Bryan v. Koch Brief Amicus Curiae

    I

r

H t t i t e i )  P l a t t ’ s  ( t t o u r t  o f  A p p e a l s

FORTTHFSECOND CIRCUIT 
Docket Nos. 80-6085; 80-7401

DAVID E. BRYAN, et al,

— against— Plaintiffs-Appellants,

EDWARD I. KOCH, et al,
__an(l   Defendants-Appellees,.

NAOMI BOYD, et al.,
Plaintiffs-Appellants;

— against—
PATRICIA ROBERTS HARRIS, et al,

________________  Defendants-Appellees.

On Appeal from the United States District Court 
For the Southern District of New Y ork

BRIEF ON BEHALF OF THE
UNITED STATES OF AMERICA AS AMICUS CURIAE

John S. Martin, Jr.
United States Attorney for the 
Southern District of New York 
Drew S. Days, III 
Assistant Attorney General 
Civil Rights Division

W illiam J. Hibsher, United States Department of Justice
Dennison Young, Jr., Attorneys for Amicus Curiae
Michael H. Dolinger, United States of America

Assistant United States Attorneys 
John E. Huerta,

Deputy Assistant Attorney General 
Civil Rights Division 

David L. Rose,
Irving L. Gornstein,

Attorneys,
United States Department 

of Justice
Of Counsel

I



TABLE OF CONTENTS

Interest of Amicus Curiae ............................................  *

Issues Presented By This Appeal ................................ 2

Statement of the C a se ..................................................... 2
O

Procedural History .........................................................

The Government’s Hole B elow ........ ...............................  ^

The Opinion Below .........................................................

A r g u m e n t  :

P o in t  I— Because The District Court Found That
The Closing Of Sydenham Would Not Cause A---------

(
Significant Adverse "Mod'll Impact On Those 
Who Use Sydenham, There Is No Occasion To 
Reach The Question Of What Legal Standard 
Should Be Used To Establish A Prima Facie 
Case Under Title VI Of 'The Civil Rights Act 
Of 1964 ................................................  8

P o in t  II— Proof Of Racial Animus Is Not Required 
To Establish A Prima Facie Case Under Title 
VI ................................................................................  9
A. Title VI And The Regulations Thereto Prop­

erly Seek To Ensure Equal Opportunity For 
Participation In Federally Funded Pro­
grams .............................................    ^

B. Nothing Relied On By The District Court 
Overrules The Supreme Court s Only Deci­
sion And This Court’s Most Recent Decision 
On Point —  Upholding The Impact/Effects 
Standard Under Title V I ................................

PAGE



PAGE

1. The Supreme Court Upholds The Regu­
lations ...........................................................  13

2. EtYoots SWmdiml Ue.-Ghvmed U\ Vh-=
Court ...........................................................  Id

3. Other Authorities Support The 10Hoots
Test .............................   15)

C. The District Court’s Rejection of HHS’s 
Regulations and Interpretation Was Based 
on an Erroneous Standard of Intent and a 
Misunderstanding of the HHS Interpreta­
tion ...................................................................... 22

C o n clu sio n  ........................................................................ 26

Cases:
T a b l e  of  A u t h o r it ie s

Alaska Steamship Co. v. United States, 290 U.S. 256
(1933) .......................................................................

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975

Association Against Discrimination in Employment 
v. City of Bridgeport, 479 F. Supp. 101 (D. 
Conn. 1979), appeal argued, Dkt. Nos. 79-7650, 
79-7652 (2d Cir. April 30, 1980) .......................

21
13

20

Blackshedr Residents Organization v. Housing Au­
thority of the City of Austin, 347 F. Supp. 1138 
(W.D. Tex. 1971) ..............................................  20,24

Board of Education v. Califano, 584 F.2d 576 (1978), 
aff’d sub nom. Board of Education of the City 
of New York v. Harris, 100 S.Ct. 363 (1979) Passim

Board of Education of the City of Neiv York v.
Harms, 100 S.Ct. 363 (1979) .......................  Passim

Castaneda V. Partrida, 430 U.S. 482 (1977) ........... 23
Child v. Beame, 425 F. Supp. 194 (S.D.N.Y. 1977) 20
De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978), 

cert, denied, 99 S.Ct. 2416 (1979) ................... . 19



PAGE

^ v . T t u  Z Z f-M i^ C * * ^ * * * '* * - ;

7 3 > 7

111

Ford Motor Credit Company v. Milhollin, 48 U.S.L.W.
4145 (U.S. Feb. 20, 1980) ................................ 13> —

General Dynamics Corp. V. Benefits Revieiv Board,
565 F.2d 208 (2d Cir. 1977) ................................

Griggs v. Duke Poiver Co., 401 U.S. 424 (1971) . • 13 ,y^ /
Guadalupe Organization Inc. v. Tempe Elementary

School No. 3, 587 F.2d 1022 (9th Cir. 1978) ■ ■ • 19

The Guardians Association of The City of New York,
466 F. Supp. 1273 (S .D .N J .), appea^ar^e^^  _  

--------TTkt. iMo. (2d C i ^ ^ A u g .  J 7 1 9 7 9 )  16,20

Hudgens V. NLRB, 424 U.S. 507 (1976) ...................  21
Illinois Brick Co. V. Illinois, 431 U.S. 720 (1977) . . 21

Jackson v. Conway, 476 F. Supp. 896 (E.D. Mo. 
1979) ................................... .............. ....................................

Johnson v. City of .Arcadia, 450 F. Supp. 
Fla. 1978) ..........................................

Lau v. Nichols, 414 U.S. 563 (1974) . .

1363 (M.D. 
...................  20

........  Passim

Lora v Board of Education of The City of Neiv York,
~456 F. Supp. 1211 (E.D.N.Y. 1978), appeal 
argued, Dkt. No. 79-7521 (2d Cir. Mar. 17,
1980) ..........................................................................

McMahon v. Califano, 605 F.2d 49 (2d Cir. 1979) 22,23
Mourning v. Family Publications Service, Inc., 411

U.S. 367 (1973) ....................................................... u
NAACP V. The Wilmington Medical Center, Civ. No. 

76-298 (D. Del. May 13, 1980) ............................
Natural Resources Defense Council, Inc. V. United 

States Nuclear Regulatory Commission, 582 F.2d 
166 (2d Cir. 1978) ............... ................ ................

