Board of Education of City School District of City of New York v. Harris

OAKES, Circuit Judge

(dissenting):

The majority has gone out of its way to invalidate a regulation of an administrative agency as contrary to congressional mandate. But when one looks at the regulation itself, 45 C.F.R. § 185.44(d)(3), one finds that it does not say what the majority says it says, or what the majority says the agency says it says, but something else. And if the regulation is compared to the underlying statute, it becomes clear that Congress quite expressly authorized, as it so often does, the agency to use its discretion in devising regulations to implement the congressional mandate. I accordingly dissent. I think it serious business — and a serious matter of judicial interference with the executive branch of the federal government— so lightly to overturn an administrative regulation.

What this case involves is a city school system which has been found ineligible for Emergency School Aid Act (ESAA) funds for the school year 1978 — 79 because of discrimination inter alia in the hiring and in the assignment of full-time teachers, principals, and assistant principals to schools in such a manner as to identify certain schools as intended for a particular race or ethnic group.1 The school system sought a waiver of ineligibility pursuant to 20 U.S.C. § 1605(d)2 and 45 C.F.R. § 185.44(d)(3).3 The reasons given for the denial of the waiver by then HEW Secretary Califano to Chancellor Macchiarola are in pertinent part set forth in the margin.4 The accom*616panying report of Mr. Tatel of the Office for Civil Rights is also in pertinent part set forth.5 Neither the letter denying the waiver, the report accompanying it, nor the regulation under which the denial is made and which the report mentions refer in any place whatsoever to the “effects” of past discrimination, a straws man set up in the majority opinion and the opinion below, aided to some extent however by the federal government’s arguments in this litigation.

In fact, the denial of the waiver was based on a failure “to remedy the discrimination in the hiring and assignment of minority administrators and teachers.” Letter from Secretary Califano, supra note 4. This omission was accompanied by a failure to submit “information or evidence to demonstrate that the discrimination in hiring and assigning minority administrators and teachers has been or will be corrected prior to the commencement of the school year in September 1978.” Report of David S. Ta-tel, Office for Civil Rights, supra note 5.

The Central Board evidently thinks and the majority implicitly holds that the entry by the Central Board into the Memorandum of Understanding of September 7, 1977, with its phased remedial plan, see Caulfield v. Board of Education, 583 F.2d 605 (2d Cir. 1978), may be enough in and of itself to restore its eligibility for ESAA funds and permit the granting of a waiver. To my mind, the Secretary’s determination to the contrary was within his own Department’s regulations6 and the regulations, thus applied, conform to the statute.7 Rather than *617deciding these issues as they are presented here, the majority deals exclusively with the hypothetical questions whether a waiver must, under the regulations, be preceded by the elimination of all the effects of past discrimination and whether, if so, the regulations are valid under the statute. The determinations arrived at are therefore unwarranted in the present context.

Let me be more precise. There are several ways in which a school district may, under 20 U.S.C. § 1605(d), discriminate and render itself ineligible for ESAA funds. It may aid segregated private schools, discriminate in its dealings with staff, segregate children within a school for a significant portion of the day, or take other actions, “such as limiting curricular or extracurricular activities,” that discriminate among children on the basis of race or ethnic origin. Id. § 1605(d)(1). Before a waiver is granted, the Secretary must ensure that any such “practice, policy, or procedure, or other activity resulting in the ineligibility” has ceased to exist or occur and will not reoccur. Id.

The New York City Central Board had engaged in several of the disqualifying violations enumerated in the statute and regulations. It was violating § 1605(d)(1)(B) (demotion or dismissal of minority group personnel) and § 1605(d)(1)(D) (imposing disciplinary sanctions against children in a discriminatory way), as well as teacher and administrator assignment provisions of § 1605(d)(1)(B). But the ESAA funds were denied only because of a failure to correct the discriminatory assignment of teachers and administrators. HEW took this action because its regulation requires that, prior to any waiver, “the proportion of minority group full-time classroom teachers at each school [be] between 75 per centum and 125 per centum of the proportion of such minority group teachers which exists on the faculty as a whole.” 45 C.F.R. § 185.44(d)(3). This provision is similar to the other waiver regulations, which generally require that the disqualifying violation be corrected pri- or to a waiver, although there is provision for a gradual remedy when the violation is disproportionate dismissal or demotion of personnel. Id. § 185.44(d)(l)(i).

