City of New York Board of Education v. Califano Brief Amicus Curiae

    In T he

§iq.uTittr Qlmtri nf tltr llhtitrii S’tatm
October T erm , 1979

No. 78-873
Board of Education of the City School District

of the City of New  Y ork, et al.,
Petitioners,v.

J oseph Califano , Secretary, United States Department 
of Health, Education and Welfare, et al.

On Writ of Certiorari to the United States Court of Appeals 
for the Second Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE

C h a r le s  A . B a n e  
T h o m a s  D . B arr

Co-Chairmen
N o r m a n  R ed lich

Trustee
R obert A . M u r p h y  
N o r m a n  J. C h a c h k in  

Staff Attorneys
L a w y e r s ’ Co m m it t e e  for 

C iv il  R ig h t s  U n der  L a w  
733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 

Attorneys for Amicus Curiae

W il s o n  -  Ep e s  Pr in t in g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , d . c . 2 0 0 0 1



Table of Authorities ...........................................................  n
Interest of Amicus Curiae................................................  1
Summary of Argum ent......................................................  5
ARGUMENT—

Introduction .............................................    7
I. § 1605 (d) (1) (B) Was Intended To Make In­

eligible for Assistance Those Districts In Which 
Schools Are Racially Identifiable By Virtue Of 
A Pattern Of Minority Faculty Assignment 
Which Corresponds To the Pattern Of Minority 
Student Enrollment................................................  12
A. The Statutory Language ................................  14
B. The Legislative History ..................................  16

C. Congressional Adoption of the HEW Con­
struction .............................................................. 41

II. If This Court Determines That Only Conduct 
Amounting To A Constitutional Violation Will 
Disqualify ESAA Applicants Under § 1605(d)
(1) (B ), It Should Recognize The Strong Prima 
Facie Showing Of Discrimination Which Is 
Established By The Faculty Assignment Sta­
tistics In This Case And Put The Burden On 
Petitioners To Rebut That Showing By Clear 
And Convincing Evidence

I N D E X
Page

Conclusion
43
50



II

Cases
Adams V. Mathews, Civ. No. 3095-70 (D.D.C.,

Order of June 14, 1976) ........................................ 26n
Alexander v. Holmes County Bd. of Educ., 396

U.S. 19 (1969) ...........................................-............ 48-49
Berenyi V. Immigration Serv., 385 U.S. 630

(1967) ....................................................................... 8n
Board of Educ. v. H E W , 396 F. Supp. 203 (S.D.

Ohio 1975), rev’d in part on other grounds, 532
F.2d 1070 (6th Cir. 1976) ...............................—  26n

Bradley V. Milliken, 460 F. Supp. 299 (E.D. Mich.
1978) ......................................................................... 26n

Bradley V. Milliken, 432 F. Supp. 885 (E.D. Mich.
1977) ......................................................................... 26n

Bradley V. School Bd. of Richmond, 382 U.S. 103
(1965) ....................................................................... 45n

Califano v. W estcott, 47 U.S.L.W. 4817 (June 25,
1979) ...................................-....................................  36n

Cannon v. University of Chicago, 47 U.S.L.W. 4549
(May 14, 1979) ...............................................- ..... 37

Carey V. Piphus, 435 U.S. 247 (1968) ....... ...........  49
Castaneda V. Partida, 430 U.S. 482 (1977)-----45n, 46, 47
Davis V. Passman, 47 U.S.L.W. 4643 (June 5,

1979) ......................................................................... 8n
Davis V. School Dist. of Pontiac, 309 F. Supp. 734 

(E.D. Mich. 1970), aff’d 443 F.2d 573 (6th C ir.),
cert, denied, 404 U.S. 913 (1971) ......... ............-  47n

Davis V. Southeastern Community College, 47
U.S.L.W. 4689 (June 11, 1979) ..... .................. 13

Dayton Bd. of Educ. v. Brinkman, 47 U.S.L.W.
4944 (July 2, 1979) ........................................... 45n

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406
(1977) .............................................. -....................... 11

Dothard v. Rawlinson, 433 U.S. 321 (1977) .......... 45n
Fum co Constr. Corp. v. Waters, 57 L. Ed. 2d 957

(1978) ..... ............................- ..........................  Bn, 45n, 46
Green V. County School Bd. of New Kent County,

391 U.S. 430 (1968) ............................................... 45n

TABLE OF AUTHORITIES
Page



Ill

Hazelwood School Dist. v. United States, 433 U.S.
299 (1977) ..............................................................  45n

International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977)....................................45n, 46n, 48n

Kelley v. Metropolitan County Bd. of Educ., 317 
F. Supp. 980 (M.D. Tenn.), stay order rev’d,
436 F.2d 856 (6th Cir. 1970) ................................ 47n

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert.
denied, 413 U.S. 919 (1973) ................................ 47n

Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir.
1974) ......................................................................... 40n

Keyes v. School Dist. No. 1, Denver, 413 U.S. 189
(1973) ........................................................................... 7n

Mays v. Board of Pub. Instruction, 428 F.2d 809
(5th Cir. 1970) ........... ........................................ _47n, 48n

Milliken v. Bradley, 418 U.S. 717 (1974) .............  49
Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass.), 

aff’d sub nom. Morgan V. Kerrigan, 509 F.2d 
580 (1st Cir. 1974), cert, denied, 421 U.S. 963
(1975) .................................................................. 47n, 48n

Mount Healthy School Dist. v. Doyle, 429 U.S. 274
(1977) ...........................................................................  49

Norris v. Alabama, 294 U.S. 587 (1935)...................... 49
Regents v. Bakke, 57 L. Ed. 2d 750 (1978)......4n, 27, 36n
Robinson v. Vollert, 411 F. Supp. 461 (S.D. Tex.

1976) ......   26n
Rogers v. Paul, 382 U.S. 198 (1965) ................. ....... 45n
Singleton v. Jackson Mun. Separate School Dist.,

419 F.2d 1211 (5th Cir. 1969), rev’d in part on 
other grounds sub nom. Carter v. West Feliciana 
Parish School Bd., 396 U.S. 290 (1970) ..36,37,38,40 

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971) ................................................. 8-9, 45n

United States V. Greenwood Mun. Separate School 
Dist., 406 F.2d 1086 (5th Cir.), cert, denied,
395 U.S. 907 (1969) .............................................  48n

United States V. Montgomery County Bd. of Educ.,
395 U.S. 225 (1969) .............................................  45n

TABLE OF AUTHORITIES—Continued
Page



IV

TABLE OF AUTHORITIES—Continued
Page

United States v. Singer Mfg. Co., 374 U.S. 174
(1963) ......................................................................  8n

Village of Arlington Heights v. Metropolitan Hous­
ing Development Corp., 429 U.S. 252 (1977).... 7n

Washington v. Davis, 426 U.S. 229 (1976) ..... 7n, 45n, 46
Whitus v. Georgia, 385 U.S. 545 (1967) .............— 47n
Wise V. Lipscomb, 57 L. Ed. 2d 411 (1978) ...........  8n
Wood v. Strickland, 420 U.S. 308 (1975) ...............  8n

Statutes

20 U.S.C. § 1602(a) ................................................... 27
20 U.S.C. § 1602(b) ................................................... 29
20 U.S.C.S. § 1605(d) (1) (B) (Supp. 1978) ..........passim
20 U.S.C.S. § 1605 (d) (5)  (Supp. 1978) ..............  48n
20 U.S.C.S. § 3196(c) (1) (B) (Supp. 1979) ......... 7n
42 U.S.C. § 2000d ............................4, 5, 8n, 12, 27, 29, 30
42 U.S.C. §§ 2000e et seq. .......................................... 45n
P.L. 95-561, 92 Stat. 2143, reprinted in [1978] U.S.

Code Cong. & Adm. Ne w s ..... ..............................4n, 41n
P.L. 92-318, 86 Stat. 235, reprinted in [1972] U.S.

Code Cong. & Adm. News 278 ..... ...................... 36
P.L. 92-184, 85 Stat. 627, reprinted in [1971] U.S.

Code Cong. & Adm. News 709 .... .................... . 32n
P.L. 92-71, 85 Stat. 182, reprinted in [1971] U.S.

Code Cong. & Adm. News 1 98 .................. ........ 31n
P.L. 92-48, 85 Stat, 103, reprinted in [1971] U.S.

Code Cong. & Adm. News 115..... ...................... 31n
P.L. 92-38, 85 Stat. 89, reprinted in [1971] U.S.

Code Cong. & Adm. News 98 ................................ 31n
P.L. 91-380, 84 Stat. 800, reprinted in [1970] U.S.

Code Cong. & Adm. News 942 ...............2n, 3n, 18,34n
P.L. 91-230, 84 Stat. 121, reprinted in [1970] U.S.

Code Cong. & Adm. News 133.............................. 29

Regulations

45 C.F.R. § 185.13(1) (2) (i) (1978) ...................... 48n
45 C.F.R. § 185.43(b) (2) (1978) ............7,13, 38n, 40n,

41, 42, 43



V

45 C.F.R. § 185.44(d) (3) (1978) .........................  40n
45 C.F.R. § 181.6(a) (4) (vi) (1972) ......................  38n
45 C.F.R. Part 181 (1971) ............................... 19
45 C.F.R. §181.2 (1971) ......................................... 20n
45 C.F.R. § 181.6(a) (4) (v) (1971) ........................ 19n
45 C.F.R. § 181.6(a) (4) (vi) (1971) ......... 20n, 31n, 38n
44 Fed. Reg. 5204 (Jan. 25, 1979) ........................ 4n
43 Fed. Reg. 7048 (Feb. 17, 1978) .......................  4n
42 Fed. Reg. 11154 (Feb. 25, 1977) ...................... 4n
38 Fed. Reg. 3452 (February 6, 1973), reprinted

at 45 C.F.R. § 185.43(b) (2) (1973) ...................  38n
38 Fed. Reg. 3451 (February 6, 1973) ............. 25n, 38n
37 Feg. Reg. 25746 (December 2, 1972) .............  38n
36 Fed. Reg. 16546 (August 21, 1971), reprinted

at 45 C.F.R. Part 181 (1972)................................  31n
36 Fed. Reg. 12984 (July 7, 1971) .......................  31n
35 Fed. Reg. 13442 (August 22, 1970), reprinted 

at 45 C.F.R. Part 181 (1971) ................................ 3n, 18

Legislative Materials
Reports

H.R. Conf. Rep. No. 95-1753, 95th Cong., 1st Sess. 
(1978), reprinted in [1978] U.S. Code Cong. &
Adm. News 5189 ......................................................  43n

H.R. Rep. No. 95-1137, 95th Cong., 1st Sess. 
(1978), reprinted in [1978] U.S. Code Cong. &
Adm. News 5065 ...............................   42n

S. Rep. No. 92-604, 92d Cong., 2d Sess. (1972) ... 27n
S. Rep. No. 92-145, 92d Cong., 1st Sess. (1971) .... 32n
S. Rep. No. 92-61, 92d Cong., 1st Sess. (1971) ...15n, 25n,

28n
H.R. Rep. No. 91-1634, 91st Cong., 2d Sess.

(1970) ....................................................................... 21

Bills

TABLE OF AUTHORITIES—Continued
Page

S. 659, 92d Cong., 1st Sess. (1971) .. 
S. 1557, 92d Cong., 1st Sess. (1971)

.............  33

.25, 27, 28n, 29, 
30n, 31, 32, 33



VI

H.R. 2266, 92nd Cong., 1st Sess. (1971), reprinted
at 117 C o n g . R e c . 38480 (November 1, 1971).... 32, 33,

TABLE OF AUTHORITIES—Continued
Page

36
H.R. 7016, 92d Cong., 1st Sess. (1971) ...............  31n
H.R. 7248, 92d Cong., 1st Sess. (1971).......... . 32,33
H.R. 11955, 92d Cong., 1st Sess. (1971) ....... ...... 32n
H.R.J. Res. 742, 92d Cong., 1st Sess. (1971) .....  31n
H.R.J. Res. 829, 92d Cong., 1st Sess. (1971) ...... 31n
H.R. 16916, 91st Cong., 2d Sess. (1970) .............  19n
H.R. 17399, 91st Cong., 2d Sess. (1970) .............  19n
H.R. 17846, 91st Cong., 2d Sess. (1970) ...........  17n
H.R. 19446, 91st Cong., 2d Sess. (1970) .......21, 22, 23n

Hearings
Education Amendments of 1977, Hearings on S.

