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

    vs.
LAURO F. CAVAZOS, Secretary of Education, et al..

refendants-Appellees.

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

LAURO F. CAVAZOS, Secretary o: Education, et al..
Defendantn-Appellees.

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

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

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

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

ELLIOTT C. LICHTMAN 
MARY M. LEVY

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

Counsel for Plaintxffs-Appellants Kenneth Adams, et al



SUSAN E. BROWN 
NORMA V. CANTU

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

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

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

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



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

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

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

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

i



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

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

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

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

4. As defendants in Adams v. Cavazos (appellees herein): 
Lauro F. Cavazos, Secretary of the Departs; a; of Education and 
LeGree Daniels, Assistant Secretary for '"‘ivil Rights of the 
Department of Education.

ii



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

6. As defendants in WEAL v. Cavazos (appellees herein): 
Lauro F. Cavazos, Secretary of the Department of Education and 
LeGree Daniels, Assistant Secretary for Civil Rights of the 
Department of Education; Dennis Whitfield, Acting Secretary of 
the Department of Labor; and Leonard 3ierman, Acting Director of 
the Office of Federal Contract Compliance Programs, Department of 
Labor.

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

C. This case has previously been before this Court as: 
Adams v. Richardson. No. 83-1273 
Adams v. Bell. No. 83-1590 
WEAL v. Bell. No. 83-1516.
It was also before this Court in other aspects as: 
Adams v . Mathews. No. 76-1395 
Adams v. Bell. No. 83 1715 
WEAL v. Bell. No. 83-1516

iii



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

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

Respectfully submitted,

Elliott C. Lichtman
Attorney of Record for Appellants

iv



TABLE OF CONTENTS
Page

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

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

Introduction ................................ 2
Factual History .............................  4
Efforts To Desegregate Higher

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

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

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

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

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

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

v



TABLE OF CONTENT, [-CONTINUED
Page

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

II. The District Court Erred In Holding That
Plaintiffs Lack Standing Because The 
The Relief Granted In 198? Violated The
Separation Of Powers Doctrine ................  39
A. The Separation of Powers Doctrine

Does Not Bar This Ac:ion ...............  40
B. Plaintiffs' Consistent Claim And 

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

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

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

vi



TABLE OF AUTHORITIES
Page

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

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

11, 1983) (Timeframes)............................ 14,18,30,45
Adams v. Bell, Civ. No. 3095-70 (D.D.C. March

11, 1983)(Denying Motion to Vacate) .............  14,45
*Adams v. Bell, 711 F.2d 161 (D.C. Cir. 1983)

(en banc) ........................................ 17,26,47
Adams v. Bennett, 675 F. Supp. 668 (D.D.C. 1987)   passim
Adams v. Califano, 430 F. Supp. 118 (D.D.C. 1977) .... 7,8,44
Adams v. Califano, Civ. No. 3095-70 (December

29, 1977)   4,12,44
Adams v. Matthews, Civ. No. 3095-^0 (D.D.C.

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

1972) .......   2,6,7,30,41,44
Adams v. Richardson, 356 F. Supp. 92 (D.D.C.

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

1973) (en banc) .........  6,7,17,18,19,21,26,35,41,42,45,47
Adams v. Weinberger, 391 F. Supp. 269 (D.D.C.

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

(1984) .......................  15,18,21,22,23,27,29,31,41,42
Animal Welfare Institute v. Kreps, 561 F-2d 1002 

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

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

*Autolog v. Regan, 7'" F..2d 25 (D.C. Cir. 1984) ......  19,35

- vii



TABLE OF AUTHORITIES-CONTINUED
Page

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

1980)   28,25
Brown v. Califano, Civ. No. 75-1068 (D.D.C.

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

1976)   4,5,6,44
Bryant Yellen, 477 U.S. 352 (1980) ............ 33
Buckley v. Valeo, 424 U.S. 1 (1976)   41
*Cannon v. University of Chicago, 441 U.S. 677

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

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

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

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

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

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

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



TABLE OF AUTHORITIES-CONTINUED
Page

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

♦Heckler v. Chaney, 470 U.S. 821 (1985) ..............  21,41
International Ladies' Garment Workers' Union v.

Donovan, 722 F.2d 795 (D.C. Cir. 1983), cert
denied. 469 U.S. 820 (1984) .....................  34,35

International Union, United Automobile, Aerospace 
and Agricultural Implement Workers of 
America, UAW v. Donovan, 756 F.2d 162 (D.C.
Cir. 1985) .......... ............................  49

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

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

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

Housing, 584 F. Supp. 1292 (D. Minn. 1933) ......  27
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ....  40
Meese v. Keene, ___ U.S. ___, 107 S. Ct. 1862,

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

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

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

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

NAACP v. Secretarv of Housing and Urban Development,
817 F. 2d 1'9 (xst Cir. 1987) ....................  27

Nader v. Federal Communication Commission, 520 F.2d
182 (D.C. Cir. 1975)   49

- ix -



TABLE OF AUTHORITIES-CONTINUED
Page

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

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

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

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

Pennell v. San Jose,___tt.s . ____, 99 L. Ed. 2d 2
(1988)   36

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

Shannon v. United States Department of Housing and
Urban Development, 436 F.2d 809 (3rd Cir. 1970) .. 27

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

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

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

Southern Christian Leadership Conference, Inc. v.
Connolly, 331 F. Supp. 940 (E.D. Mich. 1971) ....  27

Telecommunications Research and Action Center v.
Federal Communications Commission, 750
F. 2d 70 (D.C. Cir. 1984) ............ ........... 49

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

United States v. Nixon, 418 U.S. 683 (1974) .........  40

x



TABLE OF AUTHORITIES-CON1-! INUED
Page

♦United States v. Swift & Company, 286 U.S. 106
(1932)........................................... 49,50

Valley Forge Christian College v. Americans
United for Separation of Church and State,
Inc., 454 U.S. 464 (1982) ...................... . 22

♦Warth v. Seldin, 422 U.S. 490 (1975) ................  17,22,24
Watt v. Energy Action Educational Foundation,

454 U.S. 151 (1981) ;............... ............. 33
Weinberger v. Catholic Action of Hawaii/Paach

Education Project, 454 U.S. 139 (1*81) ..........  48
Women's Equity Action League (WEAL) v. Bell, 743

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

No. 74-1720 (D.D.C. December 29, 1977) ..........  12
Wright- v. Miller, 480 F. Supp. 790 (D.D.C. 1979) 

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

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

Statutes;
♦Administrative Procedure Act, 5 U.S.C.

§§ 701-706 ....................................... 2,41
5 U.S.C. § 706(1)   41

♦Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000d et seq................................... passim

42 U.S.C. § 2000d-l .................................  27,41
Civil Rights Restoration Act of 1987, 42 U.S.C.

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

20 U.S.C. §§ 1681, et s e a .... ...................  4,12,26
Executive Order No. 11246, 3 C.F.R. 339 (1965) ......  4,12

- xi -



TABLE CF AUTHORITIES-CONTINUED
Page

Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794 ..................................... 4,12

28 U.S.C. § 1291 .... . .............................. 2
28 U.S.C. § 1331 ..................................... 2
28 U.S.C. § 1343(4) ... .............................. 2
28 U.S.C. § 1361 ...................... .............. 2
28 U.S.C. § 2201 ..... ............................... 2
28 U.S.C. § 2202 .....  ............................. 2
Morrill Act of 1862, Ch 130, § 4, 12 St.at. 503

(1862) ........................................... 20,37
Morrill Act of 1890, Ch. 814, § 1, 26 Snat.

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

(1914) ........................................... 20,37

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

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

Legislative Materials
51 Cong. Rec. 2519 (1914) ........................... 37
51 Cong. Rec. 265? (1914) ........................... 37
51 Cong. Rec. 2945 (1914) ................. ..........

- xii -
37



TABLE OF AUTHORITIES-CONTINUED
Page

51 Corig. Rec. 2946 (191 1)   37
51 Corg. Rec. 2922-34 (1914)    37
51 Cong. Rec. 7417-27 (1914)   37
110 Cong. Rec. 1519 (1964)   26
110 Cong. Rec. 2467 (1964)   27,38
110 Cong. Rec. 2481 (1964)   19,34
110 Ceng. Rec 5255 (1964)   25
110 Cong. Rec. 5256 (1964)   26
110 Cong. Rec. 6544 (1964)   28
110 Cong. Rec. 6545 (1964)   34
110 Cong. Rec. 7055 (3964)   19,27,34
110 Cong. Rec. 7056 (1964)   19,34
110 Cong. Rec. 7057 (1964)    19,34,37
110 Cong. Rec. 7060 (1964)   19,34
Failure and Fraud In Civil Rights Enforcement By 

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

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

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

President Kennedy's Special Message tr Congress,
June 19, 1963, transmitting Title ^x, 
reprinted in 1963 U.S. Code Cong. 1 Admin.
News 1526 ........................................ 27

xiii



TABLE OF AUTHORITIES-CONTINUED
Page

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

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

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

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

Kujovich, Equal Opportunity in Higher Education 
i‘.nd the Black Public College: The Era of 
Separate But Equal, 72 Minn. L. Rev. 29
i 1987)     38

W. E. Trueheart, The Consequences of Federal and State 
resource Allocation and Development Policies for 
Traditionally Black Land-Grant Institutions:
3862-1954 (University Microfilms International,
Inn Arbor, Michigan 1979)   38

Payne, Forgotten ... but not gone: The Negro 
Iand-Grant Colleges, Civil Rights Digest 12
(Spring 1970)   38

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

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

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

♦Authorities primarily relied upon.

xiv



UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

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

v.  ))LAURO F. CAVAZOS, Secretary of Education, )
et al., )

)Defendants-Appellees. )
_______________________________________________________)

)WOMEN'S EQUITY ACTION LEAGUE, et al., )
)Plaint iffs-Appellants, )
) No. 88-5065
)
)LAURO F. CAVAZOS, Secretary of Education, )

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

_______________________________________________________)

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

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

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

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



ination was likely to be redressed by a credibl2 threat of fund 
termination or actual fund termination.

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

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

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

JURISDICTION1
The basis of subject matter jurisdiction in this Court is 2H 

U.S.C. § 129x. On December 11, 1987, the district court issued ii 
final opinion and order. Adams v. Bennett. 675 F. Supp. 66?
(D.D.C. 1987) (JA4-1611) . The bases of jurisdiction in the:
district court were 5 U.S.C. §§ 702-704 and 28 U.S.C. §§ 1331, 
1343(4), 1361, 2201 and 2202. Adams v. Richardson. 351 F. Supp. 
636, 640 (D.D.C. 1972). Timely notice of appeal was filed or
February 9, 1988.

STATEMENT OF THE CASE 
Introduction

Over eighteen years ago, black students attending racially 
discriminatory, federally funded schools initiated this action 
challenging the Department of Health, Education and Welfare

1 References to volumes of the Joint Appendix are cited 
herein as "JA" followed immediately by the volume number, e.g., 
JA1. Specific JA page numbers follow the hyphen, e.g., JA1-42.