Clearly, HEW correctly applied its regulation, because the district had failed to alter its teacher assignments in any way. The Memorandum of Understanding that was entered into on September 7, 1977, which was to provide a phased remedial plan, did not, in itself, effect any change at all. It was not even aimed at obtaining ESAA funds. As the opinion in Caulfield v. Board of Education, 583 F.2d 605, 607-10 (2d Cir. 1978), discussing that Memorandum makes very clear, it was aimed at securing compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-6, and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686.8 Because the City Board had to come to terms with the teachers’ union, perhaps for other reasons, all of which are immaterial here, the compliance by it was to be phased in so as “to remedy the discriminatory effect of those practices on a phased basis by 1980.” Caulfield, supra, 583 F.2d at 607.

Thus, what the majority does now is to deny HEW’s power to implement the statute by the present regulations. It does so by imagining an entirely different regulation — one requiring the prior eradication of all the lingering, indirect effects of past discrimination — and concluding that such a rule is undesirable because effects of discrimination may last “for a generation, or longer.” Majority opinion at 611. The majority also makes one more fundamental error in its reading of the statute. It suggests, majority opinion at 612, that segregation of children within a district as a whole is a violation that may disqualify a district. It goes on to conclude that, under *618its existing regulations, HEW would grant a waiver only to districts that have already fully desegregated — i. e., districts that no longer really need the money. Id. This result would indeed be somewhat absurd, but the structure of the Act as a whole makes it clear that funds may be granted to districts that are still implementing plans for desegregating student bodies, see 20 U.S.C. § 1605(a)(1), and that existing school segregation itself was not intended as a violation that would cause ineligibility, see id. § 1605(d)(1) (listing violations). Referring to the list of disqualifying violations, then Senator Mondale stated: “The application of these safeguards is crucial. The value of integrated education to the children involved in the programs under this act will be lost if discrimination continues to be practiced within schools which are desegregated." 117 Cong.Rec. 10758 (1971) (emphasis added). The violations are thus discrete actions, other than segregation of students itself, that may take place in the context of an overall process of school desegregation.

This conclusion fits well with the overall statutory scheme. ESAA, as Califano I attempted to point out, 584 F.2d at 578-81, is a special funding act, supplementing an eligible nondiscriminatory school district’s funds “to aid in desegregating schools and support quality integrated schools.” S.Rep. No.604, 92d Cong., 2d Sess. (1972), reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 2595, 2600. These funds, which are limited in amount in any given school year in accordance with congressionally set national priorities, are in effect awarded on a competitive, “merit,” point-award basis to those school districts that have demonstrated eligibility by “objective criteria,” Califano I, supra, 584 F.2d at 579 n. 4. Funds are awarded “to qualified applicants in the order in which their applications are ranked.” Id. at 579. Congress was extremely careful to make sure that the requirements were uniform nationwide irrespective of the type of discrimination practiced, de facto or de jure. Id. at 578 n. 3. The Act was thus both a carrot and a stick, to North and South alike, affirmatively promoting the policies of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

The Act specifically set forth strict criteria for the award of funds, in the words of Senator Mondale, “strong safeguards,” “administrative guidelines,” and “mandatory directions”9 to try to assure proper administration of the Act. And Congress was very specific in its waiver provisions to provide nondelegable approval only by the Secretary himself, 20 U.S.C. § 1605(d)(2),10 with a grant to be made only “upon determination that any practice, policy, procedure or other activity resulting in ineligibility has ceased to exist . . . ,” id. at § 1605(d)(3), and with his determination to be “carried out in accordance with criteria and investigative procedures established by regulations of the Secretary for the purpose of compliance with this subsection.” Id. at § 1605(d)(5). To suggest, as the majority opinion does, that the grant of power here is “simply a procedural assurance,” majority opinion at 24, and that the regulation here in question, 25 C.F.R. § 185.44(d)(3), is not “rationally related to the objectives of the ESAA program,” majority opinion at 24, is to usurp the agency’s functions.

