Chisom v. Roemer Reply Brief for Petitioners Ronald Chisom, et al

    1
2
4
5
8

15

15

16

18

23

23

D w id  tr. & r Y *

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........
STATEMENT OF THE ISSUES PRESENTED 

ON APPEAL .....................
STATEMENT OF THE CASE ...........
A. The Parties ...............
B. Proceedings Below ........
C. Statement of the Facts . .

ARGUMENT .......................
POINT I

A SHOWING OF DISPARATE IMPACT 
ESTABLISHES A PRIMA FACIE VIOLATION 
OF TITLE VI UNDER JUDICIAL PRECEDENT, 
STATUTORY HISTORY AND UNIFORM ADMINI­
STRATIVE INTERPRETATION. THE DISTRICT 
COURTTS IMPOSITION OF AN INTENTIONAL 
DISCRIMINATION REQUIREMENT INTO TITLE 
VI WOULD CRIPPLE ITS REMEDIAL PURPOSE 
TO PREVENT RACIAL DISCRIMINATION . . . .
A. The Disparate Impact Standard Has

Been Upheld By The Courts ........
B. The Disparate Impact Standard

Approved In Lau Has Not Been 
Overruled, Is Binding And Is 
Correct ............................

C. The Legislative History of Title
VI Supports The Disparate Impact 
Standard ..........................
1. Any rule requiring proof of 

intentional discrimination to 
establish a violation of Title 
VI would be insconsistent with 
the remedial purposes of the 
A c t ............................



Page

r

2. Sponsors of Title Vi refused to limit 
its scope to the Equal Protection
standard.................................... 2 6

3. Congress enacted Title VI at a time 
when the Equal Protection Clause was 
believed to prohibit actions having
a discriminatory impact .....................  28

4. Regulations issued by seven Rederal
agencies within months of the Act's 
passage and again in 1973 indicate 
their unanimous view that Title VI 
prohibited conduct which had a dis­
parate impact upon minorities............... 30

5. Congressional enactments subsequent to
1964 reflect a continued Congressional 
understanding that Title VI prohibits 
conduct having a disparate impact upon 
minorities..................................... 32

H. Retention Of The Disparate Effect Standard
Is Necessary If Title VI Is To Be An 
Effective Remedy To Prevent Racial Discrim­
ination ............................................ 34

I. This Court Should Reach The Issue Of The 
Proposed Standard Under Title VI To Govern 
The Future Proceedings In This And Other
Cases ............................................... 39

POINT II
PLAINTIFFS ESTABLISHED A SUBSTANTIAL LIKELIHOOD
OF PREVAILING ON THEIR TITLE VI CLAIM; THE
DISTRICT COURT ERRONEOUSLY FAILED TO REQUIRE
DEFENDANTS TO PROVIDE ASSURANCES OF ALTERNATE
ACCESS TO ESSENTIAL SERVICES AND RELIED INSTEAD
ON A HYPOTHETICAL ACCESS CONSTRUCT .................  40
A. The District Court Found And The 

Unrebutted Evidence Established,
That The Impact Of The Closing Of 
Sydenham Hospital Will Fall Exclu­
sively On Minorities 41



Page
B. The Lack Of Assurance Of Alternate

Access For The Sydenham Patient Popula­
tion Is Demonstrated By The Insufficiency 
Of The Findings B e l o w ........................ 46
1. The Court below relied upon a

hypothetical construct that gave
no assurance that it was financially
feasible for private hospitals to
accept Sydenham patients .................  47

2. The lack of assurance of available
beds for Sydenham patients............... 50

3. The clearly erroneous findings on access 
to alternative emergency room services . .

C. In 
Of 
To

Light Of Plaintiffs' Unrebutted Evidence 
Feasible Alternatives To Save Money And 
Improve Health Care Without Closing

Sydenham, A Title VI Violation Has Been 
Established ............................
1. Plaintiffs presented unrebutted evidence 

that the City has ignored ways of 
reducing HHC's deficit by millions of 
dollars through mergers of municipal 
hospitals..................................

2. The City ignored proposals for the 
revision and expansion of services at 
Sydenham Hospital..........................

3. The City Ignored Hospital Reductions and 
Partial Closings as Alternatives To 
Closing Entire Hospitals .................

CONCLUSION ,



TABLE OF AUTHORITIES

CASES
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . .
Arthur v. Nyquist, 573 F.2d 134 (2nd Cir. 1978) .........
Blackshear Residents Organization v. Housing 

Authority of City of Austin, 347 F.Supp.
1138 (W.D. Tex. 1971) ..............................

Blake v. City of Los Angeles, 595 F .2d 1367 (9th
Cir. 1979) ...........................................

Board of Education v. Califano, 584 F.2d 576 (2nd Cir.
1978), aff'd on other grounds sub nom, Board of 
Education v. Harris, U.S. , 100 S.Ct.
363 (1979)...........................................

Board of Education v. Harris, U.S. , 62 L.Ed. 2d
275 (1979)...........................................

Cannon v. University of Chicago, U.S. ' , 99
S.Ct. 1946 (1979) ..................................

Castenada v. Partita, 97 S.Ct. 1272 (1979) .............
Child v. Beame, 425 F.Supp. 194 (S.D.N.Y. 1977) .........
City of Mobile v. Bolden, ' U.S. , 48 U.S.L.W. 4436,

4437 (April 22, 1980)................................
City of Rome v. United States, ___ U.S. __, No. 78-1840

(U.S. Supreme Court slip opinion, April 22, 1980) . .
De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978) . . . .
Dothard v. Rawlinson, 433 U.S. 321 (1977) ...............
Erlenbaugh v. United States, 409 U.S. 239 (1972) . . . .
Flood v. Kuhn, 407 U.S. 258 (1972) .....................
Ford Motor Credit Co. v. Millhollin, 48 U.S.L.W. 4145,

(U.S. Supfeme Court February 20, 1980). .'...........
Guadalupe Organization, Inc. v. Tempe Elementary School

District, 587 F.2d 1022 (9th Cir. 1 9 7 8 ) ........ ..

Page



Page

Griggs v. Duke Power Co.,
401 U.S. 424 (1971)..............................

Guardians Association v. Civil Service Commission,
466 F.Supp. 1273 (S.D.N.Y. 1979) ...............

Hawkins v. Town of Shaw,
461 F .2d 1171 (5th Cir. 1972) ...................

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

316 U.S. 400 (19421 ..............................
Johnson v. City of Arcadia,

450 F.Supp. 1363 (M.D.Fla. 1978) .................
Lau v. Nichols, 414 U.S. 563 (1974).............
Lora v. Board of Education,

456 F.Supp. 1273 (S.D.N.Y. 1979) .................
Metropolitan Housing Development Corp. v. Village of

Arlingon Heights, 373 F.Supp. 208 (N.D. 111. 1974).
Metropolitan Housing Development Corp. v. Village of

Arlington Heights, 558 F.2d 1283 (7th Cir. 1977). .
Moor v. County of Alameda,

411 U.S. 693 (1973) ................................
Mourning v. Family Publications Service,

411 U.S. 356 (1973) ................................
NAACP v. Wilmington Medical Center,

453 F.Supp. 280 (D.Del. 1978) ...................  .
Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947).
Oppen v. Aetna Insurance Co.,

485 F .2d 252 (9th Cir. 1973) ........................
Owens v. City of Independence, Missouri,

___U.S. ____, 48 U.S.L.W. 4384 (April 16, 1980). . .
Patent Association of Andrew Jackson High School v .

Ambach, 598 F.2d 705 (2nd Cir. 1979) ...............
Pettway v. American Cast Iron Pipe Co.,

494 F .2d 211 (5th Cir. 1974) ........................
Red Lion Broadcasting Co. v. FCC,

395 U.S. 367 (1969) ..................................



Page

Regents of the University of California v. Bakke,
438 U.S. 265 (1978)..................................

Resident Advisory Board v. Rizzo,
564 F .2d 126 (3rd Cir. 1977)........................

Rhem v. Malcolm,
507 F .2d 333 (2nd Cir. 1974) .....................

Robinson v. Lorrilard Corp.,
444 F .2d 791 (4th Cir. 1971) .....................

Robinson v. 12 Lofts Realty, Inc.,
610 F .2d 1032 (2nd Cir. 1979) .....................

Shannon v. U.S. Dept, of Housing and Urban Development,
436 F .2d 809 (3rd Cir. 1970)........................

Serna v. Portales Municipal Schools, 499 F.2d 1147
(10th Cir. 1974) ....................................

Smith v. Texas,
311 U.S. 128 (1940) ..................................

Steward Machine Co. v. Davis,
301 U.S. 548 (1937) ..................................

St. Louis-San Francisco Ry. Co. v. Willard Mirror Co.,
160 F.Supp. 895 (W.D.Ark. 1 9 5 8 ) ............... .. . .

Udall v. Tallman,
380 U.S. 1 (1965) ....................................

United Farmworkers v. City of Delray Beach,
493 F .2d 799 (5th Cir. 1974) ........................

United States v. Barbera, 514 F.2d 294 (2nd Cir. 1975) . .
United States v. Chase, 281 F.2d 225 (7th Cir. 1960) . . .
United States v. City of Black Jack,

508 F .2d 1179 (8th Cir. 1974) ........................
United States ex rel. Gockley v. Myers, 450 F.2d 232

(3rd Cir. 1971) . . . . . .  . . . ...................
United States v. San Franciso,

310 U.S. 16 (1940) ..................................
Wade v. Mississippi Cooperative Extension Service,

528 F .2d 508 (5th Cir. 1976) ........................



Page

UNITED STATES CONSTITUTION 
Fourteenth Amendment

FEDERAL STATUTES
Title IX of the Education Amendments of 1972,

20 U.S.C.A. §1681 ................................
§ 504 of the Rehabilitation Act, 29 U.S.C.A. "

§729 (1973) .........................................
§ 1681 of the Revenue Sharing Act, 31 U.S.C.A §1242 (1976)
42 U.S.C. § 1983 ...........................................
Title III of the Civil Rights Act of 1964,

42 U.S.C. §2000b ..................................
Title IV of the Civil Rights Act of 1964,

42 U.S.C. §2000c ....................................
Title VI of the Civil Rights Act of 1964,

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

42 U.S.C. §2000e ....................................
Fair Housing Act,

42 U.S.C. §§3601, et seq............................
Crime Control Act of 1973,

42 U.S.C. §3766 .......................................
Housing and Community Development Act of 1974,

42 U.S.C. §5309 .......................................
Juvenile Justice Act of 1974,

42 U.S.C. § 5672 ....................................
The Age Discrimination Act,

42 U.S.C.A. §6101 (1975) ............................
Public Works Employment Act,

42 U.S.C. §6727 ....................................
Energy Conservation and Resource Renewal Act of 1976,

42 U.S.C. § 6870 ....................................
Railroad Revitalization and Regulatory Reform Act

of 1976, 45 U.S.C. §803 ............................

passim

passim



Page

CONGRESSIONAL RECORD
100 Cong. Rec. 8979 .
109 Cong. Rec. 1161 .
110 Cong. Rec. 2467 .
110 Cong. Rec. 2469 .
110 Cong. Rec. 5251 .
110 Cong. Rec. 5612 .
110 Cong. Rec.. 5863 .
110 Cong. REc. 6052 .
110 Cong. Rec. 6543 .
110 Cong. Rec. 6544 .
110 Cong. Rec. 6546 .
110 Cong. Rec. 6561 .
110 Cong. Rec. 6566 .
110 Cong. Rec. 7055 .
110 Cong. Rec. 7058 .
110 Cong. Rec. 7064-65
110 Cong. Rec. 7101 .

FEDERAL REGULATIONS 
31 C.F.R. § 51.52 . . . 
45 C.F.R. § 80.3(b)(1) 
45 C.F.R. § 80.3 (b)(2) 
45 C.F.R. § 80.3 (b) (3) 
45 C.F.R. § 90.12 . . . 
45 C.F.R. § 1232.4 . .



FEDERAL REGISTER
29 Fed. Reg. 16274-16305 .................
38 Fed. Reg. 17920-17997 .................
42 Fed. Reg. 18365, April 16, 1977 . . . . 
44 Fed. Reg. 31018, May 30, 1979 . . . .
44 Fed. Reg. 33776, March 12, 1979 . . . .

MISCELLANEOUS
90 HARV.L.REV. 1, 28-29 (1976) ...........
The New York Times, May 19, 1980 editorial 
The Washington Post, May 24, 1980, A15



IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT 

No. 80-7041

DAVID E. BRYAN, JR., et al..
Plaintiffs-Appellants,

V.

EDWARD I. KOCH, et al.,
Defendants-Appellees.

DISTRICT COUNCIL 37, et al.,
Plaintiffs-Appellants,

V.

EDWARD I. KOCH, et al.,
Defendants-Appellees.

