Department of Health and Human Services v. Florida Brief of Amici Curiae in Support of Petitioners

    In the
United States Court of Appeals 

for the Second Circuit

No. 79-6006

BOARD OF EDUCATION OF THE 
CITY SCHOOL DISTRICT OF THE 
CITY OF NEW YORK, et al.,

Plaintiffs-Appellees,
vs.

PATRICIA R. HARRIS, Secretary,
United States Department of
Health, Education and Welfare, et al.,

Defendants-Appellants.

%
Appeal from the United States District Court 

for the Eastern District of New York -

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE IN SUPPORT OF REHEARING OR 

REHEARING EN BANC

The Lawyers' Committee for Civil Rights Under Law, by its 
undersigned counsel, respectfully prays that this Court enter 
an Order pursuant to Rule 29, F.R.A.P., granting leave to file 
the attached Brief as Amicus Curiae in support of the Petition 
for Rehearing with Suggestion for Rehearing En 3anc filed 
herein by the United States Attorney for the Eastern District 

« of New York on December 3, 1979. In support of this Motion,
applicant would respectfully show the Court as follows:



1. 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
or Solicitors General, past Presidents of the American Bar 
Association, law school deans, and many of the nation's leading 
lawyers. Through its national office in Washington, D.C., and 
its offices in Jackson, Mississippi and eight other cities, the 
Lawyers' Committee over the past 16 years has enlisted the 
services of over a thousand members of the private bar in 
addressing the legal problems of minorities and the poor in 
education, employment, voting, housing, municipal services, the 
administration of justice, and law enforcement.

2. Historically, the Lawyers' Committee has strongly 
endorsed 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 effective integration which must
be satisfied if a recipient is to be eligible for funds, are 
proper and desirable mechanisms to implement the national policy 
favoring desegregation. In 1970, the Lawyers' Committee, with 
the help of hundreds 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 (ESAP). That effort documented 
administrative failure to enforce provisions of the ESAP

-2 -



regulations which had been designed, on paper, to insure that
school districts receiving funds were meeting desegregation 

* /requirements.— The inclusion of specific ineligibility 
conditions and the strict requirements for a waiver of 
ineligibility written into the ESAA statute were, in part, a 
Congressional response to that study.

3. In the Committee’s view, these features have made the 
ESAA program a particularly effective vehicle for ending racial 
isolation and discrimination within school districts which seek 
funds —  as most districts with minority student populations do. 
Our interest in maintaining this aspect of the program led the 
Committee to file a Brief Amicus Curiae in the Supreme Court of 
the United States in Board of Education of New York v. Harris,
48 U.S.L.W. 4035 (November 28 , 1979) ("ESAA I") , to support this 
Court's ruling, 584 F.2d 576 (2d Cir. 1978), that the specific 
ineligibility language of the statute does not incorporate 
constitutional standards requiring a showing of intentional 
discrimination.

4. The same concern prompts our participation in this 
appeal. The November 19 ruling of the panel majority not only 
conflicts with the rationale of the Supreme Court's decision 
in ESAA I; it also vitiates the scheme of the statute by 
requiring the Office of Education to grant waivers of ineligi­
bility whenever a recipient agrees in principle to cease a

V  Washington Research Project, et al., THE EMERGENCY SCHOOL 
ASSISTANCE PROGRAM: AN EVALUATION (1970). See also,
Washington Research Project, et al., THE STATUS OF SCHOOL 
DESEGREGATION IN THE SOUTH, 1970 (1970).

-3-



discriminatory practice or policy, even if complete elimination 
of the illegal conduct throughout a school system will not 
occur for several years.

5. This Motion and Brief could not be filed within the 
period allowed by Rule 40, F.R.A.P. for the filing of a timely 
Petition for Rehearing. The staff of the Lawyers' Committee did 
not learn of the panel's decision until the afternoon of 
November 30. Under the organization's procedures, no amicus 
brief may be filed unless the approval of a subcommittee of its 
Trustees (which was promptly sought) is first obtained. No 
prejudice will result to appellees, however, since applicant's 
counsel is advised that as of the date this Motion is being 
prepared, no response to the Petition for Rehearing has been 
requested and "a petition for rehearing will ordinarily not be 
granted in the absence of such a request." F.R.A.P. 40(a).

WHEREFORE, for these reasons, the Lawyers' Committee for 
Civil Rights Under Law respectfully prays that the Court grant 
leave to file the attached Brief Amicus Curiae.

Respectfully submitted,
JOHN B. JONES, JR.
NORMAN REDLICH 

Co-Chairmen
BURKE MARSHALL 

Trustee
WILLIAM L. ROBINSON 

Director
NORMAN J. CHACHKIN 

Staff Attorney
LAWYERS' COMMITTEE FOR CIVIL 

RIGHTS UNDER LAW
520 Woodward Building
733 - 15th Street, N.W.
Washington, D.C. 20005



n the
United States Court of Appeals 

for the Second Circuit 
No. 79-6006

BOARD OF EDUCATION OF THE 
CITY SCHOOL DISTRICT OF THE 
CITY OF NEW YORK, et al.,

Plaintiff s-Appellees,
vs.

PATRICIA R. HARRIS, Secretary,
United States Department of
Health, Education and Welfare, et al.,

Defendants-Appellants.