To give the majority their due, I do not believe that a regulation adopting their view would necessarily be invalid, but see Kelsey v. Weinberger, 162 U.S.App.D.C. 159, 498 F.2d 701 (D.C.Cir.1974), despite the *619apparently clear statutory requirement that the practice of assigning teachers to racially identifiable schools cease to exist or occur prior to a waiver. See 20 U.S.C. § 1605(d)(1). HEW should have, and I believe was given by Congress, certain flexibility in this area. In addition, there is a certain ambiguity in the statute created by the fact that faculty segregation is included both in § 1605(a), which discusses the kinds of ongoing desegregation that the Act seeks to encourage through funding, and in § 1605(d)(1), which, as I have noted, lists various practices that, until corrected, disqualify a district from receiving funds to aid its overall desegregation effort. Faced with this apparent contradiction, the administering agency might reasonably conclude that faculties need not be desegregated before a waiver is granted. But it might also conclude that the process of faculty desegregation, unlike that of student desegregation, is, because of § 1605(d)(1), only intended to be funded after the remedy has been substantially effected. A situation of such apparent ambiguity is, it seems to me clearly one where deference to the HEW interpretation is warranted, indeed required, regardless of whether the regulations are deemed “interpretive” or “legislative.” See generally Batterton v. Francis, 432 U.S. 416, 424-26, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977). When two interpretations are possible, and neither would frustrate the legislative scheme, we should follow the agency’s interpretation.

The majority opinion ultimately fails to state what HEW may now do. It may be that the majority’s invalidation of the statute means that HEW must now grant the waiver, because the Memorandum is a sufficient indication that the district will no longer discriminate. If so, I am concerned about how today’s decision will affect future school desegregation.

Presumably the Department will be reluctant to enter into memoranda of understanding similar to the one entered into here, providing for phased-in compliance, lest agreement thereto immediately render eligible for ESAA funds, on the basis of its “good intentions,” a district that has highly segregated faculty assignments. This would be a sorry combination of events since there is a statutory admonition to all federal agencies under the Civil Rights Act of 1964, 42 U.S.C. § 2000d-l, to secure voluntary compliance with that Act’s provisions. And, while I agree with the majority in that I do not believe Congress necessarily meant defiant applicants to do “an additional penance,” majority opinion at 610, I do believe that Congress knows as well as any other branch of government with what the road to Hell is paved. I think Congress was perfectly prepared to permit the Department under Department regulations to insist upon a little more from its ESAA applicants than the paving stones the majority relies on here.

If, on the other hand, under the majority opinion and “remand” HEW still has some power to deny the waiver sought by appellee — a power based on the statutory requirement that the Secretary ensure that the discrimination has ceased — it is unclear how the majority decision has altered the status quo under the regulations. Such a power is no more and no less than what the regulations have embodied all along — the power to make sure that teachers are no longer assigned to schools on the basis of race or ethnic origin.

But perhaps the majority has yet a third view. Maybe it feels that HEW can require more than a Memorandum of Understanding, but less than a real change in teacher assignments. If so, that view is nowhere spelled out or explained. The opinion, where light is needed, creates only fog or, if under the first alternative suggested it requires the agency to treat the mere entering into the Memorandum of Understanding as sufficient to constitute compliance, darkness. I therefore dissent.

. This ineligibility was mandated by 20 U.S.C. § 1605(d)(1)(B) and 45 C.F.R. § 185.43(b)(2). See Board of Educ. v. Califano, 584 F.2d 576, 588 (2d Cir. 1978), cert. granted, 440 U.S. 905, 99 S.Ct. 1211, 59 L.Ed.2d 453 (1979) (Califano I). Califano I dealt with ESAA funds for the school year 1977-78.

. The statute provides that

[n]o educational agency shall be eligible for assistance under this chapter if it has, after June 23, 1972 [engaged in certain discriminatory practices] except that, in the case of any local educational agency which is ineligible for assistance [for this reason], such agency may make application for a waiver of ineligibility, which application shall specify the reason for its ineligibility, contain such information and assurances as the Secretary shall require by regulation in order to insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur and include such provisions as are necessary to insure that such activities do not reoccur after the submission of the application.

20 U.S.C. § 1605(d)(1).

. This regulation is quoted in full in note 13 of the majority opinion.