1753 Before the Subcommittee on Education,
Arts, and Humanities of the Senate Comm, on 
Human Resources, 95th Cong., 1st Sess. (1977).. 42n

Part 4: Emergency School Aid Act, Hearings on 
H.R. 15 Before the Subcommittee on Elemen­
tary, Secondary and Vocational Education of the 
House Comm, on Education and Labor, 95th
Cong., 1st Sess. (1977) ........................................ lln , 32n

Emergency School Aid, 1971: Hearings on S. 195 
Before the Subcommittee on Education of the 
Senate Comm, on Labor and Public Welfare, 92d
Cong., 1st Sess. (1971) ................................21n, 23n, 24n

Emergency School Aid Act: Hearings on H.R.
2266 Before the General Subcommittee on Edu­
cation of the House Comm, on Education and
Labor, 92d Cong., 1st Sess. (1971) .........23n, 24n, 40n

Emergency School Aid Act of 1970: Hearings on 
S. 3883 and S. 4167 Before the Subcommittee 
on Education of the Senate Comm, on Labor and
Public Welfare, 91st Cong., 2d Sess. (1970) .......  18n

Equal Educational Opportunity, Hearings Before 
the Senate Select Committee on Equal Educa­
tional Opportunity, 91st Cong., 2d Sess. 1970).. 18n,

19n



VII

Emergency School Aid Act of 1970, Hearings on 
H.R. 17846 and Related Bills Before the General 
Subcommittee on Education of the House Comm, 
on Education and Labor, 91st Cong., 2d Sess.
(1970) ....................................................17n, 18n, 19n, 37n

Debates
116 Co n g . Re c . (1970) .................. 19n, 21, 22n, 23n, 30n
117 C o n g . R ec . (1971) .............. 25, 26, 27n, 28, 29n, 30n,

31n,32n,33n
118 Co n g . R e c . (1972) ............................ 33n 34, 35n, 36n

Other Authorities

1970 P u b . P apers (1971) ........................................  17n
General Accounting Office, Need to Improve Poli­

cies and Procedures for Approving Grants Un­
der the Emergency School Assistance Program
(1971) , reprinted in Emergency School Aid Act:
Hearings on H.R. 2266 Before the General Sub­
committee on Education of the House Comm, on 
Education and Labor, 92d Cong., 1st Sess. 89 
(1971) .................    3n,24n

Office for Civil Rights, HEW, Handbook for Emer­
gency School Aid Act Programs (1977) ..........  39n

Washington Research Project, et al., T h e  E m er ­
g e n c y  School  A s s ist a n c e  P rogram  : A n  E v a l ­
u a t io n  (1970) .................................3n, 20n, 21n, 23n, 40

Washington Research Project, et al., T h e  St a t u s  
of Sc h o ol  D esegregation  in  t h e  So u t h , 1970 
(1970) .............................................................. 3n,21n,23n

TABLE OF AUTHORITIES—Continued
Page



In T he

im jtm nr (Erntrt nf tfp> Huttrii ^tatPB
October Term , 1979

No. 78-873
Board of Education of the City School D istrict 

of the City of New  Y ork, et al,
Petitioners,

Joseph Califano, Secretary, United States Department 
of Health, Education and Welfare, et al.

On Writ of Certiorari to the United States Court of Appeals 
for the Second Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE *

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of President John F. 
Kennedy to involve private attorneys throughout the 
country in the national effort to assure civil rights to all 
Americans. The Committee’s membership today includes 
former Attorneys General, past Presidents of the Ameri­
can Bar Association, a number of law school deans, and 
many of the nation’s leading lawyers. Through its na­
tional office in Washington, D.C. and its offices in Jackson,

* Letters from counsel for the parties consenting to the filing of 
this Brief have been filed with the Clerk of this Court.



2

Mississippi and eight other cities, the Lawyers’ Commit­
tee over the past sixteen years has enlisted the services 
of over a thousand members of the private bar in ad­
dressing the legal problems of minorities and the poor in 
education, employment, voting, housing, municipal serv­
ices, the administration of justice, and law enforcement.

The Lawyers’ Committee and its local committees, 
affiliates, and volunteer lawyers have been actively en­
gaged in providing legal representation to those seeking 
relief under federal civil rights legislation. That repre­
sentation has included assistance in school desegregation 
cases raising issues of faculty assignment similar to 
those presented here. In addition, the Committee for 
many years has dealt with various federal agencies, in­
cluding the Department of Health, Education and Wel­
fare, and, as a result, has knowledge and expertise con­
cerning the legislation which the Department seeks to 
enforce and the effectiveness of its efforts.

Historically, the Lawyers’ Committee has strongly en­
dorsed vigorous action by the Executive and Legislative 
branches to support school desegregation. We believe that 
federal grant-in-aid programs like the Emergency School 
Aid Act (ESAA) which specify conditions of successful, 
effective integration that must be met if a recipient is to 
be eligible for funds, are proper and desirable mechanisms 
to implement the national policy favoring school desegre­
gation. To the extent compliance with such conditions is 
enforced, that policy will be effectuated.

In 1970 the Lawyers’ Committee, with the help of hun­
dreds of volunteer attorneys, worked with other civil 
rights groups to investigate the operation of the federal 
desegregation grant scheme which preceded ESAA: the 
Emergency School Assistance Program (E SA P).1 That 
effort documented administrative failure to enforce pro­

1 P.L. 91-380. See pp. 16-20 infra.



3

visions of the ESAP regulations2 which had been de­
signed, on paper, to insure that school districts receiving 
funds were meeting desegregation requirements.3 As we 
show below, the Congress which enacted ESAA inserted 
specific conditions of eligibility (including the one which 
is at issue in this case) into the law so as to avoid a 
repetition of these difficulties.

The Lawyers’ Committee believes that ESAA has 
proved to be an effective instrument and incentive for 
school desegregation. That is primarily the case because 
the law establishes conditions of eligibility for funding 
which are susceptible to rapid, objective measurement in 
pre-grant reviews of applicants.4 In accordance with

2 The ESAP program was proposed by President Richard M. 
Nixon on May 21, 1970. In order to permit ESAP to go into effect 
in the Fall of 1970, funds were reallocated under several different 
education programs. This was accomplished through appropriations 
legislation, P.L. 91-380, 84 Stat. 800, reprinted in [1970] U.S. Code 
Cong. & A dm . N ew s 942. Except for prohibitions against the trans­
fer of property or services to discriminating private schools, a non­
supplanting clause, and a maintenance of effort requirement, the 
only substantive restrictions on the use of funds were accordingly 
contained in the regulations issued (without prior publication for 
comment) on August 22, 1970, 35 Fed. Reg. 13442, reprinted as 45 
C.F.R. Part 181 (1971).

3 Washington Research Project, et al., T he E mergency School 
A ssistance Program: A n Evaluation (1970). See also, Washing­
ton Research Project, et al., T he Status of School Desegregation 
in the South, 1970 (1970). A less extensive, but officially spon­
sored, study also documented serious defects in administration of 
ESAP, including the funding of a district where the pattern of 
faculty assignments violated the regulations. See General Account­
ing Office, Need to Improve Policies and Procedures for Approving 
Grants Under the Emergency School Assistance Program (1971), 
reprinted in Emergency School Aid Act: Hearings on H.R. 2266 
Before the General Subcommittee on Education of the House Comm, 
on Education and Labor, 92d Cong., 1st Sess. 89, 134 (1971).

4 In 1978 the Congress reauthorized ESA A without modifications 
material to this case. It did, however, emphasize the desirability of 
quick completion of eligibility determinations in order to avoid fund­
ing delays to school districts ultimately determined by H E W  to be



4

principles of administrative law, the burden of produc­
ing information adequate to demonstrate that the eligi­
bility conditions have been satisfied is upon the applicant; 
the statute has been administered in this manner for 
seven years.5

The interpretation of the statute pressed by Petitioners 
here, however, would drastically alter this administrative 
scheme. If HEW may deny an ESAA application only 
when it can demonstrate an intentional constitutional 
violation by the applicant, the burden of investigation 
and presentation of evidence sufficient to prove intent 
(and thus ineligibility) will have to be borne by agency 
personnel. There will cease to be any distinction be­
tween ineligibility rulings and determinations of Title 
V I 6 violations which justify withdrawal of all federal 
funding.7 For all practical purposes, the special ineligi­
bility conditions written into the ESAA statute will cease 
to exist, and Congress’ effort to complement Title VI 
enforcement through this mechanism will be destroyed. 
The result will be a diminished level of enforcement ac­
tivity and a decline in the achievement of equal oppor­
tunity in the school systems of the nation.

eligible. See § 610(b) of the Elementary and Secondary Education 
Act of 1965, as added by § 601(a) of the Education Amendments of 
1978, P.L. 95-561, 92 Stat. 2252, 2262, reprinted in [1978] U.S. 
Code Cong. & A dm . New s . See also, id. at 5069, 5189.

5 Because this is the established procedure, the ESA A applicant 
pre-grant reviews have been tasks of manageable proportions which 
do not swamp the limited resources of the Office for Civil Rights 
(OCR), H EW . See 44 Fed. Reg. 5204 (Jan. 25, 1979); 43 Fed. Reg. 
7048 (Feb. 17, 1978) ; 42 Fed. Reg. 11154 (Feb. 25, 1977) [annual 
operating plans].

6 Title V I of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.

7 See Regents V. Bakke, 57 L. Ed. 2d 750, 767-69 (opinion of 
Powell, J .) ; id. at 793, 795-803, 810 (opinion of Brennan, White, 
Marshall and Blackmun, JJ.) ; id. at 851 n. 21 and accompanying 
text (opinion of Stevens, J., Burger, C.J., Stewart and Rehnquist, 
JJ.) (1978).



5

The Committee views such possibility with dismay. 
Because nothing in the ESAA statute or its legislative 
history supports the interpretation offered by Petitioners, 
and in light of our longstanding concern about the ESAA 
program, we file this brief amicus cui'iae for the assist­
ance of the Court.

SUMMARY OF ARGUMENT 

Introduction

The only issue which requires decision by this Court is 
whether § 1605(d) (1) (B) of the Emergency School Aid 
Act was intended to incorporate constitutional standards 
in determining the eligibility of school districts to receive 
funds. Neither the scope of Title VI of the 1964 Civil 
Rights Act nor application of constitutional standards 
to the facts of record is involved at this stage of the 
litigation, since the Court of Appeals’ reference to Title 
VI was only incidental, and since the Court of Appeals 
did not pass upon the correctness of the district judge’s 
constitutional ruling. Resolution of the statutory con­
struction question, however, will have a significant im­
pact upon the operation of the ESAA program because 
of the increased burden which would be placed upon the 
administrative agency if the statute is held to incorporate 
constitutional standards.

I

The language, legislative history and administrative 
interpretation of § 1605(d) (1) (B) all support the con­
struction adopted by the Court of Appeals. The specific 
conditions of ineligibility contained in § 1605(d) (1) were 
adopted by the Congress in response to criticism by civil 
rights organizations of the predecessor Emergency School 
Assistance Program— including the specific complaint that 
funds were awarded to districts in which faculty segrega­
tion persisted. The clauses of § 1605(d) (1) were in­



6

tended to prevent repetition of such abuses. Moreover, 
an amendment requiring a showing of intent was pro­
posed and adopted as a part of clause (A) but not clause 
(B )— the specific provision of the statute at issue in this 
case— and the Senate rejected another amendment which 
would explicitly have adopted constitutional standards 
by barring the establishment of any additional eligibility 
criteria for districts operating pursuant to court order. 
Finally, when ESAA was reauthorized in 1978, Congress 
was made aware of the statutory interpretation followed 
by the Department of Health, Education and Welfare and 
its specific application to Petitioners’ school district. 
Nevertheless, no change in the language of clause (B) 
was suggested, and an alternative amendment addressed 
to the faculty segregation-ineligibility issue was passed by 
the House of Representatives but eliminated by the con­
ference committee. Hence, the Congress has adopted 
and continued the original agency interpretation of the 
statute pursuant to which Petitioners’ school district was 
held ineligible for assistance in 1977-78.

II
If the Court does hold that § 1605(d) (1) (B) incor­

porates constitutional standards requiring a showing of 
intentional discrimination, it should provide guidance to 
the lower courts concerning application of those stand­
ards to the faculty assignment setting. Specifically, the 
Court should announce that where a strong prima facie 
showing of discrimination is made out (as here) by 
statistics demonstrating a high correlation between the 
student body and faculty racial composition of the schools 
within a district, it may be overcome only by clear and 
convincing evidence that faculty were assigned pursuant 
to a nonracial mechanism which avoided the opportunity 
for discrimination to affect the process.



7

ARGUMENT

Introduction

The issue in this case is a very narrow one. Peti­
tioners’ applications for ESAA funds for the 1977-78 
school year were denied because of HEW’s determina­
tion that Petitioners were ineligible under 20 U.S.C.S. 
§ 1605(d) (1) (B) (Supp. 1978),8 and the regulation in­
terpreting that clause. That determination was grounded 
upon HEW’s finding that faculty members within the 
New York City school system were assigned “ in such a 
manner as to identify . . . schools as intended for students 
of a particular race, color or national origin,” 45 C.F.R. 
§ 185.43(b) (2) (1978).9 Petitioners contend that the
regulation is an incorrect interpretation of § 1605(d) (1) 
(B) because the Act makes ineligibility depend upon a 
showing of a constitutional violation.10 Only the issue of 
statutory construction (Question No. I 11) is appropri­
ately before this Court in the present posture of this 
case.12

8 As previously noted, ESA A was reauthorized in the Education 
Amendments of 1978. The section in question is now codified at 20 
U.S.C.S. § 3 1 9 6 (c )(1 )(B ) (Supp. 1979).

9 Pursuant to the district court’s Order of November 18, 1977 
(Pet. App. 30), H EW  subsequently reconsidered Petitioners’ eligi­
bility under the “ constitutional standards” which it set forth, and 
found there was an unremedied constitutional violation with respect 
to faculty assignment. That finding was not passed upon by the 
Court of Appeals. See text infra.

10 Such a showing must be based upon evidence demonstrating 
intent or purpose to discriminate. Keyes V. School Dist. No. 1, 
Denver, 413 U.S. 189, 198, 206-08 (1973); Washington v. Davis, 
426 U.S. 229, 238-48 (1976) ; Village of Arlington Heights V. Metro­
politan Housing Development Corp., 429 U.S. 252, 264-68 (1977).