Appeal from the United States District Court 
for the Eastern District of New York

BRIEF AMICUS CURIAE OF THE LAWYERS' 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW IN 
SUPPORT OF PETITION FOR REHEARING OR 

REHEARING EN BANC

JOHN B. JONES, JR.
NORMAN REDLICH 

Co-Chairmen 
BURKE MARSHALL 

Trustee
WILLIAM L. ROBINSON 

Director
NORMAN J. CHACHKIN 

Staff Attorney
LAWYERS’ COMMITTEE FOR CIVIL 

RIGHTS UNDER LAW 
520 Woodward Building 
733 - 15th Street, N.W. 
Washington, D.C. 20005



INDEX

Page

Interest of Amicus Curiae .............................  1
Statement of Facts ....................................  2
REASONS FOR GRANTING REHEARING

Introduction....................................... 4
I The Issue on Rehearing is of Critical 

Significance to the National Effort to 
Eliminate Racial Discrimination from 
Public School Systems........................  4

II The Ruling of the Panel Conflicts with the 
Subsequent Supreme Court Decision in 
Board of Education v. Harris.................. 8

III The Interpretation of the Panel Majority 
Misconstrues the Relevant Legislative 
History......................................

IV The Decision of the Panel Rests Upon A 
Fundamental Misconception Regarding the 
Process of Faculty Assignment...............  13

Conclusion ............................................. 15

TABLE OF AUTHORITIES
Cases:
Adams v. Califano, 430 F. Supp. 118 (D.D.C. 1977)......  g
Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972),

aff'd 480 F.2d 1159 (D.C. Cir. 1973) (en banc)....  g
Adams v. Weinberger, 391 F. Supp. 269 (D.D.C. 1975).... g
Board of Education v. Califano, 584 F.2d 576 

(2d Cir. 1978), aff'd 48 U.S.L.W. 4035
(November 28, 1979)................................  I4

Board of Education v. Harris, 48 U.S.L.W. 4035
(November 28, 197 9)................................  8, 9, 10,

14 *Brown v. Weinberger, 417 F. Supp. 1215 
(D.D.C. 1976) 2



Cases (continued) Pa^e
Cannon v. University of Chicago, 60 L. Ed.

2d 560 (1979).......................................  6
Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir.

1974)............................................... 6
United States v. Greenwood Municipal Separate 

School Dist., 406 F.2d 1086 (5th Cir.),
cert, denied, 395 U.S. 907 (1969).................. 14

Statutes and Regulations:
20 U.S.C.S. §1605(d) (1) (Supp. 1978).................  3
20 U.S.C.S. §§1605(d)(1)(A) - (D)(Supp. 1978)............  7
20 U.S.C.S. §1605(d) (1) (B) (Supp. 1978)...................  2
20 U.S.C.S. §§3191-3207..................................  2
42 U.S.C. §2 00 0d........................................  2
45 C.F.R. §185.44 (d) (3) (1978)...........................  3

Other Authorities: * S.
- 118 CONG. REC. 5983 (February 29, 1972)..................  12

117 CONG. REC. 10759 (April 19, 1971)....................  12
H.R. REP. NO. 95-1137, 95th Cong., 1st Sess. (1971), 

reprinted in [1978] U.S. CODE CONG. & ADM.
NEWS................................................  13

S. REP. NO. 92-604 , 92d Cong., 2d Sess. (1972).........  12
Part 4: 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. (1977)....................................  5

Washington Research Project, et al., THE EMERGENCY
SCHOOL ASSISTANCE PROGRAM: AN EVALUATION (1970)... 11

-ii-



In the
United States Court of Appeals 

for the Second Circuit

No. 79-6006

BOARD OF EDUCATION OF THE 
CITY SCHOOL DISTRICT OF THE 
CITY OF NEW YORK, et al.,

Plaintiffs-Appellees,
vs.

PATRICIA R. HARRIS, Secretary
United States Department of
Health, Education and Welfare, et al.,

Defendants-Appellants.

Appeal from the United States District Court 
for the Eastern District of New York

BRIEF AMICUS CURIAE OF THE LAWYERS' 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW IN 
SUPPORT OF PETITION FOR REHEARING OR 

REHEARING EN BANC

Interest of Amicus Curiae

The interest of the Lawyers' Committee for Civil Rights 
Under Law in the instant matter is set forth in the attached 
Motion for Leave to File this Brief.



Statement of Facts

Following an investigation into the New York City school 
system's compliance with Title VI of the Civil Rights Act of 
1964, 42 U.S.C. § 2000d, the Office of Civil Rights, HEW, 
notified the district in 1976 that there was reason to believe 
that the system had, inter alia, assigned faculty members on 
the basis of race. Negotiations with school officials 
resulted in a 1977 "Memorandum of Understanding" pursuant to 
which all schools were by 1980 to have faculties whose respective 
racial compositions did not vary by more than five percentage 
points from the systemwide faculty racial makeup. This agree­
ment averted formal Title VI enforcement proceedings to 
terminate all federal financial assistance to the district.
See Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C. 1976) .

In the spring of 1978, the district applied for funds
under the Emergency School Aid Act of 1972 (ESAA). Relying
upon the results of the Title VI investigation, it was held
ineligible because it had, after the passage of the Act,

. . . engaged in discrimination based
upon race, color, or national origin 
in the hiring, promotion, or assignment 
of employees of the agency . . . .

20 U.S.C.S. §1605 (d)(1)(B) (Supp. 1978) (emphasis added)

1/ In November, 1978, ESAA was reauthorized in the Education 
Amendments of 1978 without material change. It is now codified 
at 20 U.S.C. §§ 3191-3207. Citations in this Brief are to the 
codification in effect at the time of the events in question.

- 2 -



New York accordingly applied for a waiver pursuant to the
statutory provision that an ineligible district

. . . may make application for a
waiver of ineligibility, which applica­
tion shall . . . contain such information
and assurances as the Secretary [of HEW] 
shall require by regulation in order to 
insure that any practice, policy, or 
procedure, or other activity resulting in 
the ineligibility has ceased to exist or 
occur . . . .