2



("HEW")2 for its persistent and substantial failure to comply with 
Title VI of the Civil Rights Act of 1964, which declares for 
individuals an absolute right to be free from discrimination in 
programs that receive federal funds. During tne course of the 
litigation the district court and this Court found that defendants 
had defaulted on their statutory duty under Title VI and approved 
relief, which defendants in significant measure designed themsel­
ves, to correct the default. Defendants, however, failed in sub­
stantial respects to comply with the court-approved remedy and as 
a result the systemic default has never been corrected. Thus 
plaintiffs' injury remains unabated.

In 1987, on remand from this Court for reconsideration of 
plaintiffs' standing in light of a recent Supreme Court decision, 
the district court dismissed the entire actior. The court con­
cluded that plaintiffs lacked standing because the racial discrim­
ination could not fairly be traced to federal officials who admit­
tedly continue federal funding with full knowledge of the discrim­
ination, and that no relief —  not even fund termination or the 
credible threat of it required by Title VI —  could redress the 
denial of the Title VI right. In an opinion with potentially broad 
and disturbing ramifications, the district court, in essence, 
rewarded defendants' recalcitrance by ruling that Title VI is 
ineffective in eliminating the federal complicity in racial dis­
crimination, and therefore is unenforceable against the feder-i 
agencies that subsidize the discrimination. Dismissal of this

2 The Department of Education subsequently was substitute 
for HEW as a defendant.

3



case flies in the face of uniform findings and rulings over more 
than a decade ard must be reversed on appeal.

Factual History
The complaint in this action charged3 that defendants were 

violating Title VI,4 the Fifth Amendment, and the Fourteenth Amend­
ment "through continued assistance to public schools and colleges" 
in seventeen southern and border states that were engaging in 
racial segregation and discrimination in education. Amended Com­
plaint, November 17, 1970 (JA1-172) f 8; see, e.q. . 2,3,7.5

3 Plaintif f-Intervenors-Appellants Jimmy Martinez, Ben 
Salazar, Pablo Orteg?, and Arturo Gomez, Jr. join in this brief. 
Their standing, which is based upon defendants' failure to enforce 
Title Vi's prohibition of national origin discrimination in fed­
erally funded programs (Complaint filed Jan. 22, 1976 [JA1-402]), 
is factually and legally indii.cinct from the original plaintiffs' 
standing based on Title VI rights relating to racial discrimina­
tion. The remaining intervensrs in Adams and plaintiffs in WEAL 
v. Cavazos are filing separata briefs.

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

5 A separate class action, Brown v. Weinberger. 417 F. Supp. 
1215 (D.D.C. 1976), arose from a similar complaint filed with 
respect to 33 northern and western states. Pursuant to a settle­
ment agreement in 1977, that case was largely consolidated with 
Adams. JA2-601; Brown v. Califano. Civ. No. 75-1068 (D.D.C. Jan. 
10, 1978). The Women's Equity Action League ("WEAL") also brought 
a similar action against HEW and the Department of Labor for fail­
ure to comply with Title IX of the Education Amendments of 1972, 
20 U.S.C. §§ 1681, et sea.. and Executive Order 11246. That action 
was reassigned to District Judge Pratt in Ma>' h x977 and treated 
in a parallel fashion with Adams. In 1976 and 1977, female, His­
panic (alleging a violation of Title VI) , and b-ndicapped (alleging 
a violation of Sectioi. .,04 of the Rehabilitation Act of 1973, 29 
U.S.C. § 794) individuals and organizations intervened in Adams. 
The "common thread underlying each . . . complaint . . . [is] the 
alleged improper grant of federal funds in \,xoiauion of various

(continued...)
4



Individual class representatives include students who attend his­
torically black public colleges that have yet to receive equal 
treatment, black students who continue to suffer discrimination 
at historically white public colleges, and other black students 
who attend elementary and secondary schools that practice racial 
discrimination but continue to receive federal funding.6

Plaintiffs alleged that defendants were systemically default­
ing on their statutory duty under Title VI by failing to initiate 
investigations, by delaying investigations in progress, and by 
failing to initiate fund termination proceedings against schools 
found to be practicing discrimination, including those schools 
and school systems that had reneged on their commitments under 
negotiated desegregation plans.7

5 (...continued)
statutes and regulations." Adams v . Bennett. 575 F. Supp. at 671
n.1 (JA4-1614).

6 For a description of the plaintiffs see Amended Complaint,
2,3,4 (JA1-175-76) ; Motion to Add Parties, Appendix A, Nov.

12, 1982 (JA3-909-12) and Order approving Nov. 16, 1982 (JA3-913); 
Motion for Certification of Class and to Add Plaintiffs, Appendix 
A, Mar. 19, 1984 (JA3-972) and Order of May 9, 1984 (JA3-985) , 
granting class certification and defining the class as follows:

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

A similarly defined class <•'-£ certified in Brown v. Weinberger. 
417 F. Supp. at 1218; Verified Second Amended Complaint in Brown. 
1 4.

7 E.g. . Amended Complaint, 55 8-11, 18-19, 23, 33, 35-39,
43 (JA1-177-180; 184; 186; 192-196); Brown v. Weinberger. 417 F.
Supp. at 1217-18.

5



Defendants responded by asserting that they had "discretion" 
to determine the method of securing compliance, including the 
discretion to continue to rely primarily upon voluntary means of 
compliance —  however unsuccessful —  to fulfill their responsibil­
ities under Title VI. Adams v. Richardson. 351 F. Supp. 636, 640 
(D.D.C. 1972). Describing in some detail HEW's broad-scale failure 
to comply with Title Vi's mandatory requirements,8 the district 
court held that defendants did not have further discretion, but 
were under an affirmative duty to commence enforcement proceedings 
when efforts toward voluntary compliance failed. Id. at 641.9 
The district court directed HEW's Office for Civil Rights ("OCR") 
to commence enforcement proceedings within specific time limits 
in pending cases and to report to. r.he court on any failures to 
meet judicially specified timeframes in processing future cases. 
Adams v. Richardson. 356 F Cupp. 92 (D.D.C. 1973).

In 1973, this Court, sitting en banc, unanimously affirmed. 
Adams v. Richardson. 480 F.2d 1159 (D.C. Cir. 1973) (JA1-227) . 
The Court held that "affirmatively continuing] to channel federal 
funds to defaulting schools" is unlawful. It mandated that if

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

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

6



the agency could not obtain voluntary compliance "withi1 a reason­
able time," it must enforce Title VI by starting fund ‘iennination 
proceedings (or by referring the case to the Department of 
Justice), and stated that "consistent failure to do sc is a dere­
liction of duty reviewable in the courts." Id. at 1162-63 (JA1- 
230-31).

Efforts to Desegregate Higher Education Institutions
In 1969 and 197 0 HEW found that ten states were operating 

segregated systems of higher education in violation of Title VI. 
Despite the agency's own findings, however, it took no effective 
action to require desegregation or to stop federal funding urtil 
required to do so by court orders in this case.10

Following the l97 3 Orders of this Court and the. district 
court, OCR in 1974 obtained desegregation plans from eight 
states.11 Ey the following year, however, the agency found wide­
spread default in state performance of plan commitments and reit­
erated the finding that the states were not in compliance with

10 Between January 1969 and February 1970, HEW requested 
ten states to submit desegregation plans within 120 days. The 
district court found in its Amended Ordep of February 1973 that 
five of the states had totally ignored HEW's requests and that 
the other five had submitted plans that HEW considered unaccept­
able. Moreover, despite the fact that from 18 to 3 6 months had 
passed since the submissions by the states, HEW had not commenced 
administrative enforcement actions against any of the states nor 
had any of the matters been referred to the Justice Department. 
HEW had even failed to comment to the states on their inadequate 
submissions. Nonetheless, HEW continued to advance "substantial 
amounts" of federal funds for the benefit of institutions of higher 
education in these states;. Adams v. Richardson. 3 51 F. 3upp. at 
637-38.

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

7



Title VI, but nonetheless took no enforcement action. Ex. I-P to 
the Affidavit of Peter Holmes, Sept. 8 1975. Plaintiffs moved 
for further relief,12 and after reviewing substantial documentary 
evidence and holding oral argument, che district court concluded 
that defendants had failed to enforce Title VI, and ruled that 
the 1974 plans were inadequate under defendants' own requirements. 
Adams v. Califano. 430 F. Supp. 118 (D.D.C. 1977).13 Under the 
court's Order, OCR first developed aid adopted criteria to guide 
formulation of new higher education desegregation pLans,14 and 
then in 1978 obtained significantly improved five-year plans.

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

ed that the 
to achieve 
to initiate 
lief,16 and

12 Plaintiffs' Motion for Further Relief, Aug.
13 Noting that it had waited months in vain for

the district court concluded that "it is time that HI 
reminded . . . .  I think they act a little better wh< 
a[n] . . . order staring them in the face." Hearir
1977, Tr. at 44 (JA2-478). Even the Government's cou
with the court that "in the past a court order was
. . . to get the Office of Civil Rights to do anythir}'
47 (JA2-481).

2, 1975.
OCR to act, 
W has to be 
n they have 
g, Jan. 17, 
nsel agreed 
necessary 

g." Id. at

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

15 See Reply of Plaintiffs In Support of Renewed 
Further Relief Concerning State Systems of Higher Educ 
23, 1983, (verified) at 5 (JA3-920).

16 Plaintiffs' Renewed Motion for Further Relief 
State Systems of Higher Education, Dec. x2, 1982 (veri

Motion for 
ation, Feb.

Concerning 
ilfied) .

8



[e]ach of thest; states has defaulted in major respects 
on its plan commitments and on the desegregation require­
ments of the Ciit^ria and Title VI. Each state has not 
achieved the principal objectives in its plan because 
of the state's ;ailure to implement concrete and specific 
measures to ensure that the promised desegregation goals 
would be achieved by the end of the five year desegrega­
tion period.17

The court directed OCR to require the states to submit new measures 
sufficient to achieve full desegregation or commence proceedings 
to terminate federal funding.18

During the implementation of desegregation plans prompted by 
the district court's order®( there was some —  albeit little—  
progress.19 For example, traditionally black institutions (TBIs) 
were strengthened with construction, renovation, and upgraded 
programs, though no.- nearly to the point of comparability with

17 Adams v. Bell. Civ. No. 3C95-70, at 2 (D.D.C. Mar. 24, 
1983) (cited hereinafter as "Order of March 24, 1983 (Higher Educa­
tion)") (JA3-964).

18 Id. at 3 (JA3-965).
19 Since the submission of evidence and the hearing in 1983, 

upon which the 1983 orders were based, there has been no oppor­
tunity to present evidence regardingr performance under the plans 
and the district court's order. Sigiificant events have occurred 
since that time and since dismissal of this case (including events 
reflected in public documents released by the Department of Educa­
tion, such as letters to state governors), as indicated in plain­
tiffs' motions for a stay pending appeal. These events are rele­
vant and informative to this Court, particularly with respect to 
the district court's judicially noticed "explanations," 678 F. 
Supp. at 680 (JA4-1623), for OCR's ineffectiveness, and are refer­
enced in several succeeding paragraphs. See also generally Failure 
and Fraud In Civil Righ':s Enforcement By the Department- of Educa­
tion . House Committee on Government Operations, H. Rep. No. 334, 
100th Cong., 1st Sess. (1987) (JA4-1560). The report is cited by 
the district court, 675 F. Supp. at 675 n.16, 67P n.18 (JA4-1618, 
1621) . Plaintiffs-appellanto would be happy to tender copies of 
particular underlying documents to the Clerk of the Court if 
requested by the Court or any member of the Court.

