59 Plaintiffs' Motions for Further Relief are relevant 
pleadings for the purpose of determining standing. A motion for 
further relief relates back to the original pleadings. See Fed. 
R. Civ. P. 15(c) and (d) ; 6 C. Wright & A. Miller, Federal Practice 
& Procedure § 1474 at 383-85 (1971).

60 The district court considered only that plaintiffs here, 
like those in Allen, are suffering injury in their right to be 
educated in an environment free from racial discrimination. As 
to that injury, the court concluded that like the plaintiffs in 
Allen, the Adams plaintiffs cannot establish the requisite causation 
and redressability. As plaintiffs show in Section I.C., infra. 
significant distinctions between Adams and Allen require reversal 
of the court on these conclusions.

22



in order to attend private, all-white schools. 468 U.S. at 739. 
In contrast to the explicit Title VI limitations at issue here, 
the only restraints on the government conduct litigated in Allen 
were the general tax exemption eligibility standards of the Internal 
Revenue Code, id. at 740, and the general constitutional bar against 
racial segregation in public schools.61 The Court found the 
diminution of the Allen plaintiffs' opportunity to attend integrated 
public schools was an adequate injury, but one not sufficiently 
traceable to IRS actions to meet the causation and redressability 
requirements. Id. at 756-59.62 The Court also found that a so- 
called "stigmatic" injury suffered by all members of a racial 
group when the government discriminates, id. at 754, was not 
sufficiently focused to be judicially cognizable. Id. at 756.

In contrast to such a ban or prohibition "enacted for the 
protection of the general public," plaintiffs here invoke Section 
601 of Title VI, which in the words of the Supreme Court constitutes 
"a declaration of an absolute individual right not to have federal

61 • Plaintiffs in Allen pleaded a Title VI claim, but the 
district court never clearly analyzed it (referring to the claim 
as one under Title VII and finding it unnecessary to consider the 
"Title VII" claim). The Court of Appeals did not analyze or decide 
the issue, nor was it reached in the Supreme Court's analysis. 
See Wright v. Miller. 480 F. Supp. 790, 793-94 (D.D.C. 1979), 
rev' d sub nom. Wright v. Regan. 656 F.2d 820 (D.C. Cir. 1981), 
rev'd sub nom. Allen v. Wright. 468 U.S. 737 (1984) . In any event, 
the Title VI injury to the Adams plaintiffs further distinguishes 
this case from Allen. as explained infra. pp. 28-29.

62 As in Allen, plaintiffs in Simon v. Eastern Kentucky 
Welfare Rights Org. . 426 U.S. 26 (1976) , challenged the government's 
grant of tax-exempt status to third parties —  hospitals allegedly 
violating plaintiffs' rights —  but did not claim violation of a 
statute that prohibited the agency action and that created an 
individual right to participate in federally funded programs free 
of discrimination.

23



funds spent in aid of discrimination." Cannon v. University of 
Chicago. 441 U.S. 677, 690-93, 715 n. 15 (1979) (emphasis added). 
This statutory right is directly enforceable and sufficient to 
confer standing.

The actual or threatened injury required by Art III 
may exist solely by virtue of "statutes creating legal 
rights, the invasion of which creates standing. . . ."
See Linda R.S. v. Richard D. . 410 U.S. [614, 617 n.3
(1973) ] ; Sierra Club v. Morton. 405 U.S. 727, 732 (1972) .

Warth v. Seldin. 422 U.S. at 500. Such legal rights may be created
expressly by statute or by clear implication. Id. at 501.63 The
Allen opinion expressly cites this principle with approval. 468
U.S. at 763.

Congress in Title VI has declared the substantive legal right 
of individuals to be free from discrimination in programs receiving 
federal funds:

No person in the United States shall, on the ground of 
race, color, or national origin, be excluded from par­
ticipation in, be denied the benefits of, or be subjected 
to discrimination under any program or activity receiving 
Federal financial assistance.

42 U.S.C. § 2000d. As the Supreme Court in Cannon stated, the 
intent and purpose of Congress- in enacting Title VI was "to avoid 
the use of federal resources to support discriminatory practices;

63 See Havens Realty Coro, v. Coleman. 455 U.S. 363, 373 
(1982) ("testers" in housing discrimination lawsuit had standing 
to sue under the Fair Housing Act of 1968, for alleged violations 
of the enforceable right established by Congress in Section 804(d) 
to truthful information about available housing); Trafficante v. 
Metropolitan Life Ins. Co.. 409 U.S. 205, 212 (1972) (White, J. 
concurring) (white tenants had standing to sue landlord over alleged 
refusal to rent to minority tenants, because Congress had created 
in the Fair Housing Act of 1968, an individual right not to be 
denied the benefits of interracial associations by discriminatory 
housing practices).

24



. . . [and] to provide individual citizens effective protection
against those practices.” 441 U.S. at 704.

The legislative history directly supports the interpretation
of Title VI as creating a substantive right for individuals in
Section 601.64 For example, Senator Case said:

I am very frank to state that section 601, which is a 
statement of substantive right —  the substantive right 
of individuals, of persons, not to be discriminated 
against or excluded from participation in or denied the 
benefits of any program or activity receiving Federal 
assistance —  means exactly what it says.

I do not wish to quibble about this; but I wish to make 
clear that the words and provisions of section 601 and 
the substantive rights established and stated in that 
section are not limited by the limiting words of section 
602. . . .  My only point is that I do not want my embrace- 
ment of this bill to be construed as indicating that I 
believe that the substantive rights of an individual, 
as they may exist under the Constitution, or as they 
mav be stated in section 601. are limited in any degree 
whatsoever. . . . But I am saying that so far as the
substantive rights of individuals, as stated in section 
601, are concerned, they are stated as absolute, without 
limitation.

110 Cong. Rec. at 5255 (emphasis added). Thereafter, Senator
Humphrey, stated:

I thoroughly agree with the Senator insofar as an in­
dividual is concerned. As a citizen of the United States, 
he has his full constitutional rights. He has his right 
to go to court and institute suit and whatever may be 
provided in the law and in the Constitution. There 
would be no limitation on the individual. The limitation 
would be on the qualification of Federal agencies [referr­
ing to the procedures in sections 602 and 603].

64 It is significant that Section 601 is phrased not in 
terms of a directive to the agency (as was the original version), 
but in terms of the rights of the individual. Cannon, 441 U.S. 
at 690-94 & n. 14.

25



Id. at 5256.65 Recognizing this substantive right in Title VI, 
the Supreme Court implied a private cause of action under Title 
IX, which was modeled on Title VI, for victims of the prohibited 
discrimination. Cannon. 441 U.S. at 709.

It is also well established in case law, including the law 
of this case, that Title VI does not merely forbid racial dis­
crimination by fund recipients, but that victims of discrimination, 
such as the named individual Adams plaintiffs and the Title VI 
national-origin intervenors, may proceed under Title VI against 
federal officials who provide funding to discriminating programs.66

6- The bill's sponsors spoke in terms reflecting the rights 
of individuals to non-discrimination in the use of federal funds. 
Thus the Chairman of the House Judiciary Committee stated that 
Title VI would assure the "right to equal treatment in the enjoyment 
of Federal funds." 110 Cong. Rec. 1519 (1964) (remarks of Rep. 
Celler). The House Report accompanying the bill stated that it 
"would guarantee that there will be no discrimination among recip­
ients of Federal financial assistance." H.R. Rep. No. 914, 88th 
Cong., 2d Sess. (1964), reprinted in 1964 U.S. Code Cong. & Admin. 
News at 2391, 2394. The act has an "unmistakable focus on the 
benefited class." See Cannon, 441 U.S. at 691.