On Appeal From The United States District 
Court For The Southern District Of New York

BRIEF FOR PLAINTIFFS-APPELLANTS

Statement of the Issues 
Presented on Appeal

1. Do the decisions of the Supreme Court and this Circuit 

and the regulations of HEW that require a showing of disparate



impact, but not intentional discrimination, to establish a 

prima facie violation of Title VI of the Civil Rights Act of 

1964, remain in force?
2. Did the district court err in basing its conclusion 

that the minority patient population would receive guaranteed 

care at other hospitals if Sydenham closed on a hypothetical 

construct which provided no assurances that other hospitals 

had the physical capacity or financial ability to accept 

Sydenham patients?
3. Where the applicable regulations of HEW provide that 

action which has an adverse disparate impact on minorities is 

a violation of Title VI and the Civil Rights Act of 1964 if 

feasible and less onerous alternatives are available, did the 
district court err in concluding that plaintiffs did not estab­

lish a Title VI violation under the "impact" standard where it 
failed to make findings on the availability of feasible alterna­

tives to closing Sydenham Hospital?

Statement of the Case

This brief is submitted by plaintiffs-appellants in Bryan 

v. Koch, 79 Civ. 4274, and District Council 37 v. Koch, 79 

Civ. 4329 ("plaintiffs") in support of their appeal from the

2



deanial of their motion for a preliminary injunction enjoining

the closing of Sydenham Hospital pendente lite, or, alterna­

tively, until City defendants provide adequate assurances that 

the black population served by Sydenham will have alternate 

access to health services. By order and opinion dated May 15, 
1980, the district court denied plaintiffs relief, but granted 

a stay to allow plaintiffs to pursue an injunction pending 

appeal.
On May 20, 1980, after hearing oral argument, the court 

of appeals (per Judges Oakes and Meskell and Judge Bonsai,
D.J.) issued an order granting a stay of the closure of Sydenham 
until May 30, 1980, when this Court will hear oral argument. 

Subsequent to the issuance of that order, the district court on 
May 23, 1980, issued an amended opinion with substantial revi­

sions. All references to the "opinion" herein are to the 

amended opinion unless otherwise indicated.
Plaintiffs request that the order staying the closing of 

Sydenham Hospital continue until this Court determines the 

merits of their appeal.

3



A. The Parties
These consolidated actions, Bryan v. Koch and District 

Council 37 v. Koch, were instituted by black and Hispanic resi­
dents of New York City and by District Council 37, AFSCME, 

AFL-CIO, on behalf of its black and Hispanic members- Bryan v . 
Koch is a class action on behalf of poor and low-income black 

and Hispanic residents of New York City who depend on the muni­
cipal hospital system for their health care. The district court 
indicated its intention to certify the class. Opinion, fn.
(App. p. ).

Defendants-appellees are the City of New York and the New 

York City Health and Hospitals Corporation, the public agency 
which operates the municipal hospital system, and certain of 

their officials (hereafter collectively "City defendants"). In 
addition, the Bryan case joined as defendants the State of New 
York, its Department of Health and two of its officials. Bryan 

also joined the U. S. Department of Health, Education and 

Welfare (HEW) as an interested party defendant but asserted no 

claim against it. HEW recently was renamed the Department of 

Health and Human Services. Neither the state defendants nor 

HEW are appellees on this appeal from denial of a preliminary 
injunction sought only against City defendants. HEW is a party

4



to an appeal in a related case, Boyd v. Koch, to be argued 
following this appeal. The district court consolidated the 
Boyd case with the Bryan and District Council 37 cases on its 

own motion. Opinion p. (App. p. ).

B . Proceedings Below
On June 28, 1979, City defendants gave final approval to a 

plan to close two municipal hospitals in Harlem (Sydenham and 
Metropolitan) and reduce beds in two other municipal hospitals 

(Kings and Queens). In August, 1979, these actions were insti­

tuted to enjoin the implementation of the plan.
The complaints allege that the hospital closings would vio­

late the Fourteenth Amendment's Equal Protection Clause and Title 

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and the 

regulations thereunder, 45 C.F.R. Part 80. Other claims, not 
pertinent to this appeal, are asserted in the Bryan case relating 
to application of federal and state health planning laws to the 

hospital closings.
In October, 1979, plaintiffs moved for a preliminary injunc­

tion to restrain the closing of Metropolitan Hospital. After 

affidavits and memoranda were filed and argument held, the dis­

trict court declined to proceed with an evidentiary hearing 

because City defendants represented they had not yet made a final 

decision to close Metropolitan.
On January 25, 1980, City defendants gave the State

5



Commissioner of Health ninety days notice of intention to close 

Sydenham Hospital, as required by State regulations, 10 NYCRR
V§401.3 (f). Plaintiffs promptly moved for a preliminary injunc­

tion against City defendants only, to restrain the closing of the 
hospital pendente lite or at least until adequate assurances of 

access to in-patient and emergency care for the minority popula- 

tion served by Sydenham is demonstrated to the satisfaction of 
the district court.

Following an evidentiary hearing, the district court denied 

the preliminary injunction. Contrary to existing precedent, see 

infra pp. / i t  is determined that the anti-discrimination pro­

visions of Title VI required a showing of racial animus, the same 
intentional discrimination needed to establish a violation of the 

Equal Protection Clause of the Fourteenth Amendment. In so doing, 

it invalidated long-standing regulations of HEW which required 

only a finding of disparate impact to establish a prima facie case 

of discrimination under Title VI. Under the regulations, a find­
ing of adverse disparate impact then requires a determination of 
justification and the feasibility of less onerous alternatives.
See infra pp.

Plaintiffs introduced substantial evidence from which racial 

animus could be inferred, but the district court found in favor of 

defendants on the point. In deference to the applicatipn of the

^_/ The State subsequently granted approval.

- 6 -



"clearly erroneous" standard to the lower court's finding on 

intentional discrimination, plaintiffs do not pursue this matter 

on appeal. Rather, plaintiffs assert that intent was not a 

requirement for establishing a violation of Title VI, that under 

the disparate effect standard a substantive likelihood of success 

on the merits of their Title VI claim has been established, and 
the other requirements for a preliminary injunction have been 

met. Accordingly, the district court erred in denying the pre­
liminary injunction.

The opinion of the district court was devoted almost exclu­

sively to the legal question of whether a showing of intent was 
required and an examination of whether the facts established sub­
jective racial animus on the part of City defendants. Only one 

page of the Opinion, pp. 46-47, touches on the application of the 
disparate impact standard to the case.

In the district court, HEW at first presented legal memoranda 

to the court supporting the legal position of plaintiffs on the 

appropriate standard under Title VI but took no position on the 

facts. At the conclusion of the hearing, HEW advised the court 

that it had determined that there was sufficient evidence of a 

violation of Title VI developed by the hearing and its own inves­

tigation to warrant the granting of the preliminary injunction 

sought by plaintiffs herein. HEW letter, May 14, 1980, App. p.

Since January 1978, HEW had been investigating a complaint 

by plaintiff Bryan on behalf of the Metropolitan Council of

7



Branches of the NAACP that the closing of Sydenham ai 
actions of City defendants affecting the municipal ho 

violate Title VI. The investigation is still continui— -); HEW 

has asserted to the district court that the lack of cooperation 
and unwarranted delays by City defendants are the causes of the 

failure to complete the investigation. Id.

C. Statement of the Facts

The City of New York operates a municipal hospital system

consisting of thirteen acute care hospitals and four long termycare facilities for thp chronologically ill. These hospitals'■"V-
j*/ • The district court statement (Opinion p. 1, App. p.
that New York City operates 17 of the 27 municipal hospitals 
in the country is grossly misleading. There are 1,900 public^ 
hospitals run by local government but most are run by counties 
rather than cities, a meaningless distinction. For example, 
major public institutions such as Cook County Hospital and Los 
Angeles County Hospital are municipal hospitals operated by 
county government. The opinion is also misleading by describing 
the budget of the City's municipal hospitals as 10% of the 
expense budget of the City, i<3., without noting that 75% of 
the hospital budget is covered by third part reimbursement, e.g. 
Blue Cross, Medicare and Medicaid. Similarly, the reference to 
$500,000,000 in tax "subsidies," idL , ignores the fact that 
approximately half that amount the City'£>ays" to itself for which 
it receives almost three times as much in federal and state 
matching funds, under the Medicaid program. Further, the 
City's share of Medicaid payments would be equal or greater if 
the Medicaid patients were treated in private hospitals.

8



are the major source of in-patient, emergency room and out­
patient care for a predominately black and Hispanic population 

which is poor or low income in New York City. Two-thirds of 

the in-patients in the municipal hospitals are black and 

Hispanic, as compared with one-third in all of the hospitals, 

public and private, in the City.
On June 20, 1979, a Task Force appointed by Mayor Koch 

two months earlier issued a report, Ex. A, App. pp.

recommended closure of two of the three municipal hos­

pitals in the Harlem communities, Sydenham in Central Harlem 

and Metropolitan in East Harlem. It also recommended reduction 
of beds in two other municipal hospitals, Kings County Hospital 

and Queens Hospitals and the replacement of two municipal hos­
pitals in Brooklyn, Greenpoint and Cumberland, with a newly 
built but as yet unopened municipal hospital, Woodhull. The 

choice of only hospitals located in Harlem to be closed led to 

the filing of these lawsuits. Sydenham has virtually 100% 
minority patients. Under the latest available figures, 

Metropolitan is approximately 80% black and Hispanic (Ex. 57, 

App. pp. ).
The Mayor's Plan or Task Force Report, as the June 20 

report came to be called, was rammed through the Board of 

Directors of the defendant Health and Hospital Corporation in

9



only eight days, with little opportunity for discussion by 
board members, let alone the public.

The Mayor's Plan was premised on the notion that there 
existed excess acute care hospital beds in New York City and 

that closing beds would save the City money. However, two 

other official agencies, the New York City Health Systems 
Agency (HSA) and the City's Legislative Office of Budget Review 

reviewed the data and concluded that the number of excess beds 
were insignificant. Ex. 39a, p. 3; Ex. 44a, pp. 20-21. The 

HSA, utilizing much more sophisticated methodology than the 

Mayor's Plan, found that whatever excess beds existed did not 

justify closing hospitals, with few exceptions (Ex. 39a, p. 3).

Whatever the facts as to the City as a whole, the City 

defendants themselves have documented that there are no excess 
beds in the Northern Manhattan area serving Harlem, the rele­
vant area to Sydenham and Metropolitan Hospitals. See the 

defendants' proposal, "The Health Care Financing Experiment for 
Harlem,"Ex. 76, pp. 22, 24, 51, 65-71, App. pp. . Since

1978, 834 beds have been closed in Northern Manhattan, including 
the closure of two complete voluntary hospitals, Logan and 
Flower Fifth Avenue. In 1975, Delafield, a municipal hospital 

in Northern Manhattan was closed. In the City as a whole, since 
1976, twenty-eight hospitals have closed and 5,000 beds taken

10



out of the system. (Aff. Dr. Pomrinse, President, Greater 
N.Y. Hospital Ass'n.)

In addition, further evidence of the need for all remain­
ing hospital beds serving Harlem was shown by the fact, found 

by the district court, that most of the hospitals serving 

Harlem are now at or near operational capacity. Opinion, fn.

14, App. p .

The proposal to close two of the three municipal hospitals 
in Harlem must be assessed in light of fact, acknowledged by 

City defendants, that Harlem is both the sickest and most 
medically underserved area in the City, and perhaps the nation. 

Ex. 76. It is also one of the poorest. As defendants' own 

computations show, Harlem, and particularly the areas within 
Harlem served by Sydenham, have the highest rates of morbidity 

and mortality on almost every test employed by health planning 

experts. Ex. 76, pp. 35-46. In addition to disease and sick­
ness, the poverty of the area breeds a plague of crime, drug 

addiction and alcoholism which is reflected in Sydenham's 

patients. They create special needs for immediate emergency 
and in-patient services without delay, and they greatly reduce 

the mobility of the patient population. Like most hospitals, 

many of the emergency room visits are not true emergencies, 

but as the district court found (Opinion p. , App. p.

11



at least 5% of the cases, 1,300 people annual'

life threatening situations where a few mini-
difference between life and death. Most of these v.
or are carried into the Sydenham emergency room from the irtiu.

diate vicinity. A total of 3,900 cases annually are rated
V

emergent, requiring care without undue delay.
The unusual nature of the patient population is also shown 

by the fact that 75 percent of the in-patients are admitted 

through the emergency room. In addition to the victims of 
crime and drugs, many Harlem residents lack access to regular 
out-patient care and so end up with serious conditions that 
create emergencies and require hospitalization that might other— 

wis e be avoided.
Sydenham Hospital is a relatively small institution but one 

which plays a vital role in the community it serves. Despite 
chronic understaffing and insufficient funding imposed by City 

defendants, and an older building, Sydenham received the highest 

rating in its latest survey by the Joint Commission on Hospital 

Accreditation, the national agency charged with rating the *

* y  Sydenham served 3,757 in-patients in 1979 for a total of 
35,000 patient days, Adams affidavit. Its emergency room pro­
vided 26,000 visits in 1979. Ex. EEE.

12



functioning and quality of hospitals throughout the country. 