9



thiir white counterparts.20 Black enrollment in and graduation 
frsm orofessional schools improved modestly, as did the proportion 
of black faculty members in the traditionally white institutions 
(TY?Is) .21 Most important, where states or institutions mounted 
strong efforts in particular areas, they succeeded in increasing 
black participation and in meeting their goals in those areas.22

However, when the plans expired in 1985 and 1986, the states 
had defaulted on many of their desegregation plan commitments to 
equalization and desegregation.23 Measures not implemented 
included promises to enhance and equalize traditionally black 
schools.24 In addition, in most cases the staces had not met their

20 Attachment A to Plaintiffs' Motion for Stay of Order of 
Dismissal, Feb. 8, 1988 (JA4-1637) . For example, at Virginia State 
University ("VSU"), attended by several of the plaintiffs, despite 
renovations that are being performed, only 60 percent of the educa­
tion and general space will be classified as satisfactory at its 
completion, compared to 80 percent to 95 percent at comparable 
white schools; VSU has not had a new academic building constructed 
in fifteen years. Faculty salaries were raised but are still lower 
than those in comparable white schools, and fewer faculty members 
hold doctorates. &d. at 4 (JA4-1640).

21 A substantial financial aid program and individualized 
recruitment of minority undergraduates with high grade point aver­
ages in Georgia brought blacks into graduate studies at a rate 
equal to or higher than that of whites. Id. at 15 (JA4-1651).

22 For example, Norfolk State University in Virginia, a TBI, 
has good facilities, a number of attractive enhancement programs,, 
and small but increasing white enrollment. Old Dominion Univer­
sity, a TWI in the same city, with a black student recruitment 
program described by OCR as "very ambitious," has exceeded its 
recruitment goals. Id. at 4, 15 (JA4-1640; 1651).

23 States disregarded prom.i'-‘c1 measures to narrow the gap 
between black and white college-ao’ng rates and retention rates. 
Id. at 13-15 (JA4-1649-51) . Flc'-vda, for example, planned only 
three modest statewide programs for black students' recruitment 
and did not fully implement even these. Id.

24 Id. at 3-6 (JA4 —1639 —1642 , .

10



own enrollment and hiring goals for blacks.25 Indeed, many 
defaults in both measures and goals were simply due to the states' 
failure to spend money on the equalization of TBI's, financial 
aid for minority students, and retention and recruitment 
programs.26

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

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

25 College remediation and retention programs for black 
students are usually available only to a small number. In Georgia, 
for example, OCR found that for nine of ten colleges with the 
highest black attrition rates, the 1983-84 budget for remedial 
skills and counselling programs declined from the previous year's 
funding. Only six institutions offer a summer enrichment program 
that has produced better test scores and positive ratings from 
participants. Florida provides an average of only $5000 per 
institution for its program to help prepare disadvantaged students 
for college. Id. at 17-18 (JA4-1653-54).

26 At the University of Florida, for example, state grants 
for minority and economically disadvantaged pupils average only 
$366 per pupil, while in-state tuition, room, and board combined 
average $3,430 a vear. Id. at 16. Arkansas' fund for need-based 
scholarships give ! a maximum of $500 per student, although in-state 
tuition, room, and board combined average $2,694 a year. Black 
students receive these need-based scholarships in proportion to 
their number amoncr high school seniors, no more. Id. at 16-17 
(JA4-1652-53).

11



tracted time periods." Adams v. Weinberger. 391 F. Supp. 269,
271 (D.D.C. 1975). The court also found that

having failed during a substantial period of time to 
achieve voluntary compliance [for some 39 school dis­
tricts] , [HEW] has not commenced enforcement proceedings^, 
by administrative notice of hearing or any other means 
authorized by law. Apart from the school districts 
expressly covered by this Court's February 16, 1973
order, HEW has not initiated a single administrative 
enforcement proceeding against a southern school district 
since the issuance of this Court's Order 25 months ago.

Id. at 273. The government did not appeal this order. A year 
later in 1976, pursuant to a consent agreement entered by the Ford 
Administration, the district court extended the timeframes order 
with modifications to refxect experience in implementing it. That 
order was designed to cover defendants' compliance with Titl«_ VI, 
Title IX, Executive Order 11246, and Section 504 of the Rehabilita­
tion Act of 1973.27

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

27 Adams v . Mathews. Civ. No. 3095-70 (D.D.C. June 14, 1976) 
(JA1-416); Hearing, June 14, 1976, Tr. at 21.

28 Plaintiffs' Motion for Further Relief, Jan. 17, 19nl.
29 See joint Order in Adams v. Califano. Civ. No. 3095-70 

and Women's Equity Action League v. Califano. Civ. No. 74-1720 
(Dec. 29, 1977) (JA2-601) , indicating that it was also entered
pursuant to the settlement of Brown v. Califano.

12



Following this series of Orders, large backlogs of unresolved 
complaints were significantly reduced. Fo:: example, just before 
the 1977 Order, OCR had a backlog of over 3100 cases. Thereafter, 
it was reduced to about 360.30 By 1980 n'd 1981, however, OCR 
again regressed, incurring massive delays in all stages of com­
plaint processing and compliance reviews, prompting plaintiffs to 
file a Motion for an Order to Show Cause directed to defendants 
requiring them to show why they should not be held in contempt of 
court.31

In response to plaintiffs' motions, on February 10, 1982,
the district court issued an Order directing defendants to show 
why they should not be held in contempt for failure to adhere to 
the requirements of the 1977 order.32 After taking evidence from 
both sides, the court concluded that the December 1977 Deere2 "has 
teen violated in many important respects."33 The court also found 
that if the government were "left to its own devices, . . . the
substance of compliance will eventually go out the window."34 
In August of that same year, after negotiations proved fruitless, 
defendants moved to vacate the 1977 Consent Decree in its en­
tirety.35 The district court denied that motion on March 11, 1983,

30 OCR Report to Court, Nov. 2, 1979, Exh. I, p. 1.
31 Plaintiffs' Motion for an Order to Show Cause, Apr. 22,

1981, pp. 2-4, (JA2-657-59), and Plaintiffs' Reply In Support of
Motion to Show Cause, Tabs A and B, June 23, 1981 (JA2-660-61).

32 Order to Show Cause, Feb. 10, 1982 (JA2-672).
33 Hearing, Mar. 15, 1982, Tr. at 3 (emphasis added) (JA2-

316) .
34 Hearing, July 13, 1982, Tr. at 11-12 (JA3-877).

Defendants' Motion To Vacate, Aug. 10, 1982.
- 13 -

35



finding that defendants lad not made the requisite showing of 
"grievous wrong evoked by now and unforseen conditions;" nor had 
defendants shown that the purposes of the litigation had been 
accomplished.36 That same day, in response to the arguments raised 
by the government, the district court issued an order reaffirming 
but "modify[ing] the terms of the 1977 Consent Order."37

After entry of the 1983 Timeframes Order, OCR delays again 
decreased.38 In sharp contrast to its practice in earlier years, 
OCR commenced, within abcut a year, administrative enforcement 
proceedings against 23 recalcitrant school districts and referred 
another 18 districts to the Department of Justice for civil suit. 
Recently, however, enforcement activity sharply declined once 
again; only nine districts were noticed for hearing in fiscal 
1986.39

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

which refused to vacate the 1977 Consent Order and modified the 
timeframes. Defendants did not appeal th« March 24, 1983 higher 
education Order. In 1984 this Court, without reaching the merits, 
remanded for consideration of plaintiffs' standing to continue

36 Adams v. Bell. Civ. No. 3095-70 (D.D.C. Mar. 11, (1983)
(cited hereinafter as "Order of March 11, 1983 (Denying Motion
to Vacate)") (JA3-961).

37 Adams v. Bell. No. 3C95-70, (D.D.C. Mar. 11, 1983) (cited 
hereinafter as "Order of March 11, 1983 (Timeframes)") (JA"-924).

38 JA3-1126-28.
39 Office for Civil Rights Sixth Annual Report Fiscal Year 

1986, p. 30. Assessment of recent violations of the timeframes 
is hindered by OCR's decision, after the district court's 1^87 
dismissal, to cease its semi-annual reporting to plaintiffs.

14



the case in light of a recent Supreme Court decision in Allen v. 
Wright.  ̂68 U.S. 737 (1984). Women's Equity Action League (WEAL) 
v. Bell. 743 F.2d 42 (1984) (JA3-990).

On December 11, 1987, the district court dismissed the case 
in its entirety. Adams v. Bennett. 675 F. Supp. 668 (JA4-1611). 
The court found plaintiffs' injury in the denial of an education 
free from discrimination could not fairly be traced to the federal 
defendants but was caused by the individual states and schools, 
and concluded that racial segregation and discrimination were not 
likely to be redressed by enforcement of Title VI because the 
effect of cutting off funds was "speculative.” Id. at 677-79 (JA4- 
1620-22). Additionally, the court ruled that plaintiffs lack stand­
ing because the March 1983 orders violated the separation of powers 
doctrine. Id. at 679-80 (JA4-1622-23).

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

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

The subcommittee reviewed the history of the expired 
desegregation plans —  including the original findings 
of violation of Title VI —  the OCR regional summaries 
of each expired plan, and the OCR staff site visits of 
every institution covered by the plans. Based on this 
review, the committee concludes that the original viola­
tions of law have not been corrected and the factors 
that OCR found to constitute illegal vestiges of segre­
gated systems of higher education r  ̂.ic-'..l. 4C*

40 Failure and Fraud In Civil Ri-in-s Enforcement By the 
Department of Education, supra note 19 at 8 (JA4-1571).

15



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

[OCR's] factual summaries contained a bias toward finding 
the States free from Title VI violations, despite the 
fact that racial identifiability, the major factor which 
led to findings of discrimination in 1969, still exists 
in the 10 States. . . . Substantial evidence also exists 
that this bias will lead OCR to ignore Title VI viola­
tions . . .  by hinging its final decision on the imple­
mentation of measures, and ignoring statistical factors 
in evaluating the success of the desegregation plans. .
. . The committee finds that OCR's policy is in flagrant 
disregard of congressional intent.41
Two months after dismissal of the case, despite its own 

acknowledgements of state defaults :in implementing higher education 
desegregation measures and ^ailuies in meeting tho established 
goals o: their own plans, OCR released four states outright from 
further obligations under Title VI,42 asserting ,nhat they were in 
compliance with Title VI. OCR found six other states in "substan­
tial compliance" and promised that if certain minor measures were 
"implemented" by the end of 1988, they too would be regarded as 
having eliminated the vestiges of their dual systems.43 These 
actions signal OCR's effective abandonment of civil rights enforce­
ment in higher education.44 Thus, despite defendants' knowledge

41 Idi. at 31-32 (JA4-1594-95) .
42 See Dept, of Education News Release, Feb. 10, 1988, Exh. 

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

43 Id.
44 For years defendants maintained, in accordance with con­

stitutional and Titi t T'I law, that the states must disestablish 
their dual systems ana eliminate the vestiges of segregation, and 
that the desegregation plans must contain measures that reasonably 
ensure that the goals will be met. See e.q.. Revised Criteria, 
43 Fed. Reg. 6658. Sadi^. defendants now ignore the states' wide-

(continued...)
16



that fund recipients are discriminating, they continue each year 
to advance hundreds of millions of dollars in support of these 
discriminatory programs. The district court's ruling effectively 
rendering Title VI unenforceable against defendants virtually 
guarantees continuation of this substantial and illegal federal 
subsidization of discrimination.