Parent Association o f  Andrew Jackson High School v. 
Anibach, 598 F.2d 705 (2d Cir. 1979) ...............



iv
PAGE

Red Lion Broadcasting Co. V. F.C.C., 395 U.S. o67 ^
(1969) .......................................................................

Regents of the University of California V. Bakkc,
' 438 U.S. 263 (1978) ............................................

Resident Advisory Board .V. 99
(3d Cir. 1977 ), cert, denied, 43o U.S. 908 (1978) —

Robinson V. Vollert, 411 F. Supp. 461 (S D Tex. 
1976), rerid, 602 F.2d 87 (5th Cir. 1979) • • • •

Serna v. P or tales School District, 499 F.2d 1147 
10th Cir. 1974) .......................................................

Shannon v. United State, Department 0/
and Urban Development, 436 F.2d 806 (3d C . ^
1970) ...................................................................

Soria v. Oxnard School District Board of Trustees,
386 F. Supp. 539 (C.D. Cal. 1974) ...................  20

Towns v. Beame, 386 F. Supp. 470 (S.D.N.Y. 1974) 24

United States v. Bexar County, Civ. No. SA 78 CA 
419 (W.D. Tex. Feb. 11, 1980) ...........................  iy

Wade v. Mississippi Cooperative Extension Service,
528 F.2d 508 (5th Cir. 1976) ................................

Statutes and Regulations:



1 % H

PAGE

45 C.F.R. § 80.6 .......................................... ....................  7
45 C.F.R. § 80.8(a) .........................................................  12

Other Authority:

HU Long. Kec. 1161 ( ) ..........................................  9
110 Cong. Rec. 1519 (196^ ............................................  10
110 Cong. Rec. 6561 (1964) ............................................  14
110 Cong. Rec. 6566 (1964) ............................................  14

111 Cong. Rec. 10061 (1966) ......................................... 20

29 Fed. Reg. 16274-16305 (^ j  ) ................................ 2

v



lititrii States (Emm of Apju?als
FOR THE SECOND CIRCUIT 

Dockef Nos. 80-6085; 80-7401

D avid  E . B r y a n , J r ., et al,

Plaintiffs-Appellants,—against—
E d w ar d  I. K o c h , et al,

Defendants-Appellees,—and—
N a o m i B oyd , et al.,

Plaintiffs-Appellants,—against—
P a t r ic ia  R oberts H a r r is , et al,

Defendants-Appellees.

,  BRIEF ON BEHALF OF THE 
JNITED STATES OF AMERICA AS AMICUS CURIAE

Interest of Amicus Curiae

Sft3tes'° f. America has a continuing re- 
sponsibihty f° enforce Title VI of the Civil Rights Act
nation in statutes Prohibiting discrimi-
United S t a t e d ?  by federaI &nds. The

lo u Z lT M  ‘” 7  P°liCy- the U nitedStSs 
and eLourag® tlt” flim in T eCeSf  *7  h°Spital faeiIities

:i tTy S"  faom™ ml i bT carriedout in a non-discriminatory manner.



2

Because the District Court’s ruling that a showing of 
•• nal discrimination must be made in all Title VI

hmvlnn Ilrer tenS t0 imp°Se a difficuIt and unwarranted .. on Government agencies’ * enforcement of Title VI
T ? 7 l aS ° ?  Pdvats plaintifFs’ eff01*ts, the United States- 

, uca has an imPortant interest in this appeal We
Fe i . , ! 7 I T '  thao the United States Department of 
H and Human Services is a defendant in the actions.

Issues Presented By This Appeal

in ^ th a t^ h ? 6 r1St! iCt ? ° Urt dearly erroneous in find- 
S i f  traditionally use Sydenham

“  d be  T *  as " 'el1 by other hospital facilities 
without significantly increased burdei^T- -  ---- ------------—

e s ta b '.i l^ 8 reaf hC8 the issue of what standard 
o f  i f r f  a a \ l  °f ' TltIe VI of tlK Civil Rights Act
racial animus? * C°“ rt err in re<iuirinS f o o f  of

Statement of the Case 
Procedural History

Representing minority persons who utilize health care 
system" S i *  ^  NOT V ' k Ci‘ y’S munioiPal hospital
( “ f i r w i f o L  n i ° ™ T d two “ Hons, v.bryan ) and District Council 37 v. Koch (“D C  ?7’M 
atcr consolidated, seeking I , to enjoin annouiefd c lo s L i ’

sU; „ T a f r  ah0SPitalS andn2’ * * * “  * « « •  » S E  Gfiv’M it- u huu 6 S6rvices b>r New York City (“the 
} , s Health and Hospitals Corporation (“HHC’M

and Van°US City officials.*^ PSmtafi charged that S g

tions th.’1'eaiSl l eV! ^ fe:deral. agf ncies have promulgated regula- 
2TTecl. keg. 'l)iz74-16,5o|PaCt/ standard under Title VI.

“ P * n t e  in a
New York C ltv T p lb h o d  bv .s '"™  H°SP'lal Se™ces I"

J f m  released on lune 1 ?  1™ ^ * ^ , ? “ “  M ic y  Task
"the Board of Directors o f’ HHr ^  P ™ } and apProved hy01 xiHC on June 28, 1979.



3

proposed closings and reductions are violative of federal 
law— specifically, the Fourteenth Amendment, the Civil 
Rights Acts of 1866 and 1871. Title VI of the Civil Rights 
Act of 1964, and rules and regulations promulgated there­
under. The United States Department of Health, Edu­
cation and Welfare (“ HEW” ), now the Department of 
Health and Human Services ( “HHS” ), was named as a 
defendant in Binjan pursuant to Fed. R. Civ. P. 19, based 
on HHS’j  responsibility to enforce the requirements of 
Title VI and relevant regulations. (Dkt. Entry. No. 1,* 
Bmon Complaint. IT 20). No relief was sought from 
HHS.**

Charging that the City and HHC were implementing 
the de facto closing of Metropolitan Hospital,*** plain­
tiffs in October 1979 moved for preliminary relief seek­
ing to enjoin actions designed to bring about the hospi­
tal’s closing. For several months, plaintiffs did not press 
their motion with respect to Metropolitan, but in Febru­
ary of this year, following the City’s announcement that 
Sydenham Hospital was to close imminently, plaintiffs 
filed a second motion seeking a preliminary injunction 
against the closing of Sydenham pending the outcome of 
a trial on the merits or a showing that comparable alter­
native health care was available for those who depend on 
Sydenham.