Plaintiffs' testimony as to quality of care corroborated the 

Joint Commission on Hospital Accreditation. Defendants 

attempt to introduce evidence of poor quality, through its 
own officialC!resulted in most of the testimony being stricken

f

and the court below made no finding on the quality of in-patient 
care. Its finding that the emergency room had limited capacity 
to treat life threatening emergencies was shown by City defend­

ants' own exhibit to the affidavit of Bradley Sachs to be the 

result of imposed staff shortages.
City defendants sought to justify closing Sydenham because 

it would save some money. The Mayor's Plan estimated saving 

3.2 million dollars, but by trial this claim had inflated to 
nine million dollars. Plaintiffs' expert testified that 
savings would amount to approximately two million dollars, but 
that substantially greater savings could be achieved in a 

number of ways, including mergers of Sydenham and Harlem and 

of Metropolitan and Lincoln, retaining all facilities but 

regionalizing specialties and increasing Medicaid reimburse­
ment. City defendants offered no evidence that they had con­

sidered these alternatives or sought alternatives themselves 

which could achieve the goal of fiscal savings without a

13



on the black and Hispanicdevastating and
population of Harlhscu The court Taelow found that closing 
Sydenham was a reasonable, method of saving money but made insuf­

ficient findings as to the aA^ilabili^y of less onerous 
alternatives. The court also foumT thab s people served 

at Sydenham, such as ictims of crime, w suffhr if the
hospital closed (meaning that some would ) but' described 

these numbers as small.. Opinion p. , App.

14



I. A SHOWING OF DISPARATE IMPACT ESTABLISHES
A PRIMA FACIE VIOLATION OF TITLE VI UNDER 
JUDICIAL PRECEDENT, STATUTORY HISTORY AND 
UNIFORM ADMINISTRATIVE INTERPRETATION. THE 
DISTRICT COURT'S IMPOSITION OF AN INTENTIONAL 
DISCRIMINATION REQUIREMENT INTO TITLE VI 
WOULD CRIPPLE ITS REMEDIAL PURPOSE TO PREVENT 
RACIAL DISCRIMINATION

This Court has stated unambiguously that "Title VI findings 
of discrimination may be predicated on disparate impact without 
proof of unlawful intent." Board of Education v. Califano,
584 F .2d 576, 589 (2d Cir. 1978), aff'd on other grounds sub
nom Board of Education v. Harris, ___U.S. ___, 62 L.Ed.2d 275
(1979). The Supreme Court has expressly found a violation of 
Title VI "even though no purposeful design is present," Lau v. 
Nichols, 414 U.S. 563, 568 (1974). The determination that a 
prima facie violation of Title VI requires only a showing of dis­
parate impact on minorities is consistent with, indeed required by 
the statutory history and the uniform federal administrative inter 
pretations over fifteen years. Once a disparate adverse impact 
is shown, the burden shifts to the recipient of federal funds

"to establish that (1) the closings are nec­
essary to achieve legitimate objectives un­
related to race, color or national origin; 
and (2) these objectives cannot be achieved 
by other measures which have a less dispro­
portionate adverse effect." ]_/

1_/ Supplemental Memorandum of HEW in the District Court, p. 5, 
cited in the Opinion below, p. 44. The standard was applied for 
hospital closures and relocations in the July 5, 1977 OCR-HEW 
Letter of Findings issued to Wilmington Medical Center, pp. 6-7, 
annexed to the Motion for a preliminary injunction as to Metro­
politan Hospital as Exhibit F and the June 29, 1978 OCR-HEW 
Letter of Findings to Indiana State Department of Health, annexed 
to the motion as Exhibit I, both of which were incorporated into 
the present motion concerning Sydenham Hospital.

15



(See in fra p p . _____ ). That determination is necessary if Title
VI is to serve serious broad remedial purpose of protecting 
minorities. The court below for the first time finds otherwise 
and does so by predicting that Lau might one day be overruled.

A. The Disparate Impact Standard Has Been Upheld by 
the Courts

The disparate impact standard embodied in Title VI and its 
regulations have been repeatedly upheld by the courts. In Lau 
v. Nichols, supra, the Court explicitly relied upon HEW's disparate 
impact regulation to hold unanimously that a school system's 
failure to provide bilingual or remedial English instruction to 
non-English speaking students violated Title VI even though no 
purposeful design was present. Id_. This Court and every court 
that has previously ruled on the issue has upheld the disparate 
impact standard. See, e.g., Board of Education v. Califano,

2/ Parent Ass'n of Andrew Jackson High v. Ambach, 598 F .2d
705 (2d Cir. 1979) is not to the contrary. That case involved the
limitation imposed by Title VI of the Civil Rights Act, 42 U.S.C.
§ 2000c-6, in the context of whether the extraordinary remedy of 
school busing was available under a Title VI action. This Court 
held "that Title VI does not authorize federal judges to impose a 
school desegregation remedy where there is no constitutional trans­
gression ... Having denied the Attorney General and the federal 
judiciary any authority to correct de facto imbalances under Title VI, it would have been illogical for Congress to grant 
broader power to private plaintiffs in the same courts. We must 
conclude, therefore, that even if there is a private right 
of action to desegregate schools under Title VI, an affirmative 
judicial desegregation order without a showing of de jure dis­
crimination would not be authorized." 598 F .2d at 715 and 716.
See discussion of the legislative history, infra, pp. ___ ).

16



supra; Serna v. Portales Municipal Schools, 499 F .2d 1147, 1154 
(10th Cir. 1974); Shannon v. U.S. Dept, of Housing and Urban 
Development, 436 F .2d 809, 816-817, 820 (3d Cir. 1970); Guardians 
Association v. Civil Service Commission, 466 F. Supp. 1273 (S.D.
NY. 1979); Lora v. Board of Education, 456 F. Supp. 1211, 1277-78 
(E.D. N.Y. 1978); Child v. Beame, 425 F. Supp. 194, 199 (S.D. N.Y. 
1977); Johnson v. City of Arcadia, 450 F. Supp. 1363, 1379 (M.D. 
Fla. 1978).

At least three courts have also upheld a Title VI regulation 
issued by the Department of Housing and Urban Development based on 
a disparate impact principle. Shannon v. HUD, supra; Johnson v. 
City of Arcadia, supra; Hicks v. Weaver, 302 F. Supp. 619 (E.D. La. 
1969); Blackshear Residents Organization v. Housing Authority of 
City of Austin, 347 F. Supp. 1138, 1146 (W.D. Tex. 1971).

In addition, the Second , Third, Seventh and Eighth Circuits 
have all held that practices having a disparate impact upon 
minorities violate Title VIII of the Fair Housing Act, regardless 
of whether there is a showing of discriminatory intent. Robinson 
v. 12 Lofts Realty, Inc., 610 F .2d 1032 (2d Cir. 1979); Resident 
Advisory Board v. Rizzo, 564 F .2d 126, 146-147 (3d Cir. 1977); 
Metropolitan Housing Development Corporation v. Village of 
Arlington Heights, 558 F .2d 1283, 1288-1290 (7th Cir. 1977);
United States v. City of Black Jack, 508 F .2d 1179, 1184-1185 
(8th Cir. 1974).

Similarly in employment discrimination cases brought under 
Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e

17



e_t seq. , the courts have held that employment requirements 
having a disparate impact on minorities are illegal, despite 
the absence of discriminatory intent, unless the employer can show 
that requirements are a business necessity. See, e.g., Griggs 
v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co.
v. Moody, 422 U.S. 405 (1975); Dothard v. Rawlinson, 433 U.S.
321 (1977). In his opinion in Regents of the University of Califor­
nia v. Bakke, Justice Stevens, writing for himself and three other 
Justices, expressly analogized the policy behind Title VII to that 
underlying Title VI 438 U.S. 265, 416, n.19 (1978).

B. The Disparate Impact Standard Approved In Lau
Has Not Been Overruled, Is Binding And Is Correct

Although the district court acknowledged that Lau v. Nichols, 
suPra upheld the HEW Title VI regulation establishing an "effect" 
standard, opinion, p. 27, it went on to predict that the Supreme 
Court would ultimately overrule Lau. In so doing, the District 
Court violated its duty to adhere to decisions of higher courts 
until overruled. U.S. v. Chase, 281 F .2d 225, 230 (7th Cir. 1960). 
Further, its prediction was tinged with speculation.

Only three members of the Supreme Court (Justices Stewart, 
Powell and Rehnquist) have expressed a view on the applicability 
of the intent requirement of Title VI in a case involving discrimi­
natory effects of facially neutral decisionmaking. Board of Educa­
tion v. Harris, supra, 62 L.Ed.2d at 291 (dissenting opinion).
The district court erred in adding to the ranks of these three 
Harris dissenters, Justice Brennan and the three Justices who 
joined his opinion in Bakke. In so doing, it contradicted this

18



Court's statement in Parent Ass'n of Andrew Jackson High School 
v. Ambach, 598 F . 2d 705, 716 (2d Cir. 1979), that "Lau was not 
expressly overruled in Bakke."

It is speculative at best whether those four Justices would 
agree with the Harris dissenters in a case of the nature now before 
this Court. Although Justice Brennan's opinion in Bakke contains 
language equating the Title VI standard with the intent re­
quired in equal protection cases, it does so in the context of 
the use of explicit racial criteria which favor the admission of 
minority medical students. Justices Brennan, White, Marshall and 
Blackmun argued that the Equal Protection Clause did not outlaw 
such a preferential racial classification to assist minorities. 
Therefore, they concluded that Title VI, as a remedial statute 
"designed to eliminate discrimination against racial minorities," 
should not be construed "in a manner which would impede efforts to 
obtain this objective" (438 U.S. at 355). Having concluded that 
the Constitution did not prohibit race—conscious remedies for 
societal discrimination, they argued that Congress did not intend 
Title VI to prevent such remedial programs either. The disparate 
impact issue was not before the Justices in Bakke and the opinion 
never considers whether a showing of intent is always necessary 
to establish a prima facie violation of Title VI where the 
legality of intentional racial classifications is not at issue. 
Indeed, immediately after the reference to Lau, Justice Brennan 
emphasized and relied upon the Court's prior holdings under 
"statutes containing nondiscrimination provisions similar to that 
contained in Title VI" that a showing of disparate impact was

19



sufficient to establish discrimination even if the policies 
resulting in that impact were racially colorblind. 438 U.S. at 
353.

Justice Brennan also recognized that Title VI regulations 
are entitled to considerable deference when construing the 
statute. at 342.

It is also important to note that in Justice
Stevens' concurring opinion he states:

it seems clear that the proponents of Title 
VI assumed that the Constitution itself required 
a colorblind standard on the part of government, 
but that does not mean that the legislation only 
codifies an existing constitutional prohibition.
The statutory prohibition against discrimination 
in federally funded projects contained in § 601 
is more than a simple paraphrasing of what the 
Fifth or Fourteenth Amendment would require.
Id. at 416.

This Court considered the impact of the Bakke decision and 
reaffirmed the vitality of the disparate impact rule under Title 
VI in Board of Education v. Califano, supra, 584 F .2d at 588-589 
Accord, Guadalupe Organization v. Tempe Elementary School District, 
587 F .2d 1022, 1029 & n.7 (9th Cir. 1978); De La Cruz v. Tormey,
582 F .2d 45, 61 & n.16 (9th Cir. 1978); Guardians Assoc, v. Civil 
Service Commission, supra, 466 F. Supp. at 1285-1287.

Board of Education v. Harris, supra, was decided not under 
Title VI but under the Emergency School Aid Act (ESAA). While 
this Court had considered the status of the disparate impact rule 
under Title VI highly relevant to its decision regarding ESAA, the

20



Supreme Court found no necessity to decide the Title VI issue and 
it therefore explicitly declined to reach the Title VI issue. Id. 
Turning its attention directly to ESAA, the court applied the rule 
that remedial statutes should not be construed in ways which 
impede the accomplishment of their broad objectives. Because the 
purpose of ESAA was to remedy segregation of minorities, the Court 
held that its prohibitions focused on "actual effect, not on 
discrimination on consequences, not on intent. Id. 62 L.Ed.2d at 
285. The one sentence in the opinion upon which defendants place 
such heavy reliance was essentially an argument that even if Title
VI requires a showing of intentional discrimination, that standard 
would be inapplicable to ESAA.

The Court's comment that it is likely Title VI might require
a more stringent showing was explicitly based on an assumption that
Title VI unlike ESAA, would require a "drastic" cutoff of all
federal funds, rather than merely those funds associated with a
particular kind of assistance program. Id_. at 290. This erroneous 3_/
assumption provides a forceful reminder that while "the 
question actually before the court is investigated with care 
... other principles which may serve to illustrate it are consider­
ed in their relation to the case decided, but their possible

3/ It is apparent that none of the parties had called to the 
Court's attention the requirement of 42 U.S.C. § 2000d-1(1) that 
fund termination "be limited in its effect to a particular program, 
or part thereof, in which such non-compliance has been so found..." 
Senator Humphrey explicitly stated that this section was intended 
to make clear that cutoffs "should be pinpointed .. to the situa­
tion where discriminatory practices prevail...." 100 Cong. Rec.

21



bearing on all other cases is seldom completely investigated"
Cohen v. Virginia, 6 Wheaton 264, 399-400 (1821).

Moreover, it is apparent that the dicta focuses on the stan­
dard required to justify use of fund termination, a remedy the 
majority found exceptionally harsh. The court did not consider 
even in dicta the appropriate standard where, as here, plain­
tiffs seek only injunctive relief under 42 U.S.C. § 2000d-1(2).