66 Adams v. Bell. 711 F.2d 161, 166 (D.C. Cir. 1983) (en
banc) (approving decrees designed to "correct systemic defalcation 
on the part of the department in fulfilling [its] responsibili­
ties"); Adams v. Richardson. 480 F.2d 1159, 1163 (D.C. Cir. 1973) 
(en banc) (finding consistent failure to enforce Title VI "review- 
able in the courts") ; National Black Police Ass'n v. Velde. 631 
F . 2d 784 (D.C. Cir. 1980), vacated on other grounds. 458 U.S. 591 
(1982), on remand. 712 F.2d 569 (D.C. Cir. 1983), cert, denied.
466 U.S. 963 (1984) ; Montgomery Improvement Ass'n v. United States 
Dep't of Hous. and Urban Dev. . 645 F.2d 291 (5th Cir. 1981) ; Garrett 
v. City of Hamtramck. 503 F.2d 1236 (6th Cir. 1974); Gautreaux v. 
Romney. 448 F.2d 731 (7th Cir. 1971), later appeal Gautreaux v.
Chicago Hous. Auth.. 503 F.2d 930 (7th Cir. 1974), aff'd sub nom. 
Hills v. Gautreaux. 425 U.S. 284 (1976); Shannon v. United States 
Dep't of Hous. and Urban Dev.. 436 F.2d 809 (3rd Cir. 1970); Little 
Earth of United Tribes v. Department of Hous.. 584 F. Supp. 1292 
(D. Minn. 1983) ; Young v. Pierce. 544 F. Supp. 1010 (E.D. Tex.
1982) ; Southern Christian Leadership Conference. Inc, v. Connolly. 
331 F. Supp. 940 (E.D. Mich. 1971). See also NAACP V. Secretary

(continued...)
- 26



By the time of Title Vi's enactment, racial discrimination was 
forbidden and actionable under the Fifth and Fourteenth Amend­
ments.67 What Title VI added to this body of law was the individual 
right to participate in programs receiving federal support free 
from discriminatory treatment and the correlative mandatory duty 
of federal officials owed to victims of discrimination68 to ensure 
that federal funds "not be spent in any fashion which encourages, 
entrenches, subsidizes, or results in racial discrimination.1,69

Thus, a key distinction between Adams and Allen is the ap­
plicability here of a congressionally created right under Title 
VI benefiting individual victims of discrimination, in statutory 
language that is the model for similar right-creating laws under

66(...continued)
of Hous. and Urban Dev. . 817 F.2d 149 (1st Cir. 1987) (private 
right of action against federal officials under Title VIII of the 
Civil Rights Act of 1968). Cf. NAACP v. Medical Center. Inc. . 
599 F.2d 1247, 1254 n. 27 (3d Cir. 1979).

67 E.q.. Brown v. Board of Education. 347 U.S. 483 (1954); 
Cooper v. Aaron. 358 U.S. 1, 19 (1958); Simkins v. Moses H. Cone 
Memorial Hosp.. 323 F.2d 959 (4th Cir. 1963), cert, denied. 376 
U.S. 938 (1964).

68 Section 602 of Title VI provides that each agency is 
"authorized and directed to effectuate the provisions of section 
2000d . . .  by the termination of or refusal to grant or to continue 
assistance [or] . . .  by any other means authorized by law." 42 
U.S.C. § 2000d-l (emphasis added).

69 President Kennedy's Special Message to Congress, June 
19, 1963, transmitting Title VI, reprinted in 1963 U.S. Code Cong. 
& Admin. News at 1526, 1534. Title VI was to end the use of federal 
funds in segregation, which had made "Uncle Sam . . .  a partner 
in the erection, maintenance, and perpetration of that ["separate 
and most unequal"] system." 110 Cong. Rec. 7055 (1964) (remarks 
of Sen. Pastore). "[W]e have the Federal Government aiding and 
abetting those who persist in practicing racial discrimination. . 
. . It is for these reasons that we bring forth [T]itle VI." 110 
Cong. Rec. 2467 (1964) (remarks of Rep. Celler).

27



Unlike thewhich a private cause of action has been implied.70 
tax exemption statutes at issue in Allen. which were designed not 
for the purpose of eliminating discrimination in federally funded 
programs but to ensure that tax-exempt charitable organizations 
served a truly charitable purpose, Title Vi's statutory scheme 
employs the manipulative force of federal subsidization as a 
"carrot" and "stick" for the express purpose of eliminating the 
federal government's funding of discriminatory programs.71 The 
broad purpose of Title VI —  "to make sure the funds of the United 
States are not used to support racial discrimination" —  was 
recently reaffirmed by Congress in the Civil Rights Restoration 
Act of 1987, 42 U.S.C. § 2000d-4a.72

A further and significant distinction from Allen is that the 
Adams plaintiffs are suffering injury of the kind recognized by 
Congress in enacting Title VI: they are being excluded from
participation in, denied the benefits of, and being subjected to

70 Federal courts recognize and enforce a statutory right 
created especially to benefit individuals, in contrast to the 
usual refusal to recognize an individual right to sue to enforce 
regulatory provisions that do not afford, either expressly or by 
implication, protections specifically for individuals. Compare 
Guardians Ass'n v. Civil Serv. Comm'n of New York City. 463 U.S. 
582, 593-95 (1983) (opinion of White & Rehnquist, JJ.); id. at 
634 (opinion of Marshall, J.); id. at 635-36 & n.l (opinion of 
Stevens, Brennan & Blackmun, JJ.) (Title VI) and Cannon, 441 U.S. 
at 689-91 & nn. 13,14 (Title IX) with, e.cr. . Cort v. Ash._ 422 
U.S. 66 (1975); Securities Investor Protection Corp. v. Barbour. 
421 U.S. 412 (1975) ; National R.R. Passenger Corp. v. National 
Ass'n of R.R. Passengers. 414 U.S. 646 (1974).

71 See Cannon. 441 U.S. at 704; Brown v. Califano. 627 F.2d 
1221, 1227 (D.C. Cir. 1980).

72 S. Rep. No. 64, 100th Cong., 2d Sess. (1988), reprinted 
in 1988 U.S. Code Cong. & Admin. News 3, 7 (quoting remarks of 
Sen. Humphrey at 110 Cong. Rec. 6544 (1964)).

28



discrimination in programs receiving the federal financial assis­
tance that triggers Title VI coverage.73 As the district court 
stated, after describing the individual Adams plaintiffs in federal­
ly funded programs recognized as racially discriminatory, "we are 
satisfied that one or more of the plaintiffs, in charging racial 
discrimination against themselves, have alleged a distinct and 
palpable personal injury in violation of their rights under Title 
VI and the Constitution." 675 F. Supp. at 675-76 (emphasis added).

This distinct and palpable personal injury to the plaintiffs 
by denial of their Title VI rights is in stark contrast to the 
claims rejected in Allen as "too abstract." 4 68 U.S. at 754.74 
Here, plaintiffs and plaintiff-intervenors attend the schools and 
school systems that directly receive federal funds but, it is 
alleged, discriminate on the basis of race and national origin. 
Under the well-pleaded allegations of the complaint and motions 
for further relief, therefore, their individual rights under Title 
VI are being denied.

From this injury, causation and redressability flow directly. 
The district court has found that "substantial" federal funding

73 The non-constitutional, "prudential" standing 
that a plaintiff's asserted interest be "arguably wit 
of interest to be protected" by the statute in question, 
of Data Processing Pros.. Inc, v. Camp. 397 U.S. 150, 153 (1970),
is clearly met here given the facts of this case, statutory lan­
guage, legislative history, and case law cited above.

74 The Allen Court concluded that the "abstract stigmatic 
injury" was not judicially cognizable because "standing would 
extend nationwide to all members of the particular racial groups 
. . . . [and a] black person in Hawaii could challenge the grant
of tax exemption to a racially discriminatory school in Maine." 
Allen. 468 U.S. at 755-56.

requirement 
hin the zone 
Association

29



Thecontinues to flow to racially segregated school systems.75 
court also found that "each of these states has defaulted in major 
respects on its plan commitments and on the desegregation reguire- 
ments of the Criteria and Title VI"76 and that the 1977 timeframes 
order had been "violated in many important respects."77 These 
factual findings directly link defendants' actions and inaction 
—  funding discriminating colleges and school systems and persis­
tently delaying unreasonably in processing and reviewing complaints 
of discrimination —  to the injury to plaintiffs' Title VI rights. 
Redressability follows, since actual fund termination will end 
the federal complicity even if the fund recipients choose not to 
alter their practices in order to retain funding.78

In sum, the district court erred in disregarding the claim 
that persons attending discriminatory federally funded, public 
schools and colleges have in Title VI a judicially cognizable 
right to be free from this federally subsidized discrimination. 
The court's findings that defendants continue to delay unreasonably 
in complying with Title VI, and continue to channel funds to known 
violators, establish that the federally subsidized discrimination

75 Adams v. Richardson. 351 F. Supp. at 637-38; see also
Adams v . Bennett. 675 F. Supp. at 678 (racially dual systems
continue); Order of March 24, 1983 (Higher Education).