In late April, a separate action, Boyd v. Harris, was 
filed seeking to compel the Secretary of HHS to conclude

* Because of the expedited nature of this appeal and simul­
taneous briefing schedule, references to the record below will be, 
where possible, to docket entries in Bryan, unless otherwise 
indicated.

** Since early 1979, HHS, particularly its Office for Civil 
Rights ( “ OCR” ), has been conducting an investigation into 

of civil rights discrimination resulting from the pro- 
>spital closings and reductions.

Metropolitan Hospital is one of four municipal hospitals, 
including Sydenham Hospital, targeted for closing in the Plan.



4

HHS’s Office for Civil Rights ( “ OCR” ) investigation and 
to compel the City to cease obstructing that investigation. 
The Boyd plaintiffs also sought a preliminary injunction 
seeking to prevent the closing of Sydenham pending the 
outcome of the OCR investigation.

The United States District Court for the Southern 
District of New York, per the Honorable Abraham D. 
Sofaer, J., following a hearing and receipt of affidavits 
on the Bryan-D.C. 37 injunction motion, and based on 
affidavits filed in Boyd as well, issued its opinion on May 
15, 1980 denying the injunction. Although the City had 
scheduled Sydenham’s closing for that day, the District 
Court declined to prevent the hospital’s closing pending 
appeal, but did enjoin the closing for several days to per­
mit plaintiffs to seek an injunction from this Court. On 
May 19, 1980, this Court entered a stay until May 30, 
1980, and scheduled argument on the appeal for that 
date. On May 23, 1980, the District Court issued an 
amended opinion, adding certain findings of fact and 
making other changes in its opinion, but again denying 
the injunction sought by plaintiffs.

The Government's Role Below
HHS filed two memoranda of law below expressing 

its view that a hospital closing which has the effect of 
discriminating against members of the minority commu­
nity violates Title VI, whether or not the closing is under­
taken with discriminatory intent. This interpretation of 
Title VI is embodied in a regulation that specifically ad­
dresses the location of facilities. 45 C.F.R. 80.1(b) (2).* 
The supplemental memorandum suggested a specific ap­
proach for determining whether a closing has the effect 
of discriminating against minorities in the delivery of 
services. Neither memo addressed the application of the 
appropriate Title VI standard to the facts of this case.

* See discussion at 11-12, infra.



5

Thereafter, the District Court requested HHS’s views 
on the merits of plaintiffs’ request for a preliminary 
injunction. On May 14, 1980, HHS responded by letter 

that an injunction should issue.

The Opinion Below
In a 49-page opinion issued on May 15, 1980, the 

District Court denied the injunction sought by the three 
sets of plaintiffs and recommended bv the Government.
(Dkt. Entry No. ------ , May 15, 19(7  ̂ Opinion.) 'l'he
District Court found persuasive the City’s evidence that 
it faced a serious financial crisis, that Sydenham was the 
most obsolescent of the City’s municipal hospitals, that 
its cost per day of in-patient care was consistently high, 
and particularly that “ Sydenham patients could be served 
upon closure without significantly increased travel time” 
and that the consequences of closure are “ probably less 
serious than would flow from almost any other municipal 
hospital closing.”  (Opin. at 17, 21, 231.* While noting 
that “ if Metropolitan were closed, a far more serious 
problem of access for minority patients would be pre­
sented,”  the Court considered the issue of the possible 
losing of Metropolitan Hospital not to be properly before 

i^because no final decision had been made on that issue 
by the City. (Opin. at 23.1 The Court’s opinion con­
cluded that “ preliminary injunctive relief in the case 
would still be unwarranted,” (Opin. at 47), even as­
suming that plaintiffs’ (and the Government’s) position 
that an impact/effects standard prevailed under Title V I :

For while the legal questions themselves are seri­
ous and close, the facts are such that defendants 
seem likely to succeed even if the standard of law 
most favorable to plaintiffs were adopted.

* References to the Opinion will be to the Amended Opinion 
issued on May 23, 1980.



6

(Opin. at 27.) The Court also found that plaintiffs had 
failed to establish that Sydenham’s closing violated the 
intentional discrimination standard. (Opin. at 5-26.)

Despite its holding that plaintiffs would not prevail 
even under the Title VI effects standard that they urged, 
the District Court nevertheless, went on to conclude that 
intentional discrimination or racial animus was a re­
quired element of Title VI violation. In so holding, the 
Court relied on dicta (Opin. at 34), contained in two 
Supreme Court cases:

[T]he opinions in two recent Supreme Court cases, 
Regents of the University of California v. Bakke, 
438 U.S. 265 (1978), and Board of Ed., City of 
Neiv York v. Harris, [100 S.Ct. 363 (1979)1, 
strongly indicate that, wei‘e the issue squarely 
presented today, a majority of the Justices would 
hold that Lau [^Nichols, 414 U.S. 563 (1974)] 
no longer controls, and that the standard of dis­
crimination in Title VI is the same standard the 
Court has established for discrimination under 
the Fifth and Fourteenth Amendments.

(Opin. at 30.)

'Additionally, though it recognized that “ HHS may— 
and should— be recognized to possess authority to adopt 
regulations that facilitate enforcement of Title VI,” 
(Opin. at 39), the Court nevertheless held the HHS regu­
lations issued by HHS pursuant to Title VI to “ conflict 
squarely with the constitutional standard of Washington 
v. Davis [426 U.S. 229 (1976 )]” :

[HHS’s regulations] dispense entirely with the 
need for the agency to make a finding of racial 
“discrimination”  as a predicate for ultimate re­
lief. True, the regulations continue to use the 
word “discrimination” at various points, and could 
therefore be construed to be consistent with the



7

constitutional standard. But HHS has chosen to 
construe and apply its regulations otherwise, ar­
guing that Title VI permits an “ effects” test, and 
that this is proper because Title VI is designed 
to assure the result in fact of equal access to all 
federal spending programs.

(Opin. at 39.)

Finally, the District Court rejected the Boyd plain­
tiffs’ claim that an injunction should issue pending the 
outcome of the OCR investigation because HHS, which en­
forces the regulations, e.g., 45 C.F.R. § 80.6, on which the 
Boyd complaint was based, did not itself seek the relief:

The agency itself makes no such claim. HHS 
has offered no evidence in this case of any viola­
tion by the City of any law, and, until the eve of 
this decision, carefully avoided taking any posi­
tion on the merits. Still it claims no violation of 
law or regulation but merely asserts the hospital 
should be kept open until HHS completes its study. 
Plaintiffs cannot claim that relief should be grant­
ed merely because HHS commenced and has not 
completed an investigation. Such an investiga­
tion may be based on nothing more than commu­
nity and political pressure.