11 See Pet. Br. at 2.

12 The Court of Appeals has not passed upon the remaining ques­
tions framed by Petitioners, nor has it indicated what evidence 
would be required, in its view, to demonstrate a constitutional viola-



8

Furthermore, even if constitutional standards should 
have been engrafted upon § 1605(d) (1) (B ) , the prac­
tical import of failing to do so in the case at hand is 
doubtful. Petitioners have never denied that the pattern 
of faculty assignment in their schools was strongly cor­
related with the pattern of student body racial composi­
tion. Instead, they have urged that a variety of ex­
planations be accepted in justification of a situation 
“where it is possible to identify a ‘white school’ or a 
‘Negro school’ simply by reference to the racial composi­
tion of teachers and staff, . . . .” Swann v. Charlotte-

tion with respect to faculty assignment. Rather, the Court of Ap­
peals explicitly declined to review the district court’s ruling that 
there was substantial evidence to sustain H E W ’s finding of constitu­
tional violations (App. 150). And a careful reading of the Second 
Circuit’s opinion demonstrates that it did not hold that Petitioners 
had violated Title VI, but only adverted to Title VI in support of its 
interpretation of the E SA A  statutory ineligibility provisions. 584 
F.2d at 589. Under these circumstances, until this Court has “the 
valuable assistance of the Court of Appeals,” United States V. Singer 
Mfg. Co., 374 U.S. 174, 175 n .l (1963), it should not reach the other 
matters sought to be raised by Petitioners even if it concludes that 
the Court of Appeals erred in its construction of ESAA. See, e.g., 
Davis V. Passman, 47 U.S.L.W. 4643 (June 5, 1979); Fumco Constr. 
Corp. V. Waters, 57 L. Ed. 2d 957, 969-70 (1978); Wise V. Lipscomb, 
57 L. Ed. 2d 411, 421-22 (1978); Wood v. Strickland, 420 U.S. 308, 
327 (1975).

For similar reasons, the Court is not called upon in this matter 
to weigh the factual evidence presented on the administrative rec­
ord; certainly Petitioners reach well beyond the issues upon which 
review was granted in seeking a remand with instructions that the 
district court require “ H EW  to dispense the withheld ESA A funds 
to the Board.” Pet. Br. at 67. I f the Second Circuit’s interpretation 
of the E SA A eligibility standard is correct, then its determination 
that Petitioners failed to meet that standard is due to be accepted 
by this Court pursuant to the “ two-court rule.” See Berenyi V. 
Immigration Serv., 385 U.S. 630 (1967). (Since the district court 
upheld H E W ’s finding of ineligibility while applying a stricter 
standard than the Court of Appeals, its ruling under the Second 
Circuit’s test of eligibility is a fortiori the same.) Even if  the 
Second Circuit and the district court erred, this Court should clarify 
the legal standard but remand for its appropriate application by the 
trial judge in the first instance.



9

Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971). And 
they adhere to this position despite the existence in the 
record (usually not available to this Court at the time 
review is granted) of admissions that at least some of 
their “ explanations”  have an explicitly racial basis.13

13 For example, one of Petitioners’ “ explanations” is the operation 
of the 1969 New York School Decentralization Law, which permitted 
certain community school districts to bypass the Board of Examin­
ers’ rank-ordered listings of applicants for teaching positions. This 
procedure resulted in the accelerated hiring of minority applicants 

,  in those community districts. Petitioners allege an explicitly racial 
basis for this feature of the Decentralization Law. The purposes of 
the law were, according to the Verified, Complaint, to “ . . . (2) in­
crease the number of minority teachers employed in the New York 
public School system,” but not on a system-wide basis. Rather,

[r]evisions of the New York Education Law were based on 
these factors: (a) City public school student population had 
dramatically changed from predominantly non-minority to pre­
dominantly minority . . . ( c )  low reading achievement, par­
ticularly among minority students, fostered a developing edu­
cational consensus that minority teacher role-model theories 
should be explored, at least experimentally, in schools where low 
reading levels warrant new educational approaches;

Verified Complaint, (I 27B, Ct. App. App. at 11-12; Amended Veri­
fied Complaint, 27B, Ct. App. App. at 515-16 (emphasis supplied).

Or, as more forthrightly described in a letter to the city school 
system’s Deputy Chancellor describing the basis for the 1969 enact­
ment, which is quoted approvingly in the Complaint,

. . .  A  political compromise was reached whereby heavily minor­
ity schools— correlated with schools below the 45th percentile 
in reading scores— might hire teachers [in a way] . . . which, 
it was felt, would enlarge the pool of minority candidates and 
thereby increase the percentage of minority teachers. Schools 
whose reading scores were above the 45th percentile were re­
quired to hire from the rank order lists.

Verified Complaint, [[16, Ct. App. App. at 39. See also, Ct. App. 
App. 209-11 (District Court Order of November 18, 1977). In other 
words, by deliberate structuring of the law, it became permissible to 
hire additional minority teachers, but only if they were restricted to 
areas of the system in which minority pupils predominated. Indeed, 
the chief executive officer of the New York City school system stated 
that any attempt to match the ratio of minority teachers assigned 
to schools serving the “overwhelmingly minority student concentra-



10

These admissions in Petitioners’ own pleadings make it 
apparent that there is but a tenuous possibility that Pe­
titioners could have been found eligible for ESAA funds 
in 1977-78, whatever legal standards were applied. 
Rather than give full consideration to the case, there­
fore, the Court may wish to dismiss the writ as im- 
providently granted.

As wTe suggested in the Statement of Interest, supra, a 
decision sustaining Petitioners’ interpretation of ESAA 
would seriously inhibit progress which has been made 
as a result of enforcing the eligibility conditions for as­
sistance under the Act. The Director of the Office for 
Civil Rights, HEW, testified in 1977 that

[i]t  is our judgment that the pre-grant conditions 
of the kind contained in the ESAA statute are 
among the most effective ways of enforcing nondis­
crimination provisions of law and ensuring equal 
opportunities for the beneficiaries and potential 
beneficiaries of Federal financial assistance.* 14

tion in Manhattan” to the systemwide faculty ratio was “ educa­
tionally pointless.” Anker affidavit, App. 93-94.

14 He preceded the statement quoted in text by summarizing the 
Office’s experience with the E SA A program as follows:

In requiring compliance with specific civil rights provisions as 
a precondition to the award of Federal financial assistance, the 
ESAA program has had a significant role in the prevention and 
elimination of unlawful discrimination. In each of the funding 
cycles subsequent to the enactment of the statute, significant 
numbers of students have been reassigned from racially iden­
tifiable classes (including racially isolated classes) and racially 
identifiable special education programs determined to be edu­
cationally unjustified. A  number of comprehensive plans have 
been adopted to provide equal services to national origin 
minority children. Several thousand teachers have been reas­
signed to eliminate racially identifiable school staffs and a 
number of affirmative action employment programs have been 
adopted where disproportionate demotions or dismissals of



11

For example, during Fiscal Year 1976, 23 applicants for 
ESAA funding were initially declared ineligible because 
of teacher assignment problems; four determinations of 
ineligibility based on applications processed for Fiscal 
Year 1977 as of June 8, 1977 related to faculty assign­
ment.15 Most of the districts were able to take swift 
corrective action and obtain waivers of ineligibility.1"

This effective catalyst for change will be jeopardized, 
we repeat, by the ruling sought by Petitioners, because 
the level of detail and the amount of information which 
the Office for Civil Rights would have to amass in order 
to support a finding not only that racially identifiable 
faculties exist, but that their existence stems from “ in­
tentional discrimination,” would make impossible rapid, 
pre-grant eligibility clearances. This Court has often re­
marked on the fact that “ [fjindings as to the motivations 
of multimembered public bodies are of necessity difficult,” 
Dayton BcL. of Educ. v. Brinkman, 433 U.S. 406, 414 
(1977). It is one thing to require such findings of a

minority faculty took place during the desegregation of school 
systems.

Part i :  Emergency School Aid Act, Hearings on H.R. 15 Before the 
Subcommittee on Elementary, Secondary and Vocational Education 
of the House Comm, on Education and Labor, 95th Cong., 1st Sess. 
31-32 (1977).

15 Id. at 29-31.

16 Id. at 54 :

Mr. JENNINGS. With your first point, don’t you think, even 
though the numbers which ultimately don’t qualify seem to be 
small, just the existence of these provisions in the law causes 
school administrators to become discouraged from approaching 
for pre-integration types of activities. Therefore, the existence 
of these things probably scares people away.

Mr. TATEL. I don’t know. What I see there are 800 applica­
tions that seem to me to be a lot. When I look at the fact that 
virtually all the districts we find ineligible virtually always 
obtain eligibility [that] would lead me to believe they can sur­
mount these problems.



12

court granting a judgment in constitutional litigation, 
or of an agency proposing to terminate all Federal fi­
nancial assistance because of a violation of Title VI of 
the 1964 Civil Rights Act.17 It is quite another, we sug­
gest, to require similar findings by an agency passing 
upon an application for funds under one specific pro­
gram, and seeking to apply criteria developed to imple­
ment conditions of eligibility contained in that program 
statute. Only if there are compelling indications in the 
legislative language or history that this was the Con­
gressional intention should such a result obtain.

I. § 1605(d)(1)(B) WAS INTENDED TO MAKE IN­
ELIGIBLE FOR ASSISTANCE THOSE DISTRICTS 
IN WHICH SCHOOLS ARE RACIALLY IDENTIFI­
ABLE BY VIRTUE OF A PATTERN OF MINORITY 
FACULTY ASSIGNMENT WHICH CORRESPONDS 
TO THE PATTERN OF MINORITY STUDENT 
ENROLLMENT

The Emergency School Aid Act of 1972, at 20 U.S.C.S. 
§ 1605(d) (1) (B) (Supp. 1978) requires, as a condition 
of eligibility for receiving funds, that an applicant school 
district not have

had in effect [after June 23, 1972] any practice, 
policy, or procedure which results in the dispropor­
tionate demotion or dismissal of instructional or 
other personnel from minority groups in conjunction 
with desegregation or the implementation of any 
plan or the conduct of any activity described in this 
section, or otherwise engaged in discrimination based 
upon race, color, or national origin in the hiring, 
promotion, or assignment of employees of the agency 
(or other personnel for whom the agency has any 
administrative responsibility) [.]

17 See note 7, supra.



13

The Act is administered by the Department of Health, 
Education and Welfare (H E W ), which has adopted reg­
ulations to carry out the statutory objectives. The pro­
vision of the regulations which is pertinent to the above- 
quoted section of the law is 45 C.F.R. § 185.43(b) (2) 
(1978) :

No educational agency shall be eligible for assistance 
under the Act if, after June 23, 1972, it has had or 
maintained in effect any other practice, policy, or 
procedure which results in discrimination on the 
basis of race, color, or national origin in the recruit­
ing, hiring, promotion, payment, demotion, dismissal, 
or assignment of any of its employees (or any other 
personnel for which such agency has any adminis­
trative responsibility), including the assignment of 
full-time classroom teachers to the schools of such 
agency in such a manner as to identify any of such 
schools as intended for students of a particular race, 
color, or national origin.

Succinctly put, the question before this Court is whether 
the italicized portion of the regulation and its application 
to this case by HEW “ constitute an unauthorized ex­
tension of the [eligibility requirements] imposed by [the 
italicized language of the] statute,”  Davis v. Southeast­
ern Community College, 47 U.S.L.W. 4689, 4692 (June 
11, 1979).

We demonstrate below that (a) the regulation is not 
inconsistent with the statute; (b) the legislative history 
of the provision, and of the ESAA as a whole, fully 
supports the HEW interpretation; and (c) Congress 
accepted and adopted HEW’s interpretation when it re­
authorized ESAA in 1978 without any change in clause 
(B) .



14

A. The Statutory Language

Clause (B) of § 1605(d)(1) contains two phrases, 
connected by the disjunctive “ or.”  The phrases are not 
independent of one another, however, because of the use 
of the term “ otherwise” in the clause. The logical con­
struction of the clause is that the first phrase is con­
sidered to be one example of the more general category 
described in the second; just as one would construe the 
similarly constructed clause, “ bought apples, or otlienvise 
purchased fruit” to indicate that the author considered 
apples to be one sort of fruit. While this exposition of 
syntax may seem tedious, it is of considerable signifi­
cance to Petitioners’ case. For if the first phrase per­
mits, in Petitioners’ characterization, a “ disparate im­
pact” test of eligibility, then it is far from evident as 
a matter of simple grammatical usage that such a test 
of eligibility under the phrase following the words “ or 
otherwise” is impermissible.

Complete separation in meaning of the two phrases in 
clause (B) is a critical step in Petitioners’ argument. 
Only if the meaning of the words “ engaged in discrimi­
nation” is to be determined independently of the first 
phrase can it be asserted that Congress had no specific 
practices in mind when it used these words, but rather 
intended to adopt only constitutional standards of dis­
crimination. Our review of the language and the legis­
lative history, on the other hand, suggests that the first 
phrase is exemplary of the second, and that Congress 
intended in the more general language of the second 
phrase to cover other specific practices, including faculty 
assignment patterns which caused schools to be racially 
identifiable.