SUMMARY OF THE ARGUMENT

A. The district court erred in disregarding the injury to 
plaintiffs' lights as declared by Congress in Section 601 of Titxe 
VI, which is an independent and sufficient basis for plaintiffs' 
standing in this case. It is settled law that Congress can create 
legal rights by statute, the invasion of which is sufficient to 
establish standing under Article III.45 Here, Congress in Title 
VI has declared for individuals an absolute right to be free from 
federally subsidized discrimination in their educational 
programs,46 and it is the law of this case and others that Title 
VI may be enforced by individuals against a federal agency.47

44 (...continued)
spread default on the plan objectives. And, as to implementation 
of measures to achieve goals, where once partial performance was 
unacceptable, the Secretary has downgraded the standard to "sub­
stantial" implementation of "significant" measures, permitting 
disregard of many measures on which the states have defaulted. 
Letters to State Governors from Assistant Secretary of Civil 
Rights, LeGree S. Daniels, February 9,, 1988.

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

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

Adams v. Richardson. 480 F.2d 1159 (D.C. Cir. 1973) (en banc) (JA1- 
227); National Black Police Ass'n v. Velde. 631 F.2d 784 (D.C.
Cir. 1380;.

17



Allen v. Wriaht. 468 U.S. 737 (1984), upon which the district 
court relied in dismissing this action, is inappasr'te to plain­
tiffs' Title VI claims. The Court in Allen d:.d not consider 
whether Section 601 of Title VI creates a basis for judicially 
cognizable injury. Moreover, plaintiffs suffer distinct and pal­
pable injury to this Title VI right because, they, unlike the 
plaintiffs in Allen, attend the very schools that are alleged to 
practice racial discrimination, yet continue to .receive federal 
funds.48 Causation and redressability follow directly from this 
injury, for substantial federal funding of discriminatory programs 
continues,49 and defendants have failed in substantial ’respects 
to comply with the courts' order which they agreed would correct 
their systemic default in complying with the statute.50 The injury 
is redressable by agency compliance with Title VI which would make 
credible the threat of fund termination, recognized as effective 
in the past,51 or by actual termination of funds.

B. Alternatively, plaintiffs have standing based upon injury 
to their right to be educated in an environment free from discrim­
ination, which the district court properly found.52 The court 
erred, however, in concluding, that because the educational 
institutions and states themselves practice discrimination, the 
injury could not fairly be traced to any action or inaction of

48 675 F. Supp. at 675-76 (JA4-1618-19).
49 Id. at 678 (JA4-1621).
50 Order of March 11, 1983 (Timeframes^ (JA3-924),
51 Adams v. Richardson. 480 F.2d at 1163 n. 4 (oAl-231)
52 675 F. Supp. at 675-76 (JA4-1618-19).

18



the federal defendants, and th it it was "speculative" whether 
enforcing administrative deadlines and initiating fund termination 
proceedings would remedy the irjury. These conclusions do not 
square with governing law, the .-‘.stablished record in this case, 
or prior court decisions.

First, contrary to the district court's assumption, both this 
Court and the Supreme Court recognize standing where the injury 
is inflicted by a third party in conjunction with or against the 
background of the challenged action.53

Second, the district court gave no weight to the fact that 
Congress itself drew the causal link between federal funding of 
discriminatory practices and their continuation, and concluded 
that Title Vi's measures would be effective in remedying the dis­
crimination. 54 It is the law of this Circuit that the court must 
give "great weight" to these congressional findings.55 The court's 
conclusion about the "speculative" nature of tie relief sought 
contradicts the record in this case of states and school districts 
taking steps to eliminate racial discrimination when actually 
threatened with fund termination, and this Court's findings that 
the threat of fund termination is effective.56

Additionally, the district court erroneously concluded, based 
upon judicial notice, that the federal defendants had nothing to

53 Meese v. Keene. __^ U.S. ___, 107 S. Ct. 1862 (1988);
National Wildlife Federation v. Hodel. 839 F.2d 694 (D.C. Cir. 1988'

54 110 Cong. Rec. 2481, 7055-57, 7060 (1964).
55 Autoloq v. Regan. 731 F.2d 25 (D.C. Cir. 1984).
56 Adams v. Richardson. 480 F.2d at 1163 n.4 (JA1-231).

19



do with causing and maintaining segregated and discriminatory 
systems of higher education. The history of the land-grant col­
leges and universities, which comprise a significant portion of the 
higher educaticv component of this litigation, shows direct federal 
involvement in the establishment of the separate system and in 
the unequal funding of black and white institutions.57 Further, 
federal funding plays a substantial ongoing role in subsidizing 
and maintaining these discriminatory systems. Thus the district 
court's theory that defendants have "clean hands" is not based on 
an accurate accounting of history.

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

C. It was also error for the district court to hold alterna­
tively that plaintiffs lack standing on the ground that the relief 
granted in 1983 violates the separation of powers doctrine. The 
remand in 1984 directed the district court to consider the "thres­
hold" separation of powers concerns with respect to Article III 
standing. The Court cautioned that the "threshold" and "merits" 
separation of powers determinations were distinct, and directed 
the remand only to those threshold issues. WFAT y. Bell. 743 F.2d

57 Morrill Act of 1862, Morrill Act of layu, Smith-Lever 
Act of 1914, Hacch Act of 1877 all cited infra notes 91-94.

20



at 44 (JA3-989). The district court apparently missed the distinc­
tion made by this Court. Denying standing based on the merits of 
relief already granted was error.

Moreover, the separation of powers discussion in Allen v. 
Wright did not bar judicial review of agency actions. The Court 
has, since Allen. approved such review where Congress has limited 
agency discretion.58 This Court in its 1973 en banc decision ruled 
that Congress had in Title VI limited the agency's discretion and 
that a challenge to the failure to comply with statutory duties 
under Title VI was properly reviewable.5- Plaintiffs' claims and 
the relief granted in this case have been based consistently on 
the undisputed factual record of defendants' continuing violation 
of Title VI by incessant delay tantamount to non-compj.iance with 
Title VI. Those claims and the relief consented to by defendants 
are not now properly subject to challenge on separation of powers 
grounds.

ARGUMENT

I .  THE DISTRICT COURT ERRED IN CONCLUDING THAT
PLAINTIFI'S LACK STANDING TO PURSUE THEIR CLAIMS.

A. Lega] Requirements fo r  Standing. .

Article III of the Constitution requires that in order to 
pursue a claim in federal court a party must have standing to sue. 
Standing exists where a person demonstrates (1) that he or she 
personally has suffered some actual or threatened injury, (2) that 
the injury is "fairly traceable- to the defendants' alleged illegal 
conduct, and (3) that the irv'ury is "likely" to be redressed by

58 Heckler v. Chaney. 470 U.S. 821, 839 (1985)’.
Adams v. Richardson. 480 F.2d at 1163 (JA1-231).

21



appropriate relief from the court. Allen v. Wright. 468 U.S. 737, 
751 (1984) ; Valiev Forge Christian College v. Americans United
for Separation of Church and State. Inc.. 454 U.S. 464, 472 (1982). 
In resolving a motion to dismiss for lack of standing, the court 
must accept as true all material allegations of the Complaint and 
must construe them in favor of the complaining party. Warth v. 
Seldin. 422 U.S. 490, 501 (1975).60

B. The D i s t r i c t  Court Erred In Ignoring P la in ­
t i f f s '  S ta t u to r ily  Enforceable R igh t Under 
T i t l e  VI To Attend Schools Free o f  F e d e ra lly  
Subsidized D iscrim in ation .

The district court relied primarily on Allen v. Wright. 468 
U.S. 737 (1984), in concluding that plaintiffs lack standing to
pursue this litigation. In doing so, however, the court disre­
garded plaintiffs' claim that they have a statutorily enforceable 
right to attend schools free of federally subsidized discrimination 
declared in Section 601 of Title VI of the 1964 Civil Rights Act,61 
as to which Allen v. Wright is inapposite.

In Allen, parents of black children attending public schools 
undergoing desegregation alleged that they were injured by the 
failure of the IRS to institute standards and procedures sufficient

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

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

22



to assure denial of tax exemption to racially discriminatory pri­
vate schools. The plaintiffs argued that the tax-exempt status 
reduced the cost for white pupils to leave desegregating public 
systems in order to attend private, all-white schools. 463 U.S. 
at 739. In contrast to the explicit Title VI limitations at issue 
here, the only restraints on the government conduct litigated in 
Allen were the general tax exemption eligibility standards of the 
Internal Revenue Code, id. at 740, and the general constitutional 
bar against racial segregation in public schools.C2 The Court 
found the diminution, of the Allen plaintiffs' opportunity to attend 
integrated public schools was an adequate injury, but one nrt 
sufficiently traceable to IRS actions to meet the causation and 
redressability requirements. Id. at 756-59.63 The Court also 
found that a so-called "stigmatic" injury suffered by all members 
of a racial group when the government discriminates, id. at 754, 
was not sufficiently focused to be judicially cognizable. Id. at 
756.

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

63 As in Allen, plaintiffs in Simon v. Eastern Kentucky 
Welfare Right;? Ora. . 426 U.S. 26 (1976), challenged the govern­
ment's grant of tax-exempt status to third parties —  hospitals 
allegedly violating plaintiffs' rights —  but did not claim viola­
tion of a statute that prohibited the agency action and that cre­
ated an individual right to participate in federally funded pro­
grams free of discrimination.

23



In contrast to such a ban or prohibition "enacted for the 
protection of the general public," plaintiffs here invoke Section 
601 of Title VI, which in the words of tie Supreme Court consti­
tutes "a declaration of an absolute individual right not to have 
federal funds spent in aid of discrimination." Cannon v. Univer­
sity of Chicago. 441 U.S. 677, 690-93, 715 n. 15 (1979) (emphasis 
added). This statutory right is directly enforceable and suffi­
cient to confer standing.

The actual or threatened injury required by Art III may 
exist solely by virtue of "statutes creating legal 
rights, the invasion of which creates standing. . . . "
See Linda R.S. v. Richard D. . 410 U.S. T614, 617 n.3
(1973) ] ; Sierra Club v. Morton. 405 U.S. 727, 732 (1972) .

Warth v. Seldin. 422 U.S. at 500. Such legal rights may be created
expressly by statute or by clear implication. Id. at £01.64 The
Allen opinion expressly cites this principle with approval. 468
U.S. at 763.

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

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

64 See Havens Realty Corp. v. Coleman. 455 U.S. 363, 373 
(1982) ("testers" in housing discrimination lawsuit had standing 
to sue under the Fair Housing Act of 1968 for alleged violations 
of the enforceable right established by Congress in Section 804(d) 
to truthful information about available lousing); Trafficante v. 
Metropolitan Life Ins. Co.. 409 U.S. 205, 212 (1972) (White, J. 
concurring) (white tenants had standing to rue landlord over al­
leged refusal to rent to minority tenants, because Congress had 
created in the Fair Housing Act of 1963 ^n individual right not 
to be denied the benefits of interracial associations by discrim­
inatory housing practices).

