National Black Police Association v. Velde Supplemental Memorandum for Plaintiffs-Appellants

    UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA 

No. 77-1273

NATIONAL BLACK POLICE ASSOCIATION,
INC., et al.,

Plaintiffs-Appellants,
-v-

RICHARD W. VELDE, et al.,
Defendants-Appellees.

ON REMAND FROM THE 
UNITED STATES SUPREME COURT

SUPPLEMENTAL MEMORANDUM FOR PLAINTIFFS-APPELLANTS 
CONCERNING THE RELEVANCE OF HARLOW v. FITZGERALD

E. RICHARD LARSON 
ISABELLE KATZ PINZLER 
BURT NEUBORNE
American Civil Liberties Union 

Foundation 
132 West 43rd Street 
New York, New York 10036 
212/944-9800
WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN 
Lawyers'Committee for Civil 

Rights Under Law 
733 Fifteenth Street, N.W. 
Washinqton, D.C. 20005 
202/628-6700
ATTORNEYS FOR PLAINTIFFS-APPELLANTS



TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT ..................................  1
PRIOR PROCEEDINGS IN THIS C A S E ........................  1
SUMMARY OF ARGUMENT....................................  4
ARGUMENT ..............................................  7
I. Under Harlow and this Court's 

Prior Ruling, Defendants Are
Not Entitled to Absolute Immunity ................  7

II. Under Harlow and this Court's 
Prior Ruling, Defendants as a 
Matter of Law Are Not Entitled
to Qualified Immunity ............................  10

III. Defendants' Qualified Immunity Claim 
Is Due to be Rejected Under Harlow 
and Other Relevant Decisions Even 
if this Court's Prior Ruling Is Not
Accorded Controlling Significance ................  13
A. In Determining What Constitutional 

and Statutory Rights Were "Clearly 
Established" at the Time of the 
Defendants' Actions in this Case, 
the Court Should Look to Supreme 
Court Rulings, Its Own Decisions, 
and Those of Other Federal Courts, 
as well as to Statutory Enactments
and Legislative History ......................  15

B. Clearly Established Constitutional
and Statutory Law Required Defendants 
to Withdraw Federal Financial Aid 
From Recipients Practicing Invidious 
Discrimination at the Time of the Acts 
Complained of in This C a s e .................. 19

C. Since Plaintiffs Alleged —  and Both 
the Record And Judicially Noticeable 
Materials Conclusively Demonstrate —
That Defendants Deliberately Continued 
to Provide Federal Funds to Grantees 
Shown by Their Own Investigations to 
Practice Invidious Discrimination,
Defendants Violated "Clearly Established
Statutory or Constitutional Rights of
Which a Reasonable Person Would Have
Known" and Are Not Entitled to Qualified
Immunity.................................... 25



CONCLUSION............................................  33

TABLE OF AUTHORITIES
Case
*Adams v. Richardson, 480 F.2d 1159

(D.C. Cir. 1973) ten banc) ......................  22
Barr v. Matteo, 360 U.S. 564 C1959) ..................  7
*Bolling v. Sharpe, 347 U.S. 497C1954)..............................................  19
Branti v. Finkel, 445 U.S. 507 C1980) ................  16
Brown v. South Carolina State Bd. of 
Educ. f 29 6 F. Supp. Ift9 tD.S.C.J,
aff1 d, 393 U.S. 222 CL9681 . . . " ....................  20

*Butz v. Economou, 438 U.S. 478
(1978).......................................... 7, 8, 10

Calkins v. Blum, 511 F. Supp. 1073 
(N.D.N.Y. 19 81) , af f' d on the basis 
of the district court opinion,
675 F. 2d 44 (2d Cir. 1982) ...........................  18

Chavis v. Rowe, 643 F.2d 1281 (7th 
Cir.), cert, denied, 454 U.S. 907(1981) . . . . .  ..................................  18

Coffey v. State Educational Finance 
Comm'n, 296 F. Supp. 1389 (S.D.
Miss. 1969)   20

*Cooper v. Aaron, 358 U.S. 1 (1958) ............  7, 20, 25
Elrod v. Burns, 427 U.S. 347 (1976) ..................  15
Estelle v. Gamble, 429 U.S. 97 (1976)   16
Flores v. Pierce, 617 F.2d 1386 (9th 

Cir. 1980), cert, denied, 449 U.S.
875 (1981) . . . . . .  ............................  17

Fowler v. Cross, 635 F.2d 476 (5thCir. 1981)..........................................  15
Gagnon v. Scarpelli, 411 U.S. 778 (.1973)

11
Page

15



Ill

Case Page
*Gautreaux v. Romney, 448 F.2d

731 (7th Cir. 1971)..............................  20, 22
Gilmore v. Montgomery, 417 U.S.

556 (.1974)   21
Goss v. Lopez, 419 U.S. 565

(1975)   16
*Green v. Connally, 330 F. Supp.
1150 (D.D.C-), aff'd sub nom.,
Coit v. Green, 404 U.S. 997 (1971)   20

*Green v. Kennedy, 309 F. Supp.
1127 (D.D.C.), appeal dismissed,
398 U.S. 956 (1970)..................................  20

Gullatte v. Potts, 654 F.2d 1007
(5th Cir. 1981)......................................... 16

*Harlow v. Fitzgerald, 50 U.S.L.W.
4815 (U.S. June 24, 1982)........................... passim

Hicks v. Weaver, 302 F. Supp.
619 (E.D. La. 1969)..................................  22

Hodecker v. Blum, 525 F. Supp.
867 (N.D.N.Y. 1981)..................................... 19

Imbler v. Pachtman, 424 U.S. 409
(1976)   10

Lee v. Macon County Bd. of Educ.,
267 F. Supp. 458 (M.D. Ala.), 
aff'd sub nom. , Wallace v. United
States, 389 U.S. 215 (1967)..........................  20

Mary and Crystal v. Ramsden, 635
F. 2d 590 (7th Cir. 1980) ...........................  16

McNamara v. Moody, 606 F.2d 621
(5th Cir. 1979)......................................  15

Morrisey v. Brewer, 408 U.S. 471
(1972)   15

*NAACP Western Region v. Brennan,
360 F. Supp. 1006 (D.D.C. 1973)........................ 20

*National Black Police Ass'n v.
Velde, 631 F.2d 784 (D.C. Cir.
1980)...............................................passim



iv
Case Page
Nekolny v. Painter, 653 F.2d 1164

(,7th Cir. 1981)...................................... 15
*Norwood v. Harrison, 413 U.S. 455

(.1973) ..........................................  20, 21
O'Connor v. Donaldson, 422 U.S.

563 Q.975)   10
Perez v. Rodriguez Bou, 575 F.2d

21 Cist Cir. 19 78)   16
Personnel Administrator v. Feeney,

442 U.S. 256 (1979)..................................  21
Poindexter v. Louisina Financial 
Assistance Comm'n, 275 F. Supp.
833 CE.D. La. 1967), aff'd, 389
U.S. 571 (.1968) . . . . ...............................  20

Procunier v. Martinez, 416 U.S.396 (1975)   15
Procunier v. Navarette, 434 U.S.