Justice Steven emphasized this difference in his opinion 
in Bakke, 438 U.S. at 419 and n.26. The difference is dramatically 
illustrated in this case by the difference between a cut-off of 
Medicaid and Medicare funds, which would cost the City close to two 
hundred million dollars annually, and the savings of approximately 
three million dollars which the City projected in making its 
decision to close Sydenham. (May 15th opinion, p. 16.).

In short, while there is dicta in both Bakke and Harris, it 
is clear that the Court has not overruled Lau. Accordingly Lau 
remains the controling precedent. A district court is bound 
to follow a decision of its own court of appeals or the Supreme 
Court, unless there is a clear majority opinion of the appellate
court holding otherwise on the very question in issue. Neither 
propositions advanced in concurring opinions, nor dicta, may 
properly be followed by a district court in the face of a control­
ling opinion. See, e.g. , U.S. ex rel. Gockley v. Myers, 450 F .2d 
232 (3rd Cir. 1971); Oppen v. Aetna Insurance Co., 485 F .2d 252 
(9th Cir. 1973); U.S. v. Chase, supra; U.S. v. Barbera, 514 F .2d 
294, 300 (2nd Cir. 1975); St. Louis-San Francisco Ry. Co. v.
Willard Mirror Co., 160 F. Supp. 895, 899, 900 (W.D. Ark., 1958).

22



Indeed, this would be true even if it were extremely doubtful that 
the earlier position would be followed by the Supreme Court when 
it reconsiders the issue (U.S. v. Chase. 281 F .2d at 230). it is 
the function of the appellate court, not the district court to 
overrule an appellate decision. The district court violated this 
proposition so basic to the orderly process of judicial decision­
making. A careful review of the purpose, legislative history and 
administrative interpretation demonstrates that the interpretation 
of Title VI in Lau is correct.

C. The Legislative History of Title VI Support 
the Disparate Impact Standard

1. Any rule requiring proof of intentional 
discrimination to establish a violation 
of title VI would be inconsistent with 
the remedial purposes of the act.

President Kennedy's June 19, 1963 message to
Congress proposing the legislation which ultimately became the
1964 Civil Rights Act, declared:

Simple justice requires that public funds, to which 
all taxpayers of all races contribute, not be spent 
in any fashion which encourages, entrenches, sub­
sidizes or results in racial discrimination.

109 Cong. Rec. 1161 (emphasis added).
The legislative history of the Civil Rights Act of 1 964 indi­

cates that Congress contemplated a discriminatory impact standard 
would be applied in cases brought under Title VI and supports the 
standard enunciated in Califano and Lau. The proponents of the 
Civil Rights bill asserted that Title VI was, and should be, its

23



4/
strongest and most far-reaching provision, effectuate

5/
broad non-discrimination principle" in order to remove "a* *.̂

jv
vestige of discrimination from federally-funded activities."

In enacting Title VI, Congress relied on its power to attach
reasonable conditions to a grant of federal funds not on the

7/
implementing clause of the Fourteenth Amendment. Lau v.
Nichols, 414 U.S. at 569. It is clear that those conditions can 
afford greater protection than is embodied in the constitution. 
Steward Machine Co. v. Davis, 301 U.S. 548 (1937). In the eyes of 
its supporters, it was the source of these funds —  the taxpayers, 
black and white —  which mandated that Title VI be the strongest 
part of the bill. Thus President Kennedy and Senator Humphrey 
both stressed that Title VI prohibited actions which result in 
discrimination, 110 Cong. Rec. 6543. Similarly, Senator Kuchel 
focused not on motivation but on distribution of benefits, 
emphasizing:

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

4/ "This is a strong bill and this is the strongest provision in 
the bill." 110 CONG. REC. 2469 (9164) (remarks of Rep. Libonati).
5/ Id_. at 7058 (remarks of Sen. Pastore) ; JEd. at 6544 ("a broad 
principle that is right and necessary") (remarks of Sen. Humphrey). 
See id. at 7064-65 (remarks of Sen. Ribicoff.).

*
6/ 110 CONG. REC. 6561 (remarks of Senator Kuchel, referring to
promises of the 1960 Republican platform which Title VI would carry 
out) .
7/ 110 CONG. REC. 2467 (9164) (remarks of Rep. Celler, Chairman
of the House Judiciary Committee, citing U.S. v. San Francisco, 310 
U.S. 16 (1940), and Oklahoma v. Civil Service Commission, J30 U.S. 
127 (1947).

24



Id. at 6561 (emphasis added) (remarks of Sen. Kuchel, in the
process of making a comprehensive presentation of the Civil Rights
Act to the Senate, jointly with Senator Humphrey).

Title VI, in effect, provides that the taxes paid 
to the Federal Government by all Americans shall 
be used to assist all Americans on an equal basis.

110 Cong. Red. 6566 (9164). (Memorandum prepared by the
Republican membership of the House Committee on the Judiciary).

Indeed, in describing discrimination in the federally-funded
8/

school lunch program, Senator Pastore explained:
I am not talking now about the fact that the program is 
administered in segregated schools. That is a different 
issue. I am talking about situations such as that in 
Greenwood Separate School District of Mississippi, where 
during the years 1960-62 Negro children, who make up half 
the average daily attendance in Greenwood schools, re­
ceive only one fifth of the free lunches served.9/

Id. at 7055.
The language of the statute itself supports a broad disparate

1 0/
impact construction, since it speaks of the participation in 
and the receipts of benefits from federally funded programs.

8/ Sen. Pastore was one of two bipartisan captains whose job it 
was to explain Title VI. His comments cited there were praised 
as constituting an "outstandingly able and valuable contribution 
to the legislative history of this title ." 11 CONG. REC. 7064
(9164) (remarks of Sen. Boggs); see, similarly, id. at 7064 
(remarks of Senators Hart, Ribicoff and Pell).
9/ See, similarly, _ic3. at 7101 (remarks of Sen. Javits).
12/ The Supreme Court has repeatedly held— and indeed reaffirmed as 
recently as last month —  that statutory language prohibiting 
discrimination "because of" of "on the ground of", or "on account 
of" race contains no hint that a showing of intention is required. 
See, e.g., Griggs v. Duke Power Co., supra; City of Rome v.
United States, No. 78—1840 (U.S. Supreme Court slip opinion,
April 22, 1980), pp. 14-15).

25



2. Sponsors of title VI refused to limit its 
scope to the equal protection standard.

The sponsors of Title VI refused to limit Title Vi's prohibi­
tions to the vagaries of future constitutinal interpretation.

Much of the opposition to Title VI focused upon its failure 
to define the word "discrimination." 110 Cong. Rec. 5863. See 
also, 110 Cong. Rec. 6052 (Sen. Johnston); _ic3. at 5612 (Sen. 
Ervin); rd. at 5251 (Sen. Talmadge).

Despite the criticism, supporters of Title VI refused 
to include a more explicit statement of what Title VI prohibited. 
Had they wanted its provisions to be coextensive with those 
of the Constitution, they could have prohibited simply those 
actions by recipients of federal funding which, if taken by a 
state, would have violated the Equal Protection Clause. Instead, 
they thought it "wise to leave the (executive) agencies a good 
deal of discretion as to how they (would) act." (110 Cong. Rec. 
6546 (Sen. Humphrey).

Congress knew full well how to require constitutional stan­
dards in the Civil Rights Act for it incorporated constitutional 
reference into both Titles III and IV but declined to do so 
in Title VI. One year later Congress again incorporated a con-11/
stitutional standard into § 2 of the Voting Rights Act of 1965.

1_1 / The legislative history of § 2 of the Voting Rights Act of 
i~9l>5, as set forth in the recent Supreme Court opinion in City
of Mobile v. Bolden, ___ U.S. ___, 48 U.S.L.W. 4436, 4437
(April 22, 1980) is markedly different from that of Title V. As 
the court noted,

26



At the time Title VI was enacted, school busing had already 
come to be regarded as an extraoridnary remedy which should only 
be used in cases of intentional discrimination. Busing opponents 
were concerned that Title VI would permit the courts or agencies 
to require busing in cases of de facto segregation even if the 
Supreme Court ultimately decided tht the Constitution did not 
require busing under those circumstances. Accordingly, they 
sought language which would make clear that Title VI did not 
authorize busing to achieve racial balance or in any way enlarge 
whatever the Supreme Court might ultimately decide was the consti­
tutional authority to require busing. A compromise was reached 
under which Title VI itself was not altered. Title IV, however, 
was changed to include the explicit limitation codified at 42 
U.S.C. § 2000c-6:

tP]rovided that nothing herein shall empower any 
official or court of the United States to issue 
any order seeking to achieve a racial balance in 
any school by requiring the transportation of 
pupils or students from one school to another or 
one school district to another in order to achieve 
such racial balance, or otherwise enlarge the 
existing power of the court to insure compliance with constitutional standards.
In addition, Title III of the 1964 Act, 42 U.S.C. § 2000(b)

(2) (a), expressly refers to the deprivation of the "equal protec-

11/ cont'd.
"[t]he view that this section simply restated the pro­
hibitions already contained in the Fifteenth Amendment 
was expressed without contradiction during the Senate 
hearings. Attorney Gneral Katzenbach agreed with 
Senator Dirksen that the section was "almost a re­
phrasing of the 15th [A]mendment." Id.

27



tion of the laws." In contrast, when Senator Ervin introduced
legislation in 1966 which would have amendecyTitle VI to explictly
require a showing of intent was defeated . l a  the Houe and never

r  oajJLpemerged from committee in the Senate 111(0 Cong. Rec. 1 0061 ,
18701 , 1 8715 ( 1966). The statutory history demonstrates that JJlV' 
Congress was well aware that the broad sweep of Title VI would 
not automatically be limited by the constitutional definition of 
discrimination, let alone by the "floating" definition suggested 
by the district court. In cases where Congress wanted to impose 
constitutional limitations it did so explicitly.

3. Congress enacted Title VI at a time when
the equal protection clause was believed to 
prohibit actions having a discriminatory 
impact.

As the Supreme Court stated in Cannon v. University of
Chicago, ___ U.S. ___, 99 S. Ct. 1946, 1957-58 (1979), Congress
must have presumed to have intended that its acts be interpreted 
in conformity with then existing precedents. See also, Regents 
of the University of California v. Bakke, 438 U.S. 265, 416 
n.18 (Stevens, J. , concurring and dissenting). The Court stated 
in Moor v. County of Alameda, 411 U.S. 693, 709 (1973), "... we 
must construe the statute in light of the impressions under which 
Congress did in fact act."

Although it is now established that intentional discrimination 
is required to prove a violation of the Constitution, the case law 
in 1964 did not reflect that requirement.

28



In Smith v. Texas, 311 U.S. 128 (1940), an equal protection 
case, the Court stated that"[i]f there has been discrimination, 
whether accomplished ingeniously or ingenuously, the conviction 
cannot stand." Id_. at 132. And in Hill v. Texas, 316 U.S. 400 
(1942), another equal protection case, the Court used language, 
now paralleled in the Title VI regulations, see 45 C.F.R. § 80.3- 
(b)(2) that the state may not "pursue a course of conduct in the ad­
ministration of their office which would operate to discriminate in 
the selection of jurors on racial grounds." Id_. at 404. Indeed, 
in 1964 discrimination was still practiced in such blatant forms 
that the idea of a requirement of intent was simply not presented 
to the courts in those days. In 1961, the Supreme Court in 
Monroe v. Pape, 364 U.S. 167, discarded the rule that a showing 
of intent was necessary to establish a violation of the 14th 
Amendment in a § 1983 damage action. Although this latter case 
involved Fourth Amendment violations, no distinction from the 
Equal Protection Clause violations in § 1983 actions was then 
perce i ved.

Thus, even assuming arguendo that Title VI supporters had 
believed that Title VI was co-extensive with the scope of the 
Equal Protection Clause as it was then understood, they would 
not have assumed that intentional discrimination was required to 
establish a violation.

29



4. Regulations issued by seven Federal agencies
within months of the Act's passage and again in 
1973 indicate their unanimous view that Title 
VI prohibited conduct which had a disparate 
impact upon minorities.

On December 4, 1964, just five months after final passage of 
the Civil Rights Act, seven Federal agencies issued regulations, 
approved by the President pursuant to 42 U.S.C § 2000d-1, constru­
ing the statute (29 Fed. Reg. 16274-16305). All seven agencies 
included in their regulations a provision identical to HEW's 
broad disparate impact regulation, 45 CFR § 80.3(b)(2). Although 
the issuance of Title VI regulations by seven agencies on a 
single day so soon after the Act's passage can hardly have 
slipped by Congress unnoticed, yet there is no indication in the 
Congressional record for that period that any of the legislators 
who voted for Title VI felt the disparate impact regulations 
exceeded the scope of Congressional intent.

Eight years later, on July 5, 1973, every federal agency 
published amendments to its Title VI regulations (38 Fed. Reg. 
17920-17997).. One of the principal purposes for these amendments 
was to ensure that each agency had a provision similar to 45 
C.F.R. § 80.3(b)(3) prohibiting decisions on location of facili­
ties which had a disparate impact upon minorities. Again, there 
was no indication that publication of these amendments raised any 
Congressional eyebrows.