(Opin. at ii, n.8.)



8

A R G U M E N T  

POINT I

Because The District Court Found That Th£ Clos­
ing Of Sydenham Would Not Cause A Signifi­
cant Adverse Impact On Those Who Use Syden­
ham, There Is No Occasion To Reach The Question 
Of What Legal Standard Should Be Used To Estab­
lish A Prima Facie Case Under;TitJe VI Of The Civil 
Rights Act Of 1964.

The District Court accepted the City’s evidence that 
“ Sydenham patients could be served upon closure without 
significantly increased travel time.” (Opin. at 21-23, 
iv-ix, nn. 13-22). The Court made subordinate findings 
which show at what hospitals the relatively few Sydenham 
patients could be served. (Opin. at 21-23.) There was 
an abundance of evidence in 'the record on both sides of 
this hotly contested issue.

Rule 52(a) of the Federal Rules of Civil Procedure 
is of course designed to place primary responsibility for 
factual determinations in the District Court which has 
heard the witnesses and had full opportunity to weigh 
the evidence. While we continue to believe that there was 
evidence in the preliminary record to warrant a finding 
that the closing of Sydenham Hospital would have had an 
adverse impact on the minority community which Syden­
ham serves, there was, however, evidence to support the 
District Court’s finding in this regard. Under the strin­
gent standards of Rule 52(a), we cannot and do not 
contend that those findings were clearly erroneous.

The District Court found, on the preliminary 
record, that there is no adverse impact on the min­
ority community which Sydenham serves because the



9

patients can be seiwed at least as well elsewhere.^ Thus, 
if the District Court’s findings are accepted, there was no 
prima facie case of a violation of Title VI under the 
adverse impact theory of liability advocated by the Gov­
ernment below and in this brief. Accordingly, if those 
findings are accepted, there is no occasion to reach the 
important and recurring legal issue of the standard 
of liability under Title VI. That issue should be reserved 
for decision in a case where .the outcome turns upon 
its resolution.

POINT II

Proof Of Racial Animus Is Not Required To Es­
tablish A Prima Facie Case Under Title VI.

Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d, was- part of a sweeping package of remedial 
measures designed to eliminate various forms of racial ^ —s 
discrimination. While the Act as a whole was intended )  
to deal generally with discrimination against non-w hit^ f\ _y  
Title VI specifically dealt with that discrimination existing 
in programs which were supported by huge expenditures
of federal funds. President Kennedy’s June 19, 1963 m e s f  

” 7age to Congress proposing the legislation declared as 
^follows:

Simple justice requires that public funds, to 
which all taxpayers of all races contribute, not 
be spent in any fashion which encourages, en­
trenches, subsidizes or results in racial discrim­
ination. . s

O i c O
109 Cong. Rec. 1161^ (emphasis added’)'..



10

As ultimately enacted by Congress, Title VI states:

No person in the United States shall, on the 
grounds of race, color or national origin, be ex­
cluded from participation in, be denied the benefits 
of, or be subjected to discrimination under any 
program or activity receiving Federal financial 
assistance.

42 U.S.C. § 2000d.

Title VI was predicated on the principle that all per­
sons are entitled to participate in the benefits of federal 
programs regardless of their race. Its purpose was not 
punitive, but remedial; not to punish people who harbored 
an evil intent to discriminate, but to ensure that minorities 
would share equally in the benefits purchased with federal 
money. The Act’s remedial objective was concerned with 
removing barriers which in fact impaired accomplish­
ment of federal program objectives with respect to 
minorities.

Federally supported health care is clearly encompassed 
by the broad commandment that programs receiving fed­
eral financial assistance benefit minorities and non-minori­
ties equally. The specific intent of Congress with respect 
to hospitals was clear:

The bill would offer assurance that hospitals fin­
anced by Federal money would not deny adequate 
care to Negroes.. . .
[The bill] would, in short, assure the existing 
right to equal treatment in the enjoyment of 
Federal funds.-

110 Cong. Rec. 1519 (1964) (remarks of Congressman 
Celler, floor manager of the bill in the House of Repre­
sentatives), quoted in Regents of the University of Cali­
fornia v. Bakke, 438 U.S. 265, 285-86 (1978) (Powell, J .).



11

A Title VI And The Regulations Thereto Pr°P®r /
Seek To Ensure Equal Opportunity For Partici­
pation In Federally Funded Programs

Title VI authorizes federal agencies to implement the 
enactment via promulgation of regulations:

Each Federal department and agency which is 
empowered to extend Federal financial assistance 
to anv program or activity, by way of grant, loan 
or contract other than a contract o ' t r a n c e  or 
guaranty, is authorized and directed to effectuate 
the provisions of section 2000d of this title with 
respect to such program or activity by issumg 
rules, regulations or orders of general applicab 
which shall be consistent with achievement of th 
objectives of the statute authorizing the financial 
assistance in connection with which the action is
taken. /,

42 U.S.C. § 2000d-l.

Empowered by Congress ‘ out

C w ’oressMntent that federally assisted programs be mi­
t r e d  in a way which is Jfect of
regulations prohibit all actions , * j  those
subjecting minorities to unequal tr^  ™en - Supreme 

' regulations have been expressly^ upheld by the ^  
Court Lau v. Nichols, 414 U.S. 563 I19 4 >, as w 
a number of other courts including 
Board of Education v. Cahfano, 584 F. ,
7 c « m n o” ). a ffi  sub non. on other yromds;Boa.d o 
Education of the City of Note York V. Hams, 100 S. Ct. 
363 11979) (“ Hams” ).

The regulations promulgated by HEW pieclude not 
only those actions that intentionally discriminate but 
those actions that have the eref discrirninating^against 
protected classes-the impact/effects standard. Puipose



12

ful discriminatory design is not the standard of the in-

quiry: ,  ̂ »
(2) A recipient, in determining t e  ypes

« *  z ^ z T ^ o i  : p r i -
m S T which have the effect of 
dividuals to discrimination because of .
color or national origin, or have the e“ '  
defeating or substantially impairing a-complis

origin.