555 (1978) ......................................  10, 14
Rogers v. Lodge, 50 U.S.L.W. 5041

(U.S. July 1, 1982)..................................  21
Scheuer v. Rhodes, 416 U.S. 232

(19 74) ............................................. 7, 10
Shannon v. HUD, 436 F.2d 809

(3d Cir. 1970) .................................. 22
Simkins v. Moses H. Cone Memorial 
Hospital, 323 F.2d 959 (4th Cir.
1963), cert, denied, 376 U.S.
938 (1964) . . . .....................................  20

Visser v. Magnarelli, 542 F. Supp.
1331 (N.D.N.Y. 1982)   15

Washington v. Davis, 426 U.S.
229 (1976)   21

Washington v. Lee, 263 F. Supp.
327 (M.D. Ala. 1966), aff'd
per curiam, 390 U.S. 333 (1968)......................  16

Washington v. Seattle School Dist.
No. 1, 50 U.S.L.W. 4998 (U.S.
June 30, 1982) 21



V

Williams v. Anderson, 562 F.2d
1081 (8th Cir. 1977)..............................  17, 18

*Williams v. Treen, 671 F.2d
892 (5th Cir. 1982) ..........................  16, 17, 18

Wood v. Strickland, 420 U.S.
308 (1975).............................. 10, 14 , 31

Constitution and Statutes
U.S. Const., Amend. V ..............................  passim
Crime Control Act of 1973, §

518(c), Pub. L. No. 93-83, § 2 
87 Stat. 197, codified in 42
U.S.C. § 3766(c) (Supp. V 1975)   passim

Title VI of the Civil Rights Act 
of 1964, codified in 42 U.S.C.
§ 2000d-l   passim

Regulations
40 Fed. Reg. 56454 (December 3, 1975) ................  31
41 Fed. Reg. 28478 (June 12, 1976)....................  31

Legislative History
H.R. Rep. No. 94-1155, 94th Cong.,

2d Sess. (1976) ..................................  27, 28
119 Cong. Rec. 20071 (June 18, 1973) ........  24, 26, 28, 29
119 Cong. Rec. 22059 (June 28, 1973).................. 28
LEAA Hearings Before Subcommittee 
No. 5 of the House Committee on 
the Judiciary, 93d Cong., 1st
Sess. (1973)........................................  27

LEAA Hearings Before the Subcommittee 
on Crime of the House Committee on 
the Judiciary, 94th Cong., 2d Sess.
(1976)............................................  22, 29

Case Page



vi
Page

Other Authorities
The Federal Civil Rights Enforcement 

Effort —  1974, Vol. VI —  To 
Extend Federal Financial Assistance,
C1975)................................................. 26



PRELIMINARY STATEMENT

On June 30, 1982, the Supreme Court vacated this Court's 
prior judgment and remanded this case "for further consideration 
in light of Harlow & Butterfield v. Fitzgerald, 11 50 U.S.L.W.
4815 (U.S. June 24, 1982). 50 U.S.L.W. 5033 lU.S. June 30, 1982),
vacating and remanding National Black Police Ass'n v. Velde,
631 F.2d 784 (D.C. Cir. 1980).

We submit that the Harlow decision confirms the correctness 
of this Court's prior ruling that defendants-appellees are not 
entitled to an absolute immunity. Harlow, together with this 
Court's prior reading of the nondiscretionary obligations imposed 
upon defendants-appellees by the Omnibus Crime Control Act, also 
compels the conclusion that as a matter of law defendants- 
appellees are not entitled to qualified immunity. Defendants 
are entitled to no immunity, and this Court's prior judgment 
remanding this case for trial on plaintiffs' constitutional and 
statutory claims should be reinstated.

PRIOR PROCEEDINGS IN THIS CASE

This lawsuit was filed on September 4, 1975 by the National 
Black Police Association, Inc. and by six blacks and six women 
who alleged that their constitutional and statutory rights had 
been violated by the federal defendants' unabated provision of 
direct financial assistance to discriminatory state and local 
law enforcement agencies, in violation of, inter alia, the Fifth 
Amendment to the United States Constitution; Title VI of the 
Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.; and §



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518Cc) and § 509 of the Omnibus Crime Control and Safe Streets 
Act, as amended, 42 U.S.C. § 3766 (.c) and § 3757. App. 1, 4-39. 
Plaintiffs sought declaratory and injunctive relief as well as 
damages for alleged willful and knowing violations of their 
constitutional and statutory rights. Id.

Proceedings in the Trial Court
One week after the commencement of this litigation, plain­

tiffs initiated discovery by serving interrogatories, requests 
for admissions, and requests for production of documents. App. 
1-2, 289-96. Defendants did not respond to this discovery and 
on December 22, 1975 the trial court ordered a stay of all 
discovery. Id. Plaintiffs' motion to vacate the stay, id., 
was never ruled on by the trial court.

In January, 1976, plaintiffs filed a motion for a prelim­
inary injunction. App. 2, 40-185, 481-623. The motion was 
never ruled on by the trial court.

On February 9, 1976, more than five months after the 
commencement of this action, defendants moved to dismiss or 
for summary judgment. App. 2, 186-245, 624-720. Plaintiffs 
opposed this motion. App. 2, 246-477, 481-623, 721-846. Five 
months later, defendants filed another motion to dismiss, App. 
2, 478, and plaintiffs again opposed. App. 3.

1. The_citations to "App." in this brief are to the three- 
volume appendix filed with this Court on plaintiffs' original appeal.

2• Defendants nonetheless immediately provided part of 
the relief sought by plaintiffs. See infra pp. 30-31 note 31.



-3-

The trial court, on December 8, 1976, dismissed this 
action. App. 3, 479-80. The court held that plaintiffs' claims 
for declaratory and injunctive relief had "been rendered moot 
by virtue of the enactment of the Crime Control Act of 1976."
Id. The court also held that plaintiffs' damage claims against 
the defendant federal officials for their willful and knowing 
violation of plaintiffs' constitutional and statutory rights 
were "barred by the doctrine of official immunity." Id.

Proceedings in this Court
The trial court's dismissal of this action was reversed

by this Court in National Black Police Ass'n v. Velde, 631 F.2d
784 (D.C. Cir. 1980). As to plaintiffs' claims for declaratory
and injunctive relief, the Court held that the "1976 amendments
did not render any of [plaintiffs'] claims moot and, on remand,
[plaintiffs] will be entitled to proceed on all causes of action
stated in this complaint." Id. at 786 (footnote omitted). As
to plaintiffs' claims for monetary damages, this Court held that
defendants' stringently defined statutory and constitutional
duties deprived them of discretion and thus defeated their claim
that they were "protected by absolute immunity." Id. at 787.
The court concluded, id. (.footnote omitted);

Accordingly, we find that [defendants] have only 
a defense of qualified immunity and reverse the 
district court's dismissal of the claims for 
monetary damages. [Plaintiffs] should be 
allowed to go to trial on their claims for 
damages and [defendants] given a chance to es­
tablish a defense of good faith or reasonable 
grounds for their conduct.

Proceedings in the Supreme Court
Defendants did not seek review in the Supreme Court of the



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ruling on mootness. Instead, in their petition for certiorari 
filed December 29, 1980, see 49 U.S.L.W. 3496 (Jan. 13, 1981), 
defendants presented three questions, all pertaining to plain­
tiffs' claims for monetary damages:

(1) Are federal officials absolutely immune 
from personal damages liability for their 
decision not to initiate administrative 
action to terminate federal funding to local 
government agencies that allegedly engage in 
discriminatory personnel practices?
(.2) Does [defendants'] failure to terminate 
federal funding to local government agencies 
that allegedly discriminate on the basis of 
race and gender give rise to a cause of action 
for damages under the Fifth Amendment?
(3) Are [defendants] entitled to qualified 
immunity as a matter of law?

See 49 U.S.L.W. 3584 (Feb. 17, 1981). The Supreme Court granted 
certiorari, 49 U.S.L.W. 3824 (U.S. May 4, 1981).

After plenary review, the Supreme Court vacated this Court's 
prior judgment and remanded the case "for further consideration 
in light of Harlow & Butterfield v. Fitzgerald," 50 U.S.L.W.
4815 (U.S. June 24, 1982). 50 U.S.L.W. 5033 (U.S. June 30, 1982).

SUMMARY OF ARGUMENT

In view of the Supreme Court's limited remand "for further 
consideration in light of Harlow & Butterfield v. Fitzgerald," 
the only issues now before this Court are the alleged avail­
ability of absolute immunity and qualified immunity defenses



-5-

to plaintiffs' damage claims.—^
Defendants' absolute immunity defense, premised on their 

alleged prosecutorial discretion, was previously rejected by 
this Court on the ground that the Omnibus Crime Control Act 
allowed defendants "virtually no discretion." 631 F.2d at 787. 
Harlow confirms the correctness of this ruling.