20 U.S.C.S §1605 (d)(1) (Supp. 1978) (emphasis added). HEW has 
adopted regulations under this section which require that an 
applicant held ineligible because of faculty assignments which 
make its schools racially identifiable must complete the 
process of reassignment, so that faculty racial composition at 
every school is between 75% and 125% of the system-wide ratio, 
in order to qualify for a waiver. 45 C.F.R. §185.44(d)(3)(1973). 
The New York City waiver request was denied because the 
"Memorandum of Understanding" would not result in faculty 
reassignments within the limits permitted by the waiver regula­
tion until 1980. Thus, according to HEW, the disqualifying 
"practice, policy, or procedure, or other activity resulting in 
the ineligibility" could not be said to have "ceased to exist 
or occur."

The school district brought suit to challenge HEW's 
rulings and the government appealed a decision invalidating 
the waiver regulation to this Court. On November 19, 1979, a 
divided panel (Oakes, J., dissenting) affirmed the district 
court. The majority opinion holds that the waiver regulation,

-3-



as interpreted by HEW, is invalid and inconsistent with the 
statute which, in the majority's view, requires only that an 
applicant rescind a formal policy of discrimination and 
commence corrective action in order to qualify for a waiver. 
The government new seeks rehearing or rehearing en banc of 
that determination.

REASONS FOR GRANTING REHEARING 

Introduction
The government's Petition sets out in detail the errors 

upon which the panel majority's decision rests. Amicus will 
not rehearse all of the arguments here, nor address the 
questions of jurisdiction or basis for issuance of an 
injunction by the district court. Our participation at this 
stage of the litigation is a consequence of the great public 
importance of the issue of statutory construction —  a charac­
terization which we make on the basis of our nationwide 
perspective and experience.

I
The Issue of Rehearing Is of 
Critical Significance to the 
National Effort to Eliminate 
Racial Discrimination from 
Puolic School Systems_______

The Lawyers' Committee believes that ESAA has proved to 
be an effective instrument and incentive for school desegre­
gation, primarily because the law establishes conditions of 
eligibility for funding which are specific and which can be 
verified rapidly in pre-grant reviews of applicants. The

-4-



Director of the Office for Civil Rights, HEW, testified in 
1977 that

[i]n 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 identifiable classes 
(including racially isolated classes) and 
racially identifiable special education 
programs determined to be educationally un­
justified. A number of comprehensive plans 
have been adopted to provide equal services 
to national origin minority children. Several 
thousand teachers have been reassigned to 
eliminate racially identifiable school staffs 
and a number of affirmative action employment 
programs have been adopted where dispropor­
tionate demotions or dismissals of minority 
faculty took place during the desegregation 
of school systems. 2/

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

3 /June 8, 1977 related to faculty assignment.— Most of the 
districts were able to take swift corrective action and obtain

2/ Part 4: 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).
3/ Id. at 29-31

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. . . 4/waivers of ineligibility.—
These results have been achieved because HEW has, almost 

steadfastly since the inception of the program,—^ interpreted 
the language of the statute to require complete elimination 
of the disqualifying condition in order for an applicant to 
obtain a waiver of ineligibility. This left no room for 
protracted negotiations, extended time schedules for implementa 
tion of a remedy, or diversionary tactics similar to the pro­
blems which have attended the Department's Title VI enforcement 

6 /efforts.—' Rather than "irrevocably" barring applicants from 
receiving funding, as the panel majority's opinion suggest 
(typewritten slip op. at 19), the waiver requirements have 
prompted immediate changes and have thus contributed to the 
eradication of racial discrimination. See note 4 supra.

£/ See 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 
applications 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 surmount these problems.

5/ 3ut see Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974)
6/ See Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972), 
aff1d 480 F.2d 1159 (D.C. Cir. 1973) (en banc) Adams v. 
Weinberger, 391 F. Supp. 269 (D.D.C. 1975); Adams v. Califano, 
430 F. Supp. 118 (D.D.C. 1977); see also, Cannon v. University 
of Chicago, 60 L. Ed. 2d 560, 581-82 nn. 41-42 (1979).

-6-



The ruling of the panel, to the effect that KEW must 
grant waivers of ineligibility once an applicant has agreed to 
renounce the discriminatory policy and has begun the process 
of eliminating discriminatory practices within its school 
system, will thus have a significance far beyond the borders 
of New York City, or of this Circuit. Since the statutory 
waiver language applies equally to all four ineligibility 
clauses,—^ the ruling cannot be confined to the area of 
teacher assignment. Moreover, because the ESAA program 
involves annual applications for funds, districts outside 
this Circuit will inevitably seek to have HEW apply the panel's 
ruling with respect to their own applications for waiver. If 
HEW gives the panel's decision nationwide application, in our 
view it will cripple the efficacy of the ESAA program as a 
device to bring about a timely end to the discrimination 
prohibited by the ineligibility clauses. Even if the government 
decides to follow the ruling only within this Circuit, additional 
litigation by other applicants and injunctions freezing expendi­
ture of varying amounts of ESAA funds are a virtual certainty. 
These events likewise will severely disrupt the progress toward 
full integration which has been brought about through ESAA.
This petition, therefore, involves far more than a mistake of 
concern only to private parties litigant, and the Court should 
grant rehearing or rehearing en banc.

7/ 20 U.S.C.S. §§1605(d) (1) (A) - (D)(Supp. 1978).
-7-



II

The Ruling of the Panel Conflicts 
With the Subsequent Supreme Court 
Decision in Board of Education v. 
Harris

Nine days after the panel's ruling on this appeal was 
announced, the Supreme Court affirmed this Court's earlier 
determination that the ESAA statutory requirements for eligi­
bility did not require a showing of intentional discrimination 
in order to justify denial of funds. Board of Education v. 
Harris, 48 U.S.L.W. 4035 (November 28, 1979). The panel did 
not have the benefit of the Supreme Court's decision in its 
consideration of the current appeal. Because the majority's 
reasoning is inconsistent with the opinion of the Supreme 
Court, rehearing is appropriate.

