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ADAMS v. WEINBERGER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


March 14, 1975

KENNETH ADAMS et al., Plaintiffs,
v.
CASPAR W. WEINBERGER, Individually and as Secretary of the Department of Health, Education and Welfare, et al., Defendants

The opinion of the court was delivered by: PRATT

SUPPLEMENTAL ORDER

 This cause came before this Court upon plaintiffs' Motion for Further Relief and the Opposition of the defendants thereto. After a review of the entire 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.

 A. 125 Substantial Racial Disproportion Districts.

 As this Court found in its February 16, 1973 Order, *fn1" the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (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.

 WHEREFORE, in supplementation of para. III B (1) 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.

 B. 293 Districts With Allegations of Miscellaneous Violations.

 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 *fn2" 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.

 WHEREFORE, plaintiffs' request for further relief in this area is denied at this time.

 C. 6 ESAA Districts.

 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 proceedings had long since passed (paras. II A (5); III (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.

 WHEREFORE, in supplementation of paras. II B (1) 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.

 D. 39 Unresolved Swann Districts.

 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 (para. III B (1)). 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 *fn3" 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.

 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.

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

 This Court's Order of February 16, 1973 (para. VB (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.

 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 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.

 WHEREFORE, in supplementation of para. VB (1) 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.

 F. Future HEW Compliance with Title VI.

 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.

 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.

 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.

 G. Supplemental Reporting Provision.

 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.

 John H. Pratt United States District Judge

 March 14, 1975

  Attachment A

 SUBSTANTIAL RACIAL DISPROPORTION DISTRICTS

 ARKANSAS

 Jonesboro School District #1

 DELAWARE

 Caesar Rodney

 De La Warr School District

 Newark

 FLORIDA

 Levy County

 Monroe County

 GEORGIA

 Madison County

 Thomasville City

 KENTUCKY

 Covington City

 Elizabethtown Independent

 Warren County

 LOUISIANA

 Allen Parish

 Vernon Parish

 MARYLAND

 Baltimore County

 Caroline County

 Cecil County Public Schools

 Frederick County

 Howard County

 Montgomery County Pub. Sch.

 Talbot County

 Washington County

 MISSISSIPPI

 Lee County

 MISSOURI

 Cape Girardeau Public #63

 Joplin R-8

 Poplar Bluff R-1

 Special Sch. Dist. of St. Louis

 Springfield R-12

 NORTH CAROLINA

 Burke County

 Caswell County

 Chatham County

 Hoke County

 Jackson County

 Madison-Mayodan City

 Onslow County

 Pender County

 Polk County Bd. of Educ.

 Randolph County

 Roanoke Rapids Graded School

 Rowan County Schools

 Shelby City Schools

 Stanly County

 Swain County Schools

 Union County

 Vance County

 Wayne County

 Wilkes County

 OKLAHOMA

 Altus

 Bristow

 Claremore City

  Durant Public Schools

  Enid Public Schools

  Moore

  Moton

  Norman

  Sapulpa City Schools

  Shawnee

  SOUTH CAROLINA

  Aiken County

  Bamberg County 01

  Charleston County School Dist.

  Edgefield County

  Greenwood County 50

  Marion County 01

  Orangeburg County 02

  Pickens County

  Richland County 01

  Richland County School Dist. #2

  Spartanburg County 02

  Spartanburg County 06

  Spartanburg County 07

  TENNESSEE

  Athens City Schools

  Dyer County

  Hamilton County

  Hardeman County Bd. of Educ.

  Lincoln County

  Morristown City

  Williamson County

   TEXAS

  Alamo Heights ISD

  Alice Ind. School Dist.

  Amarillo ISD

  Arlington ISD

  Bay City ISD

  Brazosport Independent School

  Cleburne ISD

  Cotulla Ind. School Dist.

  Dumas ISD

  East Central ISD

  Edinburg CCN Ind. Sch. Distr.

  El Campo Independent School Dist.

  El Paso Independent School Dist.

  Gainesville Ind. School Dist.

  Gregory-Portland ISD

  Harlandale ISD

  Harlingen CISC

  Hereford Indept. School Dist.

  Irving Independent

  Kerrville ISD

  La Porte Indep. Sch. Dist.

  Livingston Independent School

  Marfa Ind. School Dist.

  McAllen Ind. School District

  Morton Ind. School Dist.

  New Boston ISD

  New Braunfels ISD

  North Forest ISD

  Palestine Ind. School District

  Pampa Indep. Sch. Dist.

  Pasadena Ind. School Dist.

  Pecos-Barstow Consolidated ISD

  Pleasanton ISD

  Round Rock ISD

  Sherman Ind. School District

  South San Antonio ISD

  Southwest ISC

  Tuloso-Midway Ind. School Dist.

  United Independent School Dist.

  Vernon Consolidated Independent

  Wharton Ind. Sch. Dist.

  Ysleta Independent Sch. Dist.

  VIRGINIA

  Fairfax County

  Prince William County

  WEST VIRGINIA

  Fayette Co. Bd. of Educ.

  Marion County Bd. of Educ.

  Mineral County

  Mingo County

  Ohio County

  Attachment B

  EMERGENCY SCHOOL AID ACT DISTRICTS

  ARKANSAS

  Bearden PS

  MARYLAND

  Caroline Co.

  NORTH CAROLINA

  Chatham

  SOUTH CAROLINA

  Lexington Co. #2 SD

  Spartanburg Co. #7

  TEXAS

  Harlandale PS

  Attachment C

  UNRESOLVED SWANN DISTRICTS

  ARKANSAS

  Hot Springs ยง 6

  South Miss

  FLORIDA

  Martin Co.

  GEORGIA

  Hall Co.

  Normandy Co.

  MARYLAND

  St. Mary's Co.

  Worcester Co.

  Baltimore

  MISSISSIPPI

  Greene Co.

  MISSOURI

  Webster Grove

  Columbia

  St. Louis

  Kansas City

  University City

  Kirkwood

  Maplewood-Richmond

  Ritenour Consol. S.D.

   NORTH CAROLINA

  Kings Mountain City

  Cherokee Co.

  SOUTH CAROLINA

  Union Co.

  Horry Co.

  Florence

  Lancaster Co.

  Anderson #5

  TEXAS

  Harding-Jefferson

  San Antonio

  Northside

  McKinney

  Monahans-Wickett-Pyoke

  Fort Bend

  Lamar

  Texarkana

  Plainview

  Brownwood

  Kingsville

  Galveston

  Jacksonville

  Sweetwater

  WEST VIRGINIA

  Kanawha Co.


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