Defendants' argument that they are entitled to a qualified 
immunity defense as a matter of law was not previously decided 
by this Court. Under Harlow, not only must defendants' argument 
be rejected, but defendants now must be denied qualified immunity 
as a matter of law. Harlow adopts an objective test for qualified 
immunity, under which federal officials "performing discretionary 
functions" may be held immune from liability so long as their 
conduct did "not violate established statutory or constitutional 
rights of which a reasonable person would have known." 50 U.S.L.W. 
at 4820 (emphasis added). Because this Court has already deter­
mined that the Crime Control Act allowed defendants "virtually

3. This Court's prior ruling that plaintiffs' claims 
for declaratory and injunctive relief were not mooted by the 
1976 amendments to the Crime Control Act, see 631 F.2d at 786, 
is not before the Court on this remand. Defendants did not 
seek review of this ruling in the Supreme Court, and Harlow 
did not decide or discuss any mootness issues. Of course, 
any factual developments subsequent to this Court's prior ruling 
which may bear upon the continuing need for injunctive relief 
may be considered by the district court on the remand which we ask this Court to order.

This Court's prior ruling recognizing plaintiffs' standing, 
see 631 F.2d at 787 n.16, compare id. at 788-91 (concurrence in 
part as to standing), similarly is not before this Court on 
remand. Not only did defendants fail to seek Supreme Court 
review of this ruling; but standing is a jurisdictional issue 
and the Supreme Court's remand left this Court's ruling on the 
question undisturbed. Harlow, of course, did not deal with any standing issue.



-6-

no discretion," 631 F.2d at 787, defendants do not meet the 
threshold legal requirement announced in Harlow for an official 
immunity claim: the performance of discretionary functions.
Moreover, this Court's prior reading of the statute also 
established as a matter of law that defendants, under the 
objective test of Harlow, must "reasonably have known" that 
their refusal to commence fund termination proceedings against 
grant recipients practicing invidious discrimination violated 
clearly established statutory rights.

Even putting to one side this Court's prior interpretation 
of the Crime Control Act, Harlow compels rejection of defendants' 
qualified immunity defense as a matter of law because defendants 
here did violate both clearly established constitutional law 
and their own equally clear statutory obligations. Contrary to 
the established equal protection maxim that government cannot 
support discrimination through any arrangement, management, 
funds, or property, Cooper v. Aaron, 358 U.S. 1, 19 (1958), 
defendants here provided unabated direct financial assistance 
to grantees whom they knew to practice invidious discrimination. 
And, contrary to the nondiscretionary mandate of § 518Cc)(2) 
of the Crime Control Act of 1973 —  requiring the termination 
of funding to discriminatory grantees —  defendants here refused 
to initiate fund termination proceedings even when their own 
investigations revealed that grantees were continuing to prac­
tice discrimination. Thus, under Harlow's objective test, the
defense of qualified immunity must be rejected as a matter of law.



-7-

ARGUMENT

I

Under Harlow and this Court's 
Prior Ruling, Defendants Are 
Not Entitled to Absolute Immunity

The Supreme Court's decision in Harlow confirms the correct­
ness of this Court's prior denial of absolute immunity to defen­
dants. This conclusion is apparent from the absolute immunity 
defenses periodically asserted in this case by defendants, from 
this Court's prior ruling on absolute immunity, and from the 
Harlow decision itself.

In the course of this litigation, defendants have advanced 
several different theories as to why they should be clothed 
with an absolute immunity from damages liability. Initially —  
despite the Supreme Court's decisions in Scheuer v. Rhodes, 416 
U.S. 232 (1974), and its progeny —  defendants alleged that they 
were administrative officials who had acted within the outer 
perimeter of their official duties and thus had absolute immunity 
as federal administrative officials under Barr v. Matteo, 360 
U.S. 564 (1959). Although the trial court agreed and dismissed 
plaintiffs' damage claims on this basis, App. 479-80, defendants 
thereafter —  while this case was pending on plaintiffs' appeal 
to this Court —  quickly abandoned this theory following the 
Supreme Court's ruling in Butz v. Economou, 438 U.S. 478 (1978).

After Butz, defendants no longer asserted that they were 
immune as administrative officials. Instead, defendants sought 
to bring themselves within a limited exception to the "no 
absolute immunity" rule of Butz by now describing themselves



-8-

as "prosecutors."— Disregarding both the narrowness of the 
exception authorized in Butz, see supra note 4, and also 
disregarding the nondiscretionary duties imposed on them by § 
518(c)(2) of the Grime Control Act, 42 U.S.C. § 3766(c)(2)
CSupp. V 1975), defendants claimed that they —  and thus nearly 
all federal agency officials —  were now "prosecutors" protected 
by an absolute immunity.

In its 1980 ruling, this Court squarely rejected the abso­
lute immunity defense because of the fundamental flaw in defen­
dants' prosecutorial immunity theory: the fact that defendants,
under both their governing statute and the federal Constitution, 
lacked the traditional broad discretion of "prosecutors" upon 
which the Butz exception turned.

The purpose of shielding discretionary 
prosecutorial decisions from fears of 
civil liability has no place where, as 
here, agency officials lack discretion.
[Defendants] have virtually no discretion

4/

4. Although Butz rejected the defense of absolute immunity 
for federal program administrators, the Supreme Court did allow 
an absolute immunity defense for three of the defendants in 
that case: the agency's prosecuting attorney who was responsible
for presenting the government's case at the administrative 
hearing, the Chief Hearing Examiner who was responsible for 
hearing and deciding the case, and the Judicial Officer who was 
responsible for reviewing the ruling of the Chief Hearing Examiner. 
438 U.S. at 508-18. The Butz Court also indicated that agency 
officials who "have broad discretion in deciding whether a pro­
ceeding should be brought and what sanctions should be sought" 
may also be entitled to an absolute immunity. 438 U.S. at 515. 
Aside from the fact that on this record, no defendant has 
admitted responsibility for the absolute refusal ever to initiate 
administrative fund termination proceedings against discrimina­
tory grantees, the dispositive factor defeating defendants' 
absolute immunity claim is that, as this Court previously held, 
defendants' governing statute deprived them of any discretion -- 
much less broad discretion —  to decide whether a fund termina­
tion proceeding should be brought. See 631 F.2d at 787.



-9-

under the relevant statute in deciding 
whether to terminate LEAA funding of 
discriminatory recipients.

*  *  *

The mandatory language of 42 U.S.C. §
3766 (c) (.2) CSupp. V 1975) (amended 1976), 
when read in light of [defendants'] 
constitutional and independent statutory 
duty not to allow federal funds to be used 
in a discriminatory manner by recipients, 
takes [defendants'] civil rights enforce­
ment duties outside the realm of discretion.

631 F.2d at 787 & n.15 (citation omitted).
The Supreme Court's Harlow decision in no way calls into 

question the correctness of this Court's earlier ruling. Harlow 
and Butterfield sought absolute immunity not because of alleged 
prosecutorial discretion, but on three other grounds: as an
incident of their offices as Presidential aides, as derivative 
of Presidential immunity, and as protection for the special 
functions of White House aides entrusted with discretionary- 
authority in such sensitive areas as national security and 
foreign policy. 50 U.S.L.W. at 4817-19. Based upon Butz, the 
Harlow Court rejected the first two grounds outright. 50 U.S.L.W. 
at 4817-18. Based again upon Butz and upon the record, the 
Harlow Court also rejected the special function basis for abso­
lute immunity since neither official had shown "that the respon­
sibilities of his office embraced a function so sensitive as to 
require a total shield from liability," nor "that he was dis­
charging the protected function when performing the act for which 
liability is asserted." 50 U.S.L.W. at 4819 (footnote omitted).

Defendants here have never asserted, much less sought to 
justify, an absolute immunity defense based on alleged special 
functions with discretionary responsibilities for national



-10-

security or foreign policy. On this record, and particularly 
in view of Butz and Harlow, no such claim could be made. As to 
defendants' assertion of prosecutorial discretion to support 
a defense of absolute immunity, nothing in Harlow disturbs the 
correctness of this Court's prior ruling that defendants lack 
such discretion and that defendants are not entitled to absolute 
immunity. For this reason, the absolute immunity claim must 
be rejected today as it was two and a half years ago.