76 Order of March 24, 1983 (Higher Education) at 2.
77 Order of March 11, 1983 (Timeframes) at 2.
78 Actual fund termination, however, is not necessary in 

most instances to remedy the violation, but a credible threat of 
it is. Precisely because of defendants' extensive record of 
inaction in the face of clear discriminatory actions, no credible 
threat now exists.

30



is directly traceable to defendants; and the injury is redressable
by a credible threat of fund termination or actual fund termination.
Thus, the district court dismissal must be reversed.

C. Alternatively, Injury to Plaintiffs' Right To Be 
Educated In An Environment Free From Racial 
Discrimination Is Also Sufficient To Confer 
Standing.

In addition to the injury to plaintiffs' Title VI right to
attend schools free of federally subsidized discrimination, which
in itself establishes plaintiffs' standing, plaintiffs also are
injured, as the district court found, in their "right to be educated
in a racially integrated institution or in an environment which
is free from discrimination based on race." 675 F. Supp. at 676.79
Defendants do not contest the existence of injury in fact.

The remand order from this Court specifically instructed the
district court to base its standing inquiry upon

the factual status of the plaintiffs and intervenors. .
. . For instance, whether any plaintiffs are enrolled
in educational institutions currently the subject of 
specific complaints of civil rights violations is one 
relevant consideration. . . . the relationship between
a plaintiff's alleged injuries and any compliance review 
procedures requested in the complaint or sought to be 
enforced is also relevant.

79 The Allen Court found cognizable injury on the basis of 
a "diminished ability to receive an education in a racially in­
tegrated school," describing it as "one of the most serious injuries 
recognized in our legal system." 468 U.S. at 756. On the facts 
of Allen, however, the Court found that plaintiffs' injury did 
not support standing, because it was not fairly traceable to the 
lack of IRS procedures that would deny tax exempt status to racially 
discriminatory private schools. 468 U.S. at 757-59. The Allen 
plaintiffs did not allege that removing federal tax advantages 
would "make an appreciable difference in public school integration," 
and had conceded that it was speculative whether withdrawal of a 
tax exemption from any particular private school would lead it to 
change its policies. Id. at 758.

31



WEAL v. Bell. 743 F.2d at 44. Plaintiffs responded directly to
this inquiry, providing specific examples of complaints they had
filed on which defendants had found discrimination yet failed
over protracted periods to initiate enforcement proceedings.80
On this record the district court properly found cognizable injury,
but erroneously concluded that the federal involvement was "too
indirect to provide a proper nexus." 675 F. Supp. at 677. T h e
court instead took judicial notice of what it considered to be
the "explanations" for the discrimination, including

the inherent difficulty of increasing Black enrollment 
in predominantly white public institutions, stemming at 
least in part from current admissions standards, which 
many Blacks, because of inferior secondary education, 
find difficult to meet. . . . [M]any of the Black eligi- 
bles . . . are persuaded to attend private out-of-state 
institutions offering scholarships and financial aid. .
. . [W]hite enrollment in predominantly Black institutions 
has also lagged [because of] the diminished academic 
quality of these institutions and their poorer facilities.
In order to bring Black institutions up to equality and 
make them competitive with white institutions state 
legislatures will have to act to supply needed funds 
for the hiring of faculty and the expansion of physical 
plant and facilities.
These . . . are conditions over which defendants have
no control. . . . [which] were not caused by any action 
of defendants and are riot "fairly traceable" to anything 
defendants have done or have failed to do.

Id. at 678-79. The court's determination was error.
First, contrary to the district court's assumption, the Supreme

Court and this Court have both recognized that the fact that
ultimate relief may depend on the action of third parties does

80 Plaintiffs' Opposition to Defendants' Motion to Dismiss 
and Reply In Support of Motion for Ruling Establishing Their 
Standing, Aug. 14, 1985, at 44-45.

32



not defeat standing. As this Court recently stated in National
Wildlife Federation v. Hodel. 839 F.2d 694 (D.C. Cir. 1988):

The Supreme Court decisions . . . show that mere indirect­
ness of causation is no barrier to standing, and thus, 
an injury worked on one party by another through a third 
party intermediary may suffice. See. e.q.. Meese v.
Keene. ___ U.S. ____, 107 S. Ct. 1862, 95 L.Ed.2d 415
(1987)(would-be distributor has standing to challenge 
Justice Department's characterization of film as 'politi­
cal propaganda' under foreign agents' registration act 
because label could hurt his chances of reelection to 
state senate).

Id. at 705. The Supreme Court has frequently found standing where 
the injury alleged would be effected through the direct conduct 
of a third party in conjunction with or against the background of 
the challenged action.81

Second, in enacting Title VI, Congress itself drew the causal 
link between federal funding and the continuation of the discrimi­
natory practices that injure plaintiffs.82 And, as to redres-

81 See Meese v. Keene, supra; Japan Whaling Ass'n v. American 
Cetacean Society. 478 U.S. 221 (1986) (whale-watching group had 
standing to challenge the failure of the Secretary of Commerce to 
sanction Japan for exceeding international limits on whale harvest­
ing) ; Watt v. Energy Action Educational Foundation. 454 U.S. 151, 
161 (1981) (California had standing to challenge the Secretary of 
the Interior's refusal to experiment with bidding alternatives 
which’ might increase the state's income from offshore royalties, 
even though the Secretary could, after experimenting, continue 
the current system); Brvant v. Yellen. 447 U.S. 352 (1980) (plain­
tiffs who sought to purchase certain lands had standing to compel 
application of federal reclamation requirements that would likely 
lead, though not compel, some landowners to sell their lands below 
market value).

82 "The Government has perpetuated school segregation through 
the allocation of school maintenance and construction funds." 
110 Cong. Rec. 2481 (1964) (remarks of Rep. Ryan). "[W]e find 
other examples of Uncle Sam's partnership in racial discrimination. 
. . . the Federal Government contributes substantially to the 
construction, maintenance, and operation of schools. . . . Since 
1950, the U.S. Government has appropriated more that $1 billion 
dollars for school construction, and another billion dollars for

(continued...)
33



sability, Congress drew the connection between the threat of fund 
termination and the end of discriminatory practices.83 In par­
ticular, Senator Humphrey emphasized that the effect of Title VI 
enforcement on educational programs would be "substantial and 
eminently desirable" because of the "elimination of racial dis­
crimination and segregation." 110 Cong. Rec. 6545 (1964).84

Congress' conclusion that Title VI would have a substantial 
impact on the elimination of racial discrimination among recipients

82 (...continued)
the operation and maintenance of schools. . . . Over one-third of 
these disbursements has gone to Southern and border States [where] 
the education which the Federal Government is buying is . . .  in 
segregated schools. Id. at 7055-56 (remarks of Sen. Pastore). 
With respect to higher education, "[o]ne hundred percent of the 
$17,905,609 granted to land grant colleges and universities in 
the South for agricultural extension programs were to those institu­
tions which exclude Negroes." Id. at 7057 (remarks of Senator 
Pastore)(many other examples listed).

83 "Title VI would eliminate [the segregated] system." 110 
Cong. Rec. 7057 (1964) (remarks of Sen. Pastore) ; Id. at 7060 
(remarks of Sen. Pastore).

