decided: August 21, 1978.
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK ET AL., APPELLANTS,
JOSEPH A. CALIFANO, JR., SECRETARY, UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE ET AL., APPELLEES.
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.
I. Statutory Scheme
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
II. Underlying Facts
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 Examiners, which ranks each candidate on the basis of a competitive examination.*fn14
In 1969 the New York City school system was "decentralized" and thirty-two separate community school districts (CSDs) were established. Each CSD was vested with primary authority over the operation of the elementary and junior high schools within its district.*fn15 Although the Chancellor alone appoints high school teachers, elementary and junior high school teachers may be appointed in either of two ways. One of these is the traditional method of assignment by the Chancellor. The community school boards must abide by the Chancellor's designation.*fn16 However, the Chancellor "insofar as practicable . . . shall give effect to the requests for assignment of specific persons by the community board.*fn17 An alternative method is available for use only in those elementary and junior high schools whose students rank in the lower 45% On a comprehensive reading examination which is administered annually to students in schools within the jurisdiction of the local community districts.*fn18 The community school districts may directly appoint teachers to such "45% Schools" if the individual has passed either a qualifying examination prepared by the Board of Examiners or the National Teachers Examination.*fn19
Irrespective of how the teachers are appointed, ultimate control still remains with the Chancellor. He retains the power to rescind illegal teacher assignments and to compel a local board's compliance with all applicable provisions of law.*fn20 In addition, he is vested with all powers and duties of the superintendent of schools of the city district*fn21 which include "the power to transfer teachers from one school to another."*fn22
The ESAA applications here at issue were for grants in the 1977-78 school year. See note 34 Infra. To analyze whether there was compliance with the statute and regulations, HEW used 1975-76 data. Racial and ethnic statistics*fn23 demonstrated that in school year 1975-76 62.6% Of high school students were minority students whereas 8.2% Of high school teachers were minority teachers.*fn24 Seventy per cent of minority high school teachers were assigned to high schools in which minority student enrollment exceeded 70%, even though these high schools employed only 48% Of the system's high school teachers. Conversely, in high schools in which there were proportionately a low number of minority teachers, minority student enrollments were below 40%.*fn25
Similar correlations between the racial/ethnic composition of the faculty of community school districts and the racial/ethnic composition of the student bodies within those school districts exist. For the same school year, 14.3% Of the teachers and 69.7% Of the students in elementary schools were minority, and 16.7% Of the teachers and 70.1% Of the junior high school students were minority. Quite clearly, the schools with minority student enrollments over 90% Identifiably had the highest percentage of minority faculty by a substantial margin.*fn26 Similarly, community school districts with minority student enrollments under 50% Contained a disproportionately low percentage of minority faculty.*fn27
Upon the "remand" to HEW, HEW found that the racial assignment of faculty in the central school district was, as HEW put it, "strikingly illustrated by the absence of minority teachers" at certain academic, I.e., nonvocational high schools. Ten of these were demonstrated to have a disproportionately low number of full-time minority teachers in the 1975-76 school year. All ten of these schools were among the thirteen academic high schools*fn28 with full-time faculties having a percentage of black teachers at or below two standard deviations,*fn29 which was 1.2%; the mean of full-time black teachers in academic high schools systemwide was then 5.2%.
To take another example for the same school year, 8.2% Of academic high school teachers in the Central Board's employ were members of minority groups, black or Hispanic. Lafayette High School, for one, with a total of 166 teachers had only one minority teacher, even though it could have been expected based on systemwide statistics to have had fourteen minority teachers. Lafayette's proportion of minority students was 29.2%.*fn30 In contrast, for the same year Boys High School in Brooklyn had more than two and one-half times the number of full-time minority teachers than the expected rate; its student body was 99.9% Minority.*fn31
These substantial disproportions are not contested by the appellants, nor do they deny that the schools were statistically "racially identifiable" as a result of the significant disparities in staff assignments. The claim pressed below and on this appeal has been limited to the argument that the statute and regulation must be construed to require HEW to establish that the disparities resulted from purposeful or intentional discrimination in the constitutional sense. See note 2 Supra.
