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KELSEY v. WEINBERGER

September 4, 1973

Cordelia KELSEY, infant, by her parent, Louise Kelsey, et al., Plaintiffs,
v.
Caspar W. WEINBERGER, Individually and as Secretary of Health, Education and Welfare, et al., Defendants


William B. Jones, District Judge.


The opinion of the court was delivered by: JONES

The plaintiffs in this action seek to declare unlawful and enjoin the operation of the August 16, 1973, regulation of the Department of Health, Education, and Welfare [HEW] implementing the Emergency School Aid Act of 1972 [ESSAA], 20 U.S.C. §§ 1601-1619 (Supp. II, 1972). Under that new regulation, 45 C.F.R. § 185.44(d)(3), 38 Fed. Reg. 21646 (1973), the defendant Secretary of HEW has waived the ineligibility of five school districts *fn1" under 20 U.S.C. § 1605(d)(1)(B) (Supp. II, 1972) *fn2" to receive funds under ESSAA, which is designed to provide financial assistance

 
to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools.

 20 U.S.C. § 1601(b)(1) (Supp. II, 1972).

 The plaintiffs are school children in several of the affected cities who through their parents charge the defendants Secretary of HEW and Acting Assistant Secretary of HEW with violating their duties under ESAA. The suit was originally filed seeking a temporary restraining order and preliminary injunction, but at the hearing on the TRO an expedited schedule was agreed to for the filing of cross-motions for summary judgment, which were heard August 31, 1973, eight days after the suit was filed. The factual allegations of the complaint are simple and undisputed, and the Court finds that there is no genuine issue of matter of fact, and thus the case is ripe for disposition by summary judgment.

 The plaintiffs allege and the defendants do not seriously dispute that the five school districts in question after June 23, 1972, "engaged in discrimination based upon race . . . in the . . . assignment of employees." *fn3" 20 U.S.C. § 1605(d)(1)(B) (Supp. II, 1972). Each school district could receive a waiver of its ineligibility, however, upon an application

 
[specifying] the reason for its ineligibility, [containing] 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 [including] 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) (Supp. II, 1972). The Secretary is allowed to grant waivers only

 
upon determination that any practice, policy, procedure or other activity resulting in ineligibility has ceased to exist, and that the applicant has given satisfactory assurance that the activities prohibited in [section 1605(d)(1)] will not reoccur.

 20 U.S.C. § 1605(d)(3) (Supp. II, 1972).

 On February 6, 1973, the Secretary issued regulations, including those pursuant to these sections. 45 C.F.R. Part 185, 38 Fed. Reg. 3450-71 (1973). Under those regulations, practices, policies, and procedures making an educational agency ineligible for assistance included

 
the assignment of full-time classroom teachers to the schools of such agency in such a manner as to identify any of such schools as intended for students of a particular race, color, or national origin.

 45 C.F.R. § 185.43(b)(2), 38 Fed. Reg. 3642 (1973).

 That ineligibility could be waived, however, if ...


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