The government's Petition for Rehearing sets forth the
major points of conflict between the panel's opinion and that
of the Supreme Court (see Petition at pp. 3-7), and amicus
concurs in these arguments. Additionally, we believe that a
fair reading of the panel majority's opinion reveals substantial
concern about possible inconsistency between Title VI of the
1964 Civil Rights Act and ESAA. For example:

. . . HEW's view is quite simply that
notwithstanding its approval of the 
Memorandum of Understanding, its 
warranty that the adoption and effectua­
tion of the agreement would constitute 
compliance with Title VI of the Civil 
Rights Act of 1964, and Title IX of the 
Education Amendments of 1972, and the 
Central Board's partial performance 
thereof, the Central Board is not entitled 
to a waiver of ineligibility during the 
interim period, [typewritten slip op. at 13].

-8-



It would seem, therefore, that if the 
Central Board has adopted a policy of 
eliminating discrimination in a manner 
approved by HEW, as demonstrated by its 
commitment to the Memorandum of Under­
standing, then "practices" "procedures" 
and "other activities," undertaken in 
furtherance of that policy cannot logi­
cally be described as having resulted in 
the ineligibility. Simply put, they are 
not part of the problem, but part of 
the cure. . . .Although this alone would 
be sufficient ground on which to reject 
appellant's construction there are other 
reasons supporting the same result.
[Id. at 15-16; see also, id. at 19-20.]

Possible inconsistency between ESAA and Title VI, however, is
no longer an appropriate consideration supporting the majority's
construction of the ESAA statute. In Board of Educ. v. Harris,
supra, the Supreme Court dealt with the argument that ESAA and
Title VI standards were the same:

. . .Consideration of that issue would be
necessary only if there were a positive 
indication either in Title VI or in ESAA 
that the two Acts were intended to be 
coextensive. The Board stresses the fact 
that a desegregation plan approved by HEW 
as sufficient under Title VI is expressly 
said to satisfy the eligibility require­
ments of §706(a)[20 U.S.C. §1605(a)].
The ineligibility provisions of §706(d)
[20 U.S.C. §1605(d)], however, contain 
additional requirements, and there is no 
indication that mere compliance with 
Title VI satisfies them. Nor does the 
fact that a violation of Title VI makes a 
school system ineligible for ESAA funding 
mean that only a Title VI violation 
disqualifies.
It does make sense to us that Congress 
might impose a stricter standard under 
ESAA than under Title VI of the Civil 
Rights Act of 1964. A violation of Title 
VI may result in a cutoff of all federal

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funds, and it is likely that Congress 
would wish this drastic result only 
when the discrimination is intentional.
In contrast, only ESAA funds are 
rendered unavailable when an ESAA 
violation is found. And since ESAA 
funds are available for the furtherance 
of a plan to combat de facto segregation, 
a cutoff to the system that maintains 
segregated faculties seems entirely 
appropriate. . . .

48 U.S.L.W. at 4040 (emphasis in original). Thus, this Court 
should reconsider its decision in this case free from any 
concern about a difference in standards under ESAA and Title VI.

Ill
The Interpretation of the Panel 
Majority Misconstrues the Relevant 
Legislative History_______________

The opinion of the panel majority states that the legis­
lative history which it reviewed shed no light on the proper 
interpretation of the waiver language in §1605(d). However, 
the opinion indicates—7 that only a fragment of the relevant 
history was examined by the court. Its references are to one 
1971 debate in the House of Representatives, and one set of 
1970 hearings in each body. We believe that the panel majority 
may have overlooked additional indications of the legislative 
intent which are available, and which should be considered on 
rehearing.

In our brief amicus curiae in the Supreme Court in 
Board of Educ. v. Harris, supra, we set out the legislative

8/- Typewritten slip op. at ii n 8 and accompanying text.

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history of ESAA from its conception in 1970 through its 
ultimate passage in -1972. Although we did not focus on the 
waiver issue, the waiver language and the four ineligibility 
clauses are part of the same statutory section; hence, we 
believe that reference to that discussion could be of material 
assistance to this Court. The appropriate pages from our 
Supreme Court brief are reproduced as an appendix to this 
document

Without attempting to recapture the detail of that 
presentation, at least the following is clear from the 
legislative history; The regulations for the predecessor 
Emergency School Assistance Program (ESAP) established in 
1970 required, as a condition of eligibility for funding, that 
the racial composition of teaching staffs at each school in a 
system be substantially similar to the system-wide faculty 
racial composition (see infra pp. 4a-5a n. 32 and accompanying 
text). Nevertheless, as the program was actually implemented, 
these regulations were not enforced. This lapse was 
documented in a study conducted by civil rights groups—  ̂
which was referred to in the Congressional debates, as well 
as in reports of the General Accounting Office (see infra 
pp. 6a-7a, 9a and nn. 35, 37, 43 and 44), When hearings 
on the ESAA legislation were held in 1971, authors

9/ See pp. la-25a infra.
10/ Washington Research Project, et al., THE EMERGENCY SCHOOL 
ASSISTANCE PROGRAM; AN EVALUATION (1970). The Lawyers' 
Committee participated in the conduct of this study.

-1 1 -



of the civil rights groups' report testified extensively
about the administration's failure to carry out the regulations
(see infra pp. 8a-9a and accompanying notes). Specific
eligibility conditions were written into S 1557, a direct
predecessor of the ESAA law,— ^ according to Senator Mondale
(one of its sponsors) because of this failure to adhere to the
regulations of the prior program. 117 CONG. REC. 10759
(April 19, 1971). These same eligibility conditions and waiver

12/provisions were subsequently added to the House bill—  and 
this language, ultimately included in the statute, was 
retained in all successive versions of the legislation.— ^
Rather than seeking to "penalize" districts (see typewritten 
slip op. at 17). therefore, the desire of the Congress which 
passed ESAA was, as reflected by the complete legislative history

11/ See S. REP. No. 92-604, 92d Cong., 2d Sess. 2 (1972).
12/ See infra p. 17a n. 65 and accompanying text.

