concurring in part and dissenting in part:
I.
STATE OF MARYLAND
As to the State of Maryland (Appeal No. 76-1494), I concur with that portion of the majority opinion which holds in substance that HEW acted ultra vires due to its failure to adopt guidelines for Title VI compliance by institutions of higher education in Maryland, thereby rendering the voluntary and administrative compliance phases of the Title VI enforcement a “meaningless exchange of theory rather than a determination of fact.”
I dissent from the failure of the majority to also hold that HEW must utilize a programmatic approach to voluntary compliance with the State of Maryland prior to initiation of administrative enforcement and from the dictum in Part II.C. of the majority opinion which implies that HEW has no such duty.
I further dissent from the relief which the majority holds is proper for the State of Maryland. In lieu thereof, I would affirm the injunction entered by the district court.
II.
CITY OF BALTIMORE
As to the City of Baltimore (Appeal No. 76-1493), I dissent from the majority opinion which narrowly holds that § 602 of Title VI, 42 U.S.C. § 2000d — 1, alone does not require a programmatic analysis of alleged Title VI noncompliance during voluntary negotiations prior to initiation of administrative enforcement proceedings, and which therefore holds that HEW did not act ultra vires by its conduct up to and including the commencement of administrative enforcement.
I further dissent from the reversal of the injunction entered in favor of the City of Baltimore, and instead would also affirm the injunction entered by the district court.
III.
PROGRAMMATIC APPROACH
Under Title VI, 42 U.S.C. § 2000d, et seq., and the applicable regulations, 45 C.F.R., *929Parts 80 and 81, the compliance procedures are divided into three phases: (1) the voluntary compliance phase; (2) the administrative hearing phase; and (3) the phase when actual fund termination occurs. I would hold that under Title VI, HEW must, at each of the three phases, specify with particularity, to the extent reasonably possible, each program or programs that it believes to be out of compliance with Title VI.
I believe this result is compelled by the statutory and regulatory framework of Title VI, its legislative history, by precedent, and certainly by logic itself. Since HEW admittedly did not follow a programmatic analysis during the voluntary enforcement stage and prior to its efforts to seek and to pursue administrative enforcement seeking termination of all federal funding with respect to the State of Maryland and the City of Baltimore respectively, I would hold that the district court correctly assumed jurisdiction in both civil actions filed by the State and the City, respectively, under the established exception to administrative exhaustion doctrine set forth in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); see also Taylor v. Cohen, 405 F.2d 277, 281 (4th Cir. 1968).
When the entire statutory and regulatory framework of Title VI is closely analyzed, it is clear that a programmatic approach to Title VI compliance must be followed in all phases of compliance.1 The congressional prohibition against discrimination supports this view:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d (emphasis added).
The parallel regulation contains similar emphasis barring “. . . discrimination under any program or activity receiving Federal financial assistance from [HEW].” 45 C.F.R. § 80.1 (emphasis added).
The compliance section of Title VI and its parallel regulation similarly require voluntary compliance by the parties in an effort to end discrimination in programs receiving federal funding, and failing in that, termination provisions for such funding are provided. Again, these provisions are “. . . limited to the particular political entity, or part thereof, or other recipient as to whom such a[n] [administrative finding of discrimination] has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance [with Title VI] has been so found, . . ..” 42 U.S.C. § 2000d-l (emphasis added); 45 C.F.R. § 80.8(c).
Further, the applicable law provides, in 45 C.F.R. § 80.2 that “[t]his regulation applies to any program for which Federal financial assistance is authorized to be extended to a recipient under a law administered by [HEW-45 C.F.R. § 80.13(a)], including the Federal assisted programs and activities listed [as] Appendix A of this regulation.” (emphasis added). That Appendix comprehensively lists 186 areas wherein federal monies are either made available as part of a federal program (such as for research and related activities in education of handicapped children — 20 U.S.C. § 1441 — or for college work-study programs — 42 U.S.C. §§ 2751-2757) or as part of continuing federal assistance to state administered programs (such as grants to states for vocational work-study programs — 20 U.S.C. §§ 1371-1374). Indeed, a fair reading of the entire statutory and regulatory scheme bespeaks of a programmatic analysis in Title VI cases.2
Precedent also supports the programmatic approach required in Title VI cases. *930Contrary to the majority in this case, I believe the holding in and the spirit of Board of Public Instruction of Taylor County, Fla. v. Finch, 414 F.2d 1068 (5th Cir. 1969), require a programmatic analysis both during voluntary negotiation and later during the administrative compliance phase.