24



42 U.S.C. § 2000d. As the Supreme Court in Cannon stated, the
intent and purpose of Congress in enacting Title VI was "to avoid
the use of federal resources to support discriminatory practices;
. . . [and] to provide individual citizens effective protection
against those practices." 441 U.S. at 704.

The legislative history directly supports the interpretation
of Title VI as creating a substantive right for individuals in
Section 601.65 For example, Senator Case said:

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

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

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

I thoroughly agree with the Senator insofar as an 
individual is concerned. As a citizen of the United 
States, he has his full constitutional rights. He has 
his right to go to court and institute suit and whatever

65 It is significant that Section 601 is phrased not in terms 
of a directive to the agency (as was the original version) , but 
in terms of the rights of the individual. Cannon. <*41 U.S. at 
690-94 & n. 14.

25



may be provided in the law and in the Constitution.
There would be no limitation on the individual. The 
limitation would be on the qualification of Federal 
agencies [referring to the procedures in sections 602 
ard 603].

Id. at 5256.66 Recognizing this substantive right in Title VI, 
the Supreme Court implied a private cause of action under Title 
IX, which was modeled on Title VI, for victims of the prohibited 
discrimination. Cannon. 441 U.S. at 709.

It is also well established in case law, including the law 
of this case, that Title VI does not merely forbid racial discrim­
ination by fund recipients, but that victims c.f discrimination, 
such as the named individual Adams plairtiffa and the Title VI 
national-origin intervenors, may proceed under Title VI against 
federal officials who provide funding to discriminating programs.07

66 The bill's sponsors spoke in terms reflecting the rights 
of individuals to non-discrimination in the use of federal funds. 
Thus the Chairman oC the House Judiciary Committee stated that 
Title VI would assura the "right to equal treatment in the enjoy­
ment of Federal funcis." 110 Cong. Rec. 1519 (19 64) (remarks of 
Rep. Celler). The House Report accompanying the bill stated that 
it "would guarantee that there will be no discrimination among 
recipients of Federsl financial assistance." H.R. Rep. No. 914, 
88th Cong., 2d Sess. (1964), reprinted in 1964 U.S. Code Cong. & 
Admin. News at 2391, 2394. The act has an "unmistakable focus on 
the benefited class." See Cannon. 441 U.S. at 691.

67 Adams v. Bell. 711 F.2d 161, 166 (D.C. Cir. 1983) fen
banc) (approving decrees designed to "correct systemic defalcation 
on the part of the department in fulfilling [its] responsibili­
ties"); Adams v. Richardson. 480 F.2d 1159, 1163 (D.C. Cir. 1973) 
(en banc) (finding consistent failure to enforce Title VI "review- 
able in the courts") (JA1-227); National Black Police Ass'n v. 
Velde. 631 F.2d 784 (D.C. Cir. 198r;, vacated on other grounds.
458 U.S. 591 (1982), on remand. 712 F.2d 569 (D.C. Cir. 1983),
cert, denied. 466 U.S. 963 (198^) ; Montgomery Improvement Ass'n
v. United States Dep't of Hous. anu Urban Dev.. 645 F.2d 291 (5th 
Cir. 1981); Garrett v. City of Hamtramck. 503 F.2d 1236 (6th Cir. 
1974); Gautreaux v. Romney. 448 F.2d 731 (7th Cir. 1971), later 
appeal Gautreaux v. Chicago Hous. lu^n.. 503 F.2d 930 (7th Cir.

(continued...)
26



By the time of Title Vi's enactment, racial discrimination was 
forbidden and actionable under the Fifth and Fourteenth Amend­
ments.68 What Title VI added to this body of law was the individ­
ual right to participate in programs receiving federal support free 
from discriminatory treatment and the correlative mandatory duty 
of federal officials owed to victims of discrimination69 to ensure 
that federal funds "not be spent in any fashion which encourages, 
entrenches, subsidizes, or results in racial discrimination.1,70

Thus, a key distinction between Adams and Allen is the

67(...continued)
1974), aff'd sub nom. Fills v. Gautreaux. .42? U.S. 284 (1976); 
Shannon v. United States Den't of Hous. and urban Dev.. 436 F.2d 
80S' (3rd Cir. 1970) ; Little Earth of United Tribes v. Department 
of Hous.. 584 F. Supp. 1292 (D. Minn. 1983); Young v. Pierce. 544 
F. Supp. 1010 (E.D. Tex. 1982) ; Southern. Kristian Leadership 
Conference, Inc, v. Connolly. 331 F. Supp. 940 (E.D. Mich. 1971). 
See also NAACP V. Secretary of Hous. and Urban Dev.. 817 F.2d 149 
(1st Cir. 1987) (private right of action against federal officials 
under Title VIII of the Civil Righto Act of 19 58).’ Cf. NAACP v. 
Medical Center. Inc.. 599 F.2d 1247, 1254 n. 27 (3d Cir. 1979).

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

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

70 president Kennedy's Special Message to Congress, June 
19, 1963, transmitting Title VI, reprinted in 1963 U.S. Code Cong. 
& Admin. News at 1526, 1534. Title VI was to end the use of fed­
eral funds in segregation, which had made "Uncle Sam . . .  a part­
ner in the erection maintenance, and perpetration of that ["sep­
arate and most ur'qual"] system." 110 Cong. Rec. 7055 (1964) 
(remarks of Sen. Pastore). "[W]e have the Federal Government 
aiding and abetting those who persist in practicing racial dis­
crimination. . . .  It is for these reasons that we bring forth 
[TJitle VI." 110 G^rg. Rec. 2467 (1964) (remarks of Rep. Celler).

27



applicability here of a congressionally created right under Tide 
VI benefiting individual victims of discrimination, in statutory 
language that is the model for similar right-creating laws under 
which a private cause of action has been implied.71 Unlike the 
tax exemption statutes at issue in Allen, which were designed not 
for the purpose of eliminating discrimination in federally funded 
programs but to ensure that tax-exempt charitable organizations 
served a truly charitable purpose, Title Vi's statutory scname 
employs the manipulative force of federal subsidization as a "car­
rot" and "st_ck" for the express purpose of eliminating the federal 
governmentr» funding of discriminatory programs.72 The broad 
purpose of Title VI —  "to make sure the funds of the United States 
are not used to support ,̂ acial discrimination" —  was recently 
reaffirmed by Congress in the Civil Rights Restoration Act of 1987, 
42 U.S.C. § 2000d 4a.73

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

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

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

28



A further and significant distinction from Allen is that the 
Adams plaintiffs are suffering injury of the kind recognized by 
Congress in enacting Title VI: they are beira excluded from par­
ticipation in, denied the benefits of, and. being subjected to 
discrimination in programs receiving the federal financial assis­
tance that triggers Title VI coverage.74 As the district court 
stated, after describing the individual Adams; plaintiffs in fed­
erally funded programs recognized as racially discriminatory, "we 
are satisfied that one or more of the plaintiffs, in charging 
racial discrimination against themselves, have alleged a distinct 
and palpable personal injury in violation of their rights under 
Title VI and the Constitution." 675 F. Supp. at 675-76 (emphasis 
added) (J*'1 -1618-19) . This distinct and palpable personal injury 
to the plaintiffs by denial of their Title VI rights is in stark 
contrast to the claims rejected in Allen as "too abstract." 468 
U.S. at 754.75 Here, plaintiffs and plaintiff-intervenors attend 
the schools and school systems that directlv receive federal funds 
but, it is alleged, discriminate on the basis of race and national 
origin. Under the well-pleaded allegations of the complaint and

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

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

29



motions for further relief, therefore, their individual rights 
under Title VI are being denied.

From this injury, causation and redressabLlity flow directly. 
The district court has fouid that "substantial” federal funding 
continues to flow to racially segregated school systems.76 The 
court also found that "each of these states has defaulted in major 
respects on its plan commitments and on the desegregation require­
ments of the Criteria and Tn.le VI"77 and that the 1977 timeframes 
order had been "violated in many important respects."78 These 
factual findings directly 1 ink defendants* actions and inaction 
—  funding discriminating colleges m d  school systems and persis­
tently delaying unreasonably in processing and reviewing complaints 
of discrimination —  to the injury to plaintiffs' Title VI rights. 
Redressability follows, since actual fund termination will end 
the federal complicity even if the fund recipients choose not to 
alter their practices in order to retain funding.79

In sum, the district court erred in disregarding the claim 
that persons attending discriminatory federally funded, public 
schools and colleges have in Title VI a judicially cognizable right

76 Adams v. Richardson. 3 51 F. Supp. at 637-38; see also 
Adams v. Bennett. 675 F. Supp. at 678 (racially dual systems con­
tinue) (JA4-1621); Order of March 24, 1983 (Higher Education) (JA3- 
963) .

77 Order of March 24, 1983 (Higher Education) at 2 (JA3-964).
78 Order of March 11, 1983 (Timeframes) at 2 (JA3-925).
79 Actual fund termination, however, is not necessary in 

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

30



to be free from this federally subsidized discrimination. The 
court's findings that defendants continue to delay unreasonably 
in complying with Title VI, md continue to channel funds to known 
violators, establish that the federally subsidized discrimination 
is directly traceable to defendants; and the injury is redressable 
by a credible threat of fund termination or actual fund termina­
tion. Thus, the district court dismissal must be reversed.

C. A lte r n a tiv e ly , In ja ry  to P l a i n t i f f s '  R igh t To Be 
Educated In An Environment Free From R a cia l  
D iscrim in ation  I s  Also S u ff ic ie n t  To Confer 
S tan d in g.

In addition to the injury to plaintiffs' Title VI right to 
attend schools free of federally subsidized discrimination, which 
in itself establishes plaintiffs' standing, plaintiffs also are 
injured, as the district court found, in their "right to be edu­
cated in a racially integrated institution or in an environment 
which is free from discrimination based on race." 675 F. Supp. 
at 676 (JA4-1619).80 Defendants do not contest the existence of
injury in fact.

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

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

j 1



the factual status of the plaintiffs and intervenors.K 
. . . For instance, whether any plaintiffs are enrolled 
in edac;*tional institutions currently the subject of 
specii ic complaints of civil rights violations is one 
relevant consideration. . . . the relationship between 
a plaintiff's alleged injuries and any compliance review 
proceaires requested in the complaint or sought to be 
enfor"-2& is also relevant.

WEAL v. Bell. 743 F.2d at 44 (JA3-989) . Plaintiffs responded 
directly to this inquiry, providing specific examples of complaints 
they had filed on which defendants had found discrimination yet 
failed over protracted periods to initiate enforcement proceed­
ings.81 Or, this record the district court properly found cogniz­
able injury, but erroneously concluded that the federal involvement 
was "too indirect to provide a proper nexus." 675 F. Supp. at 
677 (JA4-1C20). The court instead took judicial notice of what 
it considered to be the "explanations" for the discrimination, 
including

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

81 Plaintiffs' Opposition to Defendants' Motion to Dismiss 
and Reply In Support of Motion for Ruling Establishing Their Stand­
ing, Aug. 14, 1985, at 44-45 (JA4-1232-33).