Petitioners rely heavily upon the use of the word 
“ presumes” at p. 41 of the Senate Report on one of the 
proposed ESAA bills (Pet. Br. at 25-26). This indi-



15

cates, they say, that “ the Senate Committee in consider­
ing section 1605(d) (1) (B) made a significant and con­
scious distinction between the language of the section 
which relates to ‘demotion or dismissal’ and that which 
relates to ‘hiring, promotion or assignment’ ”  {id. at 26) 
(emphasis added). We cannot agree. As we suggested 
above, this construction does violence to the grammar 
of the clause. In addition, the same Senate Report also 
contains language consistent with the view that the first 
phrase of clause (B) is exemplary, and that what Peti­
tioners call a “ disparate impact” test applies to the 
entire set of ineligibilities. The Report states:

. . . For the purposes of this bill, disproportionate 
demotion or dismissal of instructional or other per­
sonnel is considered discriminatory and constitutes 
per se a violation of this provision, when it occurs 
in conjunction with desegregation, the establishment 
of an integrated school, or reducing, eliminating or 
preventing minority group isolation.18 19

Had Congress intended to make a sharp distinction in 
meaning between the two phrases, it would not have 
described disproportionate minority staff reduction as 
“per se”  a violation of “ this provision.” Furthermore, 
just prior to the language quoted by Petitioners, the 
Senate Report declares:

The language used in that part of paragraph (1) 
which precedes clause (A ) is designed to render 
local educational agencies ineligible if they cause to 
occur, or permit to exist, those activities described 
in clauses (A) ,  (B),  (C), or ( D ) . . . .1#

This description of the statutory ineligibility section 
simply cannot be squared with Petitioners’ arguments

18 S. Rep. No. 92-61, 92d Cong., 1st Sess. 18-19 (1971) [emphasis 
in original].

19 Id. at 41 [emphasis supplied].



16

that disqualification on any ground except dispropor­
tionate minority staff reduction requires a showing of 
intentional conduct. The more sensible reading of the 
language of clause (B), and of the entire Senate Report, 
is that Congress sought to delineate minimum standards 
of desegregation-related conduct for ESAA recipient eli­
gibility. Since the legislative history indicates that in­
cluded among the specific conduct which the Congress 
sought to prevent was the maintenance of faculty assign­
ments resulting in racially identifiable schools, the lan­
guage of the clause is no bar to an HEW regulation 
which gives effect to this intention.

B. The Legislative History

The course of ESAA was extraordinarily tortuous. 
First proposed by the President in 1970, it was passed 
in different versions on several occasions by each House 
of Congress before ultimate enactment in 1972. Peti­
tioners’ discussion of the legislative background (Br. at 
19-40) barely plumbs the surface of this process, and 
omits entirely consideration of the earliest legislative 
efforts, which settled some of the basic issues carried 
forward in later versions of the bills. In order to pre­
sent the history of the statute as a whole, and to assist 
the Court in tracing the background, we describe it in 
some detail.

1. Spring and Summer, 1970

The concept of ESAA emerged on March 24, 1970, 
when the President of the United States issued a state­
ment discussing school desegregation and busing, and 
outlining the policies which the national administration 
would follow. Although President Nixon had strong per­
sonal reservations about busing, he favored faculty inte­
gration.20 “ In order to give substance to these commit­

20 I have instructed the Attorney General, the Secretary of Health, 
Education and Welfare, and other appropriate officials of the



17

ments,”  the President said, he would propose legislation 
to make Federal funds available to school systems which 
were desegregating.21

The President sent his legislation to the Congress on 
May 21, 1970;22 shortly thereafter, a bill embodying his 
program was introduced in the House of Representa­
tives.23 It did not contain any conditions of eligibility or 
specific requirement for faculty integration. Two weeks 
later, in the initial hearings on the proposal, there was 
skepticism about the administration’s motives and con­
cern that most of the funds would go to school districts 
which had resisted court decrees, without any require­
ment that meaningful integration occur or that discrimi­

Government to be guided by these basic principles and policies:

Segregation of teachers must be eliminated. To this end, each 
school system in this Nation, North, South, East and West, 
must move immediately, as the Supreme Court has ruled, to­
ward a goal under which “ in each school the ratio of white to 
Negro faculty members is substantially the same as it is 
thoughout the system.”

1970 Pub. Papers 315 (1971).

211 will ask Congress to divert $500 million from my previous 
budget requests for other domestic programs for fiscal 1971, to 
be put instead into programs for improving education in racially 
impacted areas, North and South, and for assisting school 
districts in meeting special problems incident to court-ordered 
desegregation. For fiscal 1972, I have ordered that $1 billion 
be budgeted for the same purposes.

Id. at 317.

22 Id. at 448, reprinted in Emergency School Aid Act of 1970, 
Hearings on H.R. 178U0 and Related Bills Before the General Sub­
committee on Education of the House Comm, on Education and 
Education and Labor, 91st Cong., 2d Sess. 21 (1970) [hereinafter 
cited as 1970 House Hearings].

23 H.R. 17846, 91st Cong., 2d Sess. (1970), reprinted in 1970 
House Hearings at 2-17.



18

natory practices be ended.24 Although the Secretary of 
HEW indicated that the Department was in the process 
of preparing program criteria,25 he and other witnesses 
were repeatedly asked whether Congress ought not to 
include restrictions on eligibility within the legislation 
itself. There was agreement that such limitations should 
be contained either in the statute or in regulations.26 
Similar testimony was given before the Senate Select 
Committee on Equal Educational Opportunity,27 and was 
considered by the Senate committee to which the Presi­
dent’s bill had been referred.28

Congress was unable to complete action on the measure 
in time for the opening of school in the Fall of 1970. 
Instead, $75 million was made available for an “ Emer­
gency School Assistance Program” (ESAP) in the 1971 
Office of Education Appropriation Act, P.L. 91-380,29 
which passed both Houses over the President’s veto on 
August 18, 1970. In order to have the program opera­
tional when school opened, HEW on August 22, 1970 
issued regulations without a prior public comment period. 
35 Fed. Reg. 13442 (August 22, 1970).

24 E.g., 1970 House Hearings at 36-37 (Rep. Hawkins), 64-65 
(Rep. Ford).

25 1970 House Hearings at 43.
26 E.g., 1970 House Hearings at 66 (H E W  Secretary Finch), 125 

(Dr. James S. Coleman), 256 (Prof. Alexander Bickel).
27 Equal Educational Opportunity, Hearings before the Senate 

Select Committee on Equal Educational Opportunity, 91st Cong., 
2d Sess. 992, 1282-83, 1462, 1518, 1528 (1970) [hereinafter cited 
as Select Committee Hearings].

28 “ Senator PELL. The Mondale committee and this subcommittee 
are working very closely. The material furnished to the Mondale 
committee will be sifted out and given to us. I wouldn’t want to 
duplicate it.” Emergency School Aid Act of 1970: Hearings on 
S. 3883 and S. H 67 Before the Subcommittee on Education of the 
Senate Comm, on Labor and Public Welfare, 91st Cong., 2d Sess. 
121 (1970).

29 84 Stat. 800, reprinted in [1970] U.S. Code Cong. & Adm . 
N ews 942.



19

Those initial ESAP regulations, 45 C.F.R. Part 181 
(1971), reflected both the President’s design and the 
Congressional concerns which had been expressed during 
the 1970 hearings and the debates on the appropriations 
measure.30 The regulations contained specific eligibility 
requirements disqualifying school systems which had en­
gaged in the discriminatory practices condemned in the 
hearings.31 The regulations also made fully integrated 
faculty assignments a precondition for assistance.32

30 The first attempt to establish the program took place when the 
Senate amended H.R. 17399, 91st Cong., 2d Sess. (1970), the Second 
Supplemental Appropriation bill, to include a $150 million allocation 
for an ESAP program. When the bill was debated, Senator Mondale 
voiced worries “that these funds may be wasted in desegregated 
schools which: . . . Have discriminatorily fired or demoted black 
faculty, Or in other ways have abused and circumvented the goal 
of quality integrated education.” 116 Cong. Rec. 19930 (June 16, 
1970). Accordingly, he proposed three amendments to prevent this 
result. But all ESAP provisions were stricken from H.R. 17399 in 
the Senate on a point of order. 116 Cong. Rec. 10818 (June 22, 
1970). Subsequently, Senator Javits introduced them— incorpo­
rating the Mondale amendments— as an amendment to H.R. 16916, 
91st Cong., 2d Sess. (1970), the Office of Education Appropriation 
bill. 116 Cong. Rec. 21218 (June 24, 1970). The Javits proposal 
was added to the bill the next day, id. at 21485, and the measure 
was passed by the Senate, id. at 21509 (June 25, 1970). The Confer­
ence Committee recommended adoption of the Senate ESAP version 
with a reduction in funds to $75 million, which was accepted by 
both Houses. Id. at 24581 (July 16, 1970) [House], 26215 (July 28, 
1970) [Senate]. Following the President’s veto, Congress enacted 
the measure by the requisite two-thirds majority vote. Id. at 28779 
(August 13, 1970) [House], 29391 (August 18, 1970) [Senate].

31 For example, the regulations required an assurance that
minority faculty members would not be demoted or dismissed in 
the desegregation pi-ocess. 45 C.F.R. § 181.6(a) (4) (v) (1971).
See, e.g., 1970 House Hearings at 189-90, 205, 676; Select Com­
mittee Hearings at 939, 945, 1156-59, 1517, 1836-37. The legislation 
itself barred recipients of aid from transferring property or services 
to racially discriminatory private schools, and from reducing state 
and local support to desegregating schools and districts, as a result 
of Senator Mondale’s amendments. See note 30 supra.

32. . . (a) An application of a local educational agency for 
assistance under the program shall—



20

The twin themes of avoiding discriminatory practices 
and assuring that funds were awarded only to systems 
in which effective desegregation took place continued to 
be sounded throughout the subsequent Congressional de­
liberations leading up to eventual adoption of ESAA.

2. Fall and Winter, 1970

By the time the Congress returned to its consideration 
of ESAA, substantially more information about the oper­
ation of ESAP, and the need for strengthened civil 
rights provisions in the legislation, was available. In 
late 1970, six civil rights organizations released a joint 
study of ESAP’s first funding cycle.33 Their report was 
highly critical of the program’s administration. Because

. . .  (4) Contain assurances satisfactory to the Commis­
sioner accompanied by such supportive information as he 
may require:

. . . (vi) That the local educational agency will take 
effective action to ensure the assignment of staff mem­
bers who work directly with children at a school so 
that the ratio of minority to nonminority group 
teachers in each school, and the ratio of other staff 
in each, are substantially the same as each such ratio 
is to the teachers and other staff, respectively, in the 
entire school system[.]

45 C.F.R. § 181.6(a) ( 4 ) (vi) (1971). §181.2  of the ESAP regula­
tions stated that the

purpose of the emergency assistance to be made available 
under the program described in this part is to meet special 
needs incident to the elimination of racial segregation and 
discrimination among students and faculty in elementary and 
secondary schools by contributing to the costs of new or ex­
panded activities to be carried out by local educational agencies 
or other agencies, organizations, or institutions and designed 
to achieve successful desegregation and the elimination of all 
forms of discrimination in the schools on the basis of students 
or faculty being members of a minority group, [emphasis 
supplied]

33 Washington Research Project, et al., T he E mergency School 
A ssistance Program, A n Evaluation (1970).



21

of the desire to distribute funds by the beginning of the 
fall semester, it charged, money had been practically 
given away without either an evaluation of contemplated 
program quality or adequate civil rights protections.34 
These allegations figured prominently in the next round 
of hearings and debates on the proposed (authorizing) 
legislation.35

A new version of the bill had been introduced in the 
House of Representatives on September 24, 1970. H.R. 
19446, 91st Cong., 2d Sess. (1970) at that time con­
tained no conditions of eligibility similar to those now 
part of ESAA. However, as knowledge of the ESAP 
fiasco spread, modifications were made by the subcom­
mittee to which the bill had been referred. See H.R. Rep. 
No. 91-1634, 91st Cong., 2d Sess. 8 (1970). When the 
bill was reported to the floor, Representative Pucinski 
stated this explicitly.36 During the debates which pre­
ceded passage of the measure on December 21, 1970, 116 
Cong. Rec. 43145, other members of the House exhibited

34 Id. at 14-17. See also, Washington Research Project, et al., T he 
Status of School Desegregation in the South, 1970 (1970).

35 See, e.g., Emergency School Aid, 1971: Hearings on S. 195 
Before the Subcommittee on Education of the Senate Comm, on 
Labor and Public Welfare, 92d Cong., 1st Sess. 110 (1971) [here­
inafter cited as 1971 Senate Hearings) ;  116 Cong. Rec. 42218, 
42223 (Rep. Pucinski), 42222, 42223 (Rep. Hawkins), 42222, 42224, 
42230 (Rep. Conyers), 42224, 42231 (Rep. Reid) (December 17, 
1970), 43143 (Rep. Ryan) (December 21, 1970).

36 Mr. PUCINSKI. . . .  a task force has made a study of the $75 
million and the task force was in many ways critical of the 
program. That $75 million was put together with paper clips, 
Scotch tape and chewing gum with no guidelines, no criteria 
and no specific requirements, covering five different programs. 
This legislation now pending before us, I ask my colleague from 
Michigan to carefully review it and he will find that we have 
carefully written into law the kind of prohibitions and guide­
lines and standards which will preclude the recurrence of the 
criticism that was leveled at the first $75 million.

