Adams v. Weinberger

¶1 SUPPLEMENTAL ORDER

¶2 This cause came before this Court upon plaintiffs’ Motion for Further Relief and the Opposition of the defendants thereto. After a review of the en *271 tire record, the Court inclines to the belief that substantial progress has been made in this difficult and complex area. On the other hand, without deprecating the value of voluntary settlement of these problems, there appears to be an over-reliance by HEW on the use of voluntary negotiations over protracted time periods and a “reluctance in recent years to use the administrative sanction process where school districts are known to be in non-compliance … ” Report of United States Commission on Civil Rights, January 22, 1975, page 131, n. 1. Having considered the motion and opposition and the record before it, this Court enters the following findings and remedial provisions.

¶3 A. 125 Substantial Racial Disproportion Districts.

¶4 As this Court found in its February 16, 1973 Order, 1 the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) enunciated “a presumption against schools that are substantially disproportionate in their racial composition.” In Appendix B of that February 16, 1973 Order, the Court listed 85 southern school districts having one or more schools substantially disproportionate in their composition (because at least a 20% disproportion existed between the percentage of local minority pupils in the schools and the percentage in the entire school district). HEW not having required any of these 85 school districts to explain or rebut the substantial racial disproportions in the schools, this Court enjoined HEW to communicate with each of the districts within 60 days, putting them on notice to rebut or explain the disproportions in one or more of their schools. HEW took appropriate action pursuant to this Order and substantial compliance progress resulted therefrom. However, the record now reveals an additional 125 southern “HEW school districts” with one or more schools substantially disproportionate in their racial composition (see Attachment A), where HEW has not sought an explanation or rebuttal from the school district.

¶5 WHEREFORE, in supplementation of ff III B(l) of this Court’s Order of February 16, 1973, defendants, their successors, agents and employees are required and enjoined within 60 days of the date of this Order to communicate with each of the 125 districts listed in Attachment A, putting them on notice to rebut or explain the substantial racial disproportion in one or more of the districts’ schools.

¶6 B. 293 Districts With Allegations of Miscellaneous Violations.

¶7 Plaintiffs’ Motion for Further Relief alleges that there are 293 additional districts where HEW has found presumptive Title VI violations. The deposition and affidavit of Dr. Lloyd R. Henderson, indicate however that the statistical data 2 on which this allegation is based demonstrate possible Title VI problems and not presumptive violations. We accept ,for the present HEW’s assertion that one of the purposes of the Enforcement Analysis Tables compiled on a nationwide basis was to provide an indication of those districts which might be likely candidates for Title VI compliance activity and to aid in the determination of priorities.

¶8 WHEREFORE, plaintiffs’ request for further relief in this area is denied at this time.

¶9 C. 6 ESAA Districts.

¶10 With respect to 116 elementary and secondary school districts, where HEW had found probable violations of Title VI, this Court’s February 16, 1973 Order held that the time permitted by Title VI for securing voluntary compliance before commencing enforcement *272 proceedings had long since passed (fifi II A(5); 111(A)(7)). HEW had found the districts in violation or presumptive violation of Title VI and had failed during substantial periods of time to achieve voluntary compliance. Accordingly, the Court ordered HEW within 60 days to commence enforcement proceedings by administrative notice of hearing or any other means authorized by law against each of the districts in order to effect compliance with Title VI. In the spring of 1973, HEW declared 17 HEW districts in the south ineligible for funding under the Emergency School Aid Act of 1972 because of substantial civil rights violations. Nine districts were the subject of HEW enforcement activity pursuant to specific directives of this Court's February 16, 1973 Order. Since the filing of the present Motion for Further Relief, Orangeburg, South Carolina has been found eligible for ESAA funding and Charles County, Maryland, has submitted a student assignment plan acceptable to HEW. In the remaining 6 districts, however, HEW has made no efforts to effectuate compliance with Title VI after indication of substantial civil rights violations.

¶11 WHEREFORE, in supplementation of fifi II B(l) and III B(2) of this Court’s Order of February 16, 1973, defendants, their successors, agents and employees, are required and enjoined within 60 days of the date of the Supplemental Order to commence enforcement proceedings by administrative notice of hearing or any other means authorized by law against each of the school districts identified in Attachment B, in order to effect compliance with Title VI.

¶12 D. 39 Unresolved Swann Districts.

¶13 In its February 16, 1973 Order, this Court found 85 school districts presumptively in violation of Swann and Title VI because they had one or more schools substantially disproportionate in their racial composition. This Court ordered defendants to communicate with each of these districts promptly, putting them on notice to rebut or explain the substantial racial disproportions (fi III B(l)). HEW has done so. Thirty-one of these districts have since been found in compliance by HEW, and 15 others are in litigation or under court order. Thirty-nine 3 of the districts remain unresolved more than 25 months after the issuance of this Court’s Order, but HEW has not initiated enforcement proceedings against any of them. The time for securing compliance by merely voluntary means in these districts has passed.

¶14 WHEREFORE, defendants, their successors, agents and employees, are required and enjoined within 60 days from the date of this Order to commence enforcement proceedings by administrative notice of hearing or any other means authorized by law, in order to effect compliance with Title VI by each of the school districts identified in Attachment C.

