MEMORANDUM OPINION AND ORDER
On September 14, 1984, the United States Court of Appeals for the District of Columbia remanded this matter for a "current ruling on whether standing and other Article III requirements are satisfied." Women's Equity Action League (WEAL) v. Bell, 240 U.S. App. D.C. 42, 743 F.2d 42, 44 (D.C. Cir. 1984). The Court of Appeals had before it two matters: (1) defendants' appeal from a March 11, 1983 order of this court denying their motion to vacate a 1977 Consent Decree containing time frames for the processing of complaints and compliance reviews by the Department of Education's Office of Civil Rights (OCR), and (2) defendants' appeal from a second order of this court dated March 24, 1983, granting injunctive relief which reimposed, also with some modifications, the time frames and associated provisions relating to higher education which had also been part of the 1977 Consent Decree. The appeals raised important questions regarding whether the 1977 and 1983 time frame decrees were authorized by the applicable statutes and Executive Orders, whether the decrees, involving judicial intervention in the day-to-day operations of agencies of the Executive Branch, violated the separation of powers doctrine and whether the decrees, under traditional equity concepts, were any longer necessary or appropriate.
The Court of Appeals did not reach the merits of these contentions. Rather, in view of defendants' basic argument that this court had "lost sight of the specific goals of the initial suit", and embarked on a policy of supervising Executive Branch activity for an indefinite period of time, the Court of Appeals found itself "obliged to consider on [its] own motion threshold Article III impediments to the initiation and maintenance of [this] action." WEAL, 743 F.2d at 43. The two specific Article III concerns raised by the Court of Appeals involved questions of standing and mootness. The Court expressed no opinion on these threshold issues or on the merits of defendants' underlying complaint concerning the legality of the two decrees. Accordingly, it vacated the orders from which appeal had been taken and remanded the case to this court "for consideration whether, in harmony with the case-or-controversy limitations . . . this action may proceed in court". Id. at 44. In taking this action, the Court of Appeals placed great reliance on the decision of the Supreme Court in Allen v. Wright, 468 U.S. 737, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984), handed down during the pendency of the appeal. In Allen, the Supreme Court raised the question whether "absent actual present or immediately threatened injury resulting from unlawful government action," it is an appropriate role for federal courts to act as "virtually continuing monitors of the wisdom and soundness of Executive action". Id. at 760 (quoting Laird v. Tatum, 408 U.S. 1, 15, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972)). This is a question to which we will return after a brief detour.
It is appropriate at this point, before we begin our consideration of the Article III concerns raised by the Court of Appeals, to set forth briefly the relevant history of this case. This litigation has its roots in the distant past. Several actions have been joined to give it its present shape and form.
The common thread underlying each of the several complaints in this litigation, however, is the alleged improper grant of federal funds in violation of various statutes and regulations. These statutes and regulations include Title VI of the Civil Rights Act of 1964, as amended (Title VI), 42 U.S.C. § 2000d et seq. (1982), Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq. (1982), Executive Order No. 11246, as amended by Executive Order 11375, and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982). Plaintiffs also present a constitutional challenge to defendants' conduct.
The original Adams case presented a challenge to HEW's policy of non-enforcement of Title VI with regard to claims of racial discrimination. In 1976 additional groups and individuals were allowed to intervene in the Adams litigation on the basis of HEW's representation that the Title VI enforcement obligations previously imposed by this court made it impossible to devote sufficient resources to the review and processing of Title IX sex discrimination and Title VI national origin discrimination complaints. In October 1977, the National Federation of the Blind also intervened, complaining of lack of enforcement of § 504 of the Rehabilitation Act of 1973 and § 904 of the Education Amendment Act of 1972 with respect to discrimination based on handicap. Thus, the entry of these plaintiff-intervenors in the Adams suit greatly expanded the statutory scope of the litigation.
As an indication of the breadth of this extensive and protracted litigation, it is significant to note that the current Adams plaintiffs consist of forty (40) individuals, eight (8) individual plaintiff-intervenors
and five (5) plaintiff-intervenor organizations.
The current WEAL plaintiffs consist of two (2) individuals and six (6) organizations.
Defendants' Memorandum in Support of their Motion to Dismiss (Defs. Memo.) at 5.