45 C.F.R. I 80.3(b). Nor may
funds discriminate against minorities m select g
for federally supported facilities:

(3) In determining the site or locations of a

7 r T ^ ^ t l \ U s of, or- subjecting 
them to discrimination under o£
which this regulation applies, on _^ g? oge

fte  accomplishment of the objectives of the Act 
or this regulation. -1

45 C.F.R. § 80.3(b) (emphasis added).*

“ be noted .ha, under the
•f Title VI, HHS has Uv0 ^ admlnistra,ive

S T " t S U ‘  all federal ^ " e ‘ "S e
1 2 o ^ l S » r ^ b e  ,aw. .

§ 80.8(a),.



13

B. Nothing Relied On By The District Court Over­
rules The Supreme Court's Only Decision And 
This Court's Most Recent Decision On Point— 
Upholding The Impact/EfFects Standard Under 
Title VI

Though the District Court noted that dicta critical of 
the impact/effects test in various of the six opinions in 
Bakke is “ inconclusive” on the issue (Opin. at 31), and 
that Harris expressly declined to rule on the issue which 
was not squarely before the Court (Opin. at 33), the 
District Court, nevertheless— based on its assessment of 
the various Justices’ positions in dicta contained in the 
two opinions— concluded that proof of intentional dis­
crimination is now required in all cases under Title VI. 
In so doing, the District Court apparently deemed the 
only Supreme Court case on point to be overruled.

1. The Supreme Court Upholds The Regulations
The Supreme Court has typically afforded great defer­

ence to regulations promulgated by the federal agencies 
responsible for implementing a broad enactment such as 
Title VI. Ford Motor Credit Company v. Milhollin, 48 
U.S.L.W. 4145, 4148 (U.S. Feb. 20, 1980); Red Lion 
Broadcasting Co. v. F.C.C., 395 U.S. 367, 375 (19691.
See Albefmarle Paper Co. v. Moody, 422 U.S. 405, 431 
(1975); Griggs v. Duke Power Co., 401 U.S. 424, 433-34 
(1971).

In Lau v. Nichols, supra, the Supreme Court expressly 
upheld HHS’s Title VI regulations, establishing that the 
standard of liability under that enactment is impact or 
effects, not intent:

Discrimination is barred which has that effect 
even though no purposeful design is present: a 
recipient “ may not . . . utilize criteria or methods 
of administration which have the effect of subject-



14

ing individuals to discrimination ’ or have the 
effect of defeating or substantially impairing ac­
complishment of the objectives of the program as 
respect to individuals of a particular race, color, or 
national origin.”  Id., § 80.3(b) (2 ).

414 U.S. at 568 (emphasis added).

Lau found that Congress had enacted Title VI based 
at least in part on the Government’s spending power au­
thority and described this authority as the “ power to fix 
terms on which its money allotments to the states shall 
be disbursed.”  Id. at 569.* In upholding the impact/ 
effects standard, the Court stated: “ [Wjhatever may be 
the limits of that power . . . they have not been reached 
here.”  Id.**

* The lengthy legislative history of the Civil Rights Act of 
1964 is replete with evidence of Congressional intent that the 
enactment have a far-reaching impact in prohibiting discrimina­
tion. The broad goal of the Act was underscored by Senator 
Kuchel who presented the Act to the Senate:

The taxes which support these programs are collected from 
all citizens regardless of their race. It is simple justice 
that all citizens should derive equal benefits from these 
programs without regard to the color of their skin.

110 Cong. Rec. 6561 (1964) (emphasis added).
The House Republican membership also subscribed to the 

Act’s broad-reaching goals:
Title VI, in effect, provides that the taxes paid to the 

Federal Government by all Americans shall be used to 
assist all Americans on an equal basis.

Memorandum prepared by the Republican . membership of the 
House Committee on the Judiciary. 110 Cong. Rec. 6566 (1964) 
(emphasis added).

** Lau held that the failure of the San Francisco Unified 
School District to provide bilingual instruction to 1,800 students 
of Chinese ancestry who did not speak English violated the Civil 
Rights Act and HEW’s implementing regulations. Even though 
insufficient evidence of discriminatory intent or purpose was 
adduced, the Court decided that the denial of bilingual services 
was discriminatory in effect and therefore violated Section 
80.3 (b )(2 ) of HEW’s regulations.



15

To be sure, dicta in Bakke is critical of the effects 
standard, but Bakke did not overrule Law. The decision 
in Bakke focused on the constitutional acceptability of a 
race-specific remedy. The Court held that the remedy 
under review— the University’s admissions policy which 
excluded Allan Bakke— amounted to impermissible dis­
crimination. The Court did not, however, consider the 
issue presented in, and therefore did not reverse, its 
earlier decision in Lau— which held that for purposes of 
establishing liability] under Title VI, as opposed to estab­
lishing a remedy under the Constitution or Title VI, as 
in Bakke— HHS’s regulations were legally valid and bind­
ing. While the six opinions in Bakke cArt^inrnntTT-n^ itvutfvH 
them enough dicta to support a host of contradictory 
arguments about the scope of the Equal Protection Clause 
or various civil rights statutes, the liabil^iy .standard or 
standard of proof requirements necessary to establish a 
Title VI prima facie violation was simply not under 
review in that case.

Bakke was a case confronting the legality of a reci[  
ient’s adoption of preferential racial classifications, 

which classifications admittedly— albeit on behalf of 
minorities— discriminated. Thus, Bakke did not reach
the issue of whether the effects test was applicable because 
the University’s intent to discriminate was never in dis­
pute.* Lau, on the other hand, was a case confronting

* While the four Justices comprising the so-called Brennan 
group in Bakke have been read to criticize adoption of the im­
pact effects test, 438 U.S. at .350-53, which was nowhere at issue 
in Bakke, the four Justices comprising the Stevens group indi­
cated the continued vitality of HEW's regulations and the impact/ 
effects test:

As with other provisions of the Civil Rights Act, Congress’ 
expression of its policy to end racial discrimination may 
independently proscribe conduct that the Constitution does 
not.

Id. at 417 (footnote omitted).



16

allegations of denial of equal services, which are the 
allegations posed by the instant action, and did determine 
the standard of liability in such cases. *£________________

2. Effects Standard Reaffirmed by This Court
Subsequent to Baklce, this Court reaffirmed the vitality 

of the impact/effects test of Title VI and HHS’s regula­
tions :

It is significant that Title VI findings of dis­
crimination may be predicated on disparate impact 
without proof of unlawful intent.