32



Id. at 673-79 (JA4-1621-22). The court's determination was error.
First, contrary to. the district court's assumption, the

Supreme Court and this Court have both recognized that the fact
that ultimate relief may depend on the action of third parties does
not defeat standing. As this Court recently stated in National
Wildlife Federation v. Hodel. 839 F.2d 694 (D.C. Cir. 1988):

The Supreme Court decisions . . . show that mere indi­
rectness of causation is no barrier to standing, and 
thus, an injury worked on one party by another through 
a third party intermediary may suffice. See. e.q.. Meese
v. Keene. ___ U.S. ____, 10/ S. Ct. 1862, 95 L.Ed.2d 415
(1987)(would-be distributor has standing to challenge 
Justice Department's characterization of film as 'politi­
cal propaganda' under foreign agents' registration act 
because label could hurt his chances of reelection to 
state senate).

Id. at 705. The Supreme Court has frequently found standing where 
the injury alleged would be effected through the direct conduct 
of a third party in conjunction with or against the background of 
the challenged action.82

Second, in enacting Title VI, Congress itself drew the causal 
link between federal funding and the continuation of the discrimi-

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

33



And, as to redressabil-natory practices that injure plaintiffs.83 
ity, Congress drew the connection between the threat of fund ter­
mination ar.d the end of discriminatory practices.84 In particular, 
Senator Humphrey emphasized that the effect of Title VI enforcement 
on educational programs would be "substantial and eminently desir­
able" because of the "elimination of racial discrimination and 
segregation." 110 Cong. Rec. 6545 (1964).8^

83 "The Government has perpetuated school segregation 
through the allocation of school maintenance and construction 
funds." 110 Cong. Rec. 2481 (1964) (remarks of Rep. Ryan). "[W]e 
find other examples of Uncle Sam's partnership in racial discrim­
ination. . . . the Federal Government contributes substantially 
to the construction, maintenance, and operation of schools. . . . 
Since 1950, the U.S. Government has appropriated more that $1 
billion dollars for school construction, and another billion dol­
lars for the operation and maintenance of schools. . . . Over one- 
third of ihese disbursements has gone to Southern and border States 
[where] the education which the Federal Government is buying is
. . . in segregated schools. Id. at 7055-56 (remarks of Sen. 
Pastore). With respect to higher education, "[o]ne hundred percent 
of the $17,905,609 granted to land grant colleges and universities 
in the South for agricultural extension programs were to those 
institutions which exclude Negroes." Id. at 7057 (remarks of 
Senator Pastore)(many other examples listed).

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

85 The redressability inquiry necessary to determine-standing 
often replicates the causation inquiry. National Wildlife Fed'n 
v. Hodel. 839 F. 2d at 705. In making the requisite showing, a 
party "need not show to a certainty that a favorable decision will 
redress his injury. A mere likelihood will do." Id. See also 
Community Nutrition Inst, v. Block. 698 F.2d 1239, 1249 (D.C. Cir. 
1983)(although effect of removing requirement imposed by Department 
of Agriculture regulations is "hard to predict," evidence "indicat­
ing" immediate savings to consumer plaintiffs suffices to satisfy 
redressability requireme’’: ) , rev1 d on other grounds. 467 U.S. 340 
(1984); International Ladies' Garment Workers' Union v. Donovan. 
722 F.2d 795, 810-11 (F C. Cir. 1983) (that employers might not 
use factory employees it restrictions on "homework" were reinstated 
no bar to plaintiffs' standing to seek this remedy), cert, denied. 
469 U.S. 820 (1984) ; Legal Aid Soc'v of Alameda County v. Brennan. 
608 F.2d 1319, 1335-36 Cir. 1979)(argument that employment

(continued...)
34



Congress' conclusion that Title VI would have a substantial 
impact on the elimination of racial discrimination among recipients, 
of federal funds is entitled to considerable deference.86 More­
over, the Congressional judgment has been fully realized, as this 
Court recognized and as the record in this case shows.87 Faced 
with a credible threat of fund termination, fund recipients have 
complied with Title VI. When OCR noticed 600 districts for 
enforcement hearings between July 1964 and March 1970, 400 came 
into compliance before the fund termination was actually ordered 
and all but four ol the remaining 200 came into compliance shortly 
after a rulirg. JA1-204-05 [flfl 5 a^d 6]. With respect to higher 
education, states have adopted desegregation plans, partial 
implementation of which has dimim shed the incidence and level of 
discriminatory practices. See supra at 7-11. Thus the history

85(...continued)
of minority plaintiffs might not result from enforcement of affir­
mative action requirement because contractors might elect to forego 
federal contracts is "all but frivolous"), cert, denied. 447 U.S. 
921 (1980).

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

87 /'/lams v. Richardson. 480 F.2d at 1163 n.4 ("admitted
effectiveness of fund termination proceedings") (JA1-231); Brown 
v. Califano. 627 F.2d at 1227 ("the power to threaten fund-termina­
tion —  the power that attaches strings to financial assistance 
—  can often work coercively"); National Black Police Ass'n v. 
Velde. 712 F.2d 569, 575 ("fund termination . . . has proven very 
effective as a deterrent to discrimination").

35



of this case presents a factual record of causation and redress, 
demonstrating that court orders have altered OCR's behavior and 
through that, discriminatory practices of specific fund recip­
ients .88

Third, the district court's conclusion that the discrimina­
tory practices were not "caused" by federal defendants89 is con­
tradicted by the history of the development of the so-called 
"separate but equal" system of higher education, which was estab­
lished in no small measure under federal programs that sanctioned 
separate institutions for black and white students find the inequi­
table funding of the black institutions.90

Many of the institutions that are affected by this litiga­
tion are part ot +"he land-grant system of colleges created pursuant

88 The district court's conclusion that plaintiffs' injury
would not be redressed because of the negative impact of fund 
termination on victims of the discrimination, 675 F. Supp. at 679 
(JA4-1622), exceeds the bounds of appropriate iudicial review. 
Congress enacted Title VI fully aware of those factors: it is
not for the court to determine whether Title VI is a good law.

89 675 F. Supp. at 679 (JA4-1622).
90 The district court engaged in judicial notice in reaching 

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

36



to endowments established under tie 1862 and 1890 Morrill Acts.91
The statutory scheme itself literally sanctions the establishment
of a separate educational system :or black students:

[T]he establishment and maintenance of such colleges 
separately for the white an^ colored students shall be 
held in compliance with the provision of this act.92

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

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

92 Morrill Act of 1890, Ch. 814, § 1, 26 St etc. 417 (1890).
93 Avins, Black Studies. White Separation, and Reflected

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

94 The sponsor of one major act by which these institutions
receive funding (Smith-Lever Act of 1914, Ch. 79, 38 Stat. 372
(1914) (agricultural extension programs)) admitted that his state 
(Georgia) "would not appropriate one dollar" to blc.ck institutions 
if it had the discretion to allocate the funds. 51 Cong. Rec. 2945 
(1914) (remarks of Sen. Smith) . An amendment to th<» Act that would 
have required equitable distribution of the funds by eliminating 
the states' discretion was voted down despite statements by Sen­
ators from southern states asserting that "[y]ou cannot with any 
sort of prudence . . . leave the disbursement of this money, or
any part thereof, in any other hands except those of the white 
people." Id. at 2652 (remarks of Sen. Vardaman). "We do not in 
my 5;tate want the fund if it goes to any but the white college." 
Id. at 2946 (remarks of Sen. Smith;. See also 51 Cong. Rec. 2519, 
2922-34, 2945, 7417-27 (1914). Other statutes funding the land-
grant colleges were similarly passed without protections for black 
colleges. E.g.. Hatch Act of 1877, Ch. 314, 24 Stat. 440 (1877) 
(agricultural experiment stations) . From 1950 to 1964, one hundred 
percent of the funding for agricultural extension programs wenc 
to institutions that excluded blacks 110 Cong. Rec. 7057 (1964).

37



through the land-grant institutions was either tangential or insub­
stantial .95

Nor can it be said that the continued federal funding is 
insubstantial. Federal expenditures in higher education for the 
ten states affected by OCR's most recent action were $963,246,000 
for fiscal 1987 alone.96 The preceding year the federal expendi­
ture was $884,616,000.97 A rough division of the federal funding 
for just two yeais yields an average of approximately $189,000,000 
per state. Tnese funds play a critical role in maintaining ongoing 
discriminatory systems. It strains reason to conclude that any 
state would relinquish such large amounts of money, rather than 
take steps to minimize or eliminate discrimination.

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

96 Bureau of Census, U.S. Department of Commerce, Federal 
Expenditures by State for Fiscal Year 1987 2, 6, 20 (1988) (JA4- 
1515-17). This figure does not represent all federal expenditures 
in higher education to the ten states, but includes funds advanced 
for agricultural experiment stations, agricultural extension 
services, expenditures by the Department of Education's Office of 
Post Secondary Education, direct payments for individuals by state 
for Pell Grants, and interest subsidies for National Guaranteed 
Student Loans for Arkansas, Delaware, Florida, Georgia, Missouri, 
North Carolina, Oklahoma, South Carolina, Virginia, and West 
Virginia.

97 Bureau of Census, U.S. Department of Commerce, Federal 
Expenditures by Stale for Fiscal Year 1986. 2, 6, 18 (1987) (JA4- 
1625-27). This figure is based on the same expenditures for the 
same states identified supra note 96.

38



I I .  THE DISTRICT COURT ERRED IN HOLDING THAT PLAIN­
TIFFS LACK STANDING BECAUSE THE RELIEF GRANTED 
IN 1983 VIOLATES THE SEPARATION OF POWERS 
DOCTRINE.

As an additional basis for the ruling now on appeal, the 
district court held that "the orders under review . . . violate
the doctrine of separation of powers, which is the basic core of 
standing." 675 F. Supp. at 680 (emphasis added) (JA4-1623). The 
court stated that the 1983 orders, in contrast to the earlier 
relief approved in this case, extend beyond the initiation of the 
enforcement process by also seeking to control the way defendants 
are to carry out their executive responsibilities. Id.

In remanding this case in 1984, this Court directed vhe dis­
trict court to consider the threshold separation of powers aspects 
of standing set forth in Allen v. Wright. WEAL v. Bell. 743 F.2d 
42 (JA3-985). The Court cautioned, however, that the "threshold" 
and "merits" issues involved in the separation of powers analysis 
are discrete; and that a ruling on the standing issue "does not 
decide the issue whether certain relief granted after reaching 
the merits of a controversy would adversely implicate separat.ion- 
of-powers limitations." Id. at 44 (JA3-987). The remand was
directed only to the threshold separation of powers issue.98

With respect to the separation of powers concern presented 
by this Court, that concept does not as a threshold matter bar 
this action because Allen v. Wright does not change the fundamen-

98 The Court also remanded for consideration of mootness. 
743 F.2d 42 (JA3-985). Defendants did not, however, argue in the 
district court that the Adams olaintiffs' claims were moot, and 
the district court, concluding t.*at all plaintiffs lacked standing, 
declined to reach the issue. 675 F. Supp. at 681 (JA4-1624).