¶15 E. Hundreds of School Districts Subject to Court Desegregation Orders.

¶16 This Court’s Order of February 16, 1973 (fiV B(2)) required HEW to bring its findings of court order violations to the attention of the court concerned. Since that Order issued, HEW has identified numerous southern districts subject to judicial desegregation orders which, in violating or apparently violating Title VI, are in violation of said court orders.

¶17 In cases where the United States is a party, HEW has referred some of this information of violations or presumptive violations of court orders to the Justice Department, but none of the information has been brought to the attention of the *273 courts concerned. In cases of orders resulting from private litigation, such information has not been conveyed either to the courts or to the private attorneys of record.

¶18 WHEREFORE, in supplementation of |JV B(l) and (2) of this Court’s Order of February 16, 1973, defendants, their successors, agents and employees, through the Justice Department or other means, are required and enjoined within 120 days of the date of this Supplemental Order to call to the attention of the courts concerned each of the violations or presumptive violations of court orders, unless defendants have made an administrative determination of compliance by the school district within the 120-day period.

¶19 F. Future HEW Compliance with Title VI.

¶20 This Court has ruled in this case that HEW has a duty to commence prompt enforcement activity upon all complaints or other information of racial discrimination in violation of Title VI, and that where it appears that a school district is in violation or presumptive violation of Title VI the agency has a duty under Title VI to commence enforcement proceedings by administrative notice of hearing or any other means authorized by law where efforts to obtain voluntary compliance do not succeed within a reasonable period.

¶21 HEW has often delayed too long in ascertaining whether a complaint or other information of racial discrimination constitutes a violation of Title VI. HEW has also frequently failed to commence enforcement proceedings by administrative notice of hearing or any other means authorized by law although the efforts to obtain voluntary compliance have not succeeded during a substantial period of time. As shown in Section D above, in 39 “unresolved” Swann districts, HEW, having failed during a substantial period of time to achieve voluntary compliance, has not commenced enforcement proceedings by administrative notice of hearing or any other means authorized by law. Apart from the school districts expressly covered by this Court’s February 16, 1973 Order, HEW has not initiated a single administrative enforcement proceeding against a southern school district since the issuance of this Court’s Order 25 months ago.

¶22 WHEREFORE, defendants, their successors, agents and employees are required and enjoined hereafter to carry out their Title VI enforcement activities affecting public school districts in the 17 southern and border states according to the following schedule:

(a) Within 90 days of receipt by HEW of a complaint or other information of racial discrimination, determine for administrative purposes whether the district is in or out of compliance with Title VI;

(b) Wherever there is not a determination of compliance by the 90th day, attempt to secure compliance through voluntary means for an additional period not to exceed 90 days;

(c) Where such compliance is not secured within 180 days of the receipt of the complaint or other information of racial discrimination, commence within 30 days thereafter an enforcement proceeding through administrative notice of hearing or any other means authorized by law.

¶23 G. Supplemental Reporting Provision.

¶24 Supplementing .the reporting provisions in this Court’s Order of February 16, 1973, defendants, their successors, agents and employees, are required and enjoined to provide in verified form to counsel for plaintiffs within 150 days of the date of this Supplemental Order, and at the time of all subsequent reports required by this Court’s February 16, 1973 Order, a summary of all steps taken to comply with the injunctive provisions set forth in the preceding paragraphs.

¶25 *274 Attachment A

¶26 SUBSTANTIAL RACIAL DISPROPORTION DISTRICTS

¶27 ARKANSAS

¶28 Jonesboro School District # 1

¶29 DELAWARE

¶30 Caesar Rodney

¶31 De La Warr School District

¶32 Newark

¶33 FLORIDA

¶34 Levy County

¶35 Monroe County

¶36 GEORGIA

¶37 Madison County

¶38 Thomasville City

¶39 KENTUCKY

¶40 Covington City

¶41 Elizabethtown Independent

¶42 Warren County

¶43 LOUISIANA

¶44 Allen Parish

¶45 Vernon Parish

¶46 MARYLAND

¶47 Baltimore County

¶48 Caroline County

¶49 Cecil County Public Schools

¶50 Frederick County

¶51 Howard County

¶52 Montgomery County Pub. Sch.

¶53 Talbot County

¶54 Washington County

¶55 MISSISSIPPI

¶56 Lee County

¶57 MISSOURI

¶58 Cape Girardeau Public # 63

¶59 Joplin R-8

¶60 Poplar Bluff R-l

¶61 Special Sch. Dist. of St. Louis

¶62 Springfield R-12

¶63 NORTH CAROLINA

¶64 Burke County

¶65 Caswell County

¶66 Chatham County

¶67 Hoke County

¶68 Jackson County

¶69 Madison-Mayodan City

¶70 Onslow County

¶71 Pender County

¶72 Polk County Bd. of Educ.