II

Under Harlow and this Court's 
Prior Ruling, Defendants as a 
Matter of Law Are Not Entitled 
_____to Qualified Immunity____

Throughout the original appeal proceedings in this case,
defendants argued that they were entitled as a matter of law
to a qualified immunity defense.—^ Since the trial court had

6 /not ruled on the qualified immunity claim,— this Court in its 
1980 ruling held that plaintiffs "should be allowed to go to

5. See Brief for Appellees, National Black Police Ass'n 
v. Velde, 631 F.2d 784 (,D.C. Cir. 1980) , at 51-5 3; Supplemental 
Brief for Appellees, id., at 20; Petition for Rehearing and 
Suggestion for Rehearing En Banc, id., at 11-14.

6. As explained supra p .  2 , there had been no trial in 
this case, and all discovery sought by plaintiffs had been 
denied. This lack of an opportunity for factual development of 
the motivations for defendants' actions was very significant 
under the law of qualified immunity prior to the Harlow decision. 
See Butz v. Economou, 438 U.S. 478, 497-98 (1978), quoting from 
Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974); id. at 498, 
quoting from Wood v. Strickland, 420 U.S. 308, 322 (1975); see 
also Procunier v. Navarette, 434 U.S. 555, 562 (1978), and 
O'Connor v. Donaldson, 422 U.S. 563, 577 (1975), both cited with 
approval in Butz, 438 U.S. at 498; Imbler v. Patchtman, 424 U.S. 
409, 419 n.13 (1976).



-11-

trial on their claims for damages and [defendants] given a 
chance to establish a defense of good faith or reasonable 
grounds for their conduct." 631 F.2d at 787 (footnote omitted). 
Under Harlow, not only are plaintiffs still entitled to go to 
trial, but defendants' assertion of qualified immunity must now 
be denied as a matter of law.

1. The Supreme Court in Harlow recognized that qualified 
"[i]mmunity generally is available only to officials performing 
discretionary functions," 50 U.S.L.W. at 4820, and the Court 
formulated the objective test which it announced in Harlow 
explicitly for only those officials performing discretionary 
functions:

We therefore hold that government officials 
performing discretionary functions generally 
are shielded from liability for civil damages 
insofar as their conduct does not violate 
clearly established statutory or constitu­
tional rights of which a reasonable person 
would have known.

Id. (emphasis added). Because defendants did not meet the thresh­
old Harlow requirement of exercising discretionary functions, as 
a matter of law they are not entitled to the qualified immunity 
defense.

As this Court previously recognized in interpreting defen­
dants' duties under § 518(c)(2) of the Crime Control Act, 42 
U.S.C. § 3766 (c) (2) (Supp. V 1975), defendants "have virtually 
no discretion under the relevant statute in deciding whether 
to terminate LEAA funding to discriminatory recipients." 631 
F.2d at 787. In fact, the "mandatory language" of the statute, 
when read in conjunction with defendants' "constitutional . . . 
duty not to allow federal funds.to be used in a discriminatory



-12-

manner by recipients, takes [defendants'] civil rights enforce­
ment duties outside the realm of discretion." Id. at 787 n.15 
(citation omitted). This absence of discretion in turn takes 
defendants outside of the realm of qualified immunity under 
Harlow.

2. This Court's prior reading of defendants' obligations 
under the Constitution and the Crime Control Act compels rejec­
tion of the qualified immunity defense for yet another reason.
At the time of this Court's prior decision, qualified immunity 
for officials performing discretionary functions rested upon 
both an "objective" test and a "subjective" test. Official 
immunity was available only upon a showing (a) that governmental 
officers acted "in good faith," with the subjective belief that 
their actions were lawful, and (b) that there were objectively 
reasonable grounds for that belief. See cases cited supra p. 10 
note 6. Harlow eliminates the burden upon those claiming the 
defense to establish their subjective good-faith motivation.
50 U.S.L.W. at 4819-20. Harlow teaches that officials "performing 
discretionary functions" may establish entitlement to qualified 
immunity by showing that their conduct did not "violate established 
statutory or constitutional rights of which a reasonable person 
would have known." Id. at 4820.

In this case, in which all of the defendant officials are 
lawyers, this Court's prior determination that defendants' 
governing statute on its face vested them with no discretion 
to fail to commence fund termination proceedings against dis­
criminatory grantees, and its reliance upon defendants' then 
existing "constitutional . . . duty not to allow federal funds



-13-

to be used in a discriminatory manner by recipients," establish, 
as a matter of law that defendants' conduct did indeed "violate 
established statutory or constitutional rights of which a 
reasonable person would have known." Therefore, the change in 
the law of official immunity announced in Harlow means that 
there is no longer any factual development required on remand 
in order to decide the qualified immunity claim, and that it 
must be rejected as a matter of law and plaintiffs permitted to 
go to trial on the merits.

Ill

Defendants' Qualified Immunity Claim 
Is Due to be Rejected Under Harlow 
and Other Relevant Decisions Even 
if this Court's Prior Ruling Is Not 
Accorded Controlling Significance

We have suggested in the preceding section that in its 
prior ruling, this Court made a determination of controlling 
significance when it recognized the lack of discretion allowed 
to defendants under the Crime Control Act and the federal 
Constitution. Based upon that reading of the law, which is 
entirely unaffected by any holding or discussion in Harlow, 
this Court should reject the qualified immunity defense of the 
defendant officials on this remand.

In the present discussion, we assume for purposes of argu­
ment that the Court wishes to consider the qualified immunity 
defense ab initio, without reference to its prior ruling. As 
we demonstrate, Harlow and other relevant decisions establish 
conclusively that defendants in this action are not entitled to 
official immunity.



-14-

Under Harlow, the critical determination in evaluating a 
defense of qualified immunity is whether the "statutory or 
constitutional rights" alleged to have been violated by official 
conduct were "clearly established . . . rights of which a rea­
sonable person would have known." 50 U.S.L.W. at 4820, citing 
Procunier v. Navarette, 434 U.S. 555, 565 (1978), and Wood v. 
Strickland, 420 U.S. 308, 321 (.1975). Thus, the Supreme Court 
suggested that on official defendants' motions for summary judg­
ment based on an assertion of qualified immunity, courts "may 
determine, not only the currently applicable law, but whether 
that law was clearly established at the time an action occurred." 
Id. at 4820. We demonstrate below that the legal rights invaded 
by defendants' conduct were, in fact, so "clearly established" 
within the meaning of Harlow as to vitiate any defense of 
qualified immunity in this case. Preliminarily, however, we
pause to consider how the state of "clearly established law"

7 /should be determined by the Court.—

7. In a footnote in Harlow, the Supreme Court Quoted 
from Procunier v. Navarette, 434 U.S. at 565, and again stated 
that it "need not define here the circumstances under which 
'the state of the law' should be 'evaluated by reference to 
the opinions of this Court, of the Courts of Appeals, or of 
the local District Court."' 50 U.S.L.W. at 4820 n.32. The 
question has, however, been widely addressed by the courts of 
appeals and the federal district courts. Their consistent 
conclusion has been that the state of the law, for immunity 
purposes, may be established by decisions rendered not only by 
the Supreme Court but also by the courts of appeals and the 
federal trial courts, and by laws enacted by Congress and other 
indicia of statutory and regulatory law, including interpre­
tations of legislative requirements by the Supreme Court and the lower federal courts.



-15-

A. In Determining What Constitutional and Statutory- 
Rights Were "Clearly Established" at the Time of 
the Defendants' Actions in this Case, the Court 
Should Look to Supreme Court Rulings, Its Own 
Decisions, and Those of Other Federal Courts, as 
well as to Statutory Enactments and Legislative History______ _______________________________
The experience of federal courts in passing upon defenses

of official immunity teaches that all potential sources must be
consulted in determining whether the constitutional and statutory
rights which are claimed to have been violated by defendants
were "clearly established" at the time the actions were taken.—^

1. Turning first to constitutional rights, it is almost
self-evident that decisions of the Supreme Court may conclusively
establish constitutional principles for purposes of the immunity
determination. E.g., Nekolny v. Painter, 653 F .2d 1164, 1170-71
(7th Cir. 1981) (Supreme Court decision in Elrod v. Burns, 427
U.S. 347 (1976), established the law on political firing);
Fowler v. Cross, 635 F.2d 476, 480-84 (5th Cir. 1981) (.right of
parolee to on-site revocation hearing established by Morrisev
v. Brewer, 408 U.S. 471 (.1972)̂  and Gagnon v. Scarpelli, 411
U.S. 778 (1973)); McNamara v. Moody, 606 F.2d 621, 625-26 (5th
Cir. 1979) (prisoner's right to mail letter established by
Procunier v. Martinez, 416 U.S. 396 (1974), decided a year and a
half prior to challenged conduct); Visser v. Magnarelli, 542 F.
Supp. 1331, 1336-38 (N.D.N.Y. 1982) (law on patronage employment
practices settled by Elrod v. Burns, 427 U.S. 347 (.1976) and

8. The Supreme Court has neither approved nor disapproved 
this method of determining the "state of the law" for immunity purposes. See supra p.14 note 7.