39



tal concept of separation of powers. Therefore, as this Court 
previously held en banc on two occasions, the district court may 
properly review defendants' default on their Title VI duties and 
grant relief in this case. The district court, in answering this 
Court's "threshold" separation of powers concerns by adverting to 
the distinct "merits" question whether the particular relief 
granted in 1983 violated the separation of powers doctrine, simply 
missed the issue presented on remand. The district court also 
erred by ignoring plaintiffs' consistent claim that defendants 
have abdicated their statutory duty by failing to comply with Title 
VI in any reasonably timely manner, and in routinely continuing 
to channel funds to known violators of the law. These basic viola­
tions have continued and have never been '"^rrected, as the district 
court itself held in its 1983 Orders.

A. The Separation o f Powers D octrine Does Not 
Bar This A ctio n .

The separation of powers doctrine embodied in the Constitu­
tion establishes three separate, coordinate branches of the federal 
government: legislative, execuuive, and judicial. Each branch
operates independently within its sphere of responsibilities, but 
each also acts as a check upon another branch in numerous areas, 
under the structure of the Constitution. Thus the Supreme Court 
has "never held that the Constitution requires the three Branches 
of Government to 'operate with absolute independence.",99 Instead,

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

40



as the Court stated in Buckley v. Valeo. 424 U.S. 1 (1976), it is 
a constitutional system of checks and balances. Id. at 1J2-23.

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

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

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

Id. at 843-35 (emphasis added).100 Title VI provides in mandatory 
terms that each federal agency providing financial assistance "is

10° separation of powers doctrine, along with the other 
common law rules on reviewability, has in large measure been codi­
fied in the language of the Administrative Procedure Act ("AVA"). 
See Saperstein, Nonreviewabilitv. 82 Harv. L. Rev. 367 (1968). 
Furthermore, a court reviewing agency inaction can "compel agency 
action unlawfully withheld or unreasonably delayed." 5 U.S C. § 
706(1). The APA was one of the bases of jurisdiction originally 
found in this action. Adams v. Richardson. 351 F. Supp. at 640; 
Adams v. Richardson. 480 F.2d at 1162 (JA1-230).

41



authorized and directed to effectuate" Section 601 by "issuing 
rules, regulations, or orders" and "by ".enination of or refusal 
to grant or to continue assistance" to noacomplying fund recip­
ients. 42 U.S.C. § 2000d-l. This Court>. in its unanimous 1973 en 
banc decision explicitly found "law to apply" and distinguished 
this suit from cases involving prosecutorial discretion tradition­
ally *unreviewable by courts, because "Title VI not only requires 
the agency to enforce the Act, but aiso sets forth specific 
enforcement procedures." Adams v. Richardson. 480 F.2d at 1162 
(emphasis added) (JA1-230).

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

[Separation of powers counsels against recognizing 
standing in a case brought, not to enforce specific 1 ;gal 
obligations whose violation works a direct harm, but to 
seek a restructuring of the apparatus established by 
the Executive Branch to fulfill its legal duties.

468 U.S. ctt 761 (emphasis added) . Title VI creates a specific 
legal obligation on the part of federal agencies to "effectuate" 
the right that it establishes for individuals to be free from 
discrimination in programs receiving federal aid, and the statute 
specifically directs federal agencies not to extend funds to pro­
grams and institutions that discriminate. The violation of that 
legal obligation that plaintiffs have allec/ed and proven in this 
case —  systemic abdication of the statutory enforcement duty while 
affirmatively channelling federal money to known violators—

42



causes direct harm to plaintiffs. They continue to be subject to 
discrimination in federally funded programs.

Moreover, the 19? 3 -imeframes order, which merely modified 
the 1977 Consent Decree, did not seek a "restructuring of the 
apparatus" of OCR; rather, it sought to prevent OCR from delaying 
and failing to act in implementing a structure that defendants 
had themselves designed. Thus the orders were necessary because 
OCR failed to adhere to any reasonably timely enforcement structure 
to "fulfill its legal cuties." Id. at 760.

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

B. P l a i n t i f f s '  C o n sisten t Claim And 
The Remedial Orders Throughout This  
A ction  Have Been Based Cn An Undis­
puted F actu al Record 1 s ta b lis h in g  
Defendants' Continuing \ io la t io n  o f  
T i t l e  V I.

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

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

Id. This was clear error.
The timeframes orders ana uigher education oraers in this 

case have been based upon an extensive, virtually uncontested, 
record demonstrating defendants' failure —  in the form of inces-

43



sant delay tantamount to a refusal to act —  in enforcing Title 
VI. The district court's 1973 opinion emphasizes defendants' 
inaction from 1970 to 3973 despite total disregard by five states 
of HtW's notices of non-compliance with Title VI, and submissions 
by five other states of inadequate desegregation plans. Adams v. 
Richardson. 351 F. Supp. at 637-38. The record also shows agency 
defau]t with respect to 74 school districts that reneged on prior 
approved plans and multiple other instances of defendants' failure 
to act in the face of noncompliance. Id. at 638-40.

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

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

Id. at 273 (emphasis added) . HEW had not initiated a single 
administrative enforcement proceeding against a southern school 
district since the Covrt's order 25 months earlier. Id. In 1976, 
the court in Brown v. Weinberger found that OCR's "delays of one 
and one-half to eight years are unreasonable." 417 F. Supp. at 
1221. The court's Order in 1977 was predicated on a finding that 
defendants "had not come into compliance with this Court's order 
of June 14, 1976." Adams v. Califâ ..'. civ. No. 3095-70 (D.D.C. 
Dec. 29, 1977) (JA2-601) . In 1977 the court also found that in 
1974 HF1" had accepted state plans for desegregation in higher 
education that did not meet the agency's own requirements, and

44



that the lack of progress under the plans was undisputed. Adams
v. Califano. 430 F. Supp. at 119-120. And in 1983, in refusing 
to vacate the 1977 consent decree, the district court held that 
the timeframes decree "has been violated in many important 
respects," and that the purposes of the litigation, as incorporated 
in the 1977 decree, had not been accomplished. Order of March 
11, 1983 (Timeframes) (JA3-924); Order of March 11, 1983 (Denying 
Motion to Vacate) (JA3-961). With respect to higher education, 
the court found that each of the states under plans from 1978 had 
defaulted "in major respects" and had not achieved its principal 
objectives because of thrse failures; yet OCR still had begun no 
enforcement proceedings. Order of March 24, 1983 (Higher Educa­
tion; (JA3-963).

Defendants have argued that the case should be dismissed 
because there is no longer a claim that they are following a con­
scious policy (1969 Secretary Finch-Attorney General Mitchell) 
of lionenforcement. That policy, however, was not the sole, or 
even primary, basis for the relief that has been granted in this 
case. Each of the district court's opinions reflects that it was 
the agency's chronic delay, long after the initial ruling on the 
Finch-Mitchell strategy, that formed the basis for the finding 
that defendants had systemically defaulted in their obligations 
under Title VI.101 As plaintiffs alleged in February 1983, "[o]nce

101 The 1973 __n banc Court recognized plaintiffs' claim as 
follows: "that [defendants] have been derelict in their duty to 
enforce Title VI of the Civil rights Act of 1964 because they have 
not taken appropriate action to end segregation in public educa­
tional institutions receiving federal funds." Adams v. Richardson. 
480 F.2d at 1161 (JAi-^29).

45



again in the course of this 13 year litigation defendants hava 
opted for endless letters and negotiations."102 While defendant 
officials over the years have acted with varying degrees of commit­
ment to complying with Title VI,103 the recent actions by OCR wiJ\ 
respect to higher education —  effectively releasing ten states 
from further obligations under Title VI despite a clear record 
that the initial violations had never been corrected —  demon­
strates disdain for Title VI and an evident conscious policy, a=> 
found by Congress, to flout the requirements of the law.10"* But 
regardless of how "conscious" the actions have been, defendants' 
systemic default on their statutory duties has been the target of 
this lawsuit since its filing, and continues to this day.

C. The Law Of Tbi« Case Approves P la in ­
t i f f s '  Causes Of A ction  And The 
R e lie f  Granted In The 1983 Orders.

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

102 plaintiffs' Reply in Support of Renewed Motion for 
Further Relief, Feb. 23, 1983 (verified) at 8 (JA3-923).

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

104 Failure and Fraud in Civil Rights Enforcement By the 
PeijgT-tmfcnt of Education, supra note 18 at 31, 32 (JA4-1594-95) .

46



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

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

Adams v. Richardson. 480 F.2d at 1162-63 (empaasis added) (JA1- 
230-31).

In 1983, this Court en banc again approved review and relief
for plaint.-' ft's' causes of action:

The purpose of Judge Pratt's 1973 decree was to require 
the Department to initiate appropriate enforcement pro­
ceedings under Title VI. It was directed at the Depart­
ment's lassitude, if not recalcitrance; in fulfilling 
its responsibilities under that Act.

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

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

The argument of intrusiveness with respect to the timeframes 
order the court refused to vacate in 1983 seeks in effect to undo 
the benefits plaintiffs gained from the 1977 Consent Decree. In 
consenting to tbe relief, which defendants in large measure 
designed, the agency effectively conceded that the decrees were not 
overly intrusive and thereby waived its right to laise that argu-

47



ment now.

. V

105 As this Court stated in upholding a consent decree
against a complaint of unwamnted intrusion:

The Decree here was largp Iv the work of EPA and the other 
parties to these suits, not "he district court; manifest­
ly, the requirements imposed by the Decree do not repre­
sent judicial intrusior into the Agency's affairs to 
the same extent they would if the Decree were "a creature 
of judicial cloth." Weinberger v. Catholic Action of 
Hawaii/Peace Education Project. 454 U.S. 139 (1981).

Citizens for a Better Environment v. Gorsuch. 718 F.2d 1117, 1128
(D.C. Cir. 1983), cert, denied. 407 U.S. 1219 (1984).106

Furthermore, when the agency sought to vacate the Consent
Decree in 1983 by asserting that changed circumstances had turned
it into an instrument of wrong, thf district court listened to
the agency's complaints and modified tne 1911 decree to address
those problems. With relaxation of some or' the then existing
requirements, the 1983 order by definition was less intrusive than
the 1977 order. The district court in refusing in 1983 to vacate
the consent decree held, however, that the purpose of the decree
—  correction of defendants' systemic defalcation on Title VI com-

105 The parties all continue to agree that the agency must 
have timeframes for processing complaints and initiating compli­
ance reviews. See testimony of Government witnesses Clarence 
Thomas and Ellen Shong JA2-762; 782-83. Thus, the district 
court's decision to require compliance with some timeframes is 
surely appropriate. Jusc as the court has several times softened 
the time rules, it can do so again upon a proper showing by 
defendants. Moreover, even if the Court were to conclude that the 
1983 orders are too intrusive, modification of the orders is the 
appropriate remedy, not dismissal c£ uhe action.

106
1985)

Accord Berger v. Heckler. 771 F.2d 1556, 1579 (2d C*r.

