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February 27, 1989

Neil Abramson, et al., Plaintiffs,
William J. Bennett, Defendant

The opinion of the court was delivered by: RICHEY

 Neil Abramson, the named plaintiff *fn1" in this suit, has a child who is an eighth grade student at the Crestwood Junior High School in the Commonwealth of Virginia. Mr. Abramson contends that the education his child is receiving at this school is inferior to that received by children in other schools in the Commonwealth. Mr. Abramson attributes the alleged inferior quality of his child's education at Crestwood to several factors; these factors include school district lines resulting in a largely black student population at Crestwood, the existence of an appointed rather than an elected school board in the Commonwealth, and a "two-tier secondary program" which awards more credits and better quality instruction to the higher achieving students.

 Mr. Abramson maintains that the disparity between the quality of instruction at Crestwood and the other secondary schools in the Commonwealth is a violation of his child's rights under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and 42 U.S.C. § 1983. As such, Mr. Abramson asks the Court to issue an Order directing the Secretary of Education to terminate all grants of federal funds to Virginia's public school system until the school system satisfies several conditions. *fn2"

 Plaintiffs' Title VI claim raises the question of whether a court order directing a federal agency to terminate its funding of an entity or program allegedly engaging in discriminatory practices can be obtained through a private Title VI action against the agency. To examine this question, it is necessary to turn to the language and structure of Title VI. Section 601 of Title VI provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

 42 U.S.C. § 2000d (1981).

 Section 602 of Title VI establishes an elaborate administrative scheme for terminating the distribution of federal funds to entities or programs allegedly engaging in discrimination: this scheme includes the issuance of an agency rule, regulation or order approved by the President, notice and an opportunity to be heard, a determination that compliance with the terms of Title VI cannot be secured by voluntary means, the agency's filing of a report with the committees of the House and Senate having legislative jurisdiction over the activity or program at issue, and a 30-day delay period before any action can become effective. 42 U.S.C. § 2000d-1 (1981). Judicial review of agency decisions to terminate funding is provided for in Section 603. 42 U.S.C. § 2000d-2 (1981).

 When a private plaintiff seeks to enjoin action by the alleged discriminator (the recipient of federal funds), it is now well-recognized that Title VI confers a private right of action for injunctive or declaratory relief against such a recipient. Section 601 of Title VI provides the basis for bringing such an action. See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979); Lau v. Nichols, 414 U.S. 563, 39 L. Ed. 2d 1, 94 S. Ct. 786 (1974); Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir.), cert. denied, 388 U.S. 911, 18 L. Ed. 2d 1350, 87 S. Ct. 2116 (1967).

 However, it is less clear whether a private victim of discrimination can sue a funding agency under Title VI and bypass Title VI's administrative scheme for terminating the distribution of federal funds to an alleged discriminator. There is authority in this circuit for allowing a private Title VI action against a funding agency. In Adams v. Richardson,3 certain black students, citizens, and taxpayers brought a Title VI action for injunctive and declaratory relief against the Secretary of Health, Education, and Welfare ("HEW") and the Director of HEW's Office of Civil Rights. The plaintiffs in Adams claimed that defendants were "derelict" in complying with Title VI because they failed to take appropriate action to end segregation in public educational institutions receiving funds.

 In deciding that the plaintiffs in Adams could maintain a Title VI action against the funding agency, the Court of Appeals for this Circuit was primarily relying upon the fact that the suit was not one challenging "HEW's decisions with regard to a few school districts in the course of a generally effective enforcement program," Id. at 1162. Instead, the action was one in which plaintiffs alleged that the funding agency "ha[d] consciously and expressly adopted a general policy which is in effect an abdication of its statutory duty." Id. Unlike the complaint filed in Adams, the complaint filed by plaintiffs does not contain allegations that defendant has engaged in a general policy of consciously neglecting his statutory responsibilities. For that reason, unlike the plaintiffs in Adams, the plaintiffs in this case may not institute an action for declaratory and injunctive relief against the agency. Instead, if they are committed to an action against the agency, they must pursue the administrative remedy specified in Section 602. 42 U.S.C. § 2000d-1 (1981).

 Nevertheless, even assuming defendant had abdicated his statutory responsibilities, the Court would lack jurisdiction to grant the relief plaintiffs seek. Adams does not provide support for the granting of the relief plaintiffs are requesting, namely the issuance of an order directing the Secretary of Education to cease funding the public school system of the Commonwealth of Virginia. In Adams, the Court issued an injunction requiring the funding agency to institute compliance proceedings against some school systems and enforcement proceedings against others. The Court, however, explicitly stated that "the injunction d[id] not direct the termination of any funds, nor can any funds be terminated prior to a determination of noncompliance." Id. at 1163.

 Neither the language of Title VI nor its legislative history suggests that the Adams Court could have issued an injunction prohibiting the funding agency from continuing to fund the school districts which were allegedly engaging in discriminatory practices.

If the Federal Government may not cut off funds except pursuant to an agency rule, approved by the President, and presented to the appropriate committee of Congress for a layover period, and after voluntary means to achieve compliance have failed, it is inconceivable that Congress intended to ...

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