84 The redressability inquiry necessary to determine standing 
often replicates the causation inquiry. National Wildlife Fed'n 
v. Hodel. 839 F.2d at 705. In making the requisite showing, a 
party "need not show to a certainty that a favorable decision 
will redress his injury. A mere likelihood will do." Id. See 
also Community Nutrition Inst, v. Block. 698 F.2d 1239, 1249 (D.C. 
Cir. 1983)(although effect of removing requirement imposed by 
Department of Agriculture regulations is "hard to predict," evidence 
"indicating" immediate savings to consumer plaintiffs suffices to 
satisfy redressability requirement), rev'd on other grounds. 467 
U.S. 340 (1984); International Ladies' Garment Workers' Union v. 
Donovan. 722 F.2d 795, 810-11 (D.C. Cir. 1983)(that employers 
might not use factory employees if restrictions on "homework" 
were reinstated no bar to plaintiffs' standing to seek this remedy) , 
cert, denied. 469 U.S. 820 (1984) ; Legal Aid Soc'v of Alameda 
County v. Brennan. 608 F.2d 1319, 1335-36 (9th Cir. 1979)(argument 
that employment of minority plaintiffs might not result from 
enforcement of affirmative action requirement because contractors 
might elect to forego federal contracts is "all but frivolous"), 
cert, denied, 447 U.S. 921 (1980).

34



of federal funds is entitled to considerable deference.85 Moreover, 
the Congressional judgment has been fully realized, as this Court 
recognized and as the record in this case shows.86 Faced with a 
credible threat of fund termination, fund recipients have complied 
with Title VI. When OCR noticed 600 districts for enforcement 
hearings between July 1964 and March 1970, 400 came into compliance 
before the fund termination was actually ordered and all but four 
of the remaining 200 came into compliance shortly after a ruling. 
1970 Pottinger Affidavit at 5-6. With respect to higher education, 
states have adopted desegregation plans, partial implementation 
of which has diminished the incidence and level of discriminatory 
practices. See supra at 7-11. Thus the history of this case 
presents a factual record of causation and redress, demonstrating 
that court orders have altered OCR's behavior and through that, 
discriminatory practices of specific fund recipients.87

85 Autoloq v. Reaan. 731 F.2d 25, 31 (D.C. Cir. 1984) ("we 
must give great weight to this congressional finding [of causation] 
in our standing inquiry"); International Ladies1 Garment Workers 
Union. 722 F.2d at 811-12 ("[A]s Congress passed the Act partly 
to provide redress to employers from unfair competition, the 
suggestion that effective enforcement of the Act will not have 
this effect directly contravenes the congressional judgment underly­
ing the Act."); see also National Wildlife Fed'n, 839 F.2d at 
708-09; Animal Welfare Inst, v. Kreps. 561 F.2d 1002, 1010 (D.C. 
Cir. 1977), cert, denied. 434 U.S. 1013 (1978).

86 Adams v. Richardson. 480 F.2d at 1163 n. 4 ("admitted 
effectiveness of fund termination proceedings"); Brown v. Califano, 
627 F.2d at 1227 ("the power to threaten fund-termination —  the 
power that attaches strings to financial assistance —  can often 
work coercively"); National Black Police Ass'n v. Velde. 712 F.2d 
569, 575 ("fund termination . . . has proven very effective as a 
deterrent to discrimination").

87 The district court's conclusion that plaintiffs' injury 
would not be redressed because of the negative impact of fund 
termination on victims of the discrimination, 675 F. Supp. at

(continued...)
35



Third, the district court's conclusion that the discrimina­
tory practices were not "caused" by federal defendants88 is con­
tradicted by the history of the development of the so-called 
"separate but equal" system of higher education, which was es­
tablished in no small measure under federal programs that sanctioned 
separate institutions for black and white students and the inequi­
table funding of the black institutions.89

Many of the institutions that are affected by this litiga­
tion are part of the land-grant system of colleges created pursuant 
to endowments established under the 1862 and 1890 Morrill Acts.90 
The statutory scheme itself literally sanctions the establishment 
of a separate educational system for black students:

[T]he establishment and maintenance of such colleges 
separately for the white and colored students shall be 
held in compliance with the provision of this act.91

87(...continued)
679, exceeds the bounds of appropriate judicial review. Congress 
enacted Title VI fully aware of those factors: it is not for the 
court to determine whether Title VI is a good law.

88 675 F. Supp. at 679.
89 The district court engaged in judicial notice in reaching 

its conclusion that the federal defendants were not contributors 
to the segregated and discriminatory institutions of higher educa­
tion. The court, however, failed to take judicial notice of the 
facts establishing defendants' complicity. The history of federal 
involvement is a matter of public record, and this Court can take 
judicial notice of the federal statutes and legislative histories 
showing the district court's conclusion to be clearly erroneous. 
9 C. Wright & A. Miller, Federal Practice & Procedure § 2410 at
354 (1971). See also Pennell v. San Jose. ___U.S. ___ , 99 L.Ed.2d
1, 12 (court encourages parties to "take pains to supplement the
record in any manner necessary to enable [the court] to address 
with as much precision as possible any question of standing that 
may be raised").

90 Morrill Act of 1862, Ch. 130, § 4, 12 Stat. 503, 504
(1862); Morrill Act of 1890, Ch. 814, § 1, 26 Stat. 417 (1890).

91 Morrill Act of 1890, Ch. 814, § 1, 26 Stat. 417 (1890).
- 36 -



Congress repeatedly discussed and rejected making the land-grant 
institutions open to all students regardless of race,92 just as 
it rejected proposals to provide equitable funding to black institu­
tions.93 Thus, it cannot be concluded that the federal role in 
the establishment of segregated education for black students through 
the land-grant institutions was either tangential or insubstan­
tial .94

92 Avins, Black Studies. White Separation, and Reflected 
Light on College Segregation and the Fourteenth Amendment from 
Early Land Grant College Policies. 10 Washburn L.J. 181, 187-202 
(1971) (citing congressional debates on the proposals).

93 The sponsor of one major act by which these institutions 
receive funding (Smith-Lever Act of 1914, Ch. 79, 38 Stat. 372 
(1914) (agricultural extension programs)) admitted that his state 
(Georgia) "would not appropriate one dollar" to black institutions 
if it had the discretion to allocate the funds. 51 Cong. Rec. 
2945 (1914) (remarks of Sen. Smith) . An amendment to the Act 
that would have required equitable distribution of the funds by 
eliminating the states' discretion was voted down despite statements 
by Senators from southern states asserting that "[y]ou cannot 
with any sort of prudence . . . leave the disbursement of this 
money, or any part thereof, in any other hands except those of 
the white people." Id. at 2652 (remarks of Sen. Vardaman). "We 
do not in my State want the fund if it goes to any but the white 
college." Id. at 2946 (remarks of Sen. Smith). See also 51 Cong. 
Rec. 2519, 2922-34, 2945, 7417-27 (1914). Other statutes funding 
the land-grant colleges were similarly passed without protections 
for black colleges. E.g. . Hatch Act of 1877, Ch. 314, 24 Stat. 
440 (1877) (agricultural experiment stations). From 1950 to 1964, 
one hundred percent of the funding for agricultural extension 
programs went to institutions that excluded blacks. 110 Cong. 
Rec. 7057 (1964).

94 See also generally W.E. Trueheart, The Conseguences of 
Federal and State Resource Allocation and Development Policies 
for Traditionally Black Land-Grant Institutions: 1862-1954 (Univer­
sity Microfilms International, Ann Arbor, Michigan 1979) ; Kujovich, 
Egual Opportunity in Higher Education and the Black Public College; 
The Era of Separate But Egual. 72 Minn. L. Rev. 29 (1987); Payne, 
Forgotten . . . but not gone: The Negro Land-Grant Colleges Civil 
Rights Digest 12 (Spring 1970). Congress referred specifically to 
the "separate-but-equal" provision of the Morrill Land Grant Act 
as one of the problems to be corrected by Title VI. 110 Cong. 
Rec. 2467 (1964) (remarks of Rep. Celler).