116 Cong. Rec. 42218 (December 17, 1970).



22

familiarity with the substance of the civil rights groups’ 
report.37 H.R. 19446 (as reported to the floor) responded 
to these problems by requiring a civil rights assurance 
covering assignment of faculty.38 Although, as noted, the

37 For example:
Mr. RYAN . . . .
In voting for the Emergency School Aid Act of 1970, therefore,
I do so cognizant that the Congress must exercise a stringent 
oversight function to assure that its provisions are not mis­
used, because the administration’s record is dismal. In fact, the 
very program authorized by this bill has already been abused. 
In August, $75 million was appropriated for the progenitor 
of the program authorized by the bill before us today. By 
virtue of this appropriation, $71.4 million has been distributed. 
And an evaluation released on November 24 by the same groups 
which published “The Status of School Desegregation in the 
South, 1970” reveals the misuse of those funds.
Let me briefly run down the list of defects which the No­
vember 24 report, entitled “ The Emergency School Assistance 
Program: An Evaluation,” detailed with regard to the ad­
ministration of the emergency school assistance program, whose 
promise the report describes as having “been broken.”

Second, making ESAP grants to districts engaged in these 
discriminatory practices amounts to H E W ’s acquiescence in 
fraud perpetrated by local school officials. The ESAP regula­
tions were carefully drafted to require that each applicant 
guarantee that it would not engage in the practices prohibited 
by those regulations— among them racial discrimination in the 
hiring, firing, promotion, and demotion of staff; the racially 
imbalanced assignment of staff within the school system; . . . .

116 Cong. Rec. 43143 (December 21, 1970). See also other com­
ments in note 35 supra.

38 Applicants were required to sign an assurance that
staff members of the applicant who work directly with children, 
and professional staff of such applicant who are employed on 
the administrative level, will be hired, assigned, promoted, paid, 
demoted, dismissed or otherwise treated without regard to 
their membership in a minority group, except that no assign­
ment pursuant to a court order, plan approved under title VI 
of the Civil Rights Act of 1964, or a plan determined to be 
acceptable by the Assistant Attorney General for Civil Rights



23

bill passed the House of Representatives on December 
21, it was never approved by the Senate. Accordingly, 
new legislation was introduced, and new hearings held, 
in the 92d Congress.

3. Spring, 1971

Ruby G. Martin, a former Director of HEW’s Office 
for Civil Rights and one of the report’s authors, testified 
before both House and Senate subcommittees. In this 
testimony, the major problems with ESAP were identified; 
they included faculty segregation:

We found cases of segregation within schools, class­
rooms and other facilities; cases of segregation and 
discrimination in bus transportation; cases where 
faculty and staff had not been desegregated in ac­
cordance with applicable requirements', . . . ,39

As Marian Edelman, another Washington Research Proj­
ect official, put it, the ESAP regulations were strongly 
worded but they had not been enforced.40

These complaints were met with sympathy and concern 
by figures who would play major roles in the enactment 
of the new legislation. For example, during the hearings

following a notice of complaint pursuant to section 407(a) of 
such Act will be considered as being in violation of this sub­
section [.]

§ 8(a) (10), H.R. 19446, 91st Cong., 2d Sess. (1970), reprinted at 
116 Cong. Rec. 42225, 42226 (December 17, 1970).

39 Emergency School Aid A ct: Hearings on H.R. 2266 Before 
the General Subcommittee on Education of the House Comm, on 
Education and Labor, 92d Cong., 1st Sess. 24 (1971) [emphasis 
supplied] [hereinafter cited as 1971 House Hearings] ;  see also, 
1971 Senate Hearings at 121-70. And see, Washington Research 
Project, et al., The E mergency School A ssistance Program : 
A n Evaluation 50-51 (1970); Washington Research Project, et al. 
T he Status of School Desegregation in the South, 1970 97-100 
(1970).

40 1 971 Senate Hearings at 143; 1971 House Hearings at 36.



24

Senator Mondale asked about the eligibility of a county 
system in which three all-black schools had faculties 70%, 
73% and 100% black while nine majority-white schools 
had majority-white faculties.41 On the House side, Rep­
resentative Pucinski made clear the subcommittee’s in­
terest in writing into the legislation adequate safeguards 
to prevent the violations listed in the report.42 Both sub­
committees were also presented with another study on 
ESAP, this one prepared by the General Accounting Of­
fice, which criticized the lax administration of the pro­
gram.43 While GAO studied only a small sample of ap­
proved applications, it confirmed that districts in which 
faculty assignments did not meet the standards of the 
ESAP regulations nevertheless were granted assistance.44

In the spring of 1971, the Senate Committee reported 
out (and the Senate passed) an ESAA proposal which

411971 Senate Hearings at 365.
421 might say to the committee that we are very privileged to 

have before us two very distinguished spokesmen in the cause 
of better education in this country. Mrs. Ruby Martin, who is 
here as head of the Washington Research Project Action 
Council. The Action Council has done substantial work in 
evaluating the method in which the original $75 million was 
spent by the administration in schools undergoing desegre­
gation. . . .
It had been our hope when we put together the Emergency 
School Aid Act of 1970 and worked it through this committee 
that we could write into the legislation sufficient standards and 
sufficient safeguards to assure against the very abuses and 
shortcomings which the witnesses on this occasion and on 
previous occasions have properly pointed out. . . .

1971 House Hearings at 17, 18.
43 General Accounting Office, Need to Improve Policies and Pro­

cedures for Approving Grants Under the Emergency School Assist­
ance Program (1971), reprinted in 1971 House Hearings at 89-162; 
see also, 1971 Senate Hearings at 171-74.

44 See 1971 House Hearings at 134; 1971 Senate Hearings at 174. 
The Commissioner of Education promised better enforcement of 
the regulations in districts “where serious faculty assignment 
problems exist.” 1971 Senate Hearings at 229.



25

combined features of several bills. S. 1557, 92d Cong., 
1st Sess. (1971), the “ Emergency School Aid and Quality 
Integrated Education Act of 1971,”  had bipartisan sup­
port led by Senators Mondale and Javits. It contained 
the language of current clause (B) and also laid especial 
stress on faculty integration. In order to qualify for 
assistance under this proposal, a school system would 
have been required to establish at least one “ stable, 
quality integrated school” with a faculty which was 
“ representative” either of the community at large or of 
the system’s total faculty if the system was seeking 
to increase the proportion of minority group members 
in its employ.4” According to the committee report, this 
requirement was based on acceptance of testimony that 
true integration and equality of educational opportunity 
demanded “ a climate of interracial acceptance” and con­
ditions which were “ far easier to achieve if tokenism 
is not involved, if faculty as well as students are sub­
stantially mixed . . . .” 45 46 The bill’s primary sponsor, 
Senator Mondale, specifically declared that eligibility con­
ditions had been written into the legislation because of 
the failure to enforce the ESAP regulations, the civil 
rights groups’ study, and the GAO report. 117 Cong. 
Rec. 10759 (April 19, 1971). Its standards, he added, 
went beyond the Fourteenth Amendment:

. . . And may I say that this measure is not limited 
to what might be termed the minimum judicially 
declared standards for desegregation under the 14th 
amendment. We go beyond that. This is a measure 
which bases its conclusions on what children need, 
on what makes educational sense, and on what the

45 S. Rep. No. 92-61, 92d Cong., 1st Sess. 12 (1971). Ultimately, 
the Conference Committee which reconciled the House and Senate 
versions of ESAA limited this requirement to applicants for “pilot 
program” funds. See 38 Fed. Reg. 3451 (February 6, 1973).

46 S. Rep. No. 92-61, 92d Cong., 1st Sess. 13 (1971).



26

country needs, whether the 14th amendment requires 
it or not.
There may well be many school districts which have 
desegregated in a minimum way under some court 
order, which falls far short of the standard that we 
think is necessary and that has been proven to be 
necessary for good, stable, quality integrated edu­
cation, and this proposal is designed to be of help 
in that area.

117 C o n g . Rec. 10762 (April 19 ,1971).47

Thus, although the bill did not define the term “ dis­
crimination” which appeared at several places within it 
(see Pet. Br. 27-29), there is ample indication that its 
sponsors did not intend merely to replicate constitutional 
standards.48 Rather, they desired to have HEW deny

47 See also, 117 Cong. Rec. 10764 (“ This is an education bill. It 
goes farther than the minimum constitutional requirement” ), 10956 
( “I am proud that the proposal is a creative proposal incorporating 
all the hopeful strategies we have been aware of and it does not 
stop with any legal remedies, but is bottomed on what is good for 
the schoolchildren of this country” ) .

48 This was the holding of Board of Educ. v. HEW, 396 F. Supp. 
203, 230-35 (S.D. Ohio 1975), rev’d in part on other grounds, 532 
F.2d 1070 (6th Cir. 1976), cited by Petitioners (Br. at 27). In 
Adams v. Mathews, Civ. No. 3095-70 (D.D.C., Order of June 14, 
1976), the district court held that an H EW  determination of ineligi­
bility for ESA A funding created only a “ presumption of non- 
compliance with Title V I” and directed H EW  to proceed to inves­
tigate and enforce the Civil Rights Act in all such cases. Bradley 
V. Milliken, 432 F. Supp. 885, 886-87 (E.D. Mich. 1977), also cited 
by Petitioners, avoided a binding construction of the statute by 
leaving the matter to HEW . See also, Bradley v. Milliken, 460 F. 
Supp. 299, 317 (E.D. Mich. 1978) (“The problem with the present 
faculty distribution is that schools with a predominance of black 
students also have a predominantly black faculty, while schools 
which were traditionally white by student enrollment have a pre­
dominantly white faculty” ). Robinson v. Vollert, 411 F. Supp. 461 
(S.D. Tex. 1976), discussed at Pet. Br. 42-43, involved a different 
clause of § 1605(d)(1) and a wholly different question: whether 
ESAA extends so far beyond the constitutional minimum as to



27

funding to districts which did not carry out thorough 
and effective desegregation plans without any of the 
abuses that characterized the first year of the ESAP 
program.49 This history distinguishes the ESAA legisla­
tion from Title VI of the 1964 Civil Rights Act, which 
a majority of this Court in Regents v. Bakke, supra, 
found was intended only to incorporate constitutional 
standards of “ discrimination.” See id., 57 L. Ed. 2d at 
767-68 (opinion of Powell, J .), 795-800, 801-02 (opinion 
of Brennan, White, Marshall and Blackmun, J J .).

4. The Stennis Amendment

The Court of Appeals drew support for its interpreta­
tion of § 1605(d) (1) (B) from the language of §1602 
(a ), which was originally added to S. 1557 by the 
“ Stennis amendment” on April 22, 1971,50 and which 
was retained in all succeeding versions of the bill. See 
584 F.2d at 588-89. Petitioners argue that the court be­
low misconstrued the intent of the amendment as it re­
lates to ESAA.51 They contend that the Stennis amend­

authorize H EW  to conclude that a pupil assignment plan approved 
under the Fourteenth Amendment by a federal district court was 
nevertheless “ discriminatory” under ESA A. The Robinson court’s 
negative response to this question was heavily influenced by sepa­
ration of powers concerns which simply do not arise in this case. See 
411 F. Supp. at 472-77. Indeed, the Robinson court recognized that 
§ 1605(d) did not merely incorporate constitutional standards but 
“was aimed at specific forms of discrimination that may occur 
even in perfectly proportioned systems.” Id. at 477.

49 S. 1557 was the lineal ancestor of ESA A. See S. Rep. No. 92- 
604, 92d Cong., 2d Sess. 2 (1972).

50 117 Cong. Rec. 11520 (1971).

hi The Stennis amendment applied (a) to Title VI of the 1964 
Civil Rights Act and Section 182 of the Elementary and Secondary 
Education Amendments of 1966; and (b) to ESAA. See Pet. Br. 
at 33-34 (quoting language). The Conference Committee which 
drafted the final ESA A wording in 1972 effectively split the amend­



28

ment was designed only as precatory language, simply 
descriptive of the

policy that ESAA funding is available to all segre­
gated school systems attempting (voluntarily or 
otherwise) to desegregate, notwithstanding whether 
their segregated conditions were caused by official 
or non-official factors.

Pet. Br. at 33. On its face, this is a remarkable con­
struction of legislative language which states the national 
policy to be that all “guidelines and criteria established 
pursuant to this chapter”  shall be applied uniformly “ in 
dealing with conditions of segregation by race in the 
schools . . . without regard to the origin or cause of such 
segregation.”  It would have been totally unnecessary to 
amend the bill for this purpose. Section 5(a) (1) (A) 
of the bill already made districts eligible whether they 
planned to “ desegregate” or to “ reduce racial imbal­
ance.”  52 Even without the Stennis amendment, Senator 
Mondale said, “ [t]he legislation before us today estab­
lishes a nationwide Federal standard for the elimination 
of racial isolation and for the establishment of integrated 
schools wherever such isolation exists.”  117 C o n g . R e c . 
10760 (April 19, 1971). See also, id. at 10953 (April 20, 
1971) (Sen. Javits).

Moreover, Petitioners’ construction of § 1602(a) so 
enervates the provision as to make a rational observer 
wonder why Senator Stennis sought to have it included 
in the law at all. A more informed consideration of the 
legislative history than is given by Petitioners demon­
strates the soundness of the Court of Appeals’ reading.

ment’s provisions into two distinct sections without any substantive 
modification. See Pet. Br. at 34 n.*. Only the effect of the proviso 
on ESA A is at issue here.

52 S. 1557, 92d Cong., 1st Sess. (1971), reprinted at 117 Cong. 
Rec. 12020 (April 26, 1971). See also, S. Rep. No. 92-61, 92d Cong., 
1st Sess. 2, 6, 35-37 (1971).



29

For several years, Senator Stennis had sought not 
merely to “ encourage”  (Pet. Br. at 36) federal officials 
to attack northern, so-called de facto segregation, but to 
require them to do so. For example, at his initiative, 
language similar to that of § 1602(b)53 was included in 
the Senate bill which became P.L. 91-230.54 However, 
the Conference Committee on the latter bill amended the 
provision by adding an explanation that it required uni­
form national application of one policy with respect to 
“ de jure” segregation and uniform national application 
of another policy with respect to “ de facto” segregation.55 
This was not what Senator Stennis had in mind, as he 
sought to make clear in the amendment he proposed to
S. 1557.