¶73 Randolph County

¶74 Roanoke Rapids Graded School

¶75 Rowan County Schools

¶76 Shelby City Schools

¶77 Stanly County

¶78 Swain County Schools

¶79 Union County

¶80 Vance County

¶81 Wayne County

¶82 .Wilkes County

¶83 OKLAHOMA

¶84 Altus

¶85 Bristow

¶86 Claremore City

¶87 Durant Public Schools

¶88 Enid Public Schools

¶89 Moore

¶90 Moton

¶91 Norman

¶92 Sapulpa City Schools

¶93 Shawnee

¶94 SOUTH CAROLINA

¶95 Aiken County

¶96 Bamberg County 01

¶97 Charleston County School Dist.

¶98 Edgefield County

¶99 Greenwood County 50

¶100 Marion County 01

¶101 Orangeburg County 02

¶102 Pickens County

¶103 Richland County 01

¶104 Richland County School Dist. # 2

¶105 Spartanburg County 02

¶106 Spartanburg County 06

¶107 Spartanburg County 07

¶108 TENNESSEE

¶109 Athens City Schools

¶110 Dyer County

¶111 Hamilton County

¶112 Hardeman County Bd. of Educ.

¶113 Lincoln County

¶114 Morristown City

¶115 Williamson County

¶116 *275 TEXAS

¶117 Alamo Heights ISD

¶118 Alice Ind. School Dist.

¶119 Amarillo ISD

¶120 Arlington ISD

¶121 Bay City ISD

¶122 Brazosport Independent School

¶123 Cleburne ISD,

¶124 Cotulla Ind. School Dist.

¶125 Dumas ISD

¶126 East Central ISD

¶127 Edinburg CCN Ind.. Sch. Distr.

¶128 El Campo Independent School Dist.

¶129 El Paso Independent School Dist.

¶130 Gainesville Ind. School Dist.

¶131 Gregory-Portland ISD

¶132 Harlandale ISD

¶133 Harlingen CISC

¶134 Hereford Indept. School Dist.

¶135 Irving Independent

¶136 Kerrville ISD

¶137 La Porte Indep. Sch. Dist.

¶138 Livingston Independent School

¶139 Marfa Ind. School Dist.

¶140 McAllen Ind. School District

¶141 Morton Ind. School Dist.

¶142 New Boston ISD

¶143 New Braunfels ISD

¶144 North Forest ISD

¶145 Palestine Ind. School District

¶146 Pampa Indep. Sch. Dist.

¶147 Pasadena Ind. School Dist.

¶148 Peeos-Barstow Consolidated ISD

¶149 Pleasanton ISD

¶150 Round Rock ISD

¶151 Sherman Ind. School District

¶152 South San Antonio ISD

¶153 Southwest ISC

¶154 Tuloso-Midway Ind. School Dist.

¶155 United Independent School Dist.

¶156 Vernon Consolidated Independent

¶157 Wharton Ind. Sch. Dist.

¶158 Ysleta Independent Sch. Dist.

¶159 VIRGINIA

¶160 Fairfax County

¶161 Prince William County

¶162 WEST VIRGINIA

¶163 Fayette Co. Bd. of Educ.

¶164 Marion County Bd. of Educ.

¶165 Mineral County

¶166 Mingo County

¶167 Ohio County

¶168 Attachment B

¶169 EMERGENCY SCHOOL AID ACT DISTRICTS

¶170 ARKANSAS

¶171 Bearden PS

¶172 MARYLAND

¶173 Caroline Co.

¶174 NORTH CAROLINA

¶175 Chatham

¶176 SOUTH CAROLINA

¶177 Lexington Co. # 2 SD

¶178 Spartanburg Co. # 7

¶179 TEXAS

¶180 Harlandale PS

¶181 Attachment C

¶182 UNRESOLVED SWANN DISTRICTS

¶183 ARKANSAS

¶184 Hot Springs § 6

¶185 South Miss

¶186 FLORIDA

¶187 Martin Co.

¶188 GEORGIA

¶189 Hall Co.

¶190 Normandy Co.

¶191 MARYLAND

¶192 St. Mary’s Co.

¶193 Worcester Co.

¶194 Baltimore

¶195 MISSISSIPPI

¶196 Greene Co.

¶197 MISSOURI

¶198 Webster Grove

¶199 Columbia

¶200 St. Louis

¶201 Kansas City

¶202 University City

¶203 Kirkwood

¶204 Maplewood-Richmond

¶205 Ritenour Consol. S. D.

¶206 *276 NORTH CAROLINA

¶207 Kings Mountain City

¶208 Cherokee Co.

¶209 SOUTH CAROLINA

¶210 Union Co.

¶211 Horry Co.

¶212 Florence

¶213 Lancaster Co.

¶214 Anderson # 5

¶215 TEXAS

¶216 Harding-J ef f erson

¶217 San Antonio

¶218 Northside

¶219 McKinney

¶220 Monahans-W ickett-Pyoke

¶221 Fort Bend

¶222 Lamar

¶223 Texarkana

¶224 Plainview

¶225 Brownwood

¶226 Kingsville

¶227 Galveston

¶228 Jacksonville

¶229 Sweetwater

¶230 WEST VIRGINIA

¶231 Kanawha Co.