37



Nor can it be said that the continued federal funding is 
insubstantial. Federal expenditures in higher education for the 
ten states affected by OCR's most recent action were $963,246,000 
for fiscal 1987 alone.95 The preceding year the federal expenditure 
was $884,616,000.96 A rough division of the federal funding for 
just two years yields an average of approximately $189,000,000 
per state. These funds play a critical role in maintaining ongoing 
discriminatory systems. It strains reason to conclude that any 
state would relinquish such large amounts of money, rather than 
take steps to minimize or eliminate discrimination.

II. THE DISTRICT COURT ERRED IN HOLDING THAT 
PLAINTIFFS LACK STANDING BECAUSE THE RELIEF 
GRANTED IN 1983 VIOLATES THE SEPARATION OF 
POWERS DOCTRINE.

As an additional basis for the ruling now on appeal, the 
district court held that "the orders under review . . . violate
the doctrine of separation of powers, which is the basic core of 
standing." 675 F. Supp. at 680 (emphasis added). The court stated 
that the 1983 orders, in contrast to the earlier relief approved 
in this case, extend beyond the initiation of the enforcement

95 Bureau of Census, U.S. Department of Commerce, Federal 
Expenditures by State for Fiscal Year 1987 2, 6, 20 (1988). This 
figure does not represent all federal expenditures in higher 
education to the ten states, but includes funds advanced for 
agricultural experiment stations, agriculture extension services, 
expenditures by the Department of Education's Office of Post 
Secondary Education, direct payments for individuals by state for 
Pell Grants, and interest subsidies for National Guaranteed Student 
Loans for Arkansas, Delaware, Florida, Georgia, Missouri, North 
Carolina, Oklahoma, South Carolina, Virginia, and West Virginia.

96 Bureau of Census, U.S. Department of Commerce, Federal 
Expenditures bv State for Fiscal Year 1986. 2, 6, 18 (1987). 
This figure is based on the same expenditures for the same states 
identified supra note 95.

38



process by also seeking to control the way defendants are to carry 
out their executive responsibilities. Id.

In remanding this case in 1984, this Court directed the 
district court to consider the threshold separation of powers 
aspects of standing set forth in Allen v. Wright. WEAL v. Bell. 
743 F.2d 42. The Court cautioned, however, that the "threshold" 
and "merits" issues involved in the separation of powers analysis 
are discrete; and that a ruling on the standing issue "does not 
decide the issue whether certain relief granted after reaching 
the merits of a controversy would adversely implicate separation- 
of-powers limitations." Id. at 44. The remand was directed only

i

to the threshold separation of powers issue.91
With respect to the separation of powers concern presented 

by this Court, that concept does not as a threshold matter bar 
this action because Allen v. Wright does not change the fundamen­
tal concept of separation of powers. Therefore, as this Court 
previously held en banc on two occasions, the district court may 
properly review defendants' default on their Title VI duties and 
grant relief in this case. The district court, in answering this 
Court's "threshold" separation of powers concerns by adverting to 
the distinct "merits" question whether the particular relief granted 
in 1983 violated the separation of powers doctrine, simply missed 
the issue presented on remand. The district court also erred by 
ignoring plaintiffs' consistent claim that defendants have abdicated

97 The Court also remanded for consideration of mootness. 
743 F.2d 42. Defendants did not, however, argue in the district 
court that the Adams plaintiffs' claims were moot, and the district 
court, concluding that all plaintiffs lacked standing, declined 
to reach the issue. 675 F. Supp. at 681.

39



their statutory duty by failing to comply with Title VI in any 
reasonably timely manner, and in routinely continuing to channel 
funds to known violators of the law. These basic violations have 
continued and have never been corrected, as the district court 
itself held in its 1983 Orders.

A. The Separation of Powers Doctrine Does Not 
Bar This Action.

The separation of powers doctrine embodied in the Constitu­
tion establishes three separate, coordinate branches of the federal 
government: legislative, executive, and judicial. Each branch
operates independently within its sphere of responsibilities, but 
each also acts as a check upon another branch in numerous areas, 
under the structure of the Constitution. Thus the Supreme Court 
has "never held that the Constitution requires the three Branches 
of Government to 'operate with absolute independence.' "98 Instead, 
as the Court stated in Buckley v. Valeo. 424 U.S. 1 (1976), it is 
a constitutional system of checks and balances. Id. at 122-23.

In Allen v. Wright the Court acknowledged that the standing 
and separation of powers analysis there "did not rest on the more 
general proposition that no consequence of the allocation of 
administrative enforcement resources is judicially cognizable." 
468 U.S. at 761 n. 26. And, while the Court in Allen stated the 
general principle that the separation of powers doctrine underlies 
the standing analysis, nothing in its discussion of separation of

Morrison v. Olson. ____ U.S. __, 101 L. Ed. 2d 569, 607
(1988) (quoting United States v. Nixon. 418 U.S. 683, 707 (1974), 
and citing Nixon v. Administrator of General Services. 433 U.S. 
425, 442 (1977) [citing James Madison in The Federalist No. 47]); 
see also Marburv v. Madison. 5 U.S. (1 Cranch) 137 (1803).

40



powers places actions of the Executive branch beyond judicial 
review.

After Allen, the Supreme Court held in Heckler v. Chanev.
470 U.S. 821 (1985), that courts should look first to Congress'
actions in determining whether courts are the most appropriate
body to police agencies that do not "carry out their delegated
powers with sufficient vigor." Id. at 834. The Court stated:

If [Congress] has indicated an intent to circumscribe 
agency enforcement discretion, and has provided meaningful 
standards for defining the limits of that discretion, 
there is 'law to apply' under § 701(a)(2) [Administrative 
Procedure Act] and courts may require that the agency 
follow that law.

Id. at 843-35 (emphasis added).99 Title VI provides in mandatory 
terms that each federal agency providing financial assistance "is 
authorized and directed to effectuate" Section 601 by "issuing 
rules, regulations, or orders" and "by termination of or refusal 
to grant or to continue assistance" to noncomplying fund recipients. 
42 U.S.C. § 2000d-l. This Court in its unanimous 1973 en banc 
decision explicitly found "law to apply" and distinguished this 
suit from cases involving prosecutorial discretion traditionally 
unreviewable by courts, because "Title VI not only requires the 
agency to enforce the Act, but also sets forth specific enforcement

99 The separation of powers doctrine, along with the other 
common law rules on reviewability, has in large measure been 
codified in the language of the Administrative Procedure Act 
("APA"). See Saperstein, Nonreviewabilitv. 82 Harv. L. Rev. 367 
(1968). Furthermore, a court reviewing agency inaction can "compel 
agency action unlawfully withheld or unreasonably delayed." 5 
U.S.C. § 706(1). The APA was one of the bases of jurisdiction 
originally found in this action. Adams v. Richardson. 351 F. Supp. 
at 640; Adams v. Richardson. 480 F.2d at 1162.

41



procedures.11 Adams v. Richardson. 480 F.2d at 1162 (emphasis 
added).

Additionally, this case is consistent with the Court's state­
ment in Allen acknowledging that in certain cases, such as this 
one, federal courts should require federal agencies to comply 
with the law:

[Separation of powers counsels against recognizing 
standing in a case brought, not to enforce specific 
legal obligations whose violation works a direct harm, 
but to seek a restructuring of the apparatus established 
by the Executive Branch to fulfill its legal duties.

468 U.S. at 761 (emphasis added). Title VI creates a specific 
legal obligation on the part of federal agencies to "effectuate" 
the right that it establishes for individuals to be free from 
discrimination in programs receiving federal aid, and the statute 
specifically directs federal agencies not to extend funds to 
programs and institutions that discriminate. The violation of 
that legal obligation that plaintiffs have alleged and proven in 
this case —  systemic abdication of the statutory enforcement 
duty while affirmatively channelling federal money to known viola­
tors —  causes direct harm to plaintiffs. They continue to be 
subject to discrimination in federally funded programs.

Moreover, the 1983 timeframes order, which merely modified 
the 1977 Consent Decree, did not seek a "restructuring of the 
apparatus" of OCR; rather, it sought to prevent OCR from delaying 
and failing to act in implementing a structure that defendants 
had themselves designed. Thus the orders were necessary because 
OCR failed to adhere to any reasonably timely enforcement structure 
to "fulfill its legal duties." Id. at 760.