In the Finch case, Taylor County, Florida, received federal funds for use in its educational system under a number of federal grant statutes, e. g., Title II, Elementary and Secondary Education Act of 1965, 20 U.S.C. § 241a-m; P.L. 89-750, Basic Education for Adults, 20 U.S.C. §§ 1201-1213; and Title III, Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 841— 848. A HEW hearing examiner, however, concluded that the Taylor County School Board was in violation of Title VI and therefore ordered that federal funds to the district be terminated. But the order was not:
. programmatically oriented, at least if the term “program” is understood to refer to the individual grant statutes under which aid was given to the Taylor County School District. . . the termination of federal funds is not “limited in its effect” to one or more federally financed activities described in the grant statutes, but extends to “any classes of Federal financial assistance arising under any Act of Congress. .
414 F.2d at 1072 (emphasis in the original). The Court of Appeals reversed the HEW hearing examiner’s order holding that:
HEW was denied the right to condemn programs by association. The statute prescribes a policy of disassociation of programs in the fact finding process. Each must be considered on its own merits to determine whether or not it is in compliance with the Act. In this way the Act is shielded from a vindictive application. Schools and programs are not condemned enmasse or in gross, with the good and the bad condemned together, but the termination power reaches only those programs which would utilize federal money for unconstitutional ends. Under this procedure, each program receives its own “day in court”.
414 F.2d at 1078 (emphasis added).
While the court in Taylor County did focus on the termination stage of the proceedings, there is no rational basis for distinguishing that stage of the proceedings from the voluntary compliance stage of the proceedings. This follows since the underlying thrust of Title VI requires HEW first to secure voluntary compliance eliminating discrimination if such a method is reasonably possible. 42 U.S.C. § 2000d-l; 45 C.F.R. §§ 80.6(a) and 80.8(c); Adams v. Richardson, 351 F.Supp. 636, 641-642 (D.D.C. 1972); modified and aff'd, 156 U.S.App.D. C. 267, 480 F.2d 1159, 1163 (1973); Board of Public Instruction of Taylor County, Fla. v. Finch, supra at 1075, n.12; 1964 U.S.Code Cong, and Admin.News, at p. 2512; Remarks of Senator Pastore, 110 Cong.Rec. 7061 (1964); see also Taylor v. Cohen, 405 F.2d 277, 279 (4th Cir. 1968).
Explicit in any scheme of voluntary compliance is negotiation, Adams v. Richardson, 351 F.Supp. 636, 641 (D.D.C.1972), 45 C.F.R. § 80.7(d), and for meaningful negotiations to occur one must know what he is charged with in order to discuss his position intelligently. This allows the party charged with a Title VI violation to remedy the situation voluntarily. And many cases can be, and indeed should be, settled at this stage. Also, this spares the non-discriminating programs the wasteful counterproductive and unnecessary expense that attaches to being blindly drawn into an administrative proceeding that should not ultimately affect it anyway. It likewise dispenses with the harsh result that attends en masse terminations of federal assistance when wholesale cut-off of funding deprives those of federal funds who need them the most and whom Title VI was designed to protect.3 See Board of Public Instruction of Taylor Coun*931ty, Fla. v. Finch, supra at 1075; United States Commission on Civil Rights, A Generation Deprived, Los Angeles School Desegregation, Chapter VIII, pp. 168-194 (1977); Remarks of Senator Pastore, 110 Cong.Rec. 7061 (1964).
Thus, the enforcement during the voluntary compliance phase in Title VI cases on a non-programmatic basis renders that statute, so applied, to be punitive in nature — a result Congress clearly did not intend. Id.; 1964 U.S.Code Cong, and Admin.News, p. 2512; Remarks of Senator Pastore, 110 Cong.Rec. 7061-7063 (1964).