-16-

Branti v. Finkel, 445 U.S. 507 C1980)). See also Perez v. 
Rodriguez Bou, 575 F.2d 21, 23-24 (1st Cir. 1978) (no immunity 
for school official who suspended students without hearing one 
week after Supreme Court decision in Goss v. Lopez, 419 U.S.
565 (1975)).

Similarly, immunity may be rejected on the basis of lower 
federal court rulings establishing the operative constitutional 
principles. Thus, in Williams v. Treen, 671 F.2d 892 (5th Cir. 
1982), the Fifth Circuit rejected the immunity defense in two 
different instances based on lower court decisions. First, the 
court held that a prisoner's right not to be denied necessary 
medical treatment had been established by pre-1971 lower court 
rulings well before the Supreme Court's decision in Estelle v. 
Gamble, 429 U.S. 97 C1976). Id. at 901. Second, as to racial 
segregation in the Louisiana State Penitentiary at Angola, the 
Fifth Circuit held that the law had been established by a sum­
marily affirmed district court decision in Alabama:

We believe that the right to be free from 
general policies of racial segregation in 
prison housing and administration was 
clearly established in the opinions rendered 
by Judge Johnson in Washington v. Lee, 263 
F. Supp. 327 (M.D. Ala. 1966), and the 
Supreme Court's per curiam affirmance in 
Lee v. Washington, 390 U.S. 333 (1968).

671 F.2d at 902 (footnote omitted). See also, e.g., Gullatte 
v. Potts, 654 F.2d 1007, 1012 (5th Cir. 1981) (prior Fourth and 
Fifth Circuit decisions established law regarding prison offi­
cials' responsibility to protect inmates who they know are in 
danger); Mary and Crystal v. Ramsden, 635 F.2d 590, 600 (7th Cir 
1980) (trial court decision within circuit established right of 
incarcerated juvenile to call witnesses at disciplinary hearing)



-17-

Courts have also relied upon broad and well-known consti­
tutional standards of conduct in reaching the conclusion that 
particular actions are not covered by a defense of official 
immunity. E.g., Williams v. Anderson, 562 F.2d 1081, 1101 (8th 
Cir. 1977) (relying on "long line of [school desegregation] 
court cases beginning with Brown v. Board of Education" to reject 
claim that defendants had official immunity from liability for 
employment discrimination); see also, Flores v. Pierce, 617 F.2d 
1386, 1392 (9th Cir. 1980) ("The constitutional right to be 
free from such invidious discrimination is so well established 
and so essential to the preservation of our constitutional 
order that all public officials must be charged with knowledge 
of it. Cooper v. Aaron"), cert, denied, 449 U.S. 875 (1981).

2. As to statutory rights, the courts have frequently 
canvassed relevant enactments and even regulatory requirements 
governing official conduct and have held officials to the 
standards expressed therein. For example, in Williams v. Treen, 
supra, the Fifth Circuit passed upon qualified immunity as a 
defense to a prisoner's alleged Eighth Amendment right to safe 
and sanitary conditions. Finding only one prior case which 
even "suggest[ed] that conditions such as those at Angola might 
violate the constitutional rights of inmates," the court 
"recongize[d] that the decisions to be found in the Federal 
Reporter are not the only source of law governing the actions 
of state prison officials." 671 F.2d at 898. The court then 
rejected the immunity defense because the "conditions at the 
facility violated applicable state fire, safety and health 
regulations . . . .  If an official's conduct contravenes his



-18-

own State's explicit and clearly established regulations, a 
subjective belief in the lawfulness of his action is per se 
unreasonable . . . .  To hold otherwise would be to encourage 
official ignorance of the law." Id. at 898-99, 899-900 (.foot­
note omitted). See also Chavis v. Rowe, 643 F.2d 1281, 1288-89 
(7th Cir.) (rejecting immunity in part on ground that officials 
"may not take solace in ostrichism"), cert, denied, 454 U.S.
907 (1981).

Similarly, in Williams v. Anderson, 562 F.2d at 1102, the 
Eighth Circuit also relied, in rejecting the claim of immunity 
from liability for employment discrimination, upon the federal 
Equal Pay Act as putting government officials on notice that 
they could not pay blacks less than whites, although the precise 
terms of the legislation required only that women be paid at the 
same rate as men for substantially equal jobs. And in Calkins 
v. Blum, 511 F. Supp. 1073, 1101 (N.D.N.Y. 1981), aff'd on basis 
of district court opinion, 675 F.2d 44 (2d Cir. 1982), county 
welfare officials were held not entitled to qualified immunity 
because of the language of the Social Security Act and implement­
ing administrative policies:

At the time of the plaintiffs' medicaid 
determinations, federal law and HHS policy 
statements required that SSI financial 
eligibility criteria be . . . applied to 
SSI medically needy persons and that 
qualified individuals be provided a choice 
of categories. Because the actions of the 
County Commissioners ran directly contrary 
to this federal law, of which the defen- 
dants were obliged to know and follow, their 
behavior cannot support a claim . . .  of 
qualified immunity.



-19-

511 F. Supp. at 1101 (.emphasis added) ; see also Kodecker v. Blum, 
525 F. Supp. 867, 873 (N.D.N.Y. 1981) (since "the State Commis­
sioner has violated federal law, this Court is also of the 
opinion that inasmuch as she is being sued in her official capa­
city, the State Commissioner enjoys no defense of 'good faith '").

3. In sum, obligations imposed by federal or state enact­
ment or decisional law will undermine or preclude the availa­
bility of the official immunity defense, and all potential 
sources of legal standards should be canvassed in the process 
of inquiring whether a reasonably performing official would 
have known that his conduct violated applicable legal standards.

B. Clearly Established Constitutional and Statutory Law 
Required Defendants to Withdraw Federal Financial Aid 
From Recipients Practicing Invidious Discrimination 
at the Time of the Acts Complained of in This Case
1. The constitutional obligation of government agencies 

and officials to avoid entanglement with or the provision of 
direct financial aid to institutions that discriminate was well 
established at the time defendants in this case decided never 
to initiate fund termination proceedings against discriminatory 
grantees. Federal officials, like state officials, are barred 
by equal protection principles from engaging in racial dis­
crimination. Bolling v. Sharpe, 347 U.S. 497 (1954). This 
constitutional obligation applies not just to direct involvement, 
but as well to government "support" of discrimination "through 
any arrangement, management, funds or property." Cooper v.



-20-

Aaron, 358 U.S. 1, 19 (1958).-/
The principle was most emphatically reiterated by the 

Supreme Court in Norwood v. Harrison, 413 U.S. 455 (1973), a

9. These clearly established principles announced by the 
Supreme Court in 1954 and 1958, respectively, have been widely 
applied by the lower federal courts in a variety of contexts.
For example, in three different cases —  all summarily affirmed 
by the Supreme Court —  district courts in the late 1960's con­
sistently held state tuition grants to students attending 
racially discriminatory schools unconstitutional. Brown v.
South Carolina State Bd. of Educ., 296 F. Supp. 199 (D.S.C.), 
aff1 d, 393 U.S. 222 (_1968) ; Poindexter v. Louisiana Fin. Assis- 
tance Comm'n, 275 F. Supp. 833 (E.D. La. 1967), aff'd,389 U.S.
571 (.1968); Lee v. Macon County Bd. of Educ., 267 F. Supp. 458,
475 (M.D. Ala.), aff'd sub nom. Wallace v. United States, 389 
U.S. 215 (1967). Accord, Coffey v. State Educ. Fin. Comm'n,
296 F. Supp. 1389 (S.D. Miss. 1969) (loans, as well as grants).