Insofar as that amendment covered Title VI and Sec­
tion 182 (see note 50 supra), Senator Stennis wished to 
mandate enforcement, and it was this portion of his 
amendment (and only this portion) which the sponsors of 
S. 1557 opposed. Senator Mondale feared that

[ajlthough it can be read to ask for a uniform policy 
against discrimination in public education— a policy 
I vigorously support— many will read the amend­
ment to excuse enforcement of title VI against offi­
cial discrimination, North and South alike, until 
such time as the courts declare purely adventitious 
segregation unconstitutional. This would be a tragic 
result.50

53 Senator Stennis’ amendment to S. 1557 was “ identical to the 
amendment passed by the Senate last year, with the addition of 
three words which make it apply to this bill.” 117 Cong. Rec. 11508 
(April 22, 1971). See text at note 54 infra.

54 84 Stat. 121, reprinted in [1970] U.S. Code Cong. & Adm . 
N ews 133.

55 See id., § 2, [1970] U.S. Code Cong. & A dm . News 134, 2939.

58 117 Cong. Rec. 10760 (April 19, 1971). See also, id. at 10764 
(Sen. Mondale); id. at 11516 (Sen. Javits) (April 22, 1971). It was



30

This was hardly idle speculation, as illustrated by a 
colloquy between Senators Ribicoff and Allen a few days 
before.* 57 But whatever the true or feared impact on 
Title VI, application of the Stennis amendment to ESAA 
was straightforward. Senator Stennis wanted to be sure 
that northern districts were actually required to desegre­
gate, under the same guidelines and criteria as southern 
districts, in order to receive funds.58 This application of 
the amendment to the ESAA program was acceptable to

to this argument, over the amendment’s effect on Title VI enforce­
ment, that Senator Stennis was responding in his statements quoted 
in Pet. Br. at 36.

57 Senator Ribicoff was seeking to amend S. 1557 to add provisions 
requiring nationwide planning and implementation of desegregation 
on a metropolitan area basis within a fourteen-year period. Senator 
Allen asked:

If the Supreme Court has already ordered desegregation to a 
far greater extent than would be achieved under the Senator’s 
amendment at the expiration of 14 years, would it not be unfair 
to require those school districts to maintain that degree of 
[de] segregation whereas those metropolitan areas where there 
is no desegregation have the 14-year period to reach a 50- 
percent balance.

117 Cong. Rec. 10945 (April 20, 1971).

68 Senator Stennis expressed this concern when the ESAP pro­
gram was sought to be launched in 1970 through an amendment 
to the Second Supplemental Appropriations bill. See note 30 supra. 
He said:

Mr. President, that was my point. It has never been said defi­
nitely by the President or by Congress where this money is 
going or whether they are going to require these schools to 
desegregate.
W e know what they will require in the South. But the President 
has never said that he will require them to desegregate in the 
North. He says it will be used for the benefit of schools in 
racially impacted areas.

116 Cong. Rec. 20809 (June 22, 1970). In 1971, Senator Eastland 
supported the Stennis amendment in order to assure that eligibility 
standards would be applied fairly to northern and southern school 
districts by H EW  employees. See 117 Cong. Rec. 11514 (April 22, 
1971).



31

its sponsors,59 60 as Petitioners recognize (Pet. Br. at 39- 
40). Their contention that it was intended only to clarify 
that “ de facto”  districts could apply for funds under 
ESAA, however, is supported by neither the language nor 
the history of the Stennis provision.

5. Fall, 1971

The House of Representatives failed to act upon an 
ESAA bill in time for the 1971-72 school year. Anticipat­
ing the extension of ESAP, HEW during the summer 
promulgated revised regulations which relaxed the re­
quirement of individual school assignments reflecting 
“ substantially the same ratio that exists in . . . the sys­
tem as a whole” 00 to cover only full-time faculty mem­
bers.61 Through continuing resolutions, and over some 
objections from the sponsors of S. 1557, ESAP was ex­
tended until October, 1971;62 63 however, because no new 
authorizing legislation was enacted, Congress appropri­
ated no additional funds for the program during Fiscal 
Year 1972.03

59 In addition to the Javits statement quoted in Pet. Br. at 39, 
see 117 Cong. Rec. 11517 (Sen. Javits) (April 22, 1971):

. . .  if this kind of approach were confined to this bill, I would 
see a great deal of merit in it. That is what we purport to do 
with this bill. W e want this money used to combat all types of 
segregation, whether de facto— racial isolation— or de jure.

60 See 45 C.F.R. § 181.6(a) (4) (vi) (1971), note 32 supra.

01 36 Fed. Reg. 12984 (July 7, 1971) [proposed]; 36 Fed. Reg. 
16546 (August 21, 1971) [final], reprinted at 45 C.F.R. Part 181 
(1972).

62 H.R.J. Res. 742, 92d Cong., 1st Sess. (1971), P.L. 92-38, 85 
Stat. 89, reprinted in [1971] U.S. Code Cong. & Adm . N ews 98; 
H.R.J. Res. 829, 92d Cong., 1st Sess. (1971), P.L. 92-71, 85 Stat. 
182, reprinted in [1971] U.S. Code Cong. & Adm . N ews 198. See 
117 Cong. Rec. 22703-04 (Sen. Mondale), 22704-08 (Sen. Javits) 
(June 29, 1971) ; id. at 30430 (Sen. Javits) (August 6, 1971).

63 See “ Office of Education and Related Agencies Appropriations 
Act, 1972,” H.R. 7016, 92d Cong., 1st Sess. (1971), P.L. 92-48, 85



32

On November 1, 1971, a new ESAA bill was favorably 
reported out of committee to the House of Representa- 
tives.ti4 As in the case of the 1970 House bill, H.R. 2266 
included specific eligibility conditions, this time in lan­
guage identical to that of S. 1557.64 65 66 On the same day, 
Representative Pucinski sought to have the House con­
sider the matter under a suspension of the rules.86 Most 
of the debate now concerned the question whether the 
anti-busing provisions of the bill were acceptable. The 
motion to suspend the rules failed.67 68

Two days later, while the House was debating H.R. 
7248 (a bill to reauthorize the Higher Education Act), 
Representative Pucinski announced that he would offer 
the substance of H.R. 2266 as a floor amendment to that 
legislation.88 He did so on the following d ay69 and after 
additional debate about the anti-busing provisions, both 
the amendment70 and the bill were passed.71 The text

Stat. 103, reprinted in [1971] U.S. Code Cong. & A dm . News 115; 
117 Cong. Rec. 9756 (April 6, 1971) [H ouse]; id. at 19218 (June 
10, 1971) [Senate]; id. at 23033 (June 30, 1971) [Conference Re­
port]; S. Rep. No. 92-145, 92d Cong., 1st Sess. 7 (1971); “ Supple­
mental Appropriations Act, 1972,” H.R. 11955, 92d Cong., 1st Sess. 
(1971), P.L. 92-184, 85 Stat. 627, reprinted in [1971] U.S. Code 
Cong. & Adm . N ews 709.

64 Representative Pucinski described it as basically the same bill 
as had passed the House in December, 1970 (see pp. 20-23 supra). 
117 Cong. Rec. 38483 (November 1, 1971).

65 § 5 (d )(1 ) , H.R. 2226, 92d Cong., 1st Sess. (1971), reprinted at 
117 Cong. Rec. 38480 (November 1, 1971). This language was 
retained in all successive versions of the bills. There was no further 
debate in the House concerning the precursors of § 1605(d )(1). 
Senate floor action in 1972, however, is relevant. See pp. 33-36 infra.

66117 Cong. Rec. 38479 (November 1, 1971).
67 Id. at 38493.
68 Id. at 39068 (November 3 ,1971).
69 Id. at 39323 (November 4, 1971).

79 Id. at 39339.
71 Id. at 39354.



33

of H.R. 7248, including ESAA, was then substituted as 
a House amendment for the text of a Senate-passed 
higher education reauthorization measure, S. 659 72 and 
that bill was returned to the Senate.73

6. Winter and Spring, 1972

On February 22, 1972, S. 659, as amended by the 
House, reached the Senate floor for the first time. On 
behalf of the Committee on Labor and Public Welfare, 
Senator Pell moved that the Senate concur in the House 
amendment to S. 659 with a substitute of its own.74 75 
This substitute included ESAA, together with the con­
ditions of eligibility which had been included in both S. 
1557 and H.R. 2266 in the previous session. During the 
debates, many anti-busing amendments were offered and 
considered. In addition, two proposed amendments to 
ESAA, including one to the eligibility conditions, are rele­
vant to the matters in dispute.

On February 29, 1972, Senator Chiles introduced an 
amendment to what became clause (A) of § 1605(d) (1 ), 
concerning transfer of property to private schools.78 The 
amendment added the words “ which it knew or reason­
ably should have known to be,” in order to insure that a 
school system which transferred property without knowl­
edge that the recipient was a segregated private school 
would not be penalized. Senator Chiles explained:

[I]t  would provide that it has to be knowingly made 
or made with some kind of intent, because that was 
the purpose of Congress originally. I think this

72 Id. at 39374.

73 Thus, the 1971 House bill (H.R. 2266) became, successively, a 
part of H.R. 7248 and then S. 659, under which number it was 
ultimately enacted.

74 118 Cong. Rec. 4974 (February 22, 1972).

75 Id. at 5982 (February 29, 1972).



34

would take care of instances where the school board 
is doing a valuable job in trying to accomplish de­
segregation but because they sell some property at 
public auction or through clerical assistance a sale 
is inadvertently made by the school district, they 
find they are in danger of losing all funds and have 
to pay back funds under the program. That is not 
what Congress intended.76

The Chiles amendment was prompted by the experience 
of Broward County, Florida under the ESAP program. 
See 118 C o n g . Rec. 5982-84 (February 29, 1972). In 
Senator Chiles’ view, the district had been ruled in­
eligible for ESAP because of an inadvertent transfer 
of property to a private school pursuant to language in 
the appropriation bill which did not include an explicit 
requirement of intent77 (even though, in the Senator’s 
opinion, that is what Congress had meant). To avoid a 
repetition of the problem, Senator Chiles proposed to 
amend clause (A) to state such a requirement in the 
legislation. This was acceptable to the bill’s sponsors 78 
and the amendment was adopted.79

Significantly, Broward County had also been ruled in­
eligible because of imbalanced faculty assignments,80 but 
Senator Chiles proposed no similar amendment to clause

76 id. at 5983.

77 The language of P.L. 91-380, 84 Stat. 800, reprinted at [1970] 
U.S. Code Cong. & Adm . News 944-45 was:

Provided further, That no part of the funds contained herein 
shall be used (a) to assist a local educational agency which 
engages, or has unlawfully engaged, in the gift, lease or sale of 
real or personal property or services to a nonpublic elementary 
or secondary school or school system practicing discrimination 
on the basis of race, color, or national origin; . . . .

78 118 Cong. Rec. 5982 (February 29, 1972).

79 Id. at 5992.

80 Id. at 5983.



35

(B) even though he suggested that the situation result­
ing in ineligibility had occurred because of practical, 
nonracial circumstances similar to those described by Pe­
titioners in this case.81

The second suggested amendment which is relevant to 
this case was also proposed by Senator Chiles. It would 
clearly have established that only constitutional standards 
were to apply to at least some classes of applicants by 
providing that school districts subject to court orders 
would be exempt from any additional eligibility determi­
nations by HEW.82 Senator Mondale opposed the amend­
ment on the ground that it would, for example, permit 
transfers to segregated private schools83 or, in other 
words, eliminate the statutory conditions of eligibility. 
Senator Javits summarized the issue as follows:

The precise issue is: The Senator from Florida says 
that when we have a court order, whatever the 
court order says, we do, and then we qualify for the 
money.

The Senator from Minnesota (Mr. MONDALE), the 
Senator from Rhode Island (Mr. PELL) and I say 
that, in addition to complying with the court order, 
we have got to comply also with some of the ele­
mentary precautions, to prevent the trimming of the 
desegregation process which may be outside the ju­
risdiction of the court in that case. That is the real 
issue. We ran into the situation where property was 
being transferred to freedom academies, and so forth, 
so we took the precaution of giving the right to ad­
minister what will be done with the money to the 
governmental department in charge, rather than

81 Id. at 5984.

82 Id. at 6269 (March 1, 1972).

88 Id. at 6270.



36

automatically saying that if we comply with a court 
order we get the money.84

This Chiles amendment was defeated.85 * The Senate sub­
stitute for the House amendment of S. 659 was then 
passed 80 and sent to a Conference Committee, which made 
no material changes in the conditions of eligibility. The 
Conference Committee’s report was passed 87 and became 
P.L. 92-318 (Education Amendments of 1972), 86 Stat. 
235, reprinted in [1972] U.S. C o d e  C o n g . & A d m . N e w s  
278. Title VII of that act is ESAA.