— ^ When the bill was again considered by the Senate in 1972, 
the ineligibility section was amended with respect to the 
prohibition against transfers of property to private, segregated 
schools (see infra pp. 18a-19a). Senator Chiles, who sponsored 
the change, announced that he was acting in response to a 
determination of ESAP ineligibility affecting Broward County, 
Florida, which (after the public criticisms of ESAP's initial 
implementation) had been rejected for funding both because of 
(an apparently mistaken) transfer of property to a private 
school, and also because of imbalanced school faculties.
Sen. Chiles stated that "[s]ince the board has taken steps to 
eliminare this [latter] complaint, it assumes this will no 
longer be an issue." 118 CONG. REC. 5983 (February 29, 1972).
He sought no amendment with respect to the clause creating 
ineligibility by virtue of imbalanced teacher assignments nor 
did any other legislator. Thus the Congress was satisfied 
to resolve this kind of ineligibility by requiring reassignments 
to eliminate the imbalance.

-1 2 -



history, to restrict the discretion of the Secretary to ignore 

or dilute the specific eligibility requirements of the law in 
the same manner as the SSAP regulations had been ignored.

One final piece of legislative history is also relevant:.
As noted by the Supreme Court in the passage from its recent 
opinion quoted at pp. 6-7 of the government's Petition for 
Rehearing, the House of Representatives in 1978 sought to amend 
the statute to authorize the granting of waivers on the same 
basis as is contemplated by the opinions of the district court 
and the panel majority in this case. Not only does the failure 
of the Congress to adopt this provision in the legislation it 
passed suggest, in the Supreme Court's words, "that Congress 
acquiesced in HEW's interpretation of the statute," but it 
also reflects a recognition that a'statutory change was necessary

14/to accomplish the result sought.—

IV
The Decision of the Panel Rests 
Upon a Fundamental Misconception 
Regarding the Process of Faculty 
Assignment_______________________

Much of the panel majority's opinion is devoted to charac­
terizing HEW's interpretation of the ESAA waiver provision as 
requiring that the "effects” of discriminatory faculty assign­
ment practices be eliminated in order to obtain a waiver. This 
discussion rests upon a conception of the assignment process 
as a static, one-time event which establishes a pattern that 
endures unless altered by an affirmative reassignment. But 
this conception is fundamentally in error.

14/ See H.R. REP. No. 95-1137, 95th Cong., 1st Sess. 95-96 
(1978). reprinted in [1978] U.S. CODE CONG. & ADM. NEWS 
5065-66.

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Teaching assignments in New York City, while constrained
by state law and collective bargaining agreements, etc.,— '/

16/are made on an annual basis.— ■ Thus each year that schools
with seriously racially imbalanced faculties are maintained
represents not merely a year in which the effects of a prior
discriminatory policy and practice are felt, but actually the
continuation of that policy and practice. The Chancellor
of the New York City school system is vested with the
authority necessary to alter the discriminatory practice at 

17 /any time. — ■

These realities of the assignment process make it illogical 
to pretend that annual maintenance of segregated faculties 
is a mere "effect" of prior discrimination rather than the 
renewed practice of discrimination. Compare Board of Educ. v. 
Harris, supra, 48 U.S.L.W. at 4040. Only by requiring that the 
reassignments necessary to eliminate racially identifiable 
schools take place as a precondition to funding can HEW

15/ The provisions of state law or union contracts cannot, of 
course, take precedence over the provisions of the Constitution 
or of federal laws. Cf. United States v. Greenwood iMunicipal 
Separate School Dist., 406 F.2d 1086 (5th Cir.), cert, denied, 
395 U.S. 907 (1969).
16/ The panel majority recognizes this fact early in its 
opinion (typewritten slip op. at 6) but ignores it thereafter.
17/ Board of Education v . Califano, 584 F.2d 576, 582 
(2d Cir. 1978), aff1d 48 U.S.L.W. 4035 (November 23, 1979).

-14-



remain faithful to the statutory mandate that waivers be
granted only when the

practice, policy, or procedure, or other 
activity resulting in the ineligibility 
has ceased to exist or occur. . . .

CONCLUSION
For the foregoing reasons, amicus respectfully suggest 

that the Petition for Rehearing or Rehearing En Sane should 
be granted.

Respectfully submitted,
JOHN B. JONES, JR.
NORMAN REDLICH 

Co-Chairmen 
BURKE MARSHALL 

Trustee
WILLIAM L. ROBINSON 

Director
NORMAN J. CHACHKIN 

Staff Attorney
LAWYERS' COMMITTEE FOR CIVIL 

RIGHTS UNDER LAW 
520 Woodward Building 
733 - 15th Street, N.W. 
Washington, D.C. 20005

By
Attorneys for Amicus' Curiae

-15-



CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of December, 1979, 
I served two copies of the foregoing Motion for Leave to File 
and Brief Amicus Curiae of the Lawyers' Committee for Civil 
Rights Under Law in Support of Petition for Rehearing or 
Rehearing En Banc upon counsel for the parties to this appeal, 
by depositing same in the United States mail, first class 
postage prepaid, addressed as follows:

Hon. Joseph F. Bruno
Office of the Corporation Counsel
City of New York
100 Church Street
New York, New York 10007
Hon. Richard P. Caro 
Assistant United States Attorney 
Eastern District of New York 
225 Cadmen Plaza East 
Brooklyn, New York 11201

/a) iJ L uXia
Attorney fori Proposed Amicus



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

- l a -



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 28 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 discnmi-

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).
2 il  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 m 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.

\d. at 317.
22 Id, at 448, reprinted in Emergency School Aid Act of 1970, 

Hearings on H.R. 17816 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 

i (I'M TJmiqp Rp.n/ri/nas 1.