A. Court of Appeals Pronouncements
In the original Adams case filed in 1970, we held that the Department of Health, Education and Welfare and its Director of the Office of Civil Rights did not have further discretion but were under an affirmative duty to commence enforcement proceedings against public educational institutions to ensure compliance with Title VI where efforts towards voluntary compliance were not attempted or successful. Adams v. Richardson, 351 F. Supp. 636, 641 (D.D.C. 1972). Subsequently, we ordered the agency to take certain corrective measures. Adams v. Richardson, 356 F. Supp. 92 (D.D.C. 1973). With minor modifications not here relevant the Court of Appeals, sitting en banc, affirmed this court's decision. Adams v. Richardson, 156 U.S. App. D.C. 267, 480 F.2d 1159 (D.C. Cir. 1973) [hereinafter " Adams I "]. Although our order directed that the commencement of enforcement proceedings take place within certain time frames, the appellate court was careful to emphasize that:
the order merely requires initiation of a process which, excepting contemptuous conduct, will then pass beyond the District Court's continuing control and supervision.
Id. at 1163 n.5. (Emphasis added).
A further interpretation of the boundaries of our 1973 order arose later in another context. In March, 1979, the Department of Education (DE), which had succeeded to HEW's jurisdiction, rejected the State of North Carolina's desegregation plans, and subsequently commenced enforcement proceedings against the State.
In response, North Carolina filed suit in federal court in North Carolina to enjoin the administrative hearing and to prevent the DE from deferring grant payments. The North Carolina court enjoined the deferral of payments but permitted the enforcement proceeding to continue. After the Department had completed the presentation of its case in chief, after several months of hearings, the parties entered into a consent settlement, which the North Carolina court approved. North Carolina v. Department of Education, Memo. Op., No. 79-217-CIV-5 (E.D.N.C. July 17, 1981). At this juncture, the Adams plaintiffs, who were not parties to the North Carolina suit, sought injunctive relief from this court to enjoin the Department from acceding to the proposed consent settlement. We declined to grant the requested relief, for reasons of comity as well as limitations in the scope of our original 1973 order. Adams v. Bell, Transcript at 26-30, No. 70-3095 (D.D.C. June 25, 1981). The Court of Appeals for this Circuit, again sitting en banc, affirmed our decision. Adams v. Bell, 228 U.S. App. D.C. 375, 711 F.2d 161 (D.C. Cir. 1983) [hereinafter " Adams II "]. It found that the purpose of the 1973 decree was to require the Department to meet its responsibilities under Title VI by the commencement of formal proceedings or through voluntary compliance, and that our decree did not extend to details of particular enforcement programs, including the supervision of the Department's settlement with North Carolina.
Id. at 165.
The opinions of the appellate court in Adams I and Adams II are the only Court of Appeals decisions concerning the proper reach and meaning of our original order. They both affirm the original direction of this litigation, and emphasize the limited nature of our intervention.
We turn now to the events leading up to the 1977 Consent Decree, the validity of which was indirectly challenged in the appeal in WEAL, supra.
B. The 1977 Consent Decree
In 1975, in response to plaintiffs' suit alleging delays in the administrative processing of complaints in elementary and secondary education cases, we ordered the agency to proceed against defaulting school districts and imposed time frames controlling future enforcement activities by the agency. Adams v. Weinberger, 391 F. Supp. 269 (D.D.C. 1975). This consent order was negotiated by the parties and served to supplement our original February 16, 1973 order. It came to be known as the First Supplemental Order, and was the first of a series of orders
establishing time frames for each stage of the administrative process. Part F of this order directed attention for the first time to future Title VI enforcement activities, setting time limitations for the handling of future complaints and compliance reviews. Id. at 273. Part F of the First Supplemental Order was modified by an unpublished June 14, 1976 order of this court which established separate guidelines for the administrative processing of Title VI and Title IX complaints, compliance reviews, and Emergency School Aid Act cases. Adams v. Matthews, No 3095-70 (D.D.C. June 14, 1976). A so-called Second Supplemental Order concerning the acceptable ingredients for the desegregation of higher education in the states was issued on April 1, 1977. Adams v. Califano, 430 F. Supp. 118 (D.D.C. 1977).
In mid-1977, the Adams plaintiffs were again before this court seeking further relief for noncompliance with the 1975 order referred to above and with that portion of the 1973 order relating to special purpose and vocational schools. Plaintiffs sought compliance with previously imposed time frames and other administrative requirements. The court, after an extensive hearing, directed the parties to enter into negotiations. These negotiations resulted some months later in the 1977 Consent Decree issued on December 29, 1977. Adams v. Califano, No. 3095-70 (D.D.C. December 29, 1977).
