The opinion of the court was delivered by: PRATT
JOHN H. PRATT, District Judge.
This is a suit for declaratory and injunctive relief against the Secretary of Health, Education and Welfare and the Director of the Office for Civil Rights (OCR) of the Department of Health, Education and Welfare (HEW), complaining of alleged defaults on the part of defendants in the administration of their responsibilities under Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq. (1970).
The responsibilities of the OCR include the administration and enforcement of HEW's regulation issued pursuant to Title VI and published at 45 C.F.R. Part 80. In addition, the OCR through agreement with other departments and agencies of the Executive Branch, had been assigned responsibility for Title VI enforcement with respect to most federal financial assistance to elementary, secondary and higher education and for health and social welfare activities, including such assistance as is granted and administered by those departments and agencies.
In an earlier proceeding, defendants' motion to dismiss or for summary judgment was denied in order to allow plaintiffs to engage in and complete discovery. Such discovery, inter alia, included a very lengthy deposition of defendant Pottinger.
Upon completion of discovery, plaintiffs filed a motion for summary judgment. Defendants have filed a combined motion to dismiss and a cross-motion for summary judgment. Both sides base their motions upon the entire record before this Court. On the basis of this record, it appears that, in certain of the areas about which plaintiffs complain, HEW has not properly fulfilled its obligation under Title VI to effectuate the provisions of Section 2000d of such Title and thereby to eliminate the vestiges of past policies and practices of segregation in programs receiving federal financial assistance. Our specific findings and conclusions are set forth below.
1. Between January, 1969 and February, 1970, HEW concluded that the states of Louisiana, Mississippi, Oklahoma, North Carolina, Florida, Arkansas, Pennsylvania, Georgia, Maryland, and Virginia were operating segregated systems of higher education in violation of Title VI. At that time HEW requested each of the ten states to submit a desegregation plan within 120 days or less.
2. Five states, Louisiana, Mississippi, Oklahoma, North Carolina and Florida, have totally ignored HEW's request for a desegregation plan and have never made submissions.
3. The other five states, Arkansas, Pennsylvania, Georgia, Maryland and Virginia, submitted desegregation plans which are unacceptable to HEW. Although the submissions were made between 18 and 36 months ago, HEW has failed formally to comment on any of these submissions.
4. As yet HEW has not commenced an administrative enforcement action against any of these ten states nor have these matters been referred to the Justice Department for the filing of suits against any of said ten states.
5. HEW has attempted to justify its failure to take administrative action on the grounds that negotiations with these ten states are still pending, that there are problems of great complexity in the segregation of state-wide systems, and that the Supreme Court standard of desegregation "at once" does not apply to public higher education.
6. HEW has advanced and continues to advance federal funds in substantial amounts for the benefit of institutions of higher education in said ten states.
B. Elementary and Secondary School Districts -- 1970-71
1. HEW has reported that as of the school year 1970-71, 113 school districts had reneged on prior approved plans and were out of compliance with Title VI. Some 74 of these districts are still out of compliance with Title VI.
2. Although HEW has known of the noncompliance of most of these districts since early in the 1970-71 school year, HEW has commenced administrative enforcement actions against only seven such districts, and of the eight cases referred to the Justice Department, only three have been sued.
3. HEW has attempted to excuse its administrative inaction on the grounds that it is still seeking voluntary compliance ...