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

-2a-



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.-6 
Similar testimony was given before the Senate Select 
Committee on Equal Educational Opportunity,-1 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).

-4 E.g., 1970 House Hearings at 36-37 (Rep. Hawkins), 64-65 
(Rep. Ford).

25 1 9 70 House Hearings at 43.
~6 E.g., 1970 House Hearings at 66 (HEW Secretary Finch), 125 

(Dr. James S. Coleman), 256 (Prof. Alexander Bickel).
^  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. 3888 and S. 4167 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.

-3a-



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

The first attempt to establish the program took place when the 
Senate amended H.R. 17399, 91st Cong., 2d Sess. (1970), the Second
forPan p S p  Appropna£ ° n bllJ- to include a $150 million allocation 

. ^  ESAP Program. When the bill was debated, Senator Mondale 
oiced worries that these funds may be wasted in desegregated 

schools which: . Have discriminatorily fired or demoted black
faculty ° r  m other ways have abused and circumvented the goal 
?97n f  Ay in êgrf te<? ^ c a t io n .” 116 Cong. Rec. 19930 (June 16
S t  BuI m/ ê A P  * * *  t0 prevent thisresult. But all ESAP provisions were stricken from H R 17399 in
1970?nSt h On " P?/nt ?  0rder‘ 116 C0NG- t e .  10818 (June ^  1970) Subsequently, Senator Javits introduced them— incorpo­
rating the Mondale amendments—as an amendment to HR

s r -  " 970)’ the 0ffi«  a pp^ Sbill, l lo  Cong. Rec. 21218 (Jun6 24 t
was added to the bill the next day id \ t  21485 J d  7 ?  pr0posal 
was passed by the Senate, id. at 21509 (June 25 1970) The Confer! 
ence Committee recommended adoption of the Senate ESAP version 
h u  reductl°n in funds to $75 million, which was accented hv

rqSeS- /f -  v  l 4581 (July 16' 1970) [House], 26215 u X  28 l ™ 1 [Senate], Followins: the President's veto, C onfess enacted

( A u S t T S  1V  5 5 S S  S S ? 7 A u ^ tr i m i  ? S e n , S T

53S' M5' 1166-53, 1517. 1836-37, The l e g i s u S  

to r a c i a l p ,d i s S E a E ^ r i ™ "  s’c h S j E *  K ' E d n f j i a S

" a a s i s E U l t d e r T h e ^ E s h d i - '  W  *>'

-4a-



20

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

-• r  aii ana w inter, 11)70

tim® the Congress returned to its consideration 
ot EbAA, 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 ioint 
study of ESAP’s first funding cycle.33 Their report was 
highly critical of the program’s administration. Because

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

‘ ~ ‘ ,(.vi) Tbat xthe 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 

f* 0.1?’ are s^bstantially the same as each such ratio

» £ e t h X i “ [dJ0th' r ^

S L S ^ 1t£ i ‘ & (4 )W ) <1971)- S181-2 »f  ESAP regula*

purpose of the emergency assistance to be made available 
under the program described in this part is to meet sprciai 
needs incident to the elimination of racial segregation ^ id  
discrimination among students and faculty in elementarv and 
secondary schools by contributing to the costs of new or “
o f S r  68 t0 be out b>’ l0^al educational agenciesor other agencies, organizations, or institutions and designed
fo™s* of H SUCCeSSfdese9regation and the elimination of all 
forms of discrimination in the schools on the basis of students
s ^ S f  bein? members 0f a ^oup. [emphasis

33 Washington Research Project, et al 
Assistance Program, An  E valuation

-. T he E mergency School 
(1970).

-5a-



21

of the desire to distribute funds by the beginning of the 
fad semester, it charged, money had been practically 
given away without either an evaluation of contemplated 
program quality or adequate civil rights protections.34 
ihese allegations figured prominently in the next round
of hearings and debates on the proposed (authorizing) 
legislation.35 6

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. R e p . 
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 . R ec . 43145, other members of the House exhibited

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

s r  ^ ubuc wet̂  ^  S :  vM 2r s £
1917\  Senate Hearings]-, 116 Cong. Rec 42218

S K  rpeP' P,UCmSkl ’ 42222’ 42223 ,ReP- Hawkins), 42222 42224
w n ’ 42231 (Rep- Reid> D ecem ber 17,’ 48143 (Rep. Ryan) (December 21, 1970).

36 Mf- PUCINSKI. . . .  a task force has made a study of the $7t» 
million and the task force was in many ways critical of thp 

” iffior' was P“‘ a e t h e r  with p ^ r  dips 
fP?*? chewl”e with no guidelines, n,P criteria

spiec,lfic 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 S  we h a -  
carefully written into law the kind o f  e have
lines and standards which will preclude the recurrence o f f h ' 
criticism that was leveled at the first $75 million. 6

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

- 6a-



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 HEW’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

-7a-



23

bill passed the House of Representatives on December 
21, it was never approved by the Senate. Accordingly, 
new legislation was introduced, and new hearing's 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) 
116 Cong. Rec. 42225, 42226 (December 17, 1970).

reprinted at

39 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. 24 (1971) [emphasis
!o~?hcdj [ he êinafter cited as 1971 House Hearings^; see also 
19:1 Senate Hearings at 121-70. And see, Washington Research
Ax? ^ Ct' et a " JHE E mergency School Assistance Program: 
An Evaluation oO-ol (1970); Washington Research Project, et al.
( 1970)TATUS °F School DESEGREGA,noN in the South, 1970 97-100

40 1 971 Se7Ulte Hearings at 143; 1971 House Hearings at 36.

-8a-



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, Heed 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.