The 1977 Decree was more extensive than the orders entered previously and differed from them in several respects. First, the Decree broadened the court's review of HEW enforcement activities to include all fifty states.
Second, in addition to Title VI, it applied to complaints and compliance reviews under Title IX, Executive Order No. 11246,
and § 504 of the Rehabilitation Act of 1973.
Third, it set forth a number of additional procedural steps to be performed following receipt of a completed complaint. Id. at paras. 8(a), 9 and 11.
It is a fair summary to state that the emphasis in the original order of 1973 stemmed from defendants' abdication of their statutory responsibility in pursuing a conscious policy of non-enforcement. The 1973 order, as stated previously, rejected the agency claim that it had almost unfettered discretion in this area, and, instead, directed that enforcement proceedings be commenced within certain limited time frames. These time frames have become more detailed with the issuance of each new order, in part because of defendants' chronic delays and in part because of the asserted necessity for these delays during the various stages of the administrative proceedings. The Consent Decree of December 29, 1977 was a culmination of this process and attempted to address these difficulties in a single document fifty-four (54) pages in length comprised of eighty-eight (88) separately numbered paragraphs. Limitations of space prevent a detailed catalogue of these provisions. It is sufficient to say that the parties, in good faith, made a serious attempt to settle all outstanding differences existing between them.
In August 1982 defendants moved to vacate the 1977 Consent Order asserting changes in fact and law, as well as the need for a deeper consideration of the facts in light of experience. We denied defendants' motion to vacate on March 11, 1983. On the same day, in response to Motions for Orders to Show Cause filed by the Adams and WEAL plaintiffs, we entered a detailed order of thirty-seven (37) pages modifying the 1977 Consent Order as it applied to the DE and the DOL. On March 24, 1983, in response to Plaintiffs' Renewed Motion for Further Relief Concerning State Systems of Higher Education, we entered a separate order, in which we found that five southern states
had defaulted in their commitments under previously accepted desegregation plans in violation of Title VI. Adams v. Bell, No. 3095-70 (D.D.C. March 24, 1983). We ordered defendants to require these states, with the exception of Virginia, which had recently submitted a provisionally approved plan, to submit further plans within a limited time frame or to commence formal enforcement proceedings no later than September 15, 1983. Id. Injunctive relief was also granted requiring defendants to take similar action with respect to Pennsylvania and Kentucky, and was denied with respect to Texas, West Virginia, Missouri and Delaware. Id.
Defendants appealed from this court's denial of their motion to vacate the 1977 Consent Decree and from the March 24, 1983 order relating to statewide systems of higher education. It is this appeal which is the subject of the Court of Appeals remand of September 14, 1984. WEAL, supra.
Because the remand raised issues of standing and mootness, defendants were given an opportunity to engage in and complete discovery on these issues.
After extensive discovery, defendants filed a Motion to Dismiss on the grounds that (1) plaintiffs lack standing; (2) the doctrine of separation of powers defeats standing as a matter of law and (3) the claims of the plaintiffs in WEAL and the plaintiff-intervenors in the Adams litigation are moot. The Adams plaintiffs, in opposition to defendants' Motion to Dismiss, assert (1) that plaintiffs are suffering concrete personal injuries; (2) that these injuries are fairly traceable to defendants' conduct and (3) that such injuries are likely to be redressed by a decree of this court. After distinguishing Allen v. Wright, supra, they contend that defendants' separation of powers argument is lacking in substance. They point to the necessity of time frames to meet defendants' chronic delays in the enforcement of defendants' obligations under Title VI and other statutes and the fact that the time frames were consented to by the appropriate officials of two different political administrations. Oppositions to defendants' Motion to Dismiss have been filed on behalf of WEAL,
as well as other Adams intervenors.
Federal courts, as has long been recognized, are courts of limited jurisdiction. This jurisdiction, under Article III, Section 2 of the Constitution, is limited to the adjudication of "cases" and "controversies." A plaintiff must first meet the requirements of standing before seeking to invoke the authority of a federal court to decide the merits. Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). As the result of numerous cases arising in varying factual contexts, it is well settled that the doctrine of standing encompasses both a prudential component and a core component stemming directly from Article III and resting ultimately on the concept of separation of powers. Standing and the overlapping mootness, ripeness and political question doctrines concern "the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government". Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d 1166, 1179 (D.C. Cir. 1983) (Bork, J., Concurring).