7. The Pucinski-Esch Colloquy

The critical legislative history upon which Petitioners 
seek to rely is an exchange between Representatives 
Pucinski and Esch on the House floor when Pucinski 
introduced the contents of H.R. 2266 as an amendment 
to the higher education bill (see p. 32 supra). The ex­
change is set out in Pet. Br. at 30-31. There is no doubt 
that it conveys Rep. Pucinski’s view that ESAA would 
not authorize use of the Singleton rule as an eligibility 
requirement. We submit, however, that this “ isolated 
expression of . . . [views 88] neither is inconsistent with 
[the HEW regulations n]or is there any other indication 
in the legislative history that any Member of Congress 
voted in favor of the statute in reliance on an under­
standing that”  it would weaken the conditions of eligi­

84 Id. at 6271.

85 Id.

88 Id. at 6277.

^  Id. at 18862 (May 24, 1972) [Senate], 20340 (June 8, 1972) 
[House].

88 See also, Regents V. Bakke, supra, 57 L. Ed. 2d at 767 (opinion 
of Powell, J.) (“ isolated statements of various legislators, taken 
out of context” ) ; Califano v. Westcott, 47 U.S.L.W. 4817, 4820 
(June 25, 1979) (statutory change “escaped virtually unnoticed in 
the hearings and floor debates” ) .



37

bility. Cannon v. University of Chicago, 47 U.S.L.W. 
4549, 4559 (May 14, 1979).

In the first place, Representative Pucinski had com­
plained about adoption of the Singleton rule as a condi­
tion of eligibility for assistance within a month after 
adoption of the first ESAP regulations in 1970.89 As 
Chairman of the subcommittee which considered all 
ESAA legislation and as principal sponsor of the meas­
ures in the House, he could have sought to alter the con­
ditions of eligibility language in the statute in a manner 
which would have made clear to his colleagues that the 
ESAP approach was being disapproved. (For example, 
he could have proposed language similar to that inserted 
by Senator Chiles in clause (A) ,  see p. 33 supra, or 
providing explicitly that assignment of faculty in sub­
stantial accordance with the system-wide ratio was not 
to be required as a condition of eligibility for assistance.) 
Instead, his statements at the time of major considera­
tion and debates on the House bill (in 1970 and 1971) 
emphasized his desire to prevent recurrence of the prob­
lems identified in the civil rights groups’ study of ESAP.90 
See notes 36, 42 supra. Furthermore, no debate, agree­
ment with or comment followed Representative Pucinski’s 
November 4, 1971 response to Representative Esch. The 
discussions of the bill which follow reveal preoccupation 
with anti-busing measures. These facts make it difficult 
to determine whether the response represented Congres­
sional sentiment or not. At best, the Esch-Pucinski ex­
change must be viewed as ambiguous.

Finally, the ESAA regulations adopted by HEW were 
significantly different from the ESAP regulations with 
respect to faculty assignment. They did not incorporate 
the Singleton rule and, hence, are perfectly consistent

89 See 1970 House Hearings, at 783.

90 See pp. 21, 24 supra.



38

with even Petitioners’ interpretation of the Esch-Pucinski 
colloquy.

Singleton v. Jackson Mun. Separate School Dist., 419 
F.2d 1211, 1218 (5th Cir. 1969), rev'd in part on other 
grounds sub nom. Carter v. West Feliciana Parish School 
Bd., 396 U.S. 290 (1970), required assignment of
teachers to each school “ so that the ratio of Negro to 
white teachers in each school, and the ratio of other staff 
in each, are substantially the same as each such ratio is 
to the teachers and other staff, respectively, in the entire 
school system.”  This standard was incorporated in the 
ESAP regulations.91 However, the same criterion for 
eligibility was not carried forward in the ESAA regula­
tions proposed on December 2, 1972.92 Instead, HEW 
simply required “ that full-time classroom teachers be 
assigned to individual schools so as not to identify any 
school as intended for students of a particular race, color, 
or national origin.” 93

The difference between the two guidelines is significant. 
The Singleton standard, as a criterion of eligibility, might 
require a district in which minority faculty had been 
randomly assigned to schools to make reassignments so 
as to insure that variations in faculty racial composition 
among schools are not “ substantial.”  The ESAA regula­
tions’ standard94 requires reassignment only when the 
pattern of variations makes schools racially identifiable.

91 45 C.F.R. § 181.6(a) (4) (vi) (1971); 45 C.F.R. § 181.6(a) (4) 
(vi) (1972).

92 37 Fed. Reg. 25746 [proposed]; 38 Fed. Reg. 3452 (February 
6, 1973) [final], reprinted at 45 C.F.R. § 185.43(b)(2) (1973).

93 38 Fed. Reg. 3451 (February 6, 1973) [preamble to final ESAA  
regulations].

94 The language of 45 C.F.R. § 185.43(b)(2) as initially adopted 
in 1972-73 has remained unchanged since that time.



39

The distinction is explained in HEW’s internal manual 
for its employees who deal with ESAA applications.95

The ESAA regulations applied in the instant case, 
therefore, do not conflict with the Esch-Pucinski colloquy

95 Assignment which racially identifies schools.
a. Review available information on the racial composition 

of the full-time teaching faculty assigned to each of the appli­
cant’s schools and the racial composition of the student bodies 
at those schools. Consider any other information which goes to 
whether any school is identified as intended for students of a 
particular race, color, or national origin, such as its pre­
desegregation enrollment, its name, its location, or like factors.

b. Determine whether, in the light of the racial composition 
of its student body and other factors, the racial composition of 
the faculty assigned to any school confirms the school’s racial 
identification. For example, in a school district with a substan­
tial proportion of both students and faculty from minority 
groups, a school with twice the relevant districtwide minority 
student and faculty percentages and no bona fide educational 
justification for such a heavily minority faculty (e.g., the only 
teachers qualified for bilingual classes were minorities) would 
raise serious questions. Bear in mind that the racial composi­
tion of the faculty in the applicant’s schools as a whole is a 
given for purposes of this assignment discrimination; what 
is important is how the existing faculty is assigned among 
those schools. Thus, a 50 percent black faculty at a school in 
a LEA with a 5 percent black faculty districtwide would pre­
sent a much different case than the same faculty in a LEA with 
a 45 percent black faculty districtwide. Bear in mind, too, that 
the focus of the inquiry here is whether faculty assignment 
identifies a school as intended for a particular kind of student. 
Thus, where the racial compositions of a school’s faculty and 
student body vary from the appropriate districtwide averages 
in opposite directions, only the most extraordinary additional 
facts would support a conclusion of faculty assignment dis­
crimination.

Office for Civil Rights, HEW , Handbook for Emergency School Aid
Act Programs 33-34 (1977) (emphasis supplied).



40

because they do not require mechanical application of the 
Singleton rule.96' 97

8. Summary of Legislative History

The foregoing analysis of the legislative history of 
ESAA fairly establishes, we suggest:

— that faculty, as well as student, desegregation was 
an important goal of ESAA from its inception;

— that addition of the § 1605(d) (1) conditions of in­
eligibility was directly responsive to the disclosures of 
ESAP regulation violations in The E mergency School 
A ssistance Program : A n Evaluation, which included 
segregated faculty assignments;

— that HEW’s interpretation of clause (B) of that 
subsection (to make ineligible for assistance school dis­
tricts in which faculty members were assigned in racial 
proportions which matched the student racial distribution 
among schools) is supported by the Stennis amendment 
to ESAA, the aim of which was to require that all 
applicant districts, northern and southern, undertake ac­
tual desegregation in order to qualify for funds;

96 There is some evidence suggesting that this would meet Rep­
resentative Pucinski’s concerns. See 1971 House Hearings at 49 
(expressing disapproval of “ quota” assignment but acceptance of 
requirement that faculty be “substantially representative” ).

97 The statute provides that an applicant which violated a con­
dition of eligibility after June 23, 1972 could receive assistance 
pursuant to a “waiver of ineligibilty” if the violation was completely 
corrected. Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974). The 
E SA A regulations require, in the case of an applicant which is 
ineligible under 45 C.F.R. § 185.43(b) (2 ), that faculty be reassigned 
to eliminate identifiability and so that the ratio at each school is 
between 75%  and 125% of the district-wide ratio. 45 C.F.R. 
§ 185.44(d) (3) (1978). This remedial standard is not challenged 
by Petitioners here, who have agreed to much tighter standards 
to be effective no later than September, 1980. See App. 44.



41

— that during its consideration and passage of ESAA, 
Congress failed to take any of several opportunities to 
restrict clause (B) or to confine its scope to constitu­
tional violations; and

— that the current ESAA regulation under clause (B) 
is not inconsistent with the Esch-Pucinski colloquy upon 
which Petitioners rely heavily.

Furthermore, the construction of clause (B) to which 
Petitioners object was issued contemporaneously with 
the passage of ESAA by the agency to which administra­
tion of the program was committed, and has remained 
consistent and unaltered since that time.

In short, the legislative and administrative history sup­
ports fully the Court of Appeals’ reading of the statute.

C. Congressional Adoption of the HEW Construction

ESAA was reauthorized in the Education Amend­
ments of 1978.98 Legislative materials indicate that the 
attention of the Congress was focused on HEW’s inter­
pretation of § 1605(d) (1) (B) by witnesses at hearings 
who spoke of its application in Los Angeles and New 
York City. In fact, the House of Representatives’ ver­
sion of the reauthorization bill included a modification 
of the waiver-of-ineligibility language which was designed 
to respond to the complaints voiced by these witnesses. 
However, even that provision was dropped in the Con­
ference Committee Report, which was enacted into law. 
Thus, the conclusion is inescapable that the Congress 
has acquiesced in HEW’s application of § 185.43(b) (2) 
of the ESAA regulations.

In 1977 House hearings on the reauthorization, for 
example, a representative of the Los Angeles United 
School District complained specifically about application

98 § 601 of P.L. 95-561, 92 Stat. 2143, 2252, reprinted in [1978] 
U.S. Code Cong. & Adm . New s .



42

of § 185.43(b) (2 ) ,"  and other witnesses were asked about 
the faculty integration requirement by Congressmen.99 100 
In the Senate hearings, the President of the American 
Federation of Teachers cited Chicago, New York, Cleve­
land, Toledo, Los Angeles “ and other AFT cities”  in sup­
port of his recommendation

that ESAA be reformed to require a finding of dis­
crimination, not simply a numerical imbalance, be­
fore ESAA funds can be cut off.101

Senator Javits, who was on the Senate subcommittee, 
referred specifically to the New York City Title VI 
agreement requiring reassignment of teachers (App. 44) 
and asked “what we should do with HEW by way of a 
change in that situation . . .  I will have my staff work 
with you and we will get Senator Moynihan’s staff to do 
the same.”  102

Ultimately, however, no change was made in the 
statute. The Senate bill contained no provisions ad­
dressed to the problem described by the AFT. The House 
bill did seek to relax the requirements to obtain a waiver 
of ineligibility, and the Committee Report cited the Los 
Angeles testimony explicitly as one justification for the 
alteration.103 But the Conference Committee delibera­
tions resulted in dropping even that provision (which

99 Part 4 : Emergency School Aid Act, Hearings on H.R. 15 Before 
the Subcommittee on Elementary, Secondary and Vocational Educa­
tion of the House Comm, on Education and Labor, 95th Cong., 1st 
Sess. 191 (1977).

100 Id. at 51 (Rep. Quie), 196 (Rep. Perkins).

101 Education Amendments of 1977, Hearings on S. 1753 Before 
the Subcommittee on Education, Arts and Humanities of the Senate 
Comm, on Human Resources, 95th Cong., 1st Sess. 1275 (1977).

102 Id. at 1279.

103 H.R. Rep. No. 95-1137, 95th Cong., 1st Sess. 95-96 (1978), 
reprinted in [1978] U.S. Code Cong. & A dm . News 5065-66.



43

modified only the standards for a waiver, not the stand­
ards for an initial determination of eligibility).104 Hence, 
it is clear that Congress was informed about and care­
fully considered the application of § 185.43(b) (2) of the 
ESAA regulations by HEW but decided to impose no 
modification on the agency. This amounts to Congres­
sional acquiescence in the agency’s view of the statute; 
and even if we were in error in our interpretation of its 
pre-1978 legislative history, requires that the Court of 
Appeals’ judgment be sustained.

II
II. IF THIS COURT DETERMINES THAT ONLY CON­

DUCT AMOUNTING TO A CONSTITUTIONAL 
VIOLATION WILL DISQUALIFY ESAA APPLI­
CANTS UNDER § 1605(d)(1)(B), IT SHOULD REC­
OGNIZE THE STRONG PRIMA FACIE SHOWING 
OF DISCRIMINATION WHICH IS ESTABLISHED 
BY THE FACULTY ASSIGNMENT STATISTICS IN 
THIS CASE AND PUT THE BURDEN ON PETI­
TIONERS TO REBUT THAT SHOWING BY CLEAR 
AND CONVINCING EVIDENCE

Should this Court disagree with the analysis of the 
language and legislative history set forth above, and de­
termine that § 1605(d) (1) (B) makes applicants for 
ESAA funding ineligible only if their conduct (with 
respect to faculty assignment) rises to the level of a 
constitutional violation, nevertheless we believe that re­
spondents should prevail in this lawsuit. See, e.g., note 13 
supra and accompanying text. But as we have argued, 
it would be inappropriate for this Court to engage in its 
own review of the administrative record for the pur­
pose of applying the constitutional standard. That should

104 H.R. Conf. Rep. No. 95-1753, 95th Cong., 1st Sess. 286 (1978), 
reprin ted  in  [1978] U.S. Code Cong. & A dm . N ews 5189.



44

be the task of the lower courts on remand.105 * We do 
believe that it would be desirable for this Court to pro­
vide some guidance in this area. Specifically, we suggest 
that because of the nature of the faculty assignment 
process, the principles developed in jury discrimination 
cases should be carried over.

