is minimal at most and clearly does not offend the dictates of Title VI. There are other instances where schools might purport to give out scholarships on a race neutral basis but, because of their historical beginnings, continue to apportion the scholarships on a de facto racial basis in such instances often preferring members of the majority race. In these instances a policy of so-called race neutrality would continue to unfairly benefit white students at the expense of minorities. These are all factors that the defendants must consider as they attempt to design a just and legally proper course.
In the meantime, plaintiffs assault must be made at the university level where courts will be presented with fact specific contexts that will allow them to determine whether the particular program under consideration would come into conflict with nondiscrimination laws. Thus, there are good reasons why the APA does not provide the Court with jurisdiction to make new agency rules and allocate enforcement resources when the plaintiffs have an adequate private cause of action against the alleged discriminators.
C. Cause of Action Under the Mandamus Act
WEAL also forecloses plaintiffs' rights to proceed under the Mandamus Act. 28 U.S.C. 1361. See WEAL, 906 F.2d at 752. Mandamus is an extraordinary remedy which is unavailable unless all other relief is inadequate. Just as the availability of private suits against the alleged discriminators is an adequate remedy which bars action under the APA, it also leads to the conclusion that mandamus is also not available.
The WLF and the individual plaintiffs have no cause of action against the DOE at this time. Neither Title VI, the APA nor the Mandamus Act contemplates such a suit against the federal government. In the absence of a Congressional enactment, no cause of action against the federal government exists. Given the complex nature of the WLF's claims, both precedent and judicial prudence dictate that courts should defer to the executive branch's good faith attempts to balance the competing factors and make the initial legal policy and enforcement decisions.
ORDER - November 15, 1991, Filed
Upon consideration of the entire record in the above-captioned case, the defendants' motion to dismiss the complaint for failure to state a claim and lack of subject matter jurisdiction, and the plaintiffs' response thereto it is this 15th day of November, 1991 hereby
ORDERED that the defendants' motion to dismiss the complaint is granted and it is
FURTHER ORDERED that this Court shall retain jurisdiction to take such other and further action as may be required in the interests of justice.