Califano, supra, 584 F.2d at 589.**
this Court specifically cited to Lau among other cases.

inclusion was recently reached in The Guardians 
Civil Serv. Comm’n, 466 F\Su^£i>î 273! ia86 

(S.D.N .Y.), appeal argued, Dkt. No. TZ-J- (2d Cir. Aug.

Justice Powell’s pronouncement that “Title VI must be 
held to proscribe only those racial classifications that would 
violate the Equal Protection Clause,”  Bakke, supra, 98 
S.Ct. 2747, also does not indicate a view contrary to Lau. 
The question in Bakke was whether Title VI prohibited all 
racial classifications per se or whether it, like the 14th 
Amendment, prohibited only those racial classifications for 
which there is no compelling justification. Justice Powell 
concluded that the two provisions were alike in respect to 
their prohibiting only unjustified racial classifications. This 
interpretation, however, says nothing about whether Title
VI was designed to reach practices which, although not 
involving explicit racial classifications, have the effect of 
disproportionately harming minorities and have no justifi­
cation in necessity. Concluding that Title VI is like Title
VII in prohibiting these practices (and not like the 14th 
Amendment) is not at all inconsistent with the holding in 
Bakke.

®* In seeking to distinguish Calif ano, the District Court relies 
on the observation that the disparities in Califano were “ substan­
tial” and “significant,”  (Opin. at xiii-xiv, n.35), failing, in our 
view, to confront Califano’s clear holding in favor of the effects 
standard.

1979)



17

Like the Stevens group in Bakke, see note at 15, supra, 
this Court emphasized in Califano that in the exercise of 
its spending power, Congress was free to attach condi­
tions to the receipt of federal funds which go beyond 
constitutional requirements:

[I] n the exercise of its spending power, Congress 
may be more protective of given minorities than 
the Equal Protection Clause itself requires, al­
though the point at which non-minorities or their 
members are themselves unconstitutionally preju­
diced remains in doubt even after Bakke.

Id. at 588, n.38 (emphasis added).*

The Supreme Court, in affirming this Court’s Califano 
decision in Hands, found that Emergency School Aid Act 
( “ ESAA” ) funds in question were governed by ESAA’s 
effects test. The Court, therefore, declined to reach the 
Title VI issue:

* Parent Association of Andrew Jackson High School v. Am- 
bach, 598 F.2d 705 (2d Cir. 1979), does not conflict with Califano, 
or with the rule that the impact/effects test is the applicable 
standard under Title VI. In Andrew Jackson, this Court required 
a showing of intentional discrimination in a pupil assignment/ 
segregation case in order to impose a court-ordered desegregation 
remedy. The application of the intent standard in Andrew Jack- 
son—dictated by the Supreme Court’s frequent admonition that 
federal courts limit their remedial holdings to de jure segregation 
in pupil assignment cases, 598 F.2d at 715-717—was expressly 
analogized to Title IV, 42 U.S.C. § 2000c-6, and its constitu­
tional standard. This Court concluded as follows:

[T]he limitations of Title IV control in a Title VI case in 
the context of de facto segregation claims,

598. F.2d at 716.



18

Thus there is no need here for the Court to be 
concerned with the issue whether Title VI of the 
Civil Rights Act incorporates the constitutional 
standard.

100 S.Ct. at 374.

Although the Hamis Court commented that “ Congress 
might impose a stricter standard under ESAA than under 
Title VI,” id. (emphasis added), that statement does not 
support the conclusion that the impact/effects test is no 
longer the standard. Moreover, the Court did not dis­
approve or even mention Lau. The Court did state that 
because a Title VI violation may result in a cutoff of all 
federal funds by the enforcing agency “ it is likely that 
Congress would wish this drastic result only when the 
discrimination is intentional.” ld.*f Title VI, contrary 
to the Harris Court’s implicit assumption, however, re­
quires that fund termination by an agency “be limited 
in its effects to the particular program, or part thereof, 
in which such noncompliance has been so found . . . .” 
42 U.S.C. § 2000d-l (1). The issue of fund termination, 
it must be emphasized, was not before the Court in 
Hams. Moreover, the Harris Court seemed to assume 
that fund termination is the only remedy; in fact-, how­
ever, Title VI provides for agency enforcement by “ other 
means authorized by law,” including court suits for in­
junctive relief. See 42 U.S.C. § 2000d-l (2).

In sum, the standard of liability under Title VI was 
simply not before the Court in Harris. Thus, Lau and

f  Moreover, when it left open the possibility that an intent 
standard under Title VI may be applicable, 100 S.Ct. at 374, n.13, 
the Court was referring to school segregation cases, and de jure 
segregation at that, citing to Robinson v. Vollert, 411 F. Supp. 
461 (S.D. Tex. 1976), which, although not noted by the Supreme 
Court, was reversed on other grounds, 602 F.2d 87 (5th Cir. 
19791 ; additionally, the Court expressed no certainty that even in 
that context the intent standard was the one to be used.



19

this Court’s decision in Califano and their standard of 
dic-ci innnatory effects under Title VI are still controlling.

3. Other Authorities Support the Effects Test
No case that we have foun^other than in a school /N  

segregation setting, has imposed the intent standard in ^ 
a. Title VI case. At least two Court of Appeals cases 
since Bakke, in addition to Califano in this Circuit, have 
applied the impact/effects test in Title VI contexts’; both 
cited Lau with approval. While Guadalupe Organization 
Inc. v. Tempe Elementary School No. 3, 587 F.2d 1022 
Ui.h Cir. 1978), a pest-Bakke decision, concluded that 
Mexican-American school children were not entitled un­
der Title VI to bilingual-bicultural education, the Ninth 
Ciicuit nevertheless relied on Lau for the continued va- 
lidity of HEW’s regulations as to the impact/effects 
standard of prima facie liability. 587 F.2d at 1029 and 
n.6.

Another post-Bakke decision, De La Cruz v. Tormey 
582 F.2d 45, 61 and n.16 (9th Cir. 1978), cert, denied, 
99 S. Ct. 2416 (1979), also relied on Lau and analogized 
from the Supreme Court’s analysis of prima facie liability 
under Title VI to the Title IX issue under review. The 
Court reversed a dismissal of a charge that lack of cam­
pus child-care facilities discriminated against women.