At an "irreducible minimum," the constitutional component embodied in Article III requires that a plaintiff show: (1) that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant; (2) that the injury is fairly traceable to the challenged action and; (3) that the injury will likely be redressed by the relief requested. Allen v. Wright, 468 U.S. at 751. See also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982).
Admittedly the constitutional component of the standing doctrine involves concepts not susceptible of precise definition, but ideas as to standing have gained considerable definition from developing case law and have evolved as guiding principles. As the cases show, the plaintiff must show injury in fact, which is "distinct and palpable." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979) (quoting Warth, 422 U.S. at 501). The injury cannot be "abstract" or "speculative." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). It must be "fairly" traceable to the action challenged, and likely to be redressed by a favorable decision. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917. The Supreme Court has taken note of this case-by-case development:
The law of Article III standing is built on a single basic idea - the idea of separation of powers. It is this fact which makes possible the gradual clarification of the law through judicial application.
Allen, 468 U.S. at 752.
The prudential component of the standing doctrine likewise embodies concepts which cannot be precisely defined. They also are based on the idea of separation of powers and are "founded in concern about the proper - and properly limited - role of the courts in a democratic society." Warth, 422 U.S. at 498. These are the standards applicable to our determination of the issue of plaintiffs' standing to pursue this litigation.
Plaintiffs' basic contention is that defendants have granted and are continuing to grant federal assistance to educational institutions and political entities in violation of the rights of the plaintiffs under various statutes and under the Fifth Amendment of the Constitution. They assert that this is an injury separate and apart from the harm inflicted by the educational institutions in which they are enrolled, or by the states in which they reside.
The individual Adams plaintiffs, some 40 in all
reside in various states and attend a variety of state educational institutions. Many of the plaintiffs can be placed in one of the following categories. (1) Three are students at Virginia State University (VSU), a predominantly black institution. They complain of unequal and inadequate facilities, equipment and programs. VSU is not in accord with the time frames set in our March 11, 1983 order. (2) Four of the plaintiffs are students at the University of Arkansas at Fayetteville (UAF), a traditionally white institution. According to the July 8, 1985 findings by OCR, UAF had failed to reach its black student, faculty and administrator goals for 1984-85, as required by its statewide desegregation plan.
Defendants have not denied this allegation. (3) Three of the plaintiffs are students in Dillon County, South Carolina School District No. 2 (Dillon), who are enrolled in segregated classrooms. Since 1977, Dillon has been found by OCR to be in violation of Title VI on three different occasions. The matter was referred to the Department of Justice on June 23, 1983, following our order of March 11, 1983. Almost one year later it was returned by the Department of Justice to OCR, where it is still "under review." These facts are not challenged. (4) Five of the plaintiffs are students in Halifax County, Virginia, alleging racially discriminatory action in connection with events which occurred on a County school bus. OCR investigated the report and issued a letter of finding that Halifax County had not violated Title VI.
The Adams plaintiffs also assert standing on behalf of unnamed members of the class certified under our May 7, 1984 order. In response, defendants have submitted a case-by-case analysis of the status of the individual plaintiffs. Defs. Memo., Ex. A. They assert that:
defendants' recent discovery efforts reveal that most of the current plaintiffs have not filed complaints with the Department of Education or the Department of Labor, or have complaints that are tolled pending resolution of private litigation, or do not attend schools currently undergoing compliance reviews. In these instances, neither agency action in general nor the timeframes in particular have been triggered.
Id. at 2.
Without attempting to challenge the accuracy of the above assertion, we are satisfied that one or more of the plaintiffs, in charging racial discrimination against themselves, have alleged a distinct and palpable personal injury in violation of their rights under Title VI and the Constitution. This is more than a case where plaintiffs are asserting the right to have the government act in accordance with the law or the right to a particular kind of government conduct. This is also not an abstract or generalized grievance. Rather, the injury claimed in the instant case is the right to be educated in a racially integrated institution or in an environment which is free from discrimination based on race. As was said in Allen :
It is in their complaint's second claim of injury that respondents allege harm to a concrete, personal interest that can support standing in some circumstances. The injury they identify - their children's diminished ability to receive an education in a racially integrated school - is, beyond any doubt, not only judicially cognizable, but as shown by cases from Brown v. Board of Education to Bob Jones University v. United States, one of the most serious injuries recognized in our legal system.