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BROWN v. WEINBERGER

July 20, 1976

DARRYL W. BROWN, et al., Plaintiffs,
v.
CASPAR W. WEINBERGER, et al., Defendants



The opinion of the court was delivered by: SIRICA

 Plaintiffs are presently before the Court on motions to certify this case as a class action and for a preliminary injunction, or in the alternative for partial summary judgment. Defendants oppose both motions of the plaintiffs and have responded to them both by written oppositions and upon oral hearing in open court.

 PLAINTIFFS' CLAIMS

 Plaintiffs are eighteen public school students who attend schools which currently receive federal financial assistance from the Department of Health, Education and Welfare (hereafter "HEW"). Plaintiffs, suing through their parents, allege that public schools in thirty-three Northern and Western states continue to receive federal financial aid while they discriminate on the basis of race and national origin in violation of Title VI of the Civil Rights Act and the Fifth and Fourteenth Amendments to the Constitution.

 Plaintiffs contend that defendants have defaulted in their duty to enforce Title VI by failing to initiate investigations of possible acts of discrimination, by unlawfully delaying investigations which have been commenced, and by refusing to prosecute fund cut-off proceedings against schools which have been determined to be discriminating and which have not voluntarily ceased such actions and complied with the Department of Health, Education and Welfare's recommendations. By failing to do these things, plaintiffs claim that the defendants have ignored their affirmative statutory duty under Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยง 2000d et seq. (1970), to enforce equal rights in the area of public school education by continuing to actively supply segregated schools with federal funds, contrary to the expressed intent of Congress.

 In support of these claims, plaintiffs contend that the Secretary of HEW and the Director of the Office of Civil Rights of HEW (hereafter "OCR") have renounced their statutory duty to assure that, in student and faculty assignments, no segregation on the basis of race or national origin is practiced in public school systems receiving HEW financial assistance in thirty-three Northern and Western states.

 More specifically, plaintiffs charge that defendants have defaulted in four ways:

 1. by their failure to initiate investigations of discrimination in school districts where racial imbalance gives cause to believe that certain Northern-Western school districts are violating Title VI;

 2. by their failure to act expeditiously in completing their investigations of Northern-Western school districts' alleged violations of Title VI which have been initiated;

 3. by their failure to commence enforcement proceedings in certain cases in which HEW has found that particular Northern-Western school districts are violating Title VI and in which voluntary compliances have not been achieved over a substantial period of time; and

 4. by their failure to commence enforcement proceedings against certain Northern-Western school districts after HEW finally determined that they were ineligible for assistance under the Emergency School Aid Act (hereafter "ESAA") because they were practicing segregation and discrimination.

 In the appendix to their Verified Second Amended Complaint, filed October 24, 1975, plaintiffs list a number of school districts which, they contend, fall under one of these four categories.

 MOTION TO CERTIFY AS A CLASS ACTION

 The Court is of the opinion that the named plaintiffs may properly bring this action on behalf of themselves and others similarly situated. More specifically, it appears that certification of this case as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure is appropriate since: (1) there is a common question of law arising out of a common fact situation; (2) the vast number of interested persons makes joinder impracticable; (3) there are no apparent substantial conflicts of interest or legal positions to be advanced within the class; (4) it is quite evident that the interests of the members of the class will be adequately represented; and (5) the relief sought, if obtained by the class, will be a good deal more than something merely appropriate. Potts v. Flax, 313 F.2d 284 (5 Cir. 1963); see also, Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948).

 Defendants object to certification as a class action on several grounds, one of which is that they assert that notice to all members of the class would be required and that such notice could not adequately be given. This contention is without merit since, in this circuit, it is settled law that the notice requirement is inapplicable to a Rule 23(b)(2) class action. Larionoff v. United States, 175 U.S. App. D.C. 32, 533 F.2d 1167 (D.C. Cir. 1976).

 Therefore, plaintiffs' motion for certification of this suit as a class action under Rule 23(b)(2) is granted.

 MOTION FOR A PRELIMINARY INJUNCTION OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT

 The second motion presently before the Court is the plaintiffs' motion for a preliminary injunction or, in the alternative, for partial summary judgment.

 Plaintiffs contend that there are no material facts in dispute and that they are entitled to summary judgment as a matter of law. Defendants oppose this position arguing that there are material facts in dispute, citing the affidavits they have submitted of Mr. Peter E. Holmes, Director, Office of Civil Rights to support their opposition. However, in this Court's view, these affidavits merely serve to up-date the data and information used by the plaintiffs in their complaint to reflect the more recent status of investigations, compliance activity and handling of cases in many of the school districts cited by the plaintiffs.

 The Court acknowledges that this opinion must be read with the staleness of the record in mind. Hopefully progress is being made, investigations are concluding and compliances are being sought pending the outcome of this litigation. It is admittedly difficult for the Court and the counsel for both sides to keep pace with the changes which might occur in each individual school district of the fifty-eight cited by the plaintiffs as in issue here. This fact, of itself, does not render the relief requested unavailable. Adams v. Richardson, 480 F.2d 1159, 1163 (D.C. Cir. 1973).


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