-9a-



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 
m its employ.45 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 . . . 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

,, ^ No- 92’61> 92d ConE" 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). 48

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

-10a-



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. F

117 C o n g . R ec . 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 

u™ Pr0ud ^ at 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 Sudo 
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 a t^ 7 )  In

^ athews’ Civ- No- 3095-70 (D.D.C., Order of June' 14 
1976) the district court held that an HEW determination of ineligi­
bility for ESAA funding created only a “presumption of non- 
compliance with Title VI” and directed HEW to proceed to inve«- 

“ d eaf°rae Civil Rights Act in all such cases. Bradley 
v. Milhken, 432 F. Supp. 885, 886-87 (E.D. Mich. 1977), also cited 
by Petitioners, avoided a binding construction of the statute bv 
leaving the matter to HEW. See also, Bradley v Milliken 460 T 
S„pp 299, 317 (E.D. Mich. 1978, ("The problem S t S ’pr“ em  
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- 

faculty”)- Robinson v. Vollert, 411 F. Supp. 461 
(S.D. Tex 1976). discussed at Pet. Br. 42-43, involved a different
S a !  ° fvt§ 1J05(d).f l)  and a wholly different question: whether 
ESAA extends so far beyond the constitutional minimum as to

-11a-



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, JJ .).

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 HEW to conclude that a pupil assignment plan approved 
under the Fourteenth Amendment by a federal district court was 
nevertheless “discriminatory” under ESAA. 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 ESAA. See S. Rep. No. 92- 
604, 92d Cong., 2d Sess. 2 (1972).

50117 Cong. Rec. 11520 (1971).
51 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 ESAA wording in 1972 effectively split the amend-

-12a-



2S

ment was designed only as precatory language, simnly 
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 officia1 
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 Co n g . R e c . 
10760 (April 19, 1971). See also, id. at 10953 (April 20* 
1971) (Sen. Javits). P ’

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 ail. 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 anv substantive 
modification. See Pet. Br. at 34 n.*. Only the effect of the proviso 
on ESAA is at issue here.

92d. Cong" lst  Sess- (1971). reprinted at 117 Cong. 
Rec. 1 .̂020 (.April 26, 1971). See also, S. Rep. No. 92-61, 92d Cone 
ls t  Sess. 2, 6. 35-37 (1971).

-13a-



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.56

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. & Adm. N ews 134, 2939.
56 117 Cong. Rec. 10760 (April 19, 1971). See also, id. at 10764 

(Sen. Mondale); id. at 11516 (Sen. Javits) (April 22, 1971). It was

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30

This was hardly idle speculation, as illustrated by a

b e fo T - B^eew l f f at0r%RibiCOfr and Allen a f™  days 
Tiri. trr hatever the t™  or feared impact on

I, application of the Stennis amendment to ESAA 
was straightforward. Senator Stennis warned to be s ^
gate nu°ndtrrthe1StriCtS w.T !.actuaI|y squired to desegre- gate, under the same guidelines and criteria as southern
districts, m order to receive funds.1' This application of
the amendment to the ESAA program was a“ b,e to

m eit^thTfsTnTtor^f ^  amendment’s effect on Title VI enforce- 
in Pet Br at 36 W“  respondin* in * *  statements quoted

Senator Ribicoff was seeking to amenH <5 ikkv jj 
requiring nationwide planning and implementation ofw proVls'ons 

™  b“ iS within a

percent balance. year ^  lod to reach a 50-
117 Cong. Rec. 10945 (April 20, 1971).

arL S“ S t  b ? S ^ hif,,cS rathto„e”1, ,he ESAP p-
to the second Supplemental Appropr J ™ ,  S 5 T &  “  £ £ % £

£ said defi-
£ £ e * a t l hether they -  t o ^ „ t n h2 " s =  2  

S  never'said S a t  he wM  ^ e ^ S f  ^  President

be “  -  v r r s j s x
116 Cong. Rec. 20809 (June 22 197m Tn iq- i o 
supported the Stennis amendment h 1 19/1’ Senator Eastland
standards would be applied fa irly  to north ° aSSUf  thai eligibility 
districts by HEW emPp U s ^ J ^ r ^ di S ; ? h “

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31

its sponsors,30 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 S tennis 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” 60 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 however, because no new 
authorizing legislation was enacted, Congress appropri­
ated no additional funds for the program during Fiscal 
Year 1972.63

50 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. We 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.

81 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).

82 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 . News 198. See 
117 Cong. Rec. 22703-04 (Sen. Mondale), 22704-08 (Sen. Javits) 
(June 29. 1971) ; id. at 30430 (Sen. Javits) (August 6, 1971).

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

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32

reportedT ^ nf 1912 ’ 3 n6W ESAA bil1 was favorably
Uves -* £  L  l C°mmitt/ ! , t0 1116 House of Eapresenta- lives As in the case of the 1970 House bill, H R *266
included specific eligibility conditions, this time' in “lan­
guage identical to that of S. 1557.65 On the same dav 
Representative Pucinski sought to have the House con-

d-  th* ™ fter under a suspension of the rules.00 Most 
°f the debate now concerned the question whether the 
anti-busing provisions of the bill were acceptable The 
motion to suspend the rules failed.” P ble’ The

!ater’ Ŵ le the House was debating H.R. <248 (a bill to reauthorize the Higher Education Act) 
Representative Pucmski announced that he would offer 
the substance of H.R. 2266 as a floor amendment to that 
tegslation.'’ He did so on the following day09 and after 
additional debate about the anti-busing provisions t t h  

e amendment,0 and the bill were passed.71 The text

1 NEws l l 5 = 
10 , 1971) [Senate]; id. at 23033 (JunL SO ^ign) V conf218

a REP- N a  92-145’ 92d C o i* . L t  s i  7 ( W71 ‘‘w t *mental Appropriations Act, 1972,” H.R. 11955 q<M ’ i ^

