F. HEW's Record of Administrative Enforcement Proceedings
1. Between the passage of the Civil Rights Act in 1964 and March 1970, HEW initiated approximately 600 administrative proceedings against non-complying school districts. In 1968 alone, HEW initiated about 100 enforcement proceedings. In 1969 HEW initiated nearly the same number of proceedings.
2. From March 1970, the month in which defendant Pottinger assumed the position as director of HEW's OCR, until February 1971, no enforcement proceedings were initiated, and since February 1971, only a small, token number of such proceedings have been commenced.
3. As a result of such enforcement proceedings, 44 school districts were subject to fund terminations in 1968-69. Only two cutoffs occurred in 1969-70. No termination of funds have occurred since the summer of 1970.
4. Upon initiating an administrative enforcement proceeding, it is the practice of HEW to defer the school district's application for "new" programs funds only. HEW does not defer its advancement of funds under "continuing" and previously-approved programs.
5. HEW makes no attempt subsequently to recapture funds distributed to a district between the notice of hearing and the formal determination of its Title VI ineligibility.
6. Since administrative enforcement proceedings generally consume one or more years, HEW's limited deferral practice allows the continued flow of large federal aid to the respondent school districts.
7. Despite defendants' reluctance or failure to employ enforcement proceedings terminating funds, substantial progress toward compliance with Title VI has been made. Since 1968 the number of Negro pupils in 100% minority schools or mostly minority schools in eleven southern states has greatly declined, decreasing from 68% of the total Negro pupils in the region in 1968 to 9.2% in 1971-72. On the other hand, the number of said pupils in 51% or more majority white schools has substantially increased, rising from 18% in 1968 to 43% in 1971-72.
The basic issue presented for determination is whether defendants' exercise of discretion in relying largely on voluntary compliance to accomplish the progress achieved and to obtain compliance in the areas still unresolved meets their full responsibilities under the mandate of Title VI.
CONCLUSIONS OF LAW
1. Plaintiffs have standing to bring this action on behalf of themselves and others similarly situated.
2. The Court has jurisdiction under 5 U.S.C. §§ 702-704, 28 U.S.C. §§ 1331, 1343(4), 1361, 2201, and 2202.
3. In its enactment of Title VI of the Civil Rights Act of 1964, Congress clearly indicated its intent and purpose by providing in § 2000d that:
"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." (Emphasis supplied)