42



This case involves defendants' continued failure to comply 
with mandatory statutory provisions enacted to protect individuals 
subjected to race discrimination. Where the Executive has substan­
tially failed to comply with its statutory duties, the Judiciary 
must place a "check" on the Executive to ensure a government where 
the laws are supreme.

B. Plaintiffs' Consistent Claim And 
The Remedial Orders Throughout This 
Action Have Been Based On An Un­
disputed Factual Record Establishing 
Defendants' Continuing Violation of 
Title VI.

In dismissing this action, the district court, misstating
plaintiffs' claim, found it "most important" that

plaintiffs do not claim that defendants have abrogated 
their statutory responsibilities, but rather that, in 
carrying them out, they do not always process complaints,
[and] conduct investigations, . . .  as promptly or 
expeditiously as plaintiffs would like.

Id. This was clear error.
The timeframes orders and higher education orders in this 

case have been based upon an extensive, virtually uncontested, 
record demonstrating defendants' failure —  in the form of incessant 
delay tantamount to a refusal to act —  in enforcing Title VI. 
The district court's 1973 opinion emphasizes defendants' inaction 
from 1970 to 1973 despite total disregard by five states of HEW's 
notices of non-compliance with Title VI, and submissions by five 
other states of inadequate desegregation plans. Adams v. Richard­
son . 351 F. Supp. at 637-38. The record also shows agency default 
with respect to 74 school districts that reneged on prior approved 
plans and multiple other instances of defendants' failure to act 
in the face of noncompliance. Id. at 638-40.

43



The 1975 Supplemental Order found continued "overreliance by 
HEW on the use of voluntary negotiations over protracted time 
periods." 391 F. Supp. at 271. As the predicate to the prospec­
tive relief provided in 1975, the court found:

HEW has also frequently failed to commence enforcement 
proceedings by administrative notice of hearing or any 
other means authorized by law although the efforts to 
obtain voluntary compliance have not succeeded during a 
substantial period of time.

Id. at 273 (emphasis added) . HEW had not initiated a single 
administrative enforcement proceeding against a southern school 
district since the Court's order 25 months earlier. Id. In 1976, 
the court in Brown v. Weinberger found that OCR's "delays of one 
and one-half to eight years are unreasonable." 417 F. Supp. at 
1221. The court's Order in 1977 was predicated on a finding that 
defendants "had not come into compliance with this Court's order 
of June 14, 1976." Adams v. Califano. Civ. No. 3095-70 (D.D.C. 
Dec. 29, 1977) . In 1977 the court also found that in 1974 HEW 
had accepted state plans for desegregation in higher education 
that did not meet the agency's own requirements, and that the 
lack of progress under the plans was undisputed. Adams v. Califano. 
430 F. Supp. at 119-120. And in 1983, in refusing to vacate the 
1977 consent decree, the district court held that the timeframes 
decree "has been violated in many important respects," and that 
the purposes of the litigation, as incorporated in the 1977 decree, 
had not been accomplished. Order of March 11, 1983 (Timeframes); 
Order of March 11, 1983 (Denying Motion to Vacate). With respect 
to higher education, the court found that each, of the states under 
plans from 1978 had defaulted "in major respects" and had not

44



achieved its principal objectives because of those failures; yet 
OCR still had begun no enforcement proceedings. Order of March 
24, 1983 (Higher Education).

Defendants have argued that the case should be dismissed 
because there is no longer a claim that they are following a 
conscious policy (1969 Secretary Finch-Attorney General Mitchell) 
of nonenforcement. That policy, however, was not the sole, or 
even primary, basis for the relief that has been granted in this 
case. Each of the district court's opinions reflects that it was 
the agency's chronic delay, long after the initial ruling on the 
Finch-Mitchell strategy, that formed the basis for the finding 
that defendants had systemically defaulted in their obligations 
under Title VI.100 As plaintiffs alleged in February 1983, "[o]nce 
again in the course of this 13 year litigation defendants have 
opted for endless letters and negotiations."101 While defendant 
officials over the years have acted with varying degrees of commit­
ment to complying with Title VI,102 the recent actions by OCR

100 The 1973 en banc Court recognized plaintiffs' claim as 
follows: "that [defendants] have been derelict in their duty to 
enforce Title VI of the Civil rights Act of 1964 because they 
have not taken appropriate action to end segregation in public 
educational institutions receiving federal funds." Adams v. 
Richardson. 480 F.2d at 1161.

101 Plaintiffs' Reply in Support of Renewed Motion for Further 
Relief, Feb. 23, 1983 at 8.

102 On April 24, 1981, Secretary of Education Terrell Bell 
wrote to Senator Laxalt with regard to Title VI enforcement: 
"Your support for my efforts to decrease the undue harassment of 
schools and colleges, would be appreciated. We have some laws 
that we should not have, and my obligation to enforce them is 
against my own philosophy." Plaintiffs' Renewed Motion For Further 
Relief Concerning State Systems of Higher Education, Dec. 12, 
1982 (verified) at 3.

45



with respect to higher education —  effectively releasing ten 
states .from further obligations under Title VI despite a clear 
record that the initial violations had never been corrected —  
demonstrates disdain for Title VI and an evident conscious policy, 
as found by Congress, to flout the requirements of the law.103 
But regardless of how "conscious" the actions have been, defendants' 
systemic default on their statutory duties has been the target of 
this lawsuit since its filing, and continues to this day.

C. The Law Of This Case Approves Plain­
tiffs' Causes Of Action And The 
Relief Granted In The 1983 Orders.

The threshold separation of powers arguments raised here—  
which would exempt the federal defendants from any and all judicial 
review -- are in essence the same as defendants' "absolute discre­
tion" arguments made earlier and rejected by this Court unanimously 
en banc. This Court stated:

HEW is actively supplying segregated institutions with 
federal funds, contrary to the expressed purposes of 
Congress. It is one thing to say the Justice Depart­
ment lacks the resources necessary to locate and prosecute 
every civil rights violator: it is quite another to
say HEW may affirmatively continue to channel federal 
funds to defaulting schools.

[I]t is clear that a request for voluntary compliance, 
if not followed by responsive action . . . within a
reasonable time does not relieve the agency of the 
responsibility to enforce Title VI by one of the two 
alternative means contemplated by the statute. A consis­
tent failure to do so is a dereliction of duty reviewable 
in the courts.

Adams v. Richardson. 480 F. 2d at 1162-63 (emphasis added).

103 Failure and Fraud in Civil Rights Enforcement By the 
Department of Education, supra note 18 at 31, 32.

46



In 1983, this Court en banc again approved review and relief
for plaintiffs' causes of action:

The purpose of Judge Pratt's 1973 decree was to reguire 
the Department to initiate appropriate enforcement 
proceedings under Title VI. It was directed at the 
Department's lassitude, if not recalcitrance, in fulfill­
ing its responsibilities under that Act.

The district court orders were a rational means of 
assuring Department compliance with Title VI without an 
undue exercise of judicial control over the Department.

Adams v. Bell. 711 F. 2d at 165-66 (citations omitted) (emphasis
added).

The argument of intrusiveness with respect to the timeframes 
order the court refused to vacate in 1983 seeks in effect to undo 
the benefits plaintiffs gained from the 1977 Consent Decree. In 
consenting to the relief, which defendants in large measure design­
ed, the agency effectively conceded that the decrees were not 
overly intrusive and thereby waived its right to raise that argument 
now.104 As this Court stated in upholding a consent decree against 
a complaint of unwarranted intrusion:

The Decree here was largely the work of EPA and the 
other parties to these suits, not the district court; 
manifestly, the requirements imposed by the Decree do 
not represent judicial intrusion into the Agency's affairs 
to the same extent they would if the Decree were "a 
creature of judicial cloth." Weinberger v. Catholic

104 The parties all continue to agree that the agency must 
have timeframes for processing complaints and initiating compliance 
reviews, see testimony of Government witnesses at the Hearing on 
March 12, 1982, Tr. at 43 (Clarence Thomas), and at 19-20 (Ellen 
Shong). Thus, the district court's decision to require compliance 
with some timeframes is surely appropriate. Just as the court 
has several times softened the time rules, it can do so again 
upon a proper showing by defendants. Moreover, even if the Court 
were to conclude that the 1983 orders are too intrusive, modifica­
tion of the orders is the appropriate remedy, not dismissal of 
the action.

