concurring in part and dissenting in part:
I would affirm the injunctions entered by the district court in both cases under review, for somewhat different reasons than have heretofore been expressed.
In its Title VI enforcement efforts in these cases, the Department of HEW has attempted to negotiate school desegregation plans with the broad remedial discretion of a district court acting under the Fourteenth Amendment. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In so doing, the agency has, in my view, failed to comply with a basic statutory prerequisite to Title VI enforcement proceedings, the prescription that “termination” of funds be “effected” only after a finding of a “failure to comply with such requirements,” meaning, of course, with “rules, regulations, or orders of general applicability,” which are not effective until approved by the President. Title VI, § 602, 42 U.S.C. § 2000d-l.
This statutory language manifests at least three distinct and important concerns of Title VI; that requirements of uniform, nationwide applicability be adopted;1 that these requirements be issued under the direct authority and approval of the President, who is in immediate contact with the political process and directly accountable to the public; and that compliance efforts be confined to violations of “such” (see § 2000d-l) specific rules, regulations, or orders, thus avoiding what the majority opinion terms “a meaningless exchange of theory rather than a determination of fact.”
It is apparent that such a “meaningless exchange of theory” has occurred on both the City and State levels here, because of HEW’s failure both to promulgate identifiable Title VI requirements, and to confine its compliance efforts to insistence on conformity with properly adopted nationwide standards. This failure constitutes, in both cases, the type of clear violation of a statutory mandate that will justify injunctive relief without resort to an exhaustion of administrative remedies. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958).
*927I.
State of Maryland
Little more need be said of HEW’s approach to higher education under Title VI. The agency had clearly failed to promulgate “rules, regulations, or orders of general applicability” with respect to state systems of higher education. HEW’s Title VI regulations scarcely mention higher education, and even then say little more than that an assurance of compliance with unspecified, regulatory “requirements” must be provided. 45 C.F.R. § 80.4(a), (d). I am not as troubled as the majority by the lack of informal guidelines on the subject, a fact it obviously deems significant;2 the more basic problem for me lies in the lack of formally adopted, nationally uniform, standards approved by the President. This lack of statutorily required regulations justified the district court in issuing its injunction despite the State’s failure to exhaust administrative remedies.3 See Leedom, supra.
II.
City of Baltimore
HEW has issued regulations of general applicability with respect to primary and secondary schools. In 45 C.F.R. § 80.4(c), the regulation applicable to this case, HEW has stated that a school system will be deemed in compliance with Title VI if it “(2) submits a plan for the desegregation of such school or school system which the responsible Department official determines is adequate to accomplish the purposes of the Act and this part, at the earliest practicable time, and provides reasonable assurance that it will carry out such plan. . . . ”
This regulation fails to identify to any meaningful extent when a school system is not in compliance with Title VI, and what it must do to achieve compliance. Rather, it vests in HEW a broad remedial discretion in defining an acceptable desegregation plan, the exercise of which can only result in different standards of compliance with Title VI on a case by case basis. That is not what § 2000d-l contemplates. If requirements are to be imposed, the violation of which can result in a termination of federal financial aid, they must be in the form of publicly issued rules, regulations or orders of nationwide applicability, approved by the President.4
Judged by this standard, which is required by statute, the regulation applied in this case, 45 C.F.R. § 80.4(c)(2), cannot be viewed as adequate. It sets no identifiable, uniform standards of compliance with Title VI, only the hopelessly vague standard of what HEW deems “adequate to accomplish the purposes of the Act.” It is the content of this phrase — what HEW in substance deems “adequate” — that must be expressed in generally applicable regulations issued in an open and public manner. Only then will determinations of compliance reach the level of objectivity contemplated by Title VI.
The record in these cases supports the inescapable conclusion that, from the inception of HEW’s Title VI enforcement effort against Maryland and Baltimore City, beginning with Adams v. Richardson, 356 F.Supp. 92 (D.D.C.1973), aff’d. as modified, 480 F.2d 1159 (D.C.Cir.1973), the central, and really the only, theme has been the attainment of a racial balance in schools in which more than a 20% disproportion exists between minority enrollment and minority *928population in the entire school district,I. ***5 which in Baltimore is 70%.
Thus, in its Amended Notice of Opportunity for Hearing, setting forth enumerated grounds of noncompliance with Title VI on the part of Maryland and Baltimore City, HEW charged that 109 of the 210 public schools in Baltimore “had disproportionate minority enrollments in that they were greater than 90% minority,” and that 51 schools “had disproportionate white enrollments, in that they were less than 50% minority.”
The validity or applicability of such racial quotas in school desegregation cases need not be debated here. Cf. Swann, supra. It suffices for present purposes to observe that at no time has HEW incorporated such quotas, even in general terms, into a regulation of general applicability, approved by the President, as Title VI requires. If quotas at all, or a 20% disproportion, are to be the Title VI standard in school cases, it must be so for the entire nation, not just for the City of Baltimore.
For these reasons, I would hold that HEW acted ultra vires in its dealings with Baltimore City in No. 76-1493, and I respectfully dissent from the opinion of the majority in that ease.
Judges DONALD RUSSELL and K. K. HALL have authorized me to state that they concur in this opinion. Judge K. K. Hall has also asked me to state that he reserves the right to express further his separate views.
. Section 2000d-6 of Title VI clearly expresses Congress’ desire to achieve nationwide standards of uniform applicability:
“(a) It is the policy of the United States that guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 and section 182 of the Elementary and Secondary Education Amendments of 1966 dealing with conditions of segregation by race, whether de jure or de facto, in the schools of the local educational agencies of any State shall be applied uniformly in all regions of the United States whatever the origin or cause of such segregation.
“(b) Such uniformity refers to one policy applied uniformly to de jure segregation wherever found and such other policy as may be provided pursuant to law applied uniformly to de facto segregation wherever found.”
. During the pendency of this appeal, HEW has in fact issued informal guidelines for the desegregation of State systems of higher education, pursuant to an order of the United States District Court for the District of Columbia in Adams v. Califano, 430 F.Supp. 118 (D.D.C.1977).
The guidelines do not apply to the State of Maryland, because of the pendency of this litigation.
. My agreement with the majority’s affirmance in No. 76-1494 does not extend to its modification of the district court’s injunction, from which modification I respectfully dissent. I think the administration of Title VI is a matter better left in the hands of the executive branch, here HEW, assuming its complies with the statute, than a federal appeals court.
. The issue of whether Title VI obligations can be imposed which are not adopted by rules, regulations, or orders of general applicability, approved by the President, was not raised or considered in Taylor v. Cohen, 405 F.2d 277 (4th Cir. 1968) (en banc). That case is therefore not controlling here. United States v. Mitchell, 271 U.S. 9, 46 S.Ct. 418, 70 L.Ed. 799 (1926); Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411 (1925).
. This is indicated clearly by correspondence found in the record between OCR Director Peter Holmes and Superintendent Patterson of the Baltimore School System. A letter from Holmes to Patterson dated April 17, 1973 states that if Baltimore had no schools in which a “20% disproportion” existed, the system would be unaffected by the order of the District of Columbia District Court in Adams v. Richardson, supra. If, however, one or more such schools was in operation, the city was called upon to submit to OCR “all relevant data and demographic and other information . concerning each of the schools in your district in which a ‘20% disproportion’ exists, which would explain that disproportion or otherwise indicate your district’s compliance with existing law.”