Particularly in the District of Columbia, where the defen­
dants officially resided during the time periods relevant to 
this case, these principles governing official conduct were 
repeatedly made clear. In the first of its decisions involving 
the provision of federal tax exemptions to discriminatory private 
schools, the three-judge court in Green v. Kennedy, 309 F. Supp. 
1127, 1136 (D.D.C.), appeal dismissed, 398 U.S. 956 (1970), 
squarely recognized that "[tjhe due process clause of the Fifth 
Amendment does _not permit the Federal Government to act in aid 
°f private racial discrimination." In its subsequent opinion —  
supporting a judgment which was summarily affirmed by the Supreme 
Court —  the same court noted that while tax-exempt status was 
more attenuated than direct financial aid, "it would be difficult indeed for [the government] to establish that such support 
[through tax exemption] can be provided consistently with the 
Constitution . . . .  Clearly the Federal Government could not 
under the Constitution give direct financial aid to [institutions] 
practicing racial discrimination." Green v. Connally, 330 F.
Supp. 1150, 1164-65 (D.D.C.) (Leventhal, J.), aff'd sub nom. Coit 
v. Green, 404 U.S. 997 (1971). A nearly identical result was 
reached in a 1973 case involving federal funding to discrimina­
tory state employment services. Applying both the applicable 
statutory law, see text infra at 22, as well as equal protection 
principles, the court in NAACP, Western Region v. Brennan, 360 
F. Supp. 1006, 1012 (D.D.C. 1973), expressly held that "both 
-̂i-tle VI [of the Civil Rights Act of 1964] and the Fifth Amend­
ment impose upon Federal officials not only the duty to refrain 
from participating in discriminatory practices, but the affirma­
tive duty to police the operations of and prevent such discrimina­
tion by State and local agencies funded by them."

Other federal jurisdictions had earlier applied the same standards. E.g. , Gautreaux v. Romney, 448 F.2d 731, 740 (7th
' S r̂m^^ns v‘ Moses Cone Memorial Hospital, 323 F.2d 959, 967-70 (4th Cir. 1963) , certT denied, 376 U.S. 9T8 (.1964).



-21-

case challenging the provision of free textbooks by a state 
agency to students attending racially exclusionary schools.
Writing for a unanimous Court, Chief Justice Burger unequivocally 
declared that a government agency's "constitutional obligation 
requires it to steer clear . . .  of giving significant aid to 
institutions that practice racial or other invidious discrim­
ination." 413 U.S. at 467. This "steer-clear" obligation, the 
Chief Justice pointed out, was hardly a novel constitutional 
principle, but had long been applied by the Court in "consistently 
affirm[ing] decisions enjoining state tuition grants to students 
attending racially discriminatory private schools." Id. at 
463 (citing, in a footnote, not only the decisions in Brown, 
Poindexter and Lee, see supra p. 20 note 9, but also the summary 
affirmance in Coit v. Green, see i d . ) ^  Accord, Gilmore v.
City of Montgomery, 417 U.S. 556 (.1974) .

10. In some other contexts the United States has suggested 
that Norwood was tacitly overruled by Washington v. Davis, 426 
U.S. 229, 239-44 (1976), and Personnel Administrator v. Feeney, 
442 U.S. 256, 279 (1979), but there is absolutely no basis for 
this interpretation. None of the opinions in Davis or Feeney 
even mentions Norwood, because both cases addressed a completely 
different issue. Those cases considered policies which in 
operation allegedly had disparate impacts upon blacks and women, 
respectively, and the issue in each was whether this dispropor­
tionate impact alone made the policies unconstitutionally 
discriminatory. Neither case involved express discrimination 
of any kind, let alone findings of discrimination made by a 
government agency which then continued to provide financial 
aid to the discriminatory institution. Thus "one immediate and 
crucial difference" between the instant matter and Washington 
v. Davis or Personnel Administrator v. Feeney is that here, the 
existence of discrimination is uncontested; the only question 
is whether defendants were obligated to cease providing direct 
federal monetary support for that discrimination. See Washington 
v. Seattle School Dist. No. 1, 50 U.S.L.W. 4998, 5005 (U.S. June 
30, 1982); cf., Rogers v. Lodge, 50 U.S.L.W. 5041, 5049-50 (U.S. 
July 1, 1982T (Stevens, J., dissenting).



-22-

2. Statutory constraints also controlled defendants' 
conduct. Initially defendants' conduct was statutorily governed 
by Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, 
which (similar in some respects to the obligation imposed by 
the Fifth Amendment), barred federal officials from providing 
assistance to discriminatory recipients or grantees. The 
statute explicitly directs the termination of federal financial 
assistance to grantees which are determined to practice dis­
crimination. 42 U.S.C. § 2000d-l. It has long been interpreted 
to require federal officials to act promptly to withdraw federal 
aid which might be used for discriminatory purposes. E.g., 
Gautreaux v. Romney, 448 F.2d 731, 740 (_7th Cir. 1971); Shannon 
v . HUD, 436 F.2d 809 C3d Cir. 1970); Hicks v. Weaver, 302 
F. Supp. 619, 623 (E.D. La. 1969).

Moreover, this Court a decade ago rejected federal officials 
claim that Title VI vested them with broad discretion to commence 
or to delay or decline to commence, administrative fund termina­
tion proceedings once an investigation indicates that a grantee 
is practicing discrimination. Adams v. Richardson, 480 F.2d 
1159, 1162 (D.C. Cir. 1973) (en banc). Such discretion was 
"untenable in light of the plain language of the statute," in 
view of "Congress' clear statement of an affirmative enforcement 
duty," and "in view of the admitted effectiveness of fund termina 
tion proceedings in the past to achieve the Congressional 
objective." Id. at 1162, 1163 n.4.

Whatever discretion, if any, may have remained after Adams, 
it was removed frcm defendants only two months later, when 
Congress made fund termination proceedings mandatory through



-23-

enactment of § 518(c) of the Crime Control Act of 1973, Pub. L. 
No. 93-83, § 2 (Aug. 6, 1973), 87 Stat. 197, codified at 42 
U.S.C. § 3766 (c) (Supp. V 1975). Of particular significance 
was § 518Cc)(2), the administrative enforcement provision, 
through which Congress removed the Title VI option of initially- 
referring matters of noncompliance to the Justice Department 
for possible judicial enforcement,— ^ and replaced it with a 
mandatory procedure requiring that matters of noncompliance be 
dealt with first through the initiation of fund termination 
proc ee ding s'

11. Title VI of the 1964 Civil Rights Act provides, at 
42 U.S.C. § 2000d-l (.1976)'(emphasis added):

Compliance with any requirement adopted 
pursuant to this section may be effected
(1) by the termination of or refusal to 
grant or to continue assistance . . . or
(2) by any other means authorized by law.

12. Section 518(c)(2) of the Crime Control Act of 1973 
provided, at 42 U.S.C. § 3766(c)(2) (Supp. V 1975) (emphasis 
added):

Whenever the Administration determines 
that a State government or any unit of general 
local government has failed to comply with 
paragraph (1) of this subsection or an applic­
able regulation, it shall notify the chief 
executive of the State of the noncompliance 
and shall request the chief executive to secure 
compliance. If within a reasonable time after 
such notification the chief executive fails or 
refuses to secure compliance, the Administration 
shall exercise the powers and functions provided 
Tn section 3757 of this title [§ 509 of the 
Act, which pertains to fund termination pro­
ceedings] , and is authorized concurrently with 
such exercise —

(A) to institute an appropriate civil 
action;

(B) to exercise the powers and functions 
pursuant to title VI of the Civil Rights
Act of 1964 (section 2000d of this title); or

(C) to take such other action as may be 
provided by law.