The general rule in other Title VI cases has also been 
and continues to be that the impact/effects standard ap­
plies.* E.g., Wade v. Mississippi Cooperative Extension

i.™  recent cases relied on by the District Court below in 
which injunctions were denied plaintiffs contesting hospital place­
ment decisions expressly declined to rule on the effects v. intent 
issue because they found, (as did the District Court below), that
v 'i 'w v ?  lad,MUed t0 meet their burdens under either standard. 
< n n  i lr \\ 'Vl,min(Jton Medical Center, Civ. No. 76-298 
D- Del. May 13, 1980) Slip Op. at 53; United States V. Bexar 

County, Civ. bo. SA 78 CA419 (W.D. Tex. Feb. 11, 1980).



20

Service, 528 F.2d 508, 516-17 (5th Cir. 1976) ; Serna v. 
Portales School District, 499 F.2d 1147, 1154 (10th Cir. 
1974); Shannon v. United States Department of Hous­
ing and Urban Development, 436 F.2d 809, 816-17 
(3rd Cir. 1970) ; Jackson v. Conway, 476 F. Supp. 896, 
903 (E.D. Mo. 1979) ; Jolmson v. City of Arcadia, 450 F. 
Supp. 1363, 1379 (M.D. Fla. 1978) ; Child v. Bcame, 425 
F. Supp. 194, 199 (S.D.N.Y. 1977) ; Soria v. Oxnard 
School District Board of Trustees, 386 F. Supp. 539, 544- 
45 (C.D. Cal. 1974); Blackshear Residents Organization 
v. Housing Authority of City of Austin, 347 F. Supp. 1138, 
1146 (W.D. Tex. 1971).

Additionally, the Title VI issue posed by the instant case 
is presented in three ether cases which are^before this 
Court; W j f *dio# in all, the District Courts’ post-Bakke de­
cisions upheld the effects standard. The Guardians Asso­
ciation of The City of Neiv York v. Civil Service Com­
mission of The City of New York, 466 F. Supp. 1273 
(S.D.N.Y.), appeal argued, Dkt. No. 79— (2d Cir."
Aug. 1979) ; Association Against Discrimination in 
Employment v. City of Bridgeport, 479 F. Supp. 101 
(D. Conn. 1979), appeal argued, Dkt. Nos. 79-7650, 79- 
7652, (2d Cir. April 30, 1980); Lora v. Board of Educa­
tion of the City of New York, 456 F. Supp. 1211, 1277 
(E.D.N.Y. 1978), appeal argued, Dkt. No. 79-7521, (2d 
Cir. Mar. 17, 1980).

Finally, though the District Court below discredits 
the significance of the fact that Congress has never 
sought to “prevent enforcement of these [HHS’s] regu­
lations, even though HHS’s disparate impact standard 
was specifically upheld in Lau,”  (Opin. at 37-38)—-in­
deed, Congress specifically rejected an effort to amend 
Title VI so as to require intent, 111 Cong. Rec. 10061 
(1966)— Congress’ inaction since Lau, is illustrative of 
the fact that Congress’ purpose in enacting Title VI was 
to eliminate significant disparities, regardless of intent 
to do so, in the use of federal funds by Title VI recipi­
ents.

S vk  y d e e



21

Given the existence of a Supreme Court case uphold­
ing the effects standard of HHS’s regulations, the most 
recent pronouncement of this Court on point similaily 
upholding the effects standard, other courts’ similar hold­
ings over the years, and Congress’ inaction in_ the face 
of°such holdings, it was wrong for the District Court 
to reach a contrary conclusion. This principle of stare 
decisis was articulated by the Supreme Court as follows.

Our institutional duty is to follow until changed 
the law as it now is, not as some Members of the 
Court might wish it to be.

Hudgens V. NLRB, 424 U.S. 507, 518 (1976). That rale 
has even greater validity where the issue is Congressional 
intent and Congress has had ample opportunity to pass 
on courts’ pronouncements:

[Considerations of stare decisis weigh heavily in
_________ flip area of statutory construction, where Congress

, c  is free to change Court’s interpretation of its
-^W lS  legislation.

Illinois Brick Co. V. Illinois, 431 U.S. 720, 736 (1977).

The fact, moreover, as this Court observed, that Con­
gress has continued to appropriate funds consistent with 
courts’ interpretations of enactments in even further sup­
port for leaving those interpretations undisturbed:,

“ Courts are slow to disturb the settled admin­
istrative construction of a statute, long and con­
sistently adhered to . ■ . That consti uction muct 
be accepted and applied by the courts when . • . it 
has received Congressional approval,  ̂implicit in 
the annual appropriations over a period of . . . 
[many] years.”

Natural Resources Defense Council, Inc. v. United States 
Nuclear Regulatory Commission, 582 F.2d 166 (2d Cir. 
1978), quoting Alaska Steamship Co. V. United States,



22

290 U.S. 256, 262 (1933). Sec also General Dynamics 
Corv. v. Benefits Review Board, 565 F.2d 208, 212 (2d 
Cir.* 1977).

In summary, the District Court’s conclusion that the 
intentional standard of the Fourteenth Amendment now 
applies to all Title VI cases is without support in the hold­
ings of the cases which control these actions as well as in 
other cases to have ruled on the issue and is inconsistent 
with Congressional action and intent.

C. The District Court's Rejection of HHS's Regula­
tions and Interpretation Was Based on a n / p  ^
Erroneous Standard of Intenirttfnd a Misunder- 
standing of the HHS Interpretation

Because HHS’s interpertation for this case * fails to 
incorporate the “ constitutional standard of discrimina­
tion,” which the District Court concluded is necessary 
(Opin. at 36), the District Court rejected “ the_ estab­
lished principle that courts must accord great weight or 
deference to agency interpretations of legislation.” (Opin.

" a T V ) See Ford Motor Credit Company v. Milhollin, 48 
U AL.W . 4145, 4148 (U.S. Feb. 20, 1980) (“ Unless 

“ demonstrably irratio/al, Federal Reserve Board Staff 
opinions should be dispositive for several reasons ) ;
Mourning v. Family Publications Service, Inc., 411 U.S.
387, 369 (1973) (“ The validity of a regulation will be 
sustained as long as it is reasonably related to the pur­
pose of the enabling legislation” ) and McMahon v. Cali- 
fano, 605 F.2d 49 (2d Cir. 1979), in which this Court

3 K

r
" W

* HHS’ interpretation for this case was based on models 
used by courts to apply other civil rights statutes. E.g., Griggs v. 
Duke Power Co., 401 U.S. 424 (1971) (Title VII) and Resident 
Advisory Bd. V. Rizzo, - 564 F.2d 126, 148 (3d Cir., 1977), cert, 
denied, 435 U.S. 908 (1978) (Title V III).