III. Proceedings Before HEW and the District Court
Only one of the Central Board's three basic grant applications survived program merit competition and obtained a sufficient rank order standing to be considered for funding.*fn32 On November 9, 1976, the Office for Civil Rights at HEW wrote to Chancellor Anker that it found that teachers, principals and assistant principals were assigned "in a manner that has created, confirmed and reinforced the racial and/or ethnic identifiability of the system's schools . . . ."*fn33 By letter dated July 1, 1977, HEW notified the Central Board and District 11 that their grant applications could not be funded because they did not establish their eligibility under 45 C.F.R. § 185.43(b)(2).*fn34 Thereafter, HEW afforded an opportunity to the Central School Board and to District 11 to achieve voluntary resolution and compliance under 42 U.S.C. § 2000d-1,*fn35 45 C.F.R. § 80.7(d).*fn36 See Brown v. Weinberger, 417 F. Supp. 1215, 1221 (D.D.C.1976). On September 7, 1977, the Central Board and OCR entered into a Memorandum of Understanding. In that Memorandum, the Central Board agreed to assign or reassign teachers to comply with federal standards by 1980. This agreement was subsequently vacated by Judge Weinstein by order dated March 15, 1978, in a related proceeding sub judice before this court. Caulfield v. Board of Education, No. 78-6035 (2d Cir. filed Feb. 28, 1978).
Neither the Central Board nor District 11 contested the accuracy or the sufficiency of the Government's data and statistics but rather presented explanations to justify the disparities. Appellants contended, ultimately to no avail, that they had not intentionally discriminated. Rather, they argued that disparate assignments resulted from the state education law, from the requirements of collective bargaining agreements, and from demographic changes and other alleged "neutral factors," including the wishes of black principals and the desires of individual parent-teacher associations and of the black and white communities.
On September 27, 1977, the Central Board and District 11 filed a complaint in the district court. The district court reviewed the administrative record and, after a hearing, not only denied the Central Board's motion for summary judgment, but granted the defendants' cross-motion for summary judgment affirming the denial of ESAA funds. As previously stated, however, the district court vacated its prior decision and remanded the matter to HEW for further consideration in light of constitutional criteria.
Thereafter, HEW determined that the City School District discriminated on a racial basis in the assignment of teachers and maintained an illegally segregated system in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and the requirements of ESAA. It also determined that after June 23, 1972, the Central Board took no effective steps to desegregate the system. While the Central Board was given an opportunity to rebut the statistical prima facie case of discrimination, its explanations were not persuasive. HEW, therefore, held that the assignment of minority teachers could have "come about only through foreseeable acts of discrimination."
Similarly HEW determined that District 11 was ineligible for ESAA funds for having discriminated in its teacher assignments on the basis of race, color or national origin. HEW also found District 11's explanations inadequate.
Upon review of the administrative record and the submissions by the Central Board and District 11 and after argument, the district court affirmed the findings and conclusions of HEW as supported by substantial evidence and entered its order granting judgment from which these appeals are taken.
A. Constitutional Standard versus Impact Standard.
The principal argument raised by appellants is that in evaluating the distribution of teachers throughout the New York City schools HEW should have employed the constitutional test of intentional discrimination. See note 2 & accompanying text Supra. To find a violation of the Fourteenth Amendment, the constitutional standard requires a showing not only of disparate impact, but also of illicit motive. See Eisenberg, Disproportionate Impact and Illicit Motive: Theories of Constitutional Adjudication, 52 N.Y.U.L.Rev. 36, 39 (1977).*fn37
While appellants argue that HEW's decision to deny ESAA funds relies solely on statistical evidence of disparate impact, contrary to Supreme Court cases construing the Fourteenth Amendment, we need not reach the question whether the evidence supports a finding of purposive segregative intent. Because we are dealing with an act of Congress, as amplified by HEW regulations, and not with a judicial determination whether certain acts have produced a Fourteenth Amendment violation, it is permissible for Congress to establish a higher standard, more protective of minority rights, than constitutional minimums require.*fn38 For example, Title VII cases have not required proof of discriminatory motive, at least where the employer is unable to demonstrate that requirements causing a disparate impact are sufficiently related to the job. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).*fn39
Here, Congress intended to permit grant disqualification not only for purposeful discrimination but also for discrimination evidenced simply by an unjustified disparity in staff assignments. This conclusion seems clear from the statute which expressly requires that all ESAA "guidelines and criteria . . . be applied uniformly . . . without regard to the origin or cause of such segregation." 20 U.S.C. § 1602(a). Moreover, the ESAA proscription against employment discrimination forbids discriminatory acts and practices which violate statutory civil rights provisions such as Title VI of the Civil Rights Act of 1964.*fn40 It is significant that Title VI findings of discrimination may be predicated on disparate impact without proof of unlawful intent. See Lau v. Nichols