-24-

The reason for this mandatory enforcement was as obvious
as the requirement itself. As explained by Rep. Barbara Jordan,
the author of § 518(c)(2), the statutory "amendment was necessary
to reverse LEAA's traditional reliance on court proceedings to
correct discrimination, rather than undertaking administrative

13/enforcement of civil rights requirements."— • As Rep. Charles 
Rangel later remarked, through enactment of § 518(c) (.2) in 
August, 1973, Congress "imposed upon LEAA the most stringent 
statutory civil rights mandate" governing any federal agency.— ^

3. Thus, as both a constitutional and statutory matter, 
the defendant LEAA officials had "clearly established" obliga­
tions to withdraw federal funding from grantees and recipients 
whom their own investigations revealed to be practicing invidious 
discrimination. As this Court aptly summarized it in 1980, the 
defendants had "virtually no discretion . . .  in deciding 
whether to terminate LEAA funding of discriminatory recipients." 
631 F.2d at 787.

13. 119 Cong. Rec. 20071 (June 18, 1973). As Rep. Jordan 
explained her amendment, which became § 518(c) (2), id.:

The effect of my amendment . . .  is to require 
LEAA to first use the same enforcement procedure 
which applies to any other violation of LEAA 
regulations or statutes. That procedure of 
notification, hearings, and negotiations is 
spelled out in Section 509, which provides the 
ultimate sanction of funding cutoff if 
compliance is not obtained.

14. LEAA Hearings Before the Subcommittee on Crime of the 
House Comm, on the Judiciary, 94th Cong., 2d Sess. 606 (1976).



-25-

C. Since Plaintiffs Alleged —  and Both the Record And 
Judicially Noticeable Materials Conclusively 
Demonstrate —  That Defendants Deliberately Continued 
to Provide Federal Funds to Grantees Shown by Their 
Own Investigations to Practice Invidious Discrimination, 
Defendants Violated "Clearly Established Statutory or 
Constitutional Rights of Which a Reasonable Person 
Would Have Known" and Are Not Entitled to Qualified 
Immunity_______________________________________________
1. A decade after the Supreme Court announced in Cooper

v. Aaron, 358 U.S. 1, 19 (.1958), that it was unconstitutional for
government to "support" discrimination "through any arrangement,
management, funds or property," the LEAA was established. In
the first seven years of its existence, from 1968 until the
complaint in this action was filed in September, 1975, LEAA
distributed more than one and a quarter billion dollars to
state and local law enforcement agencies. Many of these
grantees were discriminatory; many in fact were found by the
federal courts to be violators of the law.

There appears to be no dispute in this case that the
responsible federal officials —  the defendants here —  never
denied federal funding to a discriminatory grantee, never
terminated funding to a discriminatory grantee, and never even
initiated fund termination proceedings against a discriminatory
grantee until after this complaint seeking damages was filed.
The scope of this unabated financial assistance to discriminatory
grantees is alleged in considerable detail in our complaint,
App. 4-39.— ^ It is confirmed in a report issued by the United

15. For example, plaintiffs alleged in 1[23 of their 
complaint that since 1970, more than fifty law enforcement 
agencies had been sued for discrimination and had ultimately 
had judgments entered against them or had entered into consent
[footnote 15 continued on next page]



-26-

States Commission on Civil Rights in November, 1975, only two
months after the complaint in this case was filed. App. 481-

16 /623.— And it was made a matter of record in Congress,■both 
prior to the filing of this action— ^ as well as

[footnote 15 continued from previous page]
decrees; that defendants had "provided LEAA funding to each of 
these law enforcement agencies"; and that defendants "never 
terminated that funding for civil rights noncompliance." App. 
11. More specifically, each of the twelve individual plaintiffs 
alleged in 1M[42-102 of the complaint that his or her own LEAA- 
funded police department was known by the defendants to be 
discriminatory, and that the defendants nonetheless refused to 
terminate that direct financial assistance. App. 19-35.

16. The findings in the report, U.S. Comm'n on Civil 
Rights, The Federal Civil Rights Enforcement Effort —  1974,
Vol. VI, To Extend Federal Financial Assistance 271-393, 773-77 
(.1975) , closely paralleled the allegations in plaintiffs' 
complaint. The Commission observed, for example, that "LEAA 
staff states that the agency has never terminated funding be­
cause of a civil rights violation." App. 607. The Commission 
also found that "LEAA continues to fund jurisdictions in which 
there is prima facie evidence of civil rights violations."App. 603, 623.

17. As discussed in greater detail infra pp. 27-28, in 
1973, because of its impatience with LEAA's funding of blatantly 
discriminatory grantees, Congress imposed upon defendants a 
mandatory statute requiring the termination of funding to 
discriminatory grantees. The need for this mandatory enforce­
ment requirement —  in the words of Rep. Barbara Jordan, the 
author of the statutory amendment —  was apparent not only be­
cause "[o]ne need go no further than the reports of decided 
Federal cases to obtain evidence of the persistence and pre­
valence of racism in employment" but also because, "[i]n effect, 
LEAA has had no civil rights enforcement program." 119 Cong. Rec. 20071 (June 18, 1973).



- 2 7 -

s u b  s e q u e n t thereto.— ^
2. Defendants' statutory violations, first of Title VI

and later of § 518 Cc) (.2). of the Crime Control Act of 1973, 
were also extensive, blatant, and documented by Congress. And 
they are illustrated, at least to a limited extent, on the 
record in this case, despite the trial court's denial of all 
discovery.

Although LEAA, from its creation in 1968, was bound by an
"affirmative obligation to insure that the funds it distributes
. . .  do not tend to support racial and sex discrimination" —
an "obligation [which] stems from the Fifth and Fourteenth
Amendments and is reflected in the policy underlying Title VI" —

19 /LEAA's response to this obligation was one of "failure."—
20 /LEAA "only reluctantly admitted its Title VI responsibilities,"—  

and "[i]t took over two years . . . before LEAA recognized its

18. Congress' imposition in 1973 of a statutory mandate 
requiring the termination of funding to discriminatory grantees, 
see supra pp.22-24, was altogether disregarded by defendant 
officials. As the House Judiciary Committee found in 1976:

The response of LEAA to the 1973 civil rights 
amendment has been less than minimal.

*  * *  *

LEAA has never terminated payment of 
funds to any recipient because of a civil 
rights violation. Despite positive findings 
of discrimination by courts and administrative 
agencies, LEAA has continued to fund violators 
of the Act.

H.R. Rep. No. 94-1155, 94th Cong., 2d Sess. 11 (1976).
19. LEAA Hearings Before Subcommittee No. 5 of the House 

Comm, on the Judiciary, 9 3d Cong., 1st Sess. 621 (1973) (Rep. 
Hawkins).

20. Id. at 623.



-28-

responsibilities to prevent racial discrimination in the use of 
21/its funds."—  By the summer of 1973, when Congress was con­

sidering Rep. Barbara Jordan's mandatory termination amendment
which became § 518(c) 12), Rep. Jordan observed that, "[i]n

2 2 /effect, LEAA has no civil rights enforcement program. " — ■

Despite the mandatory fund termination procedure enacted 
by Congress in 1973, defendants continued to fund discrimination. 
For example, the House Judiciary Committee concluded in 1976
that "[t]he response of LEAA to the 1973 civil rights amendments

23/has been less than minimal."—  Even after the filing of this 
lawsuit, defendants continued to violate their governing 
statutory mandate: they "never terminated payment of funds to
any recipient because of a civil rights violation" and "con­
tinued to fund violators of the Act."— ^

Of particular concern to Congress in 1976 was the renten- 
tion by LEAA officials of their policy —  as defined by defendant
Velde in 1975 —  "to pursue court action and not administrative

25/action to resolve matters of employment discrimination. " — ■

21. 119 Cong. Rec. 22059 (June 28, 1973) (Sen. Bayh).
22. 119 Cong. Rec. 20071 (June 18, 1973).
23. H.R. Rep. No. 94-1155, 94th Cong., 2d Sess. 11 (1976).
24. Id. See also the parallel findings of the United 

States Commission on Civil Rights, discussed supra p. 26 note 16.
25. App. 85. This statement by defendant Velde was made

in a 1975 letter sent to Rep. Charles Rangel in an attempt to
explain why LEAA had violated § 518 (c) (2) by not initiating 
administrative proceedings against the Philadelphia Police 
Department, App. 76-86, a grantee which LEAA in 1974 had for­
mally determined to be in noncompliance, App. 91. See also infra 
pp. 30-31 note 31.