47



Action of Havaii/Peace Education Project. 454 U.S. 139
(1981).

Citizens for a Better Environment v. Gorsuch. 718 F.2d 1117, 1128 
(D.C. Cir. 1983), cert, denied. 467 U.S. 1219 (1984).105

Furthermore, when the agency sought to vacate the Consent 
Decree in 1983 by asserting that changed circumstances had turned 
it into an instrument of wrong, the district court listened to 
the agency's complaints and modified the 1977 decree to address 
those problems. With relaxation of some of the then existing 
requirements, the 1983 order by definition was less intrusive 
than the 1977 order. The district court in refusing in 1983 to 
vacate the consent decree held, however, that the purpose of the 
decree —  correction of defendants' systemic defalcation on Title 
VI compliance —  had not yet been accomplished. Thus, relief is 
still warranted.106

For the agency now to seize reconsideration of plaintiffs' 
standing as an opportunity to relitigate what it consented to in

105 Accord Beraer v. Heckler. 771 F.2d 1556, 1579 (2d Cir.
1985).

106 This type of court-ordered relief is well accepted. In 
International Union. United Auto.. Aerospace and Agricultural 
Implement Workers of Am.. UAW v. Donovan. 756 F.2d 162, 165 (D.C. 
Cir. 1985), this Court approved orders requiring OSHA to inform 
the court of any action that might interfere with established 
timetables for regulations regarding formaldehyde in the workplace, 
and warned that it would "look with extreme displeasure on any 
variance from the schedule and will not hesitate to set a date 
certain for completion of the administrative proceedings if the 
[agency] unreasonably delay[s]" (quoting district court opinion). 
In Telecommunications Research and Action Center v. Federal Com­
munications Comm'n. 750 F.2d 70, 81 (D.C. Cir. 1984), this Court 
ordered the FCC to set up a schedule for resolving specified 
disputes and requiring progress reports to the court every 60 
days to allow judicial oversight. See also Nader v. -Federal 
Communication Comm'n. 520 F.2d 182, 206 (D.C. Cir. 1975).

48



1976 and 1977 is inappropriate.107 Plaintiffs should not be put 
to the task of relitigating what was previously settled and approved 
by the court after protracted and intense negotiations.108

CONCLUSION
For the reasons set out above, appellants respectfully request 

that this Court reverse the order of the district court dismissing 
this action for lack of standing, and resolve the previously pending 
appeal with respect to the 1983 timeframes orders. The validity 
of the March 11, 1983 Orders relating to timeframes, the only

107 As the district court stated, that Decree was "the result 
of a lot of hard bargaining on both sides. . . . counsel at that 
phase of the case did a lot of hard bargaining in good faith and 
came up with a consent order." Hearing of March 15, 1982, Tr. at 
3, 16.

108 United States v. Swift & Company. 286 U.S. 106, 119 
(1932) ("Nothing less than a clear showing of grievous wrong evoked 
by new and unforeseen conditions should lead us to change what 
was decreed after years of litigation with the consent of all concerned. ") .

49



orders appealed by defendants, should be decided under the stan­
dards set out in United States v. Swift & Company. 286 U.S. 106 
(1932) .

Respectfully submitted,

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
JANELL M. BYRD

99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

ELLIOTT C. LICHTMAN 
MARY M. LEVY

Lichtman, Trister,
Singer & Ross

1666 Connecticut Ave., N.W. 
Suite 501
Washington, D.C. 20009 
(202) 328-1666

Counsel for Plaintiffs-Appellants Kenneth Adams, et al.
SUSAN E. BROWN 
NORMA V. CANTU

Mexican American Legal 
Defense and Educational Fund 
140 East Houston Street 
San Antonio, Texas 78205 
(512) 224-5476

HADRIAN R. KATZ 
L. HOPE O'KEEFFE 
Arnold & Porter 
1200 New Hampshire 
Ave., N.W.

Washington, D.C. 20036 
(202) 872-6700

Counsel for Plaintiff-Intervenors-Appellants,
Jimmy Martinez, Ben Salazar, Pablo Ortega, and Arturo Gomez, Jr.

50



CERTIFICATE OF SERVICE

I hereby certify that on January , 1989, copies of the 
foregoing Brief For Plaintiffs-Appellants Kenneth Adams, et al., 
and Plaintiff-Intervenors-Appellants Jimmy Martinez, et al., were 
served upon the following persons listed below by placing same in 
the United States mail, postage prepaid.

Alfred Mollins, Esq.
Appellate Staff 
Civil Division 
Department of Justice 
Washington, D.C. 20530
Matthew Jacobs, Esq.
Laura Sardo, Esq.
Covington « Burling
1201 Pennsylvanai Avenue, N.W.
Washington, D.C. 20044
Cynthia W. Simon, Esq.
Shea & Gardner
1800 Massachusetts Avenue, N.W. 
Washington, D.C. 20036
Marcia Greenberger, Esq.
Brenda Smith, Esq.
National Women's Law Center 
1616 P. Street, N.W., Suite 100 
Washington, D.C. 20036

Elliott C. Lichtman



STATUTORY ADDENDUM



Relevant Portions of 42 U.S.C. § 2000d et seq.

§ 2 0 0 0 d .  P ro h ib itio n  a g a in st  exc lu sion  from  partic ip ation  
In, d en ia l o f  b en e fits  o f, and d iscrim in ation  un­
d er  F e d e r a lly  a ss is ted  program s on  grou n d  o f  
ra ce , co lor , or  n a tion a l origin

No person in the U nited S tates shall, on the ground o f  race, color, 
or national orig in , be excluded from participation in, be denied the  
benefits of, or be subjected to discrim ination under any program  or 
activity receiving Federal financia l assistance.
Pub.L. 88-352, T itle  VI, § 601, Ju ly  2 ,1 9 6 4 ,7 8  SU t. 252.

§  2 0 0 0 d - l .  F ed era l a u th o r ity  and fin an cia l a ss is ta n ce  to
p rogram s or  a ctiv itie s  b y  w a y  o f  g ra n t, loan, 
o r  co n tra ct o th er  th an  co n tra c t o f  insurance  
o r  g u aran ty ; ru les and regu la tion s; ap­
prova l b y  P resid en t; com p lian ce  w ith  re­
q u irem en ts; rep orts to  C on gression a l com ­
m ittees; e ffe c tiv e  d a te  o f  ad m in istra tive  
action

Each Federal departm ent and agency which is empowered to ex­
tend Federal fin an cia l assistance to any program or activ ity , by way  
of grant, loan, or contract other than a contract o f insurance or 
guaranty, is authorized and directed to effectuate the provisions of 
section 2000d o f th is  title  w ith respect to such program or activity  
by issu ing  rules, regulations, or orders o f general applicability  
which shall be con sisten t with achievem ent o f the objectives o f  the 
statute authorizing the financial assistance in connection with  
which the action is taken. No such rule, regulation, or order shall 
become e ffec tiv e  un less and until approved by the President. Com­
pliance w ith any requirem ent adopted pursuant to th is section may 
be effected  (1 )  by the term ination o f  or refusal to grant or to con­
tinue assistance under such program or activity to any recip ient as 
to whom there has been an express finding on the record, a fter op­
portunity for hearing, o f  a failure to comply w ith such requirem ent, 
but such term ination or refusal shall be lim ited to the particu lar po­
litical entity, or part thereof, or other recipient as to whom such a 
finding has been made and, shall be lim ited in its e ffe c t  to the par­
ticular program, or part thereof, in which such noncom pliance has 
been so found, or (2 ) by any other means authorized by law: Pro­
vided, however, T hat no such action shall be taken until the depart­
ment or agency concerned has advised the appropriate person or 
persons o f the fa ilu re  to comply w ith  the requirem ent and has de­
term ined that com pliance cannot be secured by voluntary means. In 
the case o f any action term inating, or refusing to grant or continue, 
assistance because o f fa ilu re to com ply with a requirem ent imposed 
pursuant to th is  section , the head o f the Federal departm ent or 
agency shall f ile  w ith  the com m ittees of the House and Senate hav­
ing leg islative ju risd iction  over the program or activ ity  involved a 
fu ll w ritten report o f  th e circum stances and the grounds for such  
action. No such action shall become effective  until th irty  days have 
elapsed a fter the f il in g  o f such report.
Pub.L. 88-352, T itle  VI, § 602, July 2, 1964, 78 S U t. 252.