. The Secretary stated:

On June 20, 1978, Dr. Herman R. Goldberg, Associate Commissioner, Equal Educational Opportunity Programs, Office of Education, notified you that your district was ineligible for assistance. This notification was a consequence of your district’s failure to meet the requirements for eligibility established by section 706(d) of the Act and sections 185.-43(b)(2), 185.43(d)(4), and 185.43(d)(5) of the implementing regulations. Your school district has provided acceptable plans to remedy the discrimination in the assignment of students to racially identifiable or isolated regular classes and in imposing disciplinary sanctions. Nevertheless, your district has failed *616to remedy the discrimination in the hiring and assignment of minority administrators and teachers.
Your district applied for a waiver of ineligibility on July 7, 1978. However, it failed to provide evidence that the discrimination in the hiring and assignment of minority administrators and teachers had ceased to exist and would not reoccur.
The grounds for my decision to deny your application are set forth in the enclosed report from Mr. David S. Tatel, Director of this Department’s Office for Civil Rights. From this report I have determined that your school district has not corrected the violation of section 185.43(b)(2) of the ESAA

Letter from Secretary Califano to Chancellor Macchiarola (Sept. 28, 1978).

. The report stated:

On September 7, 1977, the Central Board and OCR entered into a Memorandum of Understanding that would have remedied the discrimination in hiring and assignment of minority administrators and teachers by 1980. Because the Memorandum of Understanding provided for a phased remedial plan that would not have eliminated the discrimination in hiring and assigning minority administrators and teachers by September 1977, the Department denied the Central Board’s request for an ESAA waiver of ineligibility for the 1977-78 funding cycle. Furthermore, the Central Board subsequently abandoned the terms of the Memorandum of Understanding after Judge Weinstein invalidated the agreement on procedural grounds in Caulfield v. Board of Education, [449 F.Supp. 1203] (E.D.N.Y. 1978), appeal pending, [583 F.2d 605] (2d Cir. 1978).
On July 7, 1978, the Central Board applied for a waiver of ineligibility based on its pending appeal of Judge Weinstein’s decision in Board of Education v. Califano, No. 77-C-1928 (E.D.N.Y. April 18, 1978), upholding the Department’s denial of ESAA funds to the Central Board for 1977-78. The Central Board offered no explanation why the pending of the appeal would justify granting an ESAA waiver of ineligibility. More significantly, on August 21, 1978, the United States Court of Appeals for the Second Circuit affirmed Judge Weinstein’s decision. Board of Education v. Califano, [584 F.2d 576] No. 78-6083, 78-6088, 78-8180 (2d Cir. Aug. 21, 1978).
The Central Board has submitted no information br evidence to demonstrate that the discrimination in hiring and assigning minority administrators and teachers has been or will be corrected prior to the commencement of the school year in September 1978. Therefore, the Central Board is not eligible for an ESAA waiver of ineligibility on this issue.

Report by David S. Tatel, Office for Civil Rights.

. See 45 C.F.R. § 185.44(d)(3), quoted in majority opinion, note 13 supra; 45 C.F.R. § 185.-44(b) (“An application for waiver shall contain such information and assurances as will insure that any practice, policy, procedure, or other activity resulting in ineligibility has ceased to exist or occur, and shall include such provisions as are necessary to insure that such practice, policy, procedure, or activity will not reoccur after the submission of such application.”).

. 20 U.S.C. § 1605(d).

. Title IX deals with practices discriminatory against females. The Title VI violations involved discriminatory teacher selection and testing procedures and racially identifiable employment pools as well as teacher and administrator assignments reinforcing racial/ethnic identifiability (also, concededly, involved in the instant case) and assignment of less experienced, lower salaried, less qualified teachers to minority-preponderant schools. Caulfield v. Board of Educ., 583 F.2d 605, 608 n. 3 (2d Cir. 1978).

. 117 Cong.Rec. 10758 (1971). The Senator stated:

It is because of the history of the emergency school assistance program that the Labor Committee has included in the bill strong safeguards modeled upon those added in the Senate to the emergency school assistance program appropriation. The committee has also, both in the bill and the report set forth mandatory directions to the Commissioner to try to assure proper administration of this program.

. All waivers must also be in writing, with prior notice given to specific congressional committees, 20 U.S.C. § 1605(d)(6). These extraordinary requirements to me demonstrate that Congress was extremely fearful that waivers would be granted too quickly or easily.