Appeals from orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, affirming Department of Health, Education and Welfare's denial of grant applications for Emergency School Aid Act funds. Affirmed.
Before Oakes, Circuit Judge, and Blumenfeld*fn* and Mehrtens,*fn** District Judges.
Consolidated appeals raise the important question whether in passing upon applications for grants of Emergency School Aid Act (ESAA)*fn1 funds the Department of Health, Education and Welfare (HEW) must apply a constitutional standard of intentional discrimination as delineated by the Supreme Court*fn2 or whether the ESAA as supplemented by HEW regulations permits application of a disproportionate impact standard of discrimination. Appellants are respectively the Board of Education of the City School District of the City of New York (the Central Board) and the Community School Board (CSB) of Community School District 11 (District 11).
The two school boards sued to enjoin HEW from holding them ineligible for ESAA assistance. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, initially upheld HEW's denial of ESAA funds. But upon the Central Board's motion for reargument, the district court vacated its prior decision and remanded the matter to HEW for "further consideration" to determine if the school boards' disqualification resulted from unconstitutional discrimination as well as from violations of the applicable regulations. After remand the district court affirmed HEW's conclusion that substantial evidence warranted a finding of both unconstitutional discrimination and discrimination in violation of the ESAA. Accordingly, it entered a final order granting judgment in favor of HEW. We affirm the judgment on the basis that the standards of the statute and regulation have been satisfied.
On an annual basis, the ESAA provides special assistance to local educational agencies and other eligible organizations to achieve three basic statutory objectives:
(1) to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools;
(2) encourage the voluntary elimination, reduction, or prevention of minority group isolation in elementary and secondary schools with substantial proportions of minority group students; and
(3) to aid school children in overcoming the educational disadvantages of minority group isolation.
20 U.S.C. § 1601(b). Thus, the ESAA is a program purposefully designed "to aid in desegregating schools and support quality integrated schools."*fn3
Each year that an application for ESAA assistance is submitted, the application is evaluated and the eligibility of the applicant reviewed. ESAA funds are awarded to qualified applicants in the order in which their applications are ranked. The ranking depends on compliance with specified guidelines and criteria, the most important being "objective" in nature. 45 C.F.R. § 185.14(a), (b) & (c).*fn4 The ESAA program is competitive in nature since the amount appropriated by Congress is less than the total amount of the grants sought; only those applications which meet ESAA objectives to the greatest extent possible are the ones which receive the awards. Id. § 185.14(c)(4).
In addition to filing applications which are timely*fn5 and which meet the minimal technical/qualitative criteria, See 20 U.S.C. §§ 1605(a), 1606-09;*fn6 45 C.F.R. § 185.14,*fn7 the applicant must establish that it has not engaged in any of the four disqualifying acts, practices, policies or procedures condemned by the statutes and regulations. 20 U.S.C. § 1605(d)(1);*fn8 45 C.F.R. § 185.13(L ).*fn9 The Assistant Secretary for Education may not approve the application unless it is determined by the Secretary that the applicant is not ineligible. See 20 U.S.C. § 1605(d)(4).*fn10 While the statute itself forbids discrimination in the hiring, promotion or assignment of teachers, note 8 Supra, the pertinent regulation in this case is 45 C.F.R. § 185.43(b)(2).*fn11 In substance, the regulation makes ineligible for assistance an educational agency which after June 23, 1972, has utilized a procedure resulting, Inter alia, in the discriminatory "assignment of full- time classroom teachers to the schools of such agency in such a manner as to identify any of such schools as intended for students of a particular race, color, or national origin."*fn12
Teaching and supervisory appointments to public schools in New York City are now and have traditionally been made by the Chancellor of the Central Board. High School teachers are appointed by the Chancellor from a list of eligible candidates.*fn13 The list of eligible candidates is prepared by the Board of ...