§ 2000d-2. Judicial review; administrative procedure pro­
visions

Any departm ent or agency action taken pursuant to  section  
2000d-l o f th is title  shall be subject to such judicial review  as may 
otherwise be provided by law for  sim ilar action taken by such  de­
partment or agency on other grounds. In the case o f action, not 
otherwise subject to judicial review, term inating or refusing to

grant or to con'i&iue fin w n citf a ssistan ce upon a find ing  o f failure  
to comply w ith  any requirem ent im posed pursuant to section  2000d- 
1 o f  th is title , any person aggrieved (includ ing  any State or politi­
cal subdivision thereof and any agency o f either) may obtain judi­
cial review  of such action in accordance w ith  chapter 7 o f T itle 6, 
and such action shall not be deemed committed to unreviewable 
agency discretion w ith in  the m eaning o f that chapter.
Pub.L. 88-352, T itle  VI, 5 603, July 2 ,1 9 6 4 ,7 8  S ta t  253.

Relevant Portions of 5 U.S.C. § 701 et seg.

§ 701. A p p lica tion ; d efin itio n s -^3
(a ) T his chapter applies, according to the provisions thereof, ^  

cept to the ex ten t that—
(1) sta tu tes preclude judicial review ; or ,i$ L
(2 ) agency action is com m itted to agency discretion by U v |g

(b) For th e purpose of th is  chapter—
(1 ) “agency" m eans each authority of the Government of

U nited S tates, w hether or not it  is w ithin or subject to revie 
by another agency, but does n ot include

(A ) th e  C ongress; 'm
(B ) the courts o f the United S ta te s; ^
(C ) the governm ents of the territories or possessions, 

the U nited  S ta te s ;
(D ) th e governm ent of the D istrict o f Colum bia, ^
(E ) agencies composed of representatives of the P” ^ L

or o f representatives of organizations of the parties to  t h | ,  
disputes determ ined by th em ; '

(F )  courts m artial and m ilitary com m issions,
(G ) m ilitary authority exercised in the fie ld  in  t in » o f  

w ar or in  occupied terr ito ry ; or
(H ) fu n ction s conferred by sections 1738, 1739, 1743,, an£ 

w a s  o f t it le  12- chapter 2 of title  41; or sections 1622.J 
1884, 1891-1902, and form er section 16 4 1 (b )(2 ), o f title 5 0 j  
appendix; and

(2 ) “person”, “rule”, “order”, "l i cense”, ; " b y  
and “agency action” have the m eanings given them  by section^

551 o f th is  title .
Pub.L. 89-554, S e p t  6, 1966, 80 S ta t  392.



§ 702. R ig h t o f review
A person su fferin g  legal wrong because of agency action, or ad­

versely affected  or aggrieved by agency action w ithin the meaning 
of a relevant statute, is entitled to judicia l review thereof. An ac­
tion in a court o f the United States seeking relief other than money 
damages and sta tin g  a claim  that an agency or an officer or em­
ployee thereof acted or failed  to act in an o ffic ia l capacity or under 
color of legal authority shall not be dism issed nor relief therein be 
denied on the ground that it is again st the United States or that the 
United States is an indispensable party. The United States may be 
named as a defendant in any such action, and a judgm ent or decree 
may be entered against the United States: Provided, That any man­
datory or injunctive decree shall sp ecify  the Federal o fficer or offi­
cers (by name or by t it le ) , and their successors in office, personally  
responsible for com pliance. N othing herein (1 ) a ffects other limi­
tations on judicial review  or the power or duty of the court to dis­
m iss any action or deny relief on any other appropriate legal or eq­
uitable ground; or (2 ) confers authority to grant relief i f  any other 
statute that grants consent to su it expressly or im pliedly forbids the 
relief which is sought.
Pub.L. 89-654, Sept. 6, 1966, 80 Stat. 392; Pub.L. 94-574, § 1, O ct  
21, 1976, 90 Stat. 2721.

1§ 703. F orm  an d  v en u e  o f  proceed ing
The form of proceeding for judicia l review is  the special statutory  

review proceeding relevant to the subject m atter in a court specified  
statute or, in the absence or inadequacy thereof, any applicable 

‘ form of legal action, including actions for declaratory judgm ents or 
► writs of prohibitory or m andatory injunction or habeas corpus, in a 
’ ?ourt of competent jurisd iction . If no special statutory review pro- 

reeding is applicable, the action for judicial review may be brought 
f against the United States, the agency by its offic ia l title, or the ap- 
» propriate officer. E xcept to the extent that prior, adequate, and ex­
c lu s iv e  opportunity for jud icia l review  is provided by law, agency  

sction is subject to judicia l review  in civil or criminal proceeding  
for judicial enforcem ent.
 ̂Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 392 ; Pub.L. 94-574. § 1, Oct. 
21, 1976, 90 Stat. 2721.

6 704. A ctio n s  rev iew ab le
Aeency action made reviewable by statute and final agency action  

.  _ which there is no other adequate remedy in a court are subject 
\  lUdicial review. A prelim inary, procedural, or interm ediate agen­
cy action or ru ling not d irectly  reviewable is subject to review  on 
tue review of the fina l agency action. Except as otherwise express- 
lv required by statute, agency action otherwise final is final f 
purposes of th is section whether or not there has been presented or 
determined an application for a declaratory order, for any form of 
reconsideration, or, unless the agency otherwise requires by rule 
and provides that the action m eanw hile is inoperative, for an appea 
to superior agency authority. 
pub.L. 89-554, Sept. 6, 1966, 80 Stat. 392.



«

§ 705. R*lie* pending rev iew  ^  -t  may p08tp0ne
When an agency fm ds that jus : ng judicial review. On

the e ffec tiv e  date of action takeri by P extent nece9Sary to
such conditions as may be u including the court
prevent irreparable injury, the ^  on application for

. V . . . .  may be taken on appeal fr e aU necessary
“ rforari'or  other w rit to a w rtew tM [ d. u  o l  an sgocy

conclusion -  « *  re-

action or w  v
view proceedings. gQ g t a t  393.

§ 706. Scope of review
To the extent necessary to decision and w b e ^ P r e r e ­

v iew ing court shall decide all re.evan determ ine the meaning
constitutional and statutory provisio ’ The review ing
or applicability  of the term s of an agency actio

court shall—  __
(1 ) compel agency action unlawfully withheld or unrernmn.-

bly delayed; and
(2 ) hold unlaw ful and set aside agency action, findings, 

conclusions found to be—
( * )  arbitrary, capricious, an abuse o f d iscretion, or oth- 

erw ise not in accordance w ith la w ,
(B ) contrary to constitutional right, power, privilege, or

im m unity; .
(C) in excess o f statutory jurisdiction, authority, or m u­

tations, or short o f statutory right;
(D ) w ithout observance of procedure required by law ;

fE l unsupported by substantial evidence in a case sub-(E ) unsupponeo r otherwise re­
ject to sections 556 and 557 o l uu s «
viewed on the record of an agency hearing provi

^ (F r u n w a r r a n te d  by the facts to the extent^that the facts 
are subject to trial de novo by the review ing court.

the foregoing determinations, the court shall review the 
record or those parts o f it  cited by a party, and due account 

Wha°j ^  taken of the rule o f prejudicial error. 
pub.L. 89- 554, S e p t 6, 1966, 80 Stat. 393.

4(a)

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