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July 18, 1978

Darryl W. BROWN et al., Plaintiffs,
Joseph A. CALIFANO et al., Defendants

The opinion of the court was delivered by: SIRICA


This civil rights action challenges, as violating the Constitution's equal protection guarantee, two recently-enacted statutory provisions that limit the means available to the federal government under Title VI of the Civil Rights Act of 1964, Pub.L.No.88-352, 78 Stat. 252, 42 U.S.C. § 2000d to d-6 (1970), to check racial discrimination in federally-supported schools. These provisions, known as the Esch *fn1" and the Eagleton-Biden Amendments, *fn2" basically prevent the Department of Health, Education and Welfare (HEW), the agency primarily charged with enforcing Title VI in the education area, from relying on Title VI to order the implementation of plans that require the busing of students to schools other than those closest to their residences. Prior to the enactment of the Esch and Eagleton-Biden Amendments, HEW had the authority under Title VI to require transportation remedies under the threat of cutting off federal funds to offending aid recipients. Plaintiffs, a group of public school students who attend schools that receive federal support, maintain that the Esch and Eagleton-Biden Amendments are unconstitutional because, on their face, they are desegregation-inhibiting measures that will inevitably bring the federal government into a position of having to support segregated educational systems. As will appear more fully below, plaintiffs' argument exaggerates the necessary effects these Amendments will have on the federal government's ability to carry out its constitutional obligations, and overlooks alternative means available to federal authorities other than HEW to effect transportation remedies when they are needed to achieve desegregation in federally-funded school districts.

 Enforcement of Title VI begins with the filing of assurances of compliance by subject recipients attesting to their willingness to comply with all statutory and regulatory requirements. 45 C.F.R. § 80.4 (1977). In the case of recipient elementary and secondary school systems, this obligation is discharged when recipients give adequate assurance that they will either comply with desegregation plans determined by responsible department officials to be adequate under statutory and regulatory guidelines, or abide by the terms of any court order if the school district is under court order to desegregate. Id., § 80.4(c).

 In the event that recipient school districts fail to make the necessary assurances, HEW is permitted to proceed against them but must first notify the offending recipient of the violation and undertake to work out a solution through voluntary means. 42 U.S.C. § 2000d-1 (1970); 45 C.F.R. §§ 80.8(a) & (b) (1977). If efforts to achieve compliance through conciliation prove to be unavailing, HEW has two enforcement options. The first of these is a multi-step administrative process that culminates in a decision on fund termination after notice to terminate is given, a hearing is held before an examiner, review is conducted by an agency appeals authority and final review by the Secretary of HEW. 45 C.F.R. §§ 80.8-.10 (1977). The final agency decision is then reviewable in the courts. Id., § 80.11; 42 U.S.C. § 2000d-2 (1970).

 It is this administrative enforcement process that is affected by the Esch and Eagleton-Biden Amendments. As stated, these provisions operate to prevent HEW from enforcing Title VI so as to require the transportation of students to schools other than those closest to them. And since transportation solutions are often thought to be the necessary corrective action for violations of Title VI, the effect of the Amendments is to prevent HEW from ordering fund termination even though, in the agency's view, compliance with Title VI's mandate depends on busing.

 There is, however, a second enforcement option. This alternative authorizes HEW to refer to the Department of Justice cases that evidence a violation of Title VI. In particular:

If there appears to be a failure or threatened failure to comply with this regulation, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part may be effected by (fund termination) Or by any other measure authorized by law. Such other means may include, but are not limited to (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking . . . .

 45 C.F.R. § 80.8(a) (1977) (emphasis supplied).

 Upon referral, a number of enforcement methods are available. As enumerated in relevant Department of Justice regulations:

Possibilities of judicial enforcement include (1) a suit to obtain specific enforcement of assurances, covenants running with federally provided property, statements (of) compliance or desegregation plans filed pursuant to agency regulations, (2) a suit to enforce compliance with other titles of the 1964 Act, other Civil Rights Acts or constitutional or statutory provisions requiring nondiscrimination, and (3) initiation of, or intervention or other participation in, a suit for other relief designed to secure compliance.

 28 C.F.R. § 50.3, Alt. I-B-1 (1977).

 Significantly, nothing in the Esch and Eagleton-Biden Amendments prevents HEW from pursuing the referral alternative in cases where, in the agency's judgment, transportation remedies are warranted. As one of the sponsors of the Eagleton-Biden provision made clear,

HEW is authorized under Title VI to refer matters to the Department of Justice for litigation; this is the course that should be pursued if there is a decision to go forward ...

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