Cong. 4  ADU9n ! S  7 0 S S U t ~ 627, " v H n t e d  “  [19713 u l  Cote

as'h ^ p a^ seT lh eeHousenjn^December lV“  ^  “ “  b‘“
117 CONG. Rec. 38483 (November 1 , 19 71).° PP‘ ‘' ° '23 SMpra)-

05 § 5 (d )(1 ), H.R. 2226, 92d Cong., 1st Sess n q 7i i  
117  CoNG- Rec. 38480 (November 1 19 7 1) T hl^ h  repnnted at

W i  “ 7„ ~ s x s z *
S“ r s in 1972 h0~  ppU3S 1X :117 Cong. Rec. 38479 (November 1 , 19 71)

07 Id. at 38493.
08 Id. at 39068 (November 3 ,19 71). 
m Id. at 39323 (November 4, 19 71)
70 Id. at 39339.
71 Id,, at 39354.

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

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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.78

The Chiles amendment was prompted by the experience 
of Broward County, Florida under the ESAP program. 
See 118 Cong . 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 lA) to state such a requirement in the 
legislation. This was acceptable to the bill’s sponsors78 
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

78 Id. at 5983.
77 The language of P.L. 91-380, 84 Stat. 800, reprinted at [1970] 

U.S. Code Cong. & Adm. N ews 944-45 w as:
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.
89 Id. at 5983.

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35

(Bi 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

8! I d .  at 5984.
82 I d .  at 6269 (March 1, 1972). 
ss I d .  at 6270.

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36

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

S?® Chjles ‘f le»dment was defeated.85 The Senate sub­
stitute for the House amendment of S. 659 was then
noSmdt 6 aiid T  t0 a Conference Committee, which made 
no material changes m the conditions of eligibility. The
Conference Committee’s report was passed 8T and became
P.L. 9--318 (Education Amendments of 1972) 86 Stat

tT  vtt i7!  [ 1972] U -S- C0DE C0NG- & N ews 278. Title VII of that act is ESAA.

7. The Pucinski-Esch Colloquy

The critical legislative history upon which Petitioners
^ 5  f  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

' ; ' .tvdews88^ .e ith er  is inconsistent with 
. f, , . regulations n]or is there any other indication
m 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.

86 Id. at 6277.

[H ouse]^ 18862 (May 24’ 19?2) [Senate]’ 20340 (June S’ 1972)

of"pow elf J SUVTa' 57 L‘ Ed- 2d at 767 (°P™on° la,ted statements of various legislators taken
f OE0n, ™  ; Callfano v - Westcott, 47 U.S.L.W, 4817 4820

“5’ 19'9 ), (statutory change “escaped virtually unnoticed in the hearings and floor debates”) . unnoticed m

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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.

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38

colloquj^n Petiti°ners’ interPretation of the Esch-Pucinski

F 9^ 9 ^ nZ \ o aC- S0n Mun' SeParate School Dist., 419
’ \ 211’ 1218 ,oth Clr- 1969), rev’d in part on other

v-w e s t FeHciam p arisk  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 
“  te,ach/  * *  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
,jSAi,Pr.reglJ atl0nS' Howev« .  the same criterion lor 
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 
ran om y 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.

(vi) 4(1972)'R' §18L 6(a)(4 )(v i) ( 1971): 45 C.F.R. § 181.6(a) (4)

6 m f i ? '  25746, tP^Posed]; 38 Fed. Reg. 3452 (February 
> ) [final], reprinted at 45 C.F.R. § 185.43(b)(2) (1973).

revelations] 3451 CFebr“a17 6' 19731 [Preamble to final ESAA

in m72e7 ? S S age °f  2  C'F;E' § [fi5A3(b) (2) as initially adopted in 1972-73 has remained unchanged since that time. P

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39
, . , ■ -aTrw’s internal manual

The distinction is ith ESAA applications.”
for its employees who deal wi

ss Assignment whlch racially !dentlfies composition
a. Review available 8° “ ^  to of the appli-

Of the full-time teaching fa°ul ^  of the student bodies
cant’s schools and the racial information which goes to
at those schools. C°nslderJ f iJed as intended for students of awhether any school is ! d ^  as  ̂ ^  M i ?  pre­
particular race, color.or naUo^ ^  ^  ^  fact0rs.
desegregation enro l im t ,  of the raciai composition

b. Determine ™hetil*r’ factors, the racial composition of
of its student body schooi confirms the school’s racial
the faculty assigned to any « h  diatrict with a substan-
identification. For examp • ^  faculty from minority
tial proportion of botb h relevant districtwide minority
groups, a school with twice the bona fide educational
student and #facult^ ^ f y J n o r ity  faculty (e.g;, the only 
justification for such a ... , M ^ses were minorities) would
teachers qualified f° r b l 1 ^  . ^ p d  that the racial composi-
raise serious questions. Be >s schools as a whole is a
tion of the faculty m A s s i g n m e n t  discrimination; what 
given for purposes oi th:«  ^  facuUy is assigned among
is important is how percent black faculty at a school m 
those schools. Thus, a pe faculty districtwide would pre- 
a LEA with a 5 percent black f a c u l ^  ^  a L£A wlth
sent a much dlf e êIJt districtwide. Bear in mind, too, that 
a 45 percent black facul > whether faculty assignment
the focus of the inquiry ber<e  ̂ icular kind of student
identifies a school as sitiorJ  0f a school’s faculty and
Thus, where the racial J*17rpropriate districtwide averages
student body vary from ™* ^ h T S st extraordinary addition*l

°f f- lty as"  dls‘ 
crimination. Handbook fo r Emergency School Aid

Office for Civil R i g h t s , ^ ’(fmphasis supplied).
Act Programs 33-34 ^

-24a-



40

r i - V f T C i T W ^

I _ _

because they do not require mechanical application of the 
Singleton rule.86’97

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