I further believe that the extensive legislative history reflected debates on the floor of Congress supports the requirement of a programmatic analysis during the voluntary compliance phase in Title VI cases.
Senator Pastore observed that:
Title VI is not a device to terminate all federal aid to a state or community because there has been discrimination in one specific program. Therefore, the nondiscrimination requirements must relate directly to the particular program or activity against which they are imposed. Participation in one program would not justify the exaction of a nondiscrimination assurance concerning some other program. Similarly, any fund cut-off, or similar action, can be taken only concerning a program or activity in which discrimination has been practiced. Only the program in which discrimination has been practiced would be affected by Title VI.
88 Cong.Rec. 7059 (1964) (emphasis added).
In response to comments by Senator Ribicoff, Senator Pastore added that:
. . the purpose of Title VI is not to cut off funds but to end racial discrimination. This requirement is reflected throughout the act. It is reflected in section 602 [42 U.S.C. § 2000d-l] which provides that any section taken by the Federal department or agency must be “consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” As a general rule, cutoff of funds would not be consistent with the objective of the Federal assistance statutes if other effective means of ending discrimination are available.
Section 602 [42 U.S.C. § 2000d-l], by authorizing the agency to achieve compliance “by any other means authorized by law,” encourages agencies to find ways to end discrimination without refusing or terminating assistance. These careful safeguards certainly demonstrate that the proposed statute is not intended to be vindictive or punitive.
88 Cong.Rec. 7063 (1964) (emphasis added).
The commentary of Senators Humphrey, Javits and Moss also support the Pastore-Ribicoff programmatic interpretation which I believe is proper. Discussing § 602 of Title VI, Senator Humphrey reviewed the desired scheme of Title VI compliance thus-]y:
... [42 U.S.C. § 2000d-l] provides that any termination of federal assistance will be restricted to the particular political subdivision which is violating nondiscrimination regulations established under Title VI. It further provides that the termination shall affect only the particular program, or part thereof, in which such a violation is taking place.
88 Cong.Rec. 12714-12715 (1964) (emphasis added).
It is my view that Title VI is consistent with the opinion of the late President [Kennedy], because it would not authorize a general wholesale cutoff for federal expenditures, regardless of the purpose for which they were being spent. It would authorize action, including cutoff of funds where necessary, to end racial discrimination against the participants- and beneficiaries of specific programs of federal financial assistance by way of grant, loan, or contract.
88 Cong.Rec. 8627 (1964) (emphasis added).
Senator Javits carefully noted that:
[proponents of the bill have continually made in clear that, apart from all these safeguards against arbitrary action, it is the intent of Title VI not to require wholesale cutoffs of federal funds from all federal programs in entire states, but instead to require a careful case by case application of the principle of nondiscrimination to those particular activities which are actually discriminatory or segregated.
88 Cong.Rec. 7103 (1964) (emphasis added).
Finally, Senator Moss capsulized the programmatic requirement thusly:
*932Involved here in Title VI is the very elementary and unassailable principle that federal funds are not to be used to support racial discrimination. Yet, before that principle is implemented to the detriment of any person, agency, or state, regulations giving notice of what conduct is required must be drawn up by the agency administering the program. These regulations can only reach racial discrimination which relates directly to the particular purpose of the program.
88 Cong.Rec. 6749 (1964) (emphasis added).
Beyond the statutory and regulatory framework, the precedent and the legislative history of Title VI, at least at the elementary and secondary levels of education, HEW’s own forceful policy interpretation of Title VI requires a programmatic approach during voluntary negotiations toward compliance. Paragraph 22 of the pamphlet entitled Policies on Elementary and Secondary School Compliance with Title VI of the Civil Rights Act of 1964, issued by HEW’s Office of Civil Rights, pursuant to 45 C.F.R. §§ 80.6(a) and 80.-12(b), which governs HEW’s enforcement of Title VI in the elementary and secondary school systems (and which is applicable to the City of Baltimore), provides quite succinctly that:
Where review of a school system indicates noncompliance with the Assurance of Compliance and Title VI, the Office for Civil Rights staff will make every reasonable effort to achieve compliance through negotiation.