48



pliance —  tad not yet been accomplished. Thus, relief is still 
warranted.10 7

For th“ agency now to ssize reconsideration of plaintiffs' 
standing as.an opportunity to relitigate what it consented to in 
1976 and 1977 is inappropriate.108 Plaintiffs should not be put 
to the task of relitigating what was previously settled and ap­
proved by tha court after protracted and intense negotiations.109

CONCLUSION
For the reasons set out above, appellants respectfully request 

that this Court reverse the order of the district court dismissing 
this action for lac’: of standing, and resolve the previously pend­
ing appeal with respect to the 1983 timeframes orders. The valid­
ity of the March 11, 3983 Orders relating to timeframes, the only

107 This type of court-ordered relief is well accepted. In 
International Union. United Auto., Aerospace and Agricultural 
Implement Workers of Am.. UAW v. Donovan. 756 F.2d 162, 165 (D.C. 
Cir. 1985), this Court approved orders requiring OSHA to inform 
the court of any action that might interfere with established 
timetables for regulations regarding formaldehyde in the workplace, 
and warned that it would "look with extreme displeasure on any 
variance from the schedule and will not hesitate to set a date 
certain for completion of the administrative proceedings if che 
[agency] unreasonably delay[s]" (quoting district court opinion). 
In Telecommunications Research and Action Center v. Federal Com­
munications Comm1n . 750 F.2d 70, 81 (D.C. Cir. 1984), this Court 
ordered the FCC to set up a schedule for resolving specified dis­
putes and requiring progress reports to the court every 60 days 
to allow judicial oversight. See also Nader v. Federal Communica­
tions Comm'n. 520 F.2d 182, 206 (D.C. Cir. 1975).

108 As the district court stated, that Decree was "the result 
of a lot of hard bargaining on both sides. . . . counsel at that 
phase of the case did a lot of hard bargaining in good faith and 
came up with a consent order." JA2-822, 82^

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

49



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

Respectfully submitted,

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

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

ELLIOTT C. LICHTMAN 
MARY M. LEVY

Lichtman, Trister,
Singer & Ross

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

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

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

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

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

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

50



CERTIFICATE OF SERVICE

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

Alfred Mollin, Esq.
Appellate Staff 
Civil Division 
Department of Justice 
Washington, D.C. 20530
Ellen Vargyas, Esq.
National Women's Law Center 
1616 P Street, N.W., Suite 100 
Washington, D.C. 20036
Matthew Jacobs, Esq.
Lai.ra Sardo, Esq.
Covington & Burling
12Cl Pennsylvania Avenue, N.W.
Washington, D.C. 20044
Cyr.thia W. Simon, Esq.
Shea & Gardner
18CO Massachusetts Avenue, N.W. 
Washington, D.C. 20036
Maicia Greenberger, Esq.
Brenda Smith, Esq.
National Women's Law Center 
1616 P. Street, N.W., Suite 100 
Washington, D.C. 20036

Elliott C. Lichtman



STATUTORY ADDENDUM



Relevant Portions of 42 U.S.C. § 20C0d et_ seq.

§ 2000d, Prohibition against e x cl ns. on from participation 
in, denial of benefits of, and discrimination un­
der Federally assisted programs on ground of 
race, color, or national origin

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance.
Pub-L. 88-352, Title VI, § 601, July 2,1964,78 SUt 252.

§ 2000d-l. Federal authority and financial assistance to 
j rograms or activities uy way of grant, loan, 
or contract other than contract of insurance 
or guaranty; rales and regulations; ap­
proval by President; compliance with re­
quirements; report, to Congressional com­
mittees; effective date of administrative 
action

Each federal department and agency which is empowered to ex­
tend Fed' nal financial assistance to any program or activity, by way 
of grant, loan, or contract other than a contract of insurance or 
guaranty, is authorized and directed to effectuate the provision* of 
section 2( 00d of this title with respect to such program or activity 
by issuing rules, regulations, or orders of general applicability 
which shnll be consistent with achievement of the objectives of the statute authorizing the financial .assistance in connection with 
which th« action is taken. No such rule, regulation, or order shall 
become elfective unless and until approved by the President. Com­
pliance w th any requirement adopted pursuant to this section may 
be effected (1) by the termination of or refusal to grant or to con­
tinue assi stance under such program or activity tc any recipier* aa 
to whom 'here has been an express finding on the record, after op­
portunity for hearing, of a failure to comply with such requirement, 
but such termination or refusal shall be limited to the particular po­
litical entity, or part thereof, or other recipient as to whom such a 
finding has been made and, shall be limited in its effect to the par­
ticular program, or part thereof, in which such noncompliance haa 
been so found, or (2) by any other means authorized by law:
•aided, however. That no such action shall be taken until the depart­
ment or agency concerned has advised the appropriate person or 
persons of the failure to comply with the requirement and has de­
termined that compliance cannot be secured by voluntary means. In 
the case of any action terminating, o? raising fo grant or continue, 
assistance because of failure to comp’, with a requirement imposed 
pursuant to this section, the hc-u of the Federal department or 
**ency shall file with the couur’̂-es of the House and Senate hav­
ing legislative jurisdiction over the program or activity involved a 
full written report of the circumstances and *he grounds for such 
action. No such actioci shall become effective until thirty days have 
elapsed after the filing of such repo - 
Pub.L. 88-352, Title VI, § 602, July 2, 78 SUt. 252.



V

§ 2000d-2. Judicial review; adml*>Utra ti ve procedure pro­
visions

Any department or agency action taken pursuant to section 
2000d-l of this title shall be subject to such judical review as may 
otherwise be provided by law for similar action taken by such de­
partment or agency on other grounds. In th? case of action, not 
otherwise subject to judicial review, terminating or refusing to

grant or to coni/nue finunciei' assistance upon a finding of failure 
to comply with any requirement Imposed pursuant to se: tion 2000d 
1 of this title, any person aggrieved (including any State or politi­
cal subdivision thereof and any agency of either) may obtain judi­
cial review of such action in accordance with chapter 7 of Title 5, 
and such action shall not be deemed committed to unreviewable 
agency discretion within the meaning of that chapter.
Pub.L. 88-352, Title VI, $ 603, July 2,1964,78 Stat. 253.

Relevant Portions of 5 U.S.C. § 701 et_ seg_.

§ 701. Application; definitions .
(a) This chapter applies, according to t- revisions thereof, #: 

cept to the extent that—
(1) statutes preclude judicial review, or ij,
(2) agency action is committed to agency discretion by la|)

(b) For the purpose of this chapter
(1) - .m w ” ■»«•"» «■'» *“a‘orily “  the Go,; n T .° ‘ f JUnited States, whether or not it in .itltin «  eubjtet to r«rt 

by another agency, but does not include
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories o. possession̂  

the United States;
(D) the government of the District of Columbia, ^
fE) agencies composed of representatives of the Portia

or of representatives of ont.oitetiona of the p.rtso. tott| 
disputes determined by them; ~
(F) courts m-rtial and military commissions;
(G) militery authoiity exercised in the Held in time oi

war or in occupied territory; or _ ^
(H) functions conferred by sections 173?, I739,m3,»a 

17M of title a; chapter 2 of title 41; “
1884, 1891-1902, and former section 1641(b,( ),

(2)P"person”, “rule”, “order”, “license”, “san^tiMV'rrii^ 
and “agency action” have the meanings given them by secticml
551 of this title.

19—554, Sept. 6, 1966, 80 Stat. 392.

2(a)



§ 702. Right of review
A parson suffering legal wrong because of agency action, or ad­

versely affected or aggrieved by agency action within the meaning 
of a relevant statute, is entitled to judicial review thereof. An ac­
tion in a court of the United States seeking relief other than money 
damages and stating a claim that an agency or an officer or em­
ployee thereof acted or failed to act in an official capacity or under 
color of legal authority shall not be dismissed nor relief therein be 
denied on the ground that it is against the United States or that the 
United States is an indispensable party. The United States may be 
named as a defendant in any such action, and a judgment or decree 
may be entered against the United States: Provided, That any man­
datory or injunctive decree shall specify the Federal officer or offi­
cers (by name or by title), and their successors in office, personally 
responsible for compliance. Nothing herein (1) affects other limi­
tations on judicial review or the power or duty of the court to dis­
miss any action or deny relief on any other appropriate legal or eq­
uitable ground; or (2) confers authority to grant relief if any other 
statute that grants consent to suit expressly or impliedly forbids tit 
relief which is sought.
Pub.L. 89-65Sept 6, 1966, 80 Stat 392; Pub.L. 94-674, § 1, Oct 
21, 1976, 90 Stat 2721.

§ 703. Form and venue of proceeding
, The form of pt: ceding for judicial review is the special statutory 
-view proceeding relevant to the subject matter in a court specified 
Z  statute or, in the absence or inadequacy thereof, anyapplicable *  0f ugal action, including actions for declaratory judgments or 

o t prohibitory cr mandatory injunction or habeas eorpo* » a 
2 5  of competent jurisdiction. If no special statutory ™Jiew pro­
ceeding is applicable, the action for judicial review may be broug 
!gainst the United States, the agency by its official title or P- 
propriate officer. Except to the extent that Pn^.»d̂ u,t£ “ d “ * elusive opportunity for judicial review is provided by law, a«ene> 
jetion is subject to judicial review in civil or criminal proceedings 
for judicial enforcement.
f PubX. 89-654. Sept. 6, 1956, 80 Stat. 392; PubJ. 94-674, 5 1. Oct 
ZL 1976, 90 Stat 2721.

704. Actions reviiwable
action made renewable by statute and final agency action 

>tAS  the™ U ». othei adequate rented, in a court »,r. riieial review A preliminary, procedural, or intermea.ate agen V action Tr ruling not directly renewable is subject to review on 
?e teriew of the final agency action. Except as otherwise expresi- ** ui e-3 by statute, agincy action otherwise final is final for the 
fu^sc- of this section wheTher or not there has been presented or 
ietexmin*d an application for a declaratory order, for any form of 
reconsideration, or, unless the agency otherwise requires ? 
iDd provides that the action meanwhile is inoperative, for an pp 
to superior agency authority.
Pub.L. 80—654, Sept. 6, 1966, 80 Stat. 392.



S 7 0 S  Belle* pending review . it m ,y pctpon.
5 When ..
“ d'tlon. . .  «  *  tn te t“ cM in,  th. — t
prevent irr.per.bl. »!»“ • the r.v.. „„ ,ppUc.u.„ .or

.. . . case may be taken on appeal ir .ssue all necessaryto Tvbich a it to a reviewing c' .rt, agency
- -  -

§ 706. Scope of review
To the extent necessary to decision ind when PQf law> interpret

viewing court shall decide all releva"1 ^^Sdetennine the meaning
constitutional and statutory pr°/,S1° “ action The reviewingor applicability of the terms of an agency acti v
C°Urt “(lT ̂mpel agency action unlawfully withheld or unreal-

bly delayed; and __
(2) hold unlawful and set aside agency action, findings,

conclusions found to be—  -—
(M arbitrary. cepricioo.. •» •!»>•« or ,th'

erwise not in accordance with law,
(B) contrary to constitutional right, power, onvileg*. or

immunity; * ...
(C) in excess of statutory jurisdiction, authority, or 

tations, or short of statutory right;
(D) without observance of procedure required by >.w;
(E) unsupported by substanti-J evidence in * “

iect to sections 556 and 557 of this title or otherwi* . re- 
‘“ Irf r r ,  r~ord «. a, a * W  hiring pnmd- by «...

““ n u n * * ™ ^  to “*« '“ *• to to« “ “ to to" to' f“ “are subject to trial de novo by the reviewing court
. • th* forezoing determinations, the court shall review the 

to'X.. part. O. I. cited by . party. and du. .c.dnt
U,aU be taken of the rule of prejudicial error. 
pubJ* 89-554, Sept 6, 1966, 80 Stat. 393.

4 ( a )