As the district court recognized, these regulations explicitly 
adopt an "effects" standard. The HEW Title VI regulations appear 
in 45 C.F.R. 80.3(b), and are divided into two principal parts.

30



45 C.F.R. 80.3(b)(1) contains a non-inclusive definition of some 
specific discriminatory practices. It explicitly prohibits 
actions which "restrict any individual in any way in the enjoy­
ment of any advantage or privilege enjoyed by others receiving 
any service..." (45 CFR § 80. 1 (b) ( 1 ) ( i v) ) , or afford them an 
opportunity to participate in a federal assisted program "which 
is different from that afforded others under the program " (45 
CFR § 80.3(b)(1)(vi)).

Subsequent portions of those regulations make clear that 
actions which result in any of the kinds of discrimination 
described in § 80.3(b)(1) or which otherwise have a disparate 
adverse impact upon minorities constitute a prima facie violation 
of Title VI. Thus 45 C.F.R. § 80.3(b) further provides:

(2) A recipient, in determining the types of 
... or in determining the situations in which 
such serices ... or facilities will be provided 
... may npt ... utilize criteria or methods of 
administration which have the effect of sub­
jecting individuals to discrimination ... or have 
the effect of defeating or substantially impairing 
accomplishment of the objectives of the program
as respect individuals of a particular race, 
color, or national origin.
(3) In determining the site or location of 
facilities, an applicant may not make selections 
with the effect of excluding individuals from, 
denying them the benefits of, or subjecting them 
to discrimination .. or with the purpose or effect 
of defeating or substantially impairing the ac­
complishment of the objectives of the Act or this 
regulation.
The Title VI regulations were promulgated pursuant to the

express mandate of § 1602 of Title VI, 42 U.S.C. § 2000d-1, and
were approved by the President. Regulations issued pursuant to
Congressional mandate are presumptively valid and ordinarily will

31



be upheld unless inconsistent with the statute. "The validity of 
a regulation. . . will be sustained so long as it is reasonably
related to the purpose of the enabling legislation" Mourning v. 
Family Publications Service, 411 U.S. 356, 369 (1973). The 
presumption of validity accorded federal regulations also applies 
with special force to regulations which constitute a consistent 
and contemporaneous interpretation of the statute by those agencies 
charged with its enforcement Udall v. Tallman, 380 U.S. 1, 16 
(1965). Moreover, an agency's own interpretation of its own 
regulations is entitled to almost conclusive deference. Ford
Motor Credit Co. v. Milhollin, ___U.S. ___, 48 U.S.L.W. 4145 (Feb.
20, 1980).

5. Congressional enactments subsequent to 
1964 reflect a continued Congressional 
understanding that Title VI prohibits 
conduct having a disparate impact upon 
minorities.

The Supreme Court has repeatedly held that subsequent legis­
lation reflecting Congressional interpretation of an earlier act 
is entitled to great weight in determining the meaning of the 
earlier statute. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 
380-381 (1968); Erlenbaugh v. United States, 409 U.S. 239, 243- 
244 (1972). It is thus significant that well after it was aware 
that Title VI had been interpreted to prohibit disparate impact 
discrimination, Congress enacted virtually identical language

32



. . 12/in ten additional statutes.— 7 Each of these statutes was 
explicitly patterned after Title VI. Presumably, if Congress had 
been disturbed by the construction accorded Title VI, it would 
have taken steps to assure that the other statutes were interpret­
ed differently. There is no indication in the language or 
history of any of these Title VI offspring which would indicate 
that Congress felt Title VI had been incorrectly construed by the 
regulations.

The district court brushed aside the impressive statutory and 
regulatory history supporting the effect standard by suggesting 
that Congressional inaction was consistent with a Congressional 
intention that the standard for Title VI change with changing 
judicial interpretations of the constitutional standard under the 
Fourteenth Amendment. (2d opinion, p. 38). But in 1977 and 
1979, well after the Title VI effect standard was approved in Lau 
(1974) and the differing constitutional standard was established 
in Washington v. Davis (1976), regulations explicitly adopting 
the effect standard were promulgated under the Revenue Sharing 
Act (31 C.F.R. § 51.52, 42 Fed. Reg. 18365, April 16, 1977), the 
Age Discrimination Act (45 C.F.R. §90.12, 44 Fed. Reg. 33776,
March 12, 1979) and the Rehabilitation Act (45 C.F.R. § 1232.4,

1_2/ § 504 of the Rehabilitation Act, 29 U.S.C.A. § 729 (1 973),
Title IX of the Education Amendments of 1972, 20 U.S.C.A. § 1681, 
the Revenue Sharing Act, 31 U.S.C.A. § 1242 (1976), and the Age 
Discrimination Act, 42 U.S.C.A. § 6106 (1975). Public Works r  
Employment Act, 42 U.S.C. § 6727; Railroad Revitalization aricU-^^ 
Regulatory Reform Act of 1976, 45 U.S.C. § 803; Emergency Con­
servation and Resource Renewal Act of 1976, 42 U.S.C. § 68701; 
Housing and Community Development Act of 1976, 42 U.S.C. § 5309; 
Juvenile Justice Act of 1974, 42 U.S.C. § 5672; Crime Control 
Act of 1973), 42 U.S.C. § 3766.

33



44 Fed. Reg. 31018, May 30,1979), the very acts with anti-dis­
crimination provisions modeled after Title VI. And, of course, 
the Title VI standards remained in force and were enforced by the 
courts. See, e.g., NAACP v. Wilmington Medical Center, 453 F.
Supp. 280, 308 (D. Del. 1978), rev'd on other grounds, 599 F .2d 
1247 (3d Cir. 1979). If Congress intended that the standard for 
Title VI and its offspring required intentional discrimination it 
most certainly would have acted under these regulations. It did 
not do so. "[W]here Congress, by its positive inaction has allowed 
those decisions to stand for so long and, far beyond mere inference 
and implication, has clearly evinced a desire not to disapprove 
them legislatively," the courts should not usurp Congress.
Flood v. Kuhn, 407 U.S. 258, 283-284 (1972).

H. Retention Of The Disparate Effect Standard Is 
Necessary If Title VI Is To Be An Effective 
Remedy to Prevent Racial Discrimination.

If Title VI of the Civil Rights Act of 1964 is to retain any
vitality as a means of combating racial discrimination it must
address itself to the reality of the forms of discrimination, that
perpetuate inequality in our society and how those forms change
with time. The New York Times editorial on May 19, 1980, comment-

13/
ing on the recent voting rights cases of the Surpeme Court, 
put the matter succinctly and graphically:

1_3/ City of Mobile, Alabama v. Bolden, ___U.S. ___ (April
22, 1980) and City of Rome v. United States, U.S.
(April 22, 1980).

34



The truth is, nowadays, that a racially improper 
motive is very hard to prove. Anyone setting out 
to discriminate no longer says openly, as the mayor 
of Richmond, Va., said just a decade ago, 'Niggers 
won't take over this town.'.

See also Metropolitan Housing Development Corp. v. Village of 
Arlington Heights, 558 F .2d 1283, 1288 (7th Cir. 1977).
Whether or not conduct which results in denial of equal benefits 
to minorities can be shown to be the product of an intentional 
design to discriminate, its impact on blacks, Hispanics, and other 
minority Americans is destructive. The consequences of unequal 
distribution of federally supported programs falls heaviest on the 
poorest of the minority groups, which have already suffered from 
societal discrimination that has mired them in poverty.

The litigation in the Arlington Heights case demonstrates 
the necessity of adhering to the disparate impact standard.
After the Supreme Court ruled that no Fourteenth Amendmetn viola­
tion was shown, the Seventh Circuit on remand found that a viola­
tion of the Fair Housing Act had occurred even absent discrimina­
tory intent, because otherwise racial discrimination would go 
unremedied. 558 F .2d 1283, 1290. It stated:

14/ David Tatel, Director of HEW's Office of Civil Rights
from 1977 to 1979, reminds us that "the nation must deal with the 
fundamental problem of its racism. In the words of the Kerner 
Commission: 'What white American have never fully understood what
the Negro can never forget— is that white society is deeply 
implicated in the ghetto. White institutions created it, white 
institutions maintain it and white society condones it.'" (Washing­
ton Post, May 24, 1980, p. A15.)

35



Moreover, a requirement that the plaintiff prove 
discriminatory intent before relief can be granted 
under the statute is often a burden that is impos­
sible to satisfy. "[I]ntent, motive and purpose 
are elusive subjective concepts," Hawkins v. Town 
of Shaw, 461 F .2d 1171, 1172 (5th Cir. 1972) (en 
banc) (per curiam), and attempts to discern the 
intent of an entity such as a municipality are at 
best problematic... (citations omitted). A 
strict focus on intent permits racial discrimina­
tion to go unpunished in the absence of evidence 
of overt bigotry. As overtly bigoted behavior 
has become more unfashionable, evidence of intent 
has become harder to find. But this does not 
mean that racial discrimination has disappeared.
We cannot agree that Congress in enacting the 
Fair Housing Act intended to permit municipali­
ties to systematically deprive minorities of 
housing opportunities simply because those 
municipalities act discreetly. See Brest, The 
Supreme Court, 1975 Term -- Forward: In Defense
of the Antidiscrimination Principle, 90 Harv. L.
Rev. 1 , 28-29 ( 1 976). Id. 1_5/

If intent were required to be shown, the minorities constituting 
the plaintiff class in Arlington Heights would have been denied 
the benefits of federal housing programs for low income persons.

Requiring justification from recipients of federal funds 
where the adverse impact of their actions will significantly and 
disproportionately burden minorities explicitly and directly 
implements the Congressional intent under Title VI to foster 
equitable use of federal funds. In Owens v. City of
Independence Missouri, ___ U.S. ___, 48 U.S.L.W. 4389 (April 16,
1980), the Supreme Court held that municipalities sued for 
damages under 42 U.S.C. § 1983 for constitutional violations are 
not entitled to qualified immunity based on good faith of

1_5/ Accord, Robinson v. 12 Lofts Realty, Inc. , 610 F . 2d 
1032 (2d Cir. 1979).

36



their officials. In doing so, the Court emphasized the public 
policy considerations which compel holding municipalities 
accountable:

The knowledge that a municipality will be liable 
for all of its injurious conduct, whether com­
mitted in good faith or not, should create an 
incentive for officials who may harbor doubts 
about the lawfulness of their intended actions 
to err on the side of protecting citizens' 
constitutional rights ....
More important, though, is the allegation 
that consideration of the municipality's lia­
bility for constitutional violations is quite 
properly the concern of its elected or ap­
pointed officials. Indeed, a decisionmaker 
would be derelict in his duties if, at some 
point, he did not consider whether his deci­
sion comports with constitutional mandates and 
did not weigh the risk that a violation might 
result in an award of damages from the public 
treasury. As one commentator aptly put it,
"whatever other concerns should shape a par­
ticular official's actions, certainly one of 
them should be the constitutional rights of 
individuals who will be affected by his actions.
To criticize section 1983 liability because it 
leads decisionmakers to avoid the infringement 
of constitutional rights is to criticize one of 
the statute's raisons d 'etre." 48 U.S.L.W.
at 4397, 4398 (footnotes omitted).
What was stated in Owens regarding § 1983 is no less 

applicable in the context of this case: to criticize the
Title VI standard urged by HEW and heretofore unanimously 
adopted by courts, is to criticize the reason for its
passage. Before a decision is made which disproportionately 
tucdens minorities, the decision-maker —  be it a governmen­
tal or private recipient of federal funds —  should carefully 
consider whether the decision is a reasonable, justifiable 
one and whether there are not other alternatives whose

37



consequences are less onerous to minorities.
The district court's exaggerated fear at page 43 of its

amended opinion (App. P. ___) that the spectre of an impact
standard under Title VI will discourage "essential decisions" 
is unfounded. First, "essential" decisions imply no alterna­
tives; hence no violation of Title VI. Second, since 1964,
HEW and the courts have interpreted Title VI to have the very 
standard the district court holds for the first time to be invalid. 
Yet no one, asserts that Title VI has in fact hamstrung governmen­
tal decision-making. Indeed, the correctness of the Title VI 
impact standard has perhaps been at no time as evident as in 
present day circumstances. As the district court recognized, the 
guarantees of Title VI become increasingly important in "present 
time, when reductions in government services have become increasing­
ly common, particularly in areas heavily populated by minorities."
(Op. pp. 3-4, App. p. ___). As the district court noted, these
decisions are political in nature. It has been the role of 
federal civil rights law to protect minorities from discrimination 
in majoritarian decisions.

When essential services such as federally-funded hospital 
services are to be cut, decisionmakers should not ignore the race 
of the persons affected nor should they ignore and fail to consider 
alternative actions. Where the municipality has ignored the 
impact on minorities, whether intentionally or not, the need for 
justification operates as an effective restraint on discrimina­
tion. C_f. Robinson v. 12 Lofts Realty, Inc., supra, 610 F . 2d at

38



1040-43. In considering the added burden such exploration entails 
the additional thought processes and action required must be 
weighed against the harm to minorities who depend upon these 
services to save lives. C_f. Owens v. City of Independence, supra, 
48 U.S.L.W. at p. 4398.