*25

recently rejected an attack on HEW’s interpretation of 
Section 202 (d i (6) of the Social Security Act, 42 U.S.C. 
§ 402(d) (6), reiterating the principle of court deference 
to agency interpretation of statutes:

It also is a well established principle of statutory 
construction that “ [t] he interpretation of a statute 
by an agency charged with its enforcement is a 
substantial factor to be considered in construing 
the statute.” Youakim v. Miller, 425 U.S. 231, 235- 
36 (19761. Accord, Johnson V. Robinson, 415 U.S. 
361, 367-68 (1974); Udall V. Tollman, 380 U.S. 
1, 16 (1965) ; Friedman V. Berger, 547 F.2d 724, 
731-32 (2d Cir. 1976), cert, denied, 430 U.S. 984 
(1977). As long as the agency’s interpretation is 
reasonable and there are no “ compelling indica­
tions that it is wrong,”  the agency’s construction 
should be given great deference. Beal v. Doe, 432 
U.S. 438, 447 (1977) ; Neiv York State Department 
of Social Services v. Dublino, 413 U.S. 405, 421 
(1973); Columbia Broadcasting System, Inc. v. 
Democratic National Committee, 412 U.S. 94, 121 
(1973) ; Red Lion Broadcasting Co. v. FCC, 395 
U.S. 367, 381 (1969).

605 F.2d at 53.

Under the HHS interpretation of its regulations, a. 
plaintiff, in order to establish a prima facie Title/^fcaseT 
must show that a hospital closing has a disproportion­
ately * adverse impact on minorities. To satisfy this

* In the context of finding that plaintiffs’ proffer of a statis­
tically disparate effect in this case was not adequate evidence of 
racial animus, the District Court seemed to reject any but the 
so-called bi-nominal standard deviation approach to the assess­
ment of disparity in data in civil rights cases. (Opin. at 7-13). 
Where a series of independent decisions is under review, courts 
have used the approach discussed by the District Court, e.g., Cas­
taneda V. Partrida, 430 U.S. 482, 496-07 n.17 (1977) ; not all

[Footnote continued on following page]



24

burden, a plaintiff must show both that the group affected 
by the closing will not receive comparajfble services at 
other facilities and that the group affected is, to a signi­
ficant degree, disproportionately minority. HHS’s inter­
pretation requires a careful analysis of the question of 
adversity:

HEW’s interpretation is that patients displaced 
by the closings and reductions and unable to find 
comparable services are adversely affected. In 
making a determination of adverse effect, an 
assessment of the evidence to determine whether 
substitute services exist, whether they will be 
available and accessible to those displaced, and 
whether they will be comparable should be made. 
A comparison of the present health care services 
now being provided by the facilities slated for 
closure with the services that will be provided at 
the facilities designated by the City as able to 
absorb the displaced patients should also be made.

All relevant attributes of health care services 
should be considered to see whether, even assuming 
the availability of the substitute services targeted, 
there will be any reduction in the services provided 
or any hardship, inconvenience, or additional 
expense to displaced patients. For example, con­
sideration should be given to any available evidence 
on transportation time, convenience, and cost; 
availability of bilingual services; availability of

cases present such data, however. For instance, if the issue under 
review was the minority composition of a projected Title VI
supported housing project, c.g., Shannon V. United States/Deg’t 

“o f  Hous-ing^na^Urbun Dev., 436 F.2d 809 (3d Cir. 1970), where 
only a single decision was under review, (as here), other ap­
proaches to the assessment of disparity might be appropriate. 
See also Blaclcshear Residents Org. V. Housing Auth., 347 F. 
Supp. 1138, (W.D. Texas, 1972/); Towns V. Beanie, 386 F. Supp. 
470 (S.D.N.Y. 1974),



T5
services designed to serve patients with special 
needs; and potential barriers to admission, e.g., 
pre-admission deposit requirements; private ph”  
sician admission requirements; and whether Medi 

id, Medicare, and medically indigent patients a 
unable to gain admission to voluntary hospitals.

(Dkt. Entry No. 94, Gov. Supplemental Memo, at 6).

Contrary to the District Court’s understanding (Opin. 
at 44), HHS’s interpretation would not shift the burden 
of proof based solely on a showing that proportionately 
more minorities use Sydenham than use the municipal 
hospitals in the City as a whole. The interpretation re­
quires a plaintiff to show, in addition, that users of a 
hospital scheduled for closing would be unable to obtain 
-hos pi tal-  oohochriod -4?or olooing w ould bo uim blir~tu' ub* 

comparable services at other comparably accessible 
facilities.

—^ W e  submit that the District Court’s criticism of the 
T i t l e y ' regulations and HHS’s interpretation for this 
case was in error. The view of the United States is that 
the Title VI effects regulations have continued vitality 
and that Government civil rights agencies including the 
OCR investigators who continue their review of the 
City’s hospital closings and cutbacks plan— may continue 
to seek to ascertain significant adverse disparities without 
the need to justify their inquiries on the ground that they 
ultimately point to purposeful discrimination.



26

CONCLUSION

This Court need not reach the issue of what 
standard of proof is necessary to show a violation 
of Title VI; but if the Court does reach that issue, 
the United States of Arn^sica urges the Court to 
rule that a disparate adverse impact is sufficient to 
establish a prima facie violation of Title VL
Dated: New York, New York 

May 27, 1980

Respectfully submitted,

J o h n  S. M a r t in , J r .
United States Attorney for the 
Southern District of New York

D r e w  S. D a y s , III
Assistant Attorney General 

Civil Rights Division 
„United States Department 

of Justice
Attorneys for Amicus Curiae 

United States of America.
W il l ia m  J. H ib s h e r ,
D e n n is o n  Y o u n g , J r ., .
M ic h a e l  H . D o l in g e r ,
Assistant United States Attorneys

J o h n  E . H u e r t a ,
mi* Deputy Assistant Attorney General 
« ay Civil Rights Division

D avid  L . R ose ,
I r v in g  L . G o r n s t e in ,

< Attorneys, JJnited States Department 
of Justice