The first formal step of such negotiation is a letter from the Office for Civil Rights to the school system identifying the particular areas of noncompliance, advising the system of its responsibility to prepare and submit to the Office for Civil Rights a plan for correcting the noncompliance promptly and effectively, and offering the school system assistance and guidance on the best manner to achieve compliance. If a school system submits a plan which is unsatisfactory in any respect, the Office for Civil Rights will inform the school system in detail and in writing of the areas in which the plan is not satisfactory.
If local officials so request, the Office for Civil Rights will at any stage of negotiation recommend in writing specific steps the school system may take to achieve compliance.
Quoted from Mandel v. U. S. Dept. of Health, Education and Welfare, 411 F.Supp. 542, 554 (emphasis added).
Since the policy pronouncement contained in Paragraph 22 of the OCR policy manual is merely declaratory of the programmatic approach to voluntary negotiations which I believe Title VI requires, as is set forth above, then like the district judge below, I would hold that HEW has thus failed to follow their own rules and regulations in contravention of the sound principles set out by Judge Winter in United States v. Heffner, 420 F.2d 809, 811 (4th Cir. 1970); See Mandel v. U. S. Dept. of Health, Ed. and Welfare, 411 F.Supp. 542, 553-554 (D.Md.1976).
Finally, I believe the programmatic approach retains the proper and logical evidentiary balance regarding the burden of going forward with the evidence in cases of this nature. Ordinarily, at the outset of the administrative process, the burden of producing evidence rests upon HEW to establish the discriminatory nature of a program. 5 U.S.C. § 556(d). When the agency has made a prima facie case, the burden of going forward with the evidence obviously shifts.
If we were to adopt a non-programmatic approach and fail to require HEW to specify the particular program, or part thereof arguably in noncompliance, then the evidentiary roles of producing proof would illogically be reversed. This would place an unreasonable burden upon the state, city or school board to prove a negative — that is, the challenged entity, under pain of fund termination, would have to demonstrate the absence of discrimination in every program, activity and part thereof. To avoid this injustice, I would hold that HEW must “pinpoint” to the extent reasonably possible the precise program, or part thereof, which it contends is in noncompliance with Title VI. As above noted, this must be done prior to enforcement proceedings during voluntary compliance efforts.
Judge DONALD RUSSELL asks that I state that he concurs with the views expressed in my concurring and dissenting opinion.
*933While Judge WIDENER authorizes me to state that he concurs in this opinion, he yet believes that the reliance of the majority opinion on whether or not the Secretary must negotiate on a programmatic basis avoids discussion of the principal, issue of the case.
. The definition of “program” is discussed in Board of Public Instruction of Taylor County, Florida v. Finch, 414 F.2d 1068, 1076-79 (5th Cir. 1969). Rather than meaning an entire school program, as HEW argued, its meaning can be reduced to an individual grant that finances a project or activity, no matter how few people are involved. See also 45 C.F.R. § 80.-13(g) (1976).
. It has long been settled that “[sjtatutes which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose are in pari materia, and it is a general rule that in the construction of a particular statute, or in the interpretation of its provisions, all other statutes in pari materia should be read in connection with it, as together constituting one law, and they should be harmonized, if possible.” 82 C.J.S. Statutes § 366 (1953).
. Federal funds are necessary to support the State’s schools of: medicine, dentistry, nursing, and pharmacy. The Baltimore Cancer Research Center is similarly dependent. Much of this federal aid goes directly to minority students through student loans, work-study and grants. Mandel v. U. S. Dept. of Health, Education and Welfare, 411 F.Supp. 542, 560-61. City programs affected by such a federal fund cut-off would be widely varied. They would include: “summer programs for exceptional and socially deprived children; staff development; programs for handicapped children; parent training; library resources; sickle cell anemia; projects for reading; science mathematical and vocational education; and work-study for low income students.” Id., at 561.