I. This Court Should Reach The Issue Of the Proposed 
Standard under Title VI To Govern The Future 
Proceedings in This and Other Cases

.S'This Court must reach the isue of the legal standard underA
Title VI. The plaintiffs established a violation of Title VI 
under the proper "effect" standard. As the following section 
demonstrates, the district court's findings of facts were insuffi­
cient to support its brief ultimate conclusion that the standard 
was not satisfied.

Moreover Under the Mayor's Plan, approved by the Board of 
Directors, of the Health and Hospitals Corporation, Metropolitan 
Hospital is to be closed. Metropolitan is the major health care 
institution for the Hispanic community of East Harlem. The court 
below stated that "if Metropolitan were closed a far more serious 
problem of access for minority patients would be presented. (Op.
p. 23, App. p. ___). The closing could be announced any day and
plaintiffs would be forced to begin an immediate hearing on its 
motion for preliminary hearing which has been deferred until now 
by the district court.

39



II. PLAINTIFFS ESTABLISHED A SUBSTANTIAL LIKELI­
HOOD OF PREVAILING ON THEIR TITLE VI CLAIM;
THE DISTRICT COURT ERRONEOUSLY FAILED TO 
REQUIRE DEFENDANTS TO PROVIDE ASSURANCES OF 
ALTERNATE ACCESS TO ESSENTIAL SERVICES AND 
RELIED INSTEAD ON A HYPOTHETICAL ACCESS 
CONSTRUCT

16/
Under the Title VI regulations promulgated by HEW, and

11/interpreted by them, the determination of whether a Title VI 
violation occurs requires a three part analysis:

(1) Does a disproportionate adverse impact result 
from the closings or reductions in service;

(2) If so, are the closings and reductions nec­
essary to achieve legitimate objectives unrelated to 
race, and

(3) Can these objectives be achieved by other 
measures which have a less disproportionate adverse 
e f fe ct.
As shown below, the District Court's found there is a dis­

parate impact on minorities from the closing of Sydenham Hospital 
(pp. ), and that the impact will have adverse effects on the 
health and lives of those affected (pp. ). The unrebutted 
evidence also demonstrated that City defendants did not exploure 
alternatives which would keep Sydenham Hospital open while achiev­
ing the fiscal savings it claimed would result from its closing.
The district court made no finding that alternatives were explored. 
Plaintiffs presented unrebutted testimony of numerous feasible 
ways in fact for City defendants to achieve the savings sought, 
many of which will have no adverse consequences for minorities

16/ The applicable regulations are set forth supra, pp.
17/ HEW's Supplemental Memorandum below, p. 5, cited in opinion 
App. p. ___.

40



and improve the delivery of health care in Harlem.
A. The District Court Found and the Unrebutted 

Evidence Established, that the Impact of the 
Closing of Sydenham Hospital will Fall 
Exclusively on Minorities

The district^ <^curt found and there is no dispute (1) that
virtually all the patients who use Sydenham are minority (opinion,
p. 7, App. p. ); and (2) "that approximately two-thirds of
the patients who use the City's municipal hospitals are black or

19/
Hispanic." (̂ d_. ) Thus, the entire burden of closing Sydenham 
Hospital is borne exclusively and disproportionately by minorities. 
The disparity herein is similar to that which the Supreme Court 
stated was an indication of disparate impact (although not 
sufficient alone to demonstate intent Metropolitan Housing Develop­
ment Corp. v. Village of Arlington Heights, 429 U.S. 252, 269 
(1977) (Minorities 18% of population but 40% of those eligible 
for low income housing project.).

The numbers of minorities impacted by the closing are 
substantial. In 1979, Sydenham Hospital had 3,767 total admis­
sions and provided emergency room service in 1979 for 25,454

18/

18/ Plaintiffs offered substantial evidence that closing Sydenham 
Hospital was not justified because it would not achieve the fiscal 
savings projected by City defendants, a conclusion supported by the 
City's own Legislative Office of Budget Review. Ex. 44b. However, 
in light of the conflicting evidence on the issue, and the 
clearly erroneous standard of review, plaintiffs do not urge on 
appeal reversal of the district court's finding that closing 
Sydenham was a justifiable method of cutting costs.
19/ A 1978 patient origin study conducted by HHC shows Sydenham 
with a 93.4% black and Hispanic inpatient population. (PI. Ex.
12, App. ___). A 1979 full census conducted on June 14, 1979
shows Sydenham with 98.1% minority inpatient and 100% minority 
patients in its emergency room. (PI. Ex. 13, App. ).

41



patient visits. This disparity is clearly as great, if not
2 0 /

greater, than disparities recognized by courts in Title VI and 
analogous cases as establishing a prima facie case. In Lau v. 
Nichols, where "some 1,800" Chinese-American children were involv­
ed, the Supreme Court found it unnecessary to inquire into statis­
tical comparisons as long as the number of minorities adversely 
affected was substantial" (see Blackmun, J., concurring, at 414 
U.S. 572). See also, e.g ., Resident Advisory Board v. Rizzo, 564 
F.2d 126, 148 (3rd Cir. 1977), cert. denied, 435 U.S. 908 (1978); 
Shannon v. United States Department of Housing and Urban Develop­
ment' 436 F . 2d 809, (3rd Cir. 1 970) (a Title VI case remanded for 
determination of projected racial composition of housing project 
targeted for largely minority area); Blackshear Residents Organi­
zation v. Housing Authority of the City of Austin, 342 F. Supp. 
1138 (W.D. Texas, 1972); Towns v. Beame, 386 F. Supp. 470 (S.D.
N.Y. 1974); Angell v. Zinsser, 473 F. Supp. 488, 498 (D. Conn. 
1979). In these housing cases, the number of minorities who would
obtain housing are less than the thousands who utilize Sydenham 
annually.

The district court's attempt in this case to dismiss the 
obvious disproportionate impact with the statement that "it is 
nothing more than the necessary consequence of closing that 
Par^^cu^ar facility" (Op., p. 43, App. p. ___) is circular reason­
ing which misperceives the issue at hand. The initial inquiry is 
whether the closing of that facility does disproportionately

20/ Adams Aff. p. 2, attached Exhibit D-3 (App. p. ___).
42



impact on blacks. Whether that consequence is necessary is raised 
in considering justification and alternatives, not the disparity 
of the impact.

Nor does this long-accepted understanding of the meaning of
disparate impact lead to what the district judge termed "curious"
results. As the case law and legislative history cited above
establish, Title VI is a remedial statute predicated on the
belief that all citizens should derive equal benefits from federal

21/
programs without regard to the color of their skin. Title VI
does not require that a recipient of federal funds provide a
particular quantity or quality of service, or that services once

22/
provided not be reduced. Rather, Title VI guarantees that 
the benefits of federally-funded services be distributed equitably 
and that the burdens from reductions of services not fall over­
whelmingly on the shoulders of minorities if avoidable. The law 
does not insulate blacks or Hispanics from sharing the effects 
of fiscal constraints; it does, however, protect them from bearing 
a disproportionate and unnecessary cost. Far from being "curious, 
it is therefore not only entirely consistent with Title VI but 
also appropriate and reasonable that defendants would be free to 
make even more reductions in hospital services —  if those reduc­
tions, unlike the one made here, are shared equitably or are shown

21/ 110 Cong. Rec. 6561 (remarks of Sen. Kuchel, in the process
of making a comprehensive presentation of the Civil Rights Act) .
22/ Jackson v. Conway, 476 F. Supp. 896, 906 (E.D. Mo. 1979).

43



to be justifiable.— /

Although the undisputed facts established the disparate 
impact from closing Sydenham Hospital, plaintiffs went even 
further and demonstrated that combination of closing two municipal 
hospitals and reducing beds in two others as recommended by the
Mayor’s Task Force also had a disparate impact on minorities.

24/
Plaintiffs' expert Richard Faust found "that more minority 
beds were proposed for reduction by the Plan than would have been 
expected had reduction been in the same proportion as minority
beds in the municipal hospital system "(Op. p. 8, App. ___ ) and
using the traditional binomial model found" disparities of at 
least two standard deviations from the expected distribution, 
and in several cases, he found disparities in excess of ten
standard deviations." (Op. p.9, App. p.  ___ ). The district court
recognized that Mr. Faust’s analyses were "a useful demonstration 
of the degree to which minorities would be affected by the Mayor’s 
Plan, relative to whites," at least in "some crude sense" and that 
"some authority exists for utilizing the bonomial model, even
though independent decisions could not be assumed, as ’a baseline 
for compartive purposes."’ Op. p. 10, App.

tion ^ r"“ ni"^fu(tinqui/Sint/moti/ti°nPw0uld,requir/e/minan
-2 H f »;
Fourteenth^mendment^bul^i/any ^  T
SSEiSiStSSS STMcSE'JrSSL!1 since that

Faust has beer» recognized as a statistical exDert in at least three other federal cases. Ex. 58. ^
44



The district court's critique of Mr. Faust's analyses 
have little if any relevance to this appeal or the issue of
disparate impact. The court below conceded the disparate 
impact and focused exclusively on the degree to which the dis­
parity established evidence of intentional racial animus.
Thus, as far as the Title VI is concerned, the district court's
discussion on the statistics rests on an erroneous leqal stan- 25/
dard. Similarly, the analysis of City defendants' expert 
was an attempt solely to assess "the hypothesis of discriminatory 
intent." (Op. p. 11, App. p . ____ ). The district court's discus­
sion of how many decisions the City made, or how many options were 
available is irrelevant to the measure of racial impact. For 
example, if there were only two municipal hospitals, one 80% 
white and the other 80% black, and the City closed the latter, 
a disparate impact on minorities would be established, even though 
only the most limited choices are available and the chance of 
closing either hospital is 50-50. Similarly here, closing an all 
minority hospital in a thirteen hospital system that is only 66% 
minority established disparate impact and turns the inquiry to 
justification and alternatives.

25/ E^G., the court stated that "[a] further danger in the inapposite use of binomial analysis, even as a crude measure of 
impact on minority, is that the impact observed may affirmatively 
mislead as to the decisionmaker's motive.” (Op. p. 12, App.
P» _____  (emphasis added).

45



B. The Lack of Assurance of Alternate Access 
for the Sydenham Patient Population is 
Demonstrated by the Insufficiency of the Findings Below.

Reasonable alternate access to health care for patients in
hospitals stated for closure, is a key element in considering both
whther there is prima facie proof of a Title VI violation, and
whether plaintiffs established irreparable harm.

On the question of alternative access the district judge
found that there will be an adverse impact on some patients who use
Sydenham hospital due to the closure:

"While emergency ambulance services exist, and while 
most such patients will reach care before suffering 
health damage they might otherwise have avoided, 
closing Sydenham will have adverse consequencs in 
some cases (particularly serious gunshot and knife 
wound cases, and advanced drug overdose victims).
(p. 20 May 15th Decision).
"Nevertheless closing Sydenham will have adverse 
consequences in some cases, particularly those serious 
gunshot and knife wounds and advanced drug overdose 
victims, (p. 22—23 May 23rd Amended Decision).
Nevertheless the judge reached the conclusion that
"... guaranteed access to inpatient and emergency 
services for Sydenham patients without unreasonable 
burdens —  has been demonstrated." (P. 4, App.

This conclusion is not based on any finding that other 
hospitals will accept the predominantly Medicaid patients served 
by Sydenham or its patients witho"*- —   ■—  -

fhat alternate hospitals have sufficient physical capacity to absorb 
all of Sydenham's inpatients. The determination that reasonable 
alternative emergency services are available is clearly erroneous.

to the contrary. The conclusion

46



In an attempt to minimize the adverse effects on the victims 
of crime and drugs whose lives will be endangered, the judge 
states:

"But the number of such cases will be small, and the 
Sydenham community will be no more disadvantaged in this 
^regard than most other communities in the city which 
-^presently do without the special benefits of a neith- 
Dorhood hospital." (emphasia added), (P. 22 of May 
23rd Amended Decision).

To describe a life-saving institution in the center of the
most severely medically underserved area in the City as a "special
benefit" is to ignore the reality of life in Harlem. Racial 
discrimination affecting people's lives is no less a violation of
the law because only a single communty is affected. In Lau v. 
Nichols, supra, the Supreme Court in effect ordered the city of 
San Francisco to provide a "special benefit," i.e. , remedial 
teaching programs for a small communty of Chinese students.

1. The Court below relied upon a hypothe­
tical construct that gave no assurance 
that it was financially feasible for 
private hospitals to accept Sydenham patients

The district court's conclusion that Sydenham's population 
would receive in-patient services at other institutions is based 
on a hypotfre-̂ fy5)tirca 1 patient assignment construct developed by ^
Peter Klumplier,,an employee of defendant Health and Hospitals
„ • '  Corporation solely for use in this litigation. It is undisputed
that City defendants made no attempt to obtain assurances from
private hospitals that they would accept Sydenham patients, even 
when City officials were contacting those hospitals to inquire 
about occupancy rates (Tr. 896). Mr Klemperer conceded that

47



whether Sydenham patients would be treated at hospitals he pro­
jected as receiving them "is purely hypothetical." (Tr. 1332-34). 
Yet the district £r>urt concluded without support in the record 
that "guaranteed access to inpatient and emergency services for 
Sydenham patients without unreasonable burdens —  has been demon­
strated." (Op. p. 4, App. p. ).