What is at issue is the weight to be accorded statis­
tical evidence when, as in the instant case, such evidence 
demonstrates an overwhelmingly high correlation or as­
sociation between schools’ minority student enrollment 
proportions and their faculty minority proportions. Nei­
ther the district court,108 109 the Court of Appeals 107 nor the 
Department of HEW 108 takes the position, even under a 
nonconstitutional test, that such statistics conclusively 
demonstrate ineligibility. The Department’s ESAA man­
ual, for example, instructs employees to take into ac­
count any “ bona fide educational justification for such 
a heavily minority faculty (e.g., the only teachers quali­
fied for bilingual classes were minorities) . . . .”  100 What 
will remain unclear from a simple declaration that § 1605 
(d) (1) (B) incorporates constitutional standards are 
questions about the role of statistics, the burdens of proof 
and persuasion, etc. These questions may have controlling

105 See note 12 supra.

I®8 Pet. App. 104,106.

107 See 584 F.2d at 589.

108 See note 95 supra. Although it appears that the former As­
sociate Commissioner for Equal Educational Opportunities, Dr. 
Herman Goldberg, initially took a different view of ESA A when he 
held the first informal hearing on New York City’s 1977-78 applica­
tion, see Pet. App. 43-45, that error was corrected by the reconsider­
ation ordered by the district judge, and by the Court of Appeals’ 
approach, see 584 F.2d at 589. In any event, the Department’s 
position is now enunciated in its E SA A manual, and we do not 
understand the government to disagree with this aspect of the Court 
of Appeals’ approach.

109 See note 95 supra.



45

impact upon the agency’s workload and may, as a prac­
tical matter, determine the eligibility status of applicants 
in the future. Therefore, if the Court holds that § 1605 
§ 1605(d) (1) (B) adopts constitutional standards, we 
urge that these issues be addressed now rather than being 
postponed.

The high correlation between a New York City school’s 
minority student enrollment and its minority faculty 
complement, demonstrated by the statistics in this case, 
supports an inference that the pattern results from dis­
crimination.110 This Court’s decisions have never ex­
plicated the proof required to overcome such a prima 
facie case of unconstitutional faculty assignments.111 
With respect to employee hiring and jury selection, how­
ever, two different standards have emerged.112

110 See Dayton Bd. of Educ. V. Brinkman, 47 U.S.L.W. 4944, 4946 
n.9 (July 2, 1979); Fumco Const. Corp. v. Waters, supra, 57 L. Ed. 
2d at 966-67; Dothard V. Rawlinson, 433 U.S. 321, 328-31 (1977) ; 
Hazelwood School Dist. v. United States, 433 U.S. 299, 306-08 
(1977); International Bhd. of Teamsters V. United States, 431 U.S. 
324, 339 (1977) ; Castaneda v. Partida, 430 U.S. 482, 495-97 (1977); 
cf. Washington V. Davis, supra, 426 U.S. at 241-42.

111 In all of the cases touching on the issue, whether the pattern 
of faculty assignment had been produced by intentional action was 
not in question. See United States V. Montgomery County Bd. of 
Educ., 395 U.S. 225, 229 (1969); Green V. County School Bd. of 
New Kent County, 391 U.S. 430, 434-35, 442 n.6 (1968); Bradley 
V. School Bd. of Richmond, 382 U.S. 103, 105 (1965) ; Rogers V. 
Paid, 382 U.S. 198, 200 (1965); cf. Swann V. Charlotte-Mecklenburg 
Bd. of Educ., 402 U.S. at 18.

112 Although Title VII of the 1964 Civil Rights Act, 42 U.S.C. 
§§ 2000e et seq., establishes a stricter test of discrimination than 
the Equal Protection Clause, see Washington v. Davis, supra, 426
U. S. at 247-48, it appears that in cases invloving individualized, 
rather than systematic, discrimination, the proof required to over­
come a plaintiff’s prima facie showing is the same, whether the 
claim is statutory or constitutional in nature. Compare Washington
V. Davis, supra, 426 U.S. at 246 with Fumco Constr. Corp. V. 
Waters, supra, 57 L. Ed. 2d at 967-69.



46

In hiring cases, the prima facie case is rebutted once a 
“ justification which is reasonably related to the achieve­
ment of some legitimate goal” is articulated as the basis 
for the hiring decisions. Furnco Constr. Corp. v. Waters, 
supra, 57 L. Ed. 2d at 968; Washington v. Davis, supra, 
426 U.S. at 246.113 The burden of persuasion then is 
upon the plaintiff to establish that the purported non- 
racial justification was merely pretextual. Furnco, 57 
L. Ed. 2d at 968. In contrast, in the jury cases, this 
Court has explicitly rejected mere assertions of neutrality 
in the operation of the selection system as adequate to 
overcome the prima facie case and to shift the burden 
back to the party claiming that discrimination has oc­
curred. For example, in states which employ the “key 
man” system of jury selection, the claim that the jury 
commissioners were not instructed to consider race will 
not rebut a prima facie case of systematic underrepresen­
tation. Castaneda V. Partida, supra, 430 U.S. at 497- 
99. Nor will mere assertions of nondiscriminatory 
conduct.114

This difference appears to be related to the special 
susceptibility of the jury selection process to abuse, 
Castaneda, 430 U.S. at 497. Whereas in the hiring case 
the articulation of a nonracial justification shifts the 
burden back to the plaintiff to establish that the claimed 
nonracial justification was not the real reason for the 
hiring decision, in the jury case the burden is upon the 
state to show that the claimed nonracial justification was 
in fact the cause for the pattern of underrepresentation.

113 “ . . . we think the District Court correctly held that the 
affirmative efforts of the Metropolitan Police Department to recruit 
black officers, the changing racial composition of the recruit classes 
and of the force in general, and the relationship of the test to the 
training program negated any inference that the Department dis­
criminated . . .” [emphasis supplied]. But see International Bhd. 
of Teamsters v. United States, supra, 431 U.S. at 342 n.24 (1977).

114 See, e.g., cases cited in Castaneda, 430 U.S. at 498 n.19.



47

Castaneda, 430 U.S. at 488 n.8. We believe that cases 
in which a claim of discriminatory faculty assignment 
is made are more akin to the jury cases than to the hir­
ing suits, and we urge the Court so to declare. Only 
clear and convincing evidence of a nonracial mechanism 
of faculty allocation which avoids the “ opportunity for 
discrimination” 115 should suffice to rebut a prima facie 
showing of discrimination.

Unlike recruitment or hiring, the assignment of a 
finite systemwide pool of faculty members under con­
tract to a school system is peculiarly within the control 
of the system. See, e.g., Ct. App. App. at 435 et seq. 
(Chancellor of New York City school system retains ulti­
mate authority to reassign teachers). For this reason, 
statistics demonstrating a pattern of assignment of black 
faculty disproportionately to black schools establish a 
strong basis for an ultimate finding of discrimination.116 
If such a showing may be overcome by the mere asser­
tion that it results from the operation of a combination 
of factors which are not formally based upon race (see 
Pet. Br. 61-62), without compelling evidence that the 
process as a whole excludes the “ opportunity for dis­
crimination” to take place, then the value of the statis­
tical showing will be completely undermined.117

ns Whitus V. Georgia, 385 U.S. 545, 552 (1967).

116 Kelly v. Guinn, 456 F.2d 100, 107 (9th Cir. 1972), cert, denied, 
413 U.S. 919 (1973); Morgan v. Hennigan, 379 F. Supp. 410, 
456-61 (D. M ass.), aff’d sub nom. Morgan v. Kerrigan, 509 F.2d 
580 (1st Cir. 1974), cert, denied, 421 U.S. 963 (1975); Davis V. 
School Dist. of Pontiac, 309 F. Supp. 734, 742-44 (E .D. Mich. 
1970), aff’d 443 F.2d 573 (6th Cir.), cert, denied, 404 U.S. 913 
(1971); cf. Kelley v. Metropolitan County Bd. of Educ., 317 F. 
Supp. 980, 991-92 (M.D. Tenn.), stay order rev’d, 436 F.2d 856 
(6th Cir. 1 9 7 0 ); Mays v. Board of Pub. Instruction, 428 F.2d 809 
(5th Cir. 1970).

117 It can be argued, for example, that it is “nonracial” to leave 
hiring (and thus assignment) to school principals. Can such a 
justification realistically be permitted to overcome a statistical



48

Such an approach throws upon the party claiming dis­
crimination the burden of discovering and recreating the 
actual workings of the assignment procedure, including 
the necessity of interviewing and presenting the testi­
mony of all the third parties to whom a school district’s 
responsibility for faculty assignment may be sought to 
be partially or completely delegated, in order to estab­
lish that the statistical patterns are in fact manifesta­
tions of improper conduct.118 Yet not only is the infor­
mation about actual faculty assignment procedures nor­
mally within a district’s custody and control;119 but also 
it is the non-delegable “ obligation of every school district 
. . . to operate now and hereafter only unitary schools.” 
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19,

prima facie case? See Morgan V. Hennigan, supra, 379 F. Supp. 
at 460; cf. United States V. Greenwood Mun. Separate School Dist., 
406 F.2d 1086, 1094 (5th Cir.), cert, denied, 395 U.S. 907 (1969). 
The same is true of a scheme in which individual teacher prefer­
ences are given effect, even if they are racially motivated (see Ct. 
App. App. 368). Cf. Mays v. Board of Pub. Instruction, supra.

118 The implications are particularly serious in the context of 
this case. The statute unequivocally authorizes HEW  to require 
submission, along with the application for ESA A funds, of infor­
mation necessary to make the eligibility determination. 20 U.S.C.S. 
§ 1605(d)(5) (Supp. 1978). Currently the agency requires only an 
assurance of nondiscrimination with respect to faculty assignment, 
45 C.F.R. § 185.13(1) (2) (i) (1978); actual distribution of faculty 
is available through statistical reports required to be filed with 
H EW  or the EEOC. However, if the quantum of proof necessary 
to find ineligibility is substantially raised, HEW  may find it neces­
sary to increase drastically the amount of information which appli­
cants must supply so that it may be in a position to carry out the 
statutory mandate. Such new paperwork burdens would affect in­
nocent and discriminating applicants alike, but they would be 
unnecessary if a strong statistical showing put the burden on the 
individual district to persuade H E W  by clear and convincing evi­
dence that its assignment processes were in fact truly nonracial.

119 See, e.g., International Bhd. of Teamsters V. United States, 
supra, 431 U.S. at 359 n.45.



49

20 (1969) (emphasis supplied).120 Compare Milliken v. 
Bradley, 418 U.S. 717, 741-52 (1974).

It seems far more sensible, where faculty assignment 
is concerned, to hold that a statistical showing of the 
magnitude made in this case shifts to the school district 
not only the burden of production, but also the burden 
of persuasion on the issue of discrimination. See, e.g., 
Carey v. Piphus, 435 U.S. 247, 260 (1968) ; Mount 
Healthy School Dist. v. Doyle, 429 U.S. 274, 287 (1977). 
In order to overcome the statistical prima facie case, a 
school district should be required to establish by clear 
and convincing evidence that discriminatory purposes 
played no part in the process of assignment; if the proof 
is in equipoise, the plaintiff should prevail. This alloca­
tion of the burden comports with common sense, for the 
information about the particulars of faculty assignment 
will be far more accessible to school authorities than to 
outside parties or agencies. In addition, in light of the 
“ strong prima facie case” showing, Norms v. Alabama, 
294 U.S. 587, 598 (1935), any risk of error should be 
borne by the school district.

Application of these principles to the case at hand will 
not be difficult for the lower courts on remand. New 
York has articulated justifications for the pattern of 
faculty assignment in the district in 1976. It should bear 
the burden of producing evidence to substantiate the 
claim that such justifications were actually operative in 
the assignment process (see, e.g., Ct. App. App. 325 
[distribution of teachers by race among fields of li­
censure] ). Some of its claims were explicitly rejected by

120 With this principle in mind, it would appear that the agency’s 
and district court’s use of a “foreseeability” standard (see Pet. 
Br. 57-61) was nothing more than a shorthand description for a 
conclusion that the school district had failed to take steps to assure 
that discriminatory purposes on the part, of any of the multiple 
actors to whom it had delegated responsibility for faculty assign­
ments would not be given effect.



50

HEW {see, e.g., Ct. App. App. 507 [majority of quali­
fied bilingual teachers are not Hispanic], 504 [con­
tinued predominance of white faculty in predominantly 
white schools unaffected by change in student racial com­
position of entire district]). The district court should 
review HEW’s findings based upon the principle that it 
was Petitioners’ burden to back up their claims con­
vincingly, and not just to articulate plausible claims. 
In the case at hand, this would require the ESAA ap­
plicant to demonstrate not only that it administered a 
formally nonracial mechanism of faculty allocation, but 
also that the mechanism was not infected by racially 
based actions of third parties to whom individual de­
cisions were delegated. Unless that burden was carried, 
HEW’s ineligibility determination should be sustained.

CONCLUSION

For the foregoing reasons, amicus respectfully submits 
that the judgment below should be affirmed.

Respectfully submitted,

C h a r l e s  A . B a n e

T h o m a s  D . B arr

Co-Chairmen
N o r m a n  R ed lic h

Trustee
R obert A . M u r p h y

N o r m a n  J. C h a c h k in

Staff Attorneys
L a w y e r s ’ C o m m it t e e  for 

C ivil  R ig h t s  U n der  L a w

733 15th Street, N.W.
Suite 520

July 12,1979 Washington, D.C. 20005
Attorneys for Amicus Curiae