-29-

This was precisely the policy which Congress in 1973 had sought
"to reverse"— ^ when it enacted Rep. Jordan's amendment as §
518(c)(2). Nonetheless, as Rep. Charles Rangel observed in the
spring of 1976: "LEAA's unlawful regulatory preference remains

27/in effect today. " — ' In other words, the "attempt by Congress
[in 1973] to make clear to LEAA that it is to utilize and give
preference to its administrative enforcement powers rather than
its traditional reliance on judicial remedies has been blatantly 

28/disregarded. " — ' Not only had the 1973 statutory mandate "not 
been enforced, but it had been "ignored.

Defendants’ disregard of their nondiscretionary statutory 
mandate is explicitly illustrated in at least one instance on 
the record in this case. This example arises from defendants' 
refusal, in early 1974 and continuing thereafter, to initiate 
their mandatory fund termination proceedings against the

26. 119 Cong. Rec. 20071 (June 18, 1973) (Rep. Jordan).
27. LEAA Hearings Before the Subcommittee on Crime of the

House Comm, on the Judiciary, 94th Cong., 2d Sess. 606 (1976). 
Rep. Jordan was a bit more blunt: "Simply put, LEAA's civil
rights regulations contravene the law." Id. at 446.

28. Id. at 606 (Rep. Rangel) (emphasis added).
29. Id. at 442 (Rep. Jordan),.
30. Id. at 443 (Rep. Conyers). As Representative Conyers

observed at somewhat greater length, id.:
We all enacted a law; everyone understood 
what it meant; it went on the books; the 
President signed it; and then it was ignored.

Now, some of us —  yourself included —  
are getting a little tired of this. We can 
pass civil rights laws year in and year out, 
and the agency charged with the enforcement 
ends up being the prime noncompliant.



-30-

Philadelphia Police Department; this refusal is documented in 
the record at App. 45-47, 51-111, 169-177; and it is briefly 
summarized in the margin.— ^

31. After finding extensive discrimination in the Phila­
delphia Police Department, and after concluding that voluntary 
compliance could not be achieved, LEAA officials in late 
January, 1975 formally determined the Police Department to be 
in noncompliance. App. 45-46, 63-65. This determination was 
confirmed in a mailgram from defendant Herbert Rice to Phila­
delphia Police Commissioner Joseph O'Neill dated January 28, 1974 

THIS WILL ALSO FORMALLY ADVISE YOU THAT 
LEAA HAS DETERMINED THAT THE PHILADELPHIA 
POLICE DEPARTMENT HAS FAILED TO COMPLY WITH 
[THE NONDISCRIMINATION REQUIREMENTS]. THE 
LEAA HAS FURTHER DETERMINED THAT COMPLIANCE 
[WITH THE LAW] CANNOT BE ACHIEVED BY 
VOLUNTARY MEANS.

App. 91 (upper case in original); see also App. 177. Rather 
than initiating fund termination proceedings at this point, as 
was statutorily required by § 518(c) (2), defendants instead 
took a step which was statutorily authorized only after the 
nondiscretionary first step of initiating fund termination 
proceedings, id.:

ACCORDINGLY THIS MATTER HAS BEEN REFERRED TO 
THE CIVIL RIGHTS DIVISION OF THE DEPARTMENT 
OF JUSTICE FOR CONSIDERATION OF THE INSTITU­
TION OF APPROPRIATE LEGAL PROCEEDINGS 

One year later, in January, 1975, defendant Velde attempted 
to explain this continuing violation of § 518(c)(2) by stating 
that defendants chose to follow not their governing statute, 
but instead their internal policy "to pursue court action and 
not administrative action to resolve matters of employment 
discrimination." App. 85. The existence of this illegal policy 
was no secret. It was publically confirmed by the senior attor­
ney in LEAA's Office of Civil Rights Compliance, in a 1975 
interview: "She reports that, when the agency discovers dis­
crimination, its policy is to seek judicial relief rather than 
to stop paying out the money." App. 844 (emphasis in original).

Defendant Velde, also in January, 1975, admitted that 
"[n]o formal administrative hearing was held by LEAA leading to 
fund cutoff," that instead "LEAA funds are still going to the 
Philadelphia Police Department," and that in fact "[t]wo $1 mil­
lion discretionary awards were recently made." App. 84-85.

Only after this lawsuit for damages was filed on September 
4, 1975, did defendants slowly begin to follow their governing 
statute. On January 29, 1976, nearly five months after this
[footnote 31 continued on next page]



-31-

3. None of the defendant officials has ever asserted on 
this record that he did not know, or should not have known, that 
the unabated provision of direct financial assistance to dis- 
driminatory grantees violated basic equal protection law 
clearly established by the Supreme Court and repeatedly applied 
by the lower federal courts, and also violated the statutory 
mandates of Title VI and of § 518(c) (2) of the Crime Control 
Act. Defendants, of course, could not have made such assertions. 
As federal officials —  indeed, as federal officials who also 
are lawyers —  defendants instead must be presumed to have 
considerable knowledge of and respect for basic constitutional 
law, and for their governing statutes.

In Harlow, the Supreme Court reiterated that the objective 
test of qualified immunity "involves a presumptive knowledge 
of and respect for 'basic unquestioned, constitutional rights.'" 
50 U.S.L.W. at 4819, quoting from Wood v. Strickland, 420 U.S. 
at 322. Adhering to the necessity for government respect of 
constitutional rights, the Harlow Court ruled that "qualified

[footnote 31 continued from previous page]
suit was filed and two weeks after plaintiffs moved for a pre­
liminary injunction requiring initiation of administrative fund 
termination proceedings against the Philadelphia Police Depart­
ment based upon defendants' then two-year-old determination of 
noncompliance, App. 40-185, defendant Velde finally did initiate 
the nondiscretionary fund termination proceedings against Philadelphia, App. 195.

Similarly, three months after this lawsuit was filed, 
defendants issued a proposed regulation in which they proposed 
to reverse their policy of refusing to initiate fund termination 
proceedings. 40 Fed. Reg. 56454 (December 3, 1975). Ten 
months after this lawsuit was filed, defendants promulgated the proposed regulation as a final rule. 41 Fed. Reg. 28478 (June 12, 1976).



-32-

immunity would be defeated if an official 'knew or reasonably 
should have known that the action he took within his sphere 
of official responsibility would violate the constitutional 
rights of the [plaintiff] { " Id. (emphasis by the Harlow
Court). Measured by this standard, defendants' blatant 
disregard of their constitutional "steer clear" duty cannot
be justified, and deprives them of any claim to immunity.

Harlow enunciates a similar standard with respect to 
statutory rights, and again, as we have demonstrated above, 
there can be no credible argument whatsoever that any reasonable 
LEAA official would have interpreted either Title VI or the 
Crime Control Act to authorize continued funding of discrimina­
tory grantees with no attempt to initiate administrative fund 
termination proceedings. On this ground as well, therefore, 
defendants' claim of qualified immunity must be rejected.



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CONCLUSION

On this remand from the Supreme Court, the absolute immunity 
and qualified immunity defenses should be rejected as a matter 
of law, and this case should be remanded to the district court 
for discovery and trial.

Dated: December 3, 1982
Respectfully submitted,

BURT NEUBORNE
American Civil Liberties Union 

Foundation 
132 West 43rd Street 
New York, New York 10036 
212/944-9800
WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN 
Lawyers' Committee for Civil 

Rights Under Law 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005 
202/628-6700
ATTORNEYS FOR PLAINTIFFS-APPELLANTS



CERTIFICATE' OF' SERVICE

The undersigned, counsel of record for plaintiffs-appellants, 
certifies that two copies of the foregoing Supplemental Memorandum 
for Plaintiffs-Appellants were served by United States first-class 
mail this 3rd day of December, 1982, on counsel for the defendants- 
appellees as follows:

Barbara L. Herwig 
Robert E . Kopp 
Appellate Section,

Civil Division 
U.S. Department of Justice 
Washington, D.C. 20530

Bennett Boskey 
World Center Building 
918 16th Street, N.W. 
Washington, D.C. 20006

NORMAN J. CHACHKII4
Attorney for Plaintiffs-Appellants