There are two factors involved in the issue of whether a 
hospital will accept additional patients —  physical capacity and 
financial feasibility. The district court made no findings as to
whether private hospitals in the area would accept the Sydenham

261/
patient population, even if physical space -were available,
in view of the fact that the reimbursement for their care comes
predominantly from Medicaid, and 36.7 percent have no coverage at

2/
all at time of admission. The unrebutted evidence established

e- . Ithat Presbytarian and St. Lukes admit no uninsured patients. (Ex.
39 at p. , App., p. __), and the city assumed in its assignment
of patients that the voluntaries would not admit uninsured
patients. The Chief of Harlem Hospital's emergency room testified
that she had difficulty in transferring patients to any voluntary
hospital in the area, and particularly Presbyterian (Tr. 299-305,
33). Her testimony was corroborated by an ambulance driver. (Tr.
353-355).

26/ An exception is Joint Diseases, discussed infra, p.
27/ A large percentage of patients who go to Sydenham are not 
insured at the time they enter the hospital and are only insured 
after admittance through a difficult, lengthy process. (Tr. 137, 
151, 1972, 1974, 1975, Carter Dep. p. 156). Thus the actual 
number of uninsureds is 36.7% (Ex. A, p. 193).

48



There are substantial disincentives to a voluntary
hospital treating medicaid patients. Medicaid, the state ad-

t '1'ministered reinbursement program for the poor, pays hospitals less 
than the actual cost treating a patient. (Tr. 96-98, 182-183). 
Regulations which went into effect in 1980 operate as a particular 
disincentive to accepting additional patients. (Ex. 85, p. 7, § 
86-1.12(b)). Under this regulation, reinbursement for additional 
patients is limited to 20% of the Medicaid reinbursement rate for 
operating costs whereas the marginal cost of additional patients 
is higher. For example, the Mayor's Plan estimated the marginal 
cost of an additional patient at $100 per day (Ex. A, p. 276), far 
more than 20 percent of Medicaid reinbursement rates which are in

U
1the $200-300 range."'In addltlon' the Director of Finance //'£*“*'

of Mt. Sinai Hospital testified taht the prospective reinbursement
system of Medicaid makes it difficult to obtain reinbursement for 
increased expenditures not previously budgeted. He explained tht 
to determine whether a hospital is in a position to accept addi­
tional Medicaid patients one must calculate what affect the 
change in pa(î )ent mix has on overall reinbursement for the hospital 
(Tr. 183). With the exception of Joint Diseases there was neither
evidence nor findings that any hospital had made a determination

2/as to whether it is feasible to accept Sydenham's patients.

28 / Additional costs attach to particular class of patients (Tr. 
96-98) such as those at Sydenham that have a high frequency of 
multiple conditions. Ex. 52.
29 As to Joint Diseases, the district court stated that "to 
improve its payor mix, Joint Diseases would especially welcome 
additional Blue Cross and Medicaid patients from Sydenham (Tr. 246)"

49



2. The lack of assurance of available beds 
for Sydenham patients.

The evidence also shows that there is no assurance that
hospitals in northern Manhattan have the physical capacity to
absort Sydenham patients. The district judge in his amended
decision reiterates his original finding that "some hospitals on
which Sydenham patients would have to rely seem close to or
at capacity (p. 21, App. p. __), but nevertheless states that "the
City offered reasoned presentations as to where Sydenham patients
could be served "upon closure" (Id. ) In agreeing with the city
that "the six hospitals [Presbyterian, Mt. Sinai, Bronx Lebanon,
St. Lukes, Harlam and Joint Diseases] will be able to accommodate
the ... daily total of 93 patients," the court finds that only

3 0/
Presbyterian and Bronx Hospitals have space. The court makes no

29/ cont'd.
(Op. p. vi, fn. 15) but neglected to add that the willingness was 
limited to replacing patients with no coverage at all. (Tr.
251-52) Since only 1% of Joint Diseases patients have no coverage
(Ex. 1, p. 191, App. p. _), and Joint Diseases has 200 beds, its
willingness to accept Medicaid patients is limited to two in­
patients at any one time, or one admission every five days (based 
on ten day average length of stay).

There is also a serious question on the future financial 
viability of Joint Diseases. The Health Systems Agency of New 
York City, the federally designated health planning agency, found 
that the hospital was in serious financial trouble and urged 
continued operation of Sydenahm until Joint Diseases' situationis 
clarified. City defendants on March 12, 1980 stated that there 
was a strong likelihood that Joint Diseases would have to close
due to its fiscal problems. Ex. 76, pp. 20, 72, App. p. __. The
court below ignored this admission and exaggerated the testimony 
of a hospital official who acknowledged and spoke of efforts for 
improvement.
30/ The judge in his decisions states the Joint Diseases will 
have beds when it expands its bed complement from 200 to 210 
beds. But Joint Diseases has yet to apply to the state for 
certification of the additional beds (Tr. pp. 234-235, 252) and 
the process of certification is a protracted one (Tr. )
236).

50



findings regarding the ability of St. Lukes and Harlem to absorb 
Sydenham's patients. Yet, in defendants' two hypothetical patient 
distributions, the ones the judge called "reasoned", St. Lukes 
and Harlem were assigned 83% and 60% of the patients in Manhattan
(Exs. T & V, App. pp. ____ ). And while the judge speculated
that Presbyterian could absorb all of Sydenham's patients, the 
city recognized that most of the Sydenham patient population would 
not utilize that hospital. The city assigned less than 10% of 
Manhattan patients to Presbyterian under one construct (Ext.) and 
just over 20% in Ex. V. (App. pp. ). The reason for this is that 
approximately 63% of the admissions at Sydenahm are through the
emergency room (Adams Aff., App. p. __). Further, 70 percent of
the emergency room cases and 85% of all drug overdose cases arrive 
at the hospital by foot. (Tr. 139, 151, Keeling Aff. p. 2). Many 
require immediate treatement to save their lives. (Tr. 148-49, Geer 
Aff. p. 3, Ayugao Aff. p. 3). The City's construct recognizes the 
absurdity of suggesting that patients with serious enough problems 
to be admitted through the emergency room would be able to or 
would travel 25 minutes by subway to Presbyterian or that they 
could not suffer serious harm by doing so.

The district court also was clearly erroneous in stating in
fn. 14 (App. p. __) that beds are available for Sydenham patients
in addition to those beds at other hospitals which are medical/ 
surgical beds. The Uniform Statistical report for Sydenham for 
1979, defendants' own Exhibit EEE, p. 7, (App. p. ), shows that 
there are no patients in the categories listed by the judge, 
pediatrics, obstetrics, mental hygiene and psychiatry. The

51



district judge's statement that high occupancy rates in the 
voluntary system may be attributable to their attempt to maximize 
their occupancy rates by eliminating beds so as to increase to 
applicable state reinbursement rates (Op., fn. 14, App. p. ) is 
irrelevant to the issue at hand. Regardless of why hospitals in 
the area around Sydenham are filled the fact is that the available 
beds do not exist. (Tr. 236).

Another irrelevant point made by the judge below is his 
statement that many inpatients at Sydenham are kept in a hospital 
only because Social Service agencies fail to place them in other 
more appropriate facilities. (App. p. ).

As City defendants concede, there is only one skilled nursing 
home in the Harlem community (Ex. 76, p. 58; Tr. 1973). The 
Sydenham patients will have the same extended stays in whatever 
hospital to which they are admitted because they cannot be cared
for at home (Tr. 1972) and there is no nursing home bed available 
to receive them.

It is significant that the district judge made no findings 
as to Harlem Hospital's ability to absorb Sydenham's inpatients 
despite the fact that in both the Mayor's Plan and in defendant's 
hypothetical alternate access analysis, (upon which the judge 
relied to reach his findings to the ability to absorb patients) 
approximately one-third of Sydenham's inpatients are sent to 
Harlem Hospital.

The record in thus clear that the private hospitals have made 
no determination that it is financially feasible or physically 
possible to accept Sydenham patients, let alone assurances of 
accepting patients. Indigent and low-income minorities should not

52



be forced to become living experimental subjects to determine 
whether City defendants' hypothetical construct on alternative 
access is accurate. At a minimum, the district court should have 
enjoined the closure until city defendants presented assurances 
that Sydenham in-patients will be served at other hospitals.

3. The clearly erroneous findings on access 
to alternative emergency room services

The court below was clearly erroneous in finding there is
alternate access to emergency services. There were approximately
26,000 emergency room visits in 1979, of which 15% (3,900) were
clearly emergent.. Five percent of the emergency cass, 1,300
people annually, were immediate life-threatening situations, and
many of these people will suffer or die as a result of the hospital

11/closing.
The evidence showed that Presbyterian and St. Lukes often

turn away emergency patients. (304-305, 352-537). The availability
of ambulance services will be of no help to the large number of
emergency cases who either walk to the hospital or are carried 32/
in. (Tr. 139, 151). The expanded hours of the Sydenham

31/ The limitations of Sydenham's emergency room are due to 
understaffing. Letter from officials of city defendants Emergency 
Medical Service Ex. G. to affidavit of defendant's Attorney Bradley Sachs.
32/ The district court judge suggests in his amended decision 
that the danger to oversode patients will be lessened by the probability that the "shoting alleys" currently located near 
Sydem Hospital will move and fn. 22 to the nearest open hospital, 
(fn. 13, fn. 22 App. P. ). The judge bases this conclusion not on the evidence in the record but on the unsupported statement 
made by defendant's attorney in the question he asked the witness. 
(See Tr. p. 163-166).

53



clinic (NFCC) will not be open after 8 p.m. when a majority of 
Sydenham's emergencies occur. (Tr. 154-551, 173). The ambulatory 
clinics to be opened in Harlem will not be operational for some 
time and in any case do not provide adequate emergency services.
The judge made no findings on the ability of Harlem Hospital to 
absorb additional emergency room patients because the emergency room 
there is already severely overtaxed. (Tr. 320, 324, 902-903).

C. In Light of Plaintiffs' Unrebutted Evidence
of Feasible Alternatives to Save Money and to 
Improve Health Care Without Closing Sydenham, 
a Title VI Violation Has Been Established

Even if an action which has a disparate impact upon minorities,
is shown to be justified by a legitimate purpose Title VI is
violated if alternatives exist which could accomplish those
purposes with less disparate impact. NAACP v. Wilmington Medical
Center, 453 F. Supp. 280, 308 (D. Del. 1978); Wade v. Mississippi
Cooperative Extension Service, 528 F .2d 508, 517-518 (5th Cir.
1976). See also Board of Education v. Califano, 584 F .2d 576, 589
(2d Cir. 1978); Arthur v. Nyquist, 573 F .2d 134, 143 (2d Cir.33/ ------------ ----
1978). Accord, Pettway v. American Cast Iron Pipe Company,
494 F .2d 211, 245, 246 (5th Cir. 1974); Robinson v. Lorillard 
Corp., 444 F .2d 791, 798 (4th Cir. 1971); Blake v. City of Los 
Angeles, 595 F .2d 1367, 1375, 1376 (9th Cir. 1979). This is 
the precise interpretation by HEW of its own Title VI regula­
tions. This interpretation is entitled to almost conclusive

33/ Although Arthur v. Nyquist focused on the defendants' burden 
to rebut an inference of intention arising from the foreseeability 
of disparate effects, it seems clear that the court would impose 
an equal burden upon defendants charged with violation of the 
broader statutory provisions.

54



deference by the courts. Ford Motor Credit Company v. Milhollin,
48 U.S.L.W. 4145 (U.S. Sup. Ct. Feb. 20, 1980).

This articulation of the legal standard is in accord with the 
recent decision in New York Board of Education v. Harris, 62 L.Ed.
2d 275 (1979). The Court indicated that in applying a disparate 
test (under the Emergency School Aid Act) evidence of adverse 
impact shifts to the defendant the burden of showing that "educa­
tional necessity" justified the assignment of teachers. C f.
Griggs v. Duke Power Co., 401 U.S. 424 (1971); Dothard v. Rawlin- 
son, 433 U.S. 321 (1977).

The Courts have held that traditional municipal interests do 
not necessarily justify practices which have a racially disparate 
impact, even absent discriminatory intent, where feasible alter­
natives exist which have a lesser disparate impact. In Metropoli­
tan Housing Development Corporation v. Village of Arlington 
Heights, 558 F .2d 1283 (7th Cir. 1977), the Court of Appeals held 
that a restrictive zoning policy was within the Village's authority, 
but nevertheless found the Village's interest insufficient to 
justify a disparate impact under the Fair Housing Act. Accord, 
Resident Advisory Board v. Rizzo, 564 F .2d 126, 149 (3d Cir. 1977) 
(emphasizing alternatives). United Farmworkers of Florida v. City 
of Delray Beach, 493 F .2d 799, 809 (5th Cir. 1974); United States 
v. City of Black Jack, 508 F .2d 1179 (8th Cir. 1973).

This Court is no stranger to the poor fiscal condition of 
New York City. See Rhem v. Malcolm, 507 F.2d 333, 341-42 (2d Cir.

55



However, fiscal
rationales for a decision do not, and should not, in and of 
themselves settle the matter. The City's need to save money, or, 
indeed, whether some money will be saved by closing Sydenham, is 
not an issue on appeal. Rather, the issue is available alterna­
tives. Where plaintiffs establish with unrebutted evidence that 
there are feasible ways for the City defendants to save money with­
out closing Sydenham Title VI proscribes the closing with its 
severe, disporportionate consequences for minorities.

1. Plaintiffs presented unrebutted evidence that 
the City has ignored ways of Reducing HHC's 
deficit by millions of dollars through mergers of municipal hospitals

Defendants presented no evidence as to methods of saving 
money other than by closing Sydenham. They failed to consider 
methods of improving the Corporatins's fiscal picture. In 
contrast, despite the inability to conduct full discovery, 
plaintiffs provided several methods of saving money other than 
by closing off hospital access to black communities.

On Marcy 2, 1979, Paul Dickstein, from OMB, recommended the 
study of "incremental savings to be realized from selective 
reductions and consolidations in hospital programs." (Ex. II, p.
3). However, the Task Force Report failed to analyze these 
options fully and, with regard to the municipal hospitals in 
Harlem, made no such analysis at all. Defendants thus ignored 
ways of reducing expenditures and maixmizing revenues which,

34/ In that case the City argued that care of the ill was 
an essential service. Id.

56



(unlike closing whole hospitals), would improve health care 
delivery through regionalization of services and other effi­
ciencies without adversely affecting the population served.

New York State has adopted a new policy to encourage mergers 
between hospitals where to do so would create certain economies or 
produce better programs. (Ex. 87, Tr. 995). Sepecifically, Section 
86-1.38 provided for mergers

"where such combination is consistent with the pub­
lic need, would create a new more economical 
entity, reduce the costs of operation, result in 
the reduction of beds and/or improve service delivery."

35/
Plaintiffs financial expert, Mr. Thomas Cuite, testified 

that in his opinion a merger between Sydenham and Harlem Hospitals 
would meet these criteria, and would minimally produce over a 
million dollars in added revenue to the corporation, and nearly 
half a million dollars in reduced expenditures (Ex. 82, App. p. ; 
Tr. 1003-1004).

Under the regulations, the merged institutions plan a 
three-year budget to reflect the costs the new institution will 
incur during that period. (Ex. 87, Section 86-1.38(c)). That 
budget reflects operating costs and the costs necessary to 
implement the changes in administration and services that will

3_5/ Plaintiffs health finance expert, Thomas Cuite, spent eight 
and a half years with the Health and Hospital Corporation, in a 
variety of managerial positions including Vice President for 
Finance, or chief financial officer for the Corporation, with over­all responsibility for budget, financial planning, cash control, 
general accounting, reimbursement rate and policy (Tr. 693), and 
has had extensive experience in health care management and financing.

57



occur (Tr. 1016, 1271), which the new rate reflects. Additional
revenue beyond that which results from the new rate may result.
The regulation explicitly provides:

In the event that the merged institution incurs 
ceiling penalties, the Commissioner may waive 
those penalties for the first full year of oper­
ation under the merger. (Section 86-1.38(c).

Thus, the added revenue from merging Sydenham and Harlem, both of 
which are currently subject to penalties, will be approximately 
five million dollars (Ex. 82, p. 2).

The merger betwen the two institutions would result in a 
better coordinated, regionalized system with each hospital coor­
dinating specific types of services and care (Tr. 1019), which
would be much more cost efficient, and which would better serve 3j>/
critical needs.

In addition to savings which would be generated by the merger 
of Sydenham and Harlem, Mr. Cuite also prepared an analysis of the 
financial and health delivery benefits that could result from a 
merger between Metropolitan and Lincoln. Mr. Cuite analyzed the 
financial benefits from such a merger in a manner similar to that 
done in the case of Sydenham and Harlem (Tr. 1012-14, Ex. 83), 
and concluded that the action would insure 5.9 million in new 
revenues (Ex. 83, p. 3).

In addition to financial savings, the merger would also 
achieve economies and efficiencies in the delivery of health

36/ For example, either Sydenham or Harlem could create skilled 
nursing service and a specialized drug and alcoholic abuse service, 
both of which are desparately needed and would further increase 
revenues. (Ex. 2, p. 12, App. p. ; Ex. 76, p. 4, App. p. ; Tr. 
1276, 1970-1972).

58



care. One of the objectives of the regionalization and merger 
would be to avoid duplication of expensive high technology service 
(Tr. 1018). The Corporation had already endorsed ths objective 
(Tr. 1015), and a merger would greatly enhance that goal. (Tr. 
1017-1018).

Both the merger between Sydenham and Harlem and one between 
Metropolitan and Lincoln have a good chance of success (Tr. 1278). 
The potential financial benefits from both mergers— approximately 
$9 million dollars— more than approaches the possible savings 
gained from closing Sydenham,and does so not by closing off access 
to needed health services but by enchancing and improving those 
services. The City defendants presented no evidence to challenge 
the analyses, made by the former Chief of Finance for HHC, yet 
they did not, in the Task Force Report or elsewhere, ever consider 
these alternatives.

2. The City Ignored Proposals for the Revision and 
Expansion of Services at Sydenham Hospital

Carl Carter, the Executive Director of Sydenham submitted a 
proposal to the Corporation which suggested a revision and 
expansion of services at the hospital in order to increase 
revenue and provide needed services.

In essence, the proposal converts the hospital's present 
configuration to 100 acute care beds, 35 skilled nursing beds and 
20 substance abuse or alcohol abuse beds (Tr. 37; Ex. 52). The 
The unrebutted facts establish the dearth of available nursing 
homes and the adverse financial consequences Sydenham now suffers 
as a result. (Ex. 76, pp. 58-59, Tr. p. 193). With thirty-five

59



skilled nursing beds, patients who no longer required acute care
could be transferred within the hospital, eliminating the current
penalties Sydenham now experiences. There is no dispute such beds 

37/
are needed. To reject the proposal for the fear that the 
newly arranged hospital might retain some operating deficit is 
unreasonable. No Corporation acute care facility operates in the 
black. And the Corporation totally failed to consider the feas­
ibility of the program in the context of a merger between Sydenham 
and Harlem.

3. The City Ignored Hospital Reductions and Partial
Closings as Alternatives to Closing Entire Hospitals

In his March 3, 1979 memorandum detailing the goals and
methodology of what was to become the Health Task Force Report,

3/7/ Dr. Carl Mankowitz, Vice President of Health Care Planning 
and Policy Standards for the Corporation, stated:

The need for the new services is well docu­
mented and is true without a doubt. Northern 
Manhattan has a clear shortage of SNF beds 
(Ex. A, p. 2).
According to defendants, the substance abuse beds are not 

only needed, but the unit proposed "might generate as much as $1 
million of revenues above direct costs in F.Y. '80 dollars." (Ex. 
A., p. 3).

• The Corporation's objections to the proposal —  as few as
they were —  do little to detract from its viability. The 
objection to the skilled nursing beds was solely that the unit 
was "too small" and therefore programmatically unsound (Ex. A., 
p. 1). But there is no "standard" for SNF unit size in any 
institution. Other Corporation hospitals have comparably small 
units. Bellevue's SNFunit is only 52 beds; Harlem has 50 nursing 
beds, and Metropolitan has 20 beds. (Ex. B, pp. 1-2). Mr.
Carter also established that the Corporation's estimate of new 
staff was grossly overstated: "I didn't ask for any new staff
because the staff was already in the institution servicing the 
needs which we were not being reimbursed for. All we would do is 
rotate the staff around." (Tr. 42).

60



Mr. Dickstein advised that areas of financial savings to be 
explored should include "consideration of beds, wings, or build­
ings within municipal hospitals that should be decertified 
because of plant deterioration" (Ex. II, p. 3). The 
final Task Force Report recommended only two such possibilities, at 
Queens Municipal and at Kings County. With these few exceptions, 
defendants failed to see if any economies were possible by 
reducing a portion of a hospital's capital plant or by changing
any given hospital's service capacity or workload in order to

381/
close part of its capital plant (Tr. 714-75, 1184).
The district court originally made no mention of these alter­
natives. In his amended opinion the district judge addressed 
in a footnote only one of the alternatives, the merger between 
Sydenham and Harlem, and makes his observations in the context

38/ Defendants thus ignored many possible alternatives, since 
Municipal hospitals other than Kings County and Queens 
Municipal have several separate buildings, i.e., Bronx Municipal, 
ans Bellevue (Id_) . The opinion below states, "... OMB concluded 
that dollar savings would be maximized by the closure of entire 
facilities, rather than by haphazard service reductions of random
bed closures "(Tr. 1 370.) (Op. p. 16, App. p. ___ ). This is, of
course, only a finding as to what OMB concluded, presumably 

• because, as with all findings, the district court was solely
concerned with the motivation of the decision-makers. In any 
event, the transcript page cited does not say what the district 
court states, but rather that," savings would be maximized by 
closing hospitals, or at least a portion of a hospital." As noted above, Mr. Dickstein, whose testimony was quoted above, did 
believe options of mergers and partial closings should be con­
sidered (Ex. II, App. p. __), yet they were not. "Haphazard" or
"random" reductions are not at issue. The alternatives presented 
by plaintiffs were neither "haphazard" nor "random" but feasible 
actions to minimize HHC' s deficit and to improve delivery of 
health care.

61



of whether the proof as to alternatives established racial 
animus. (Op., fn. 12, App. p. ) Even in the added footnote, 
the district court does not descredit the feasibility of the

ternatives, but only states that this one alternative is "spec­
ulative." But that comment is irrelevant to the issue of whether 
the alternative is a viable one. Plaintiffs in this case assumed 
the burden of establishing the existence of feasible alternatives 
for saving money. Any alternative plaintiffs prsent is, by 
definition "speculative," because City defendants, not plaintiff, 
ae the ony ones capable of implementing such alternatives. 
Therefore, when plaintiffs, as here, come forward with alternative 
programs, defendants, at the least, must present evidence to show 
those alternatives are not feasible. In this case, the alterna­
tives were prepared by the former chief of finance for HHC, who 
had eight an a half years experience with the Corporation and who 
stated he believed the alternatives were extremely feasible. (Tr. 
1275, 1287) The record is devoid of any suggestion to the
contrary. No greater showing could be made by persons not in a

40/position to implement the alternatives.
Finaly, the district judge's last comment (amended opinion, fn. 12, 
App. p. ) that the merger between Sydemham and Harlem might not

!?u a^so notedf without despute by defendants, it would take only three weeks to prepare a merger application (Tr. 1275).
40/ Burdens of proof are often created to reflect judicial 
evaluations of probableness and to conform with a party's superior 
access to the proof. See Teamsters v. United States, 431 U.S.
324, 359, n. 45 ( 1 977). Nevertheless, plaintiffs assumed the 
burden of establishing the evidence of alternatives and were met with nothing in response from defendants.

62



be as efficient [presumably cost efficient] than clsoing Sydenham 
ignores the unrebutted testimony that the mergers between those 
two hospitals, in conjunction with the Metropolitan/Lincoln 
merger, would save approximately one mikkion dollars more than 
closing the all black hospital.

CONCLUSION

For the reasons stated above, the denial of the preliminary 
injunction by the court below sould be reversed and remanded with 
instructions to issue an injunction pendente lite or at least 
until city defendants provide assurances that the Sydenham patient 
population will have access to necessary in-patient and emergency 
services. Alternatively, this Court should reverse and remand 
with instructins that the district court made findings as to the 
availability of feasible alternatives to closing Sydenham Hospital.

Respectfully submitted,

63



JACK GREENBERG 
BETH LIEF

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Plaintiffs-
i Appellants in Bryan v. Koch

BEVERLY GROSS ~ "
KAREN SMITH 
JOEL GILLER

140 Park Place 
New York, New York

Attorneys for Plaintiffs- 
Appellants in District Council 3 7 v. Koch

HERBERT SEMMEL 
SANFORD NEWMAN

Center for Law and Scoial Policy 
1751 N. Street, N.W.
Washington, D.C. 20036

Attorneys for Plaintiffs- 
Appellants in District Council 37 v. Koch

MARGARET McFARLAND
University of Michigan 
Intern, Center for Law and 
Social Policy

64



CERTIFICATE OF SERVICE

The undersigned, a member of the bar of this 

Court, certifies that on the 27th day of May, 1980 she

served the foregoing Brief for Plaintiffs-Appellants 
attorneys for all defendants in both actions by hand 
delivering copies to:

Allen G. Schwartz, Esq.
Corporation Counsel 
100 Church Street 
New York, N. Y. 10007 
Attn: Bruce Kaplan
Attorney for City defendants

Judith Gordon, Esq.
Assistant Attorney General 
State of New York 
2 World Trade Center 
New York, N. Y. 10047 
Attorney for State defendants

William Hibsher, Esq.
Assistant United States Attorney
Southern District of New York
1 St. Andrews Plaza
New York, N. Y. 10007
Attorney for the U.S. Department of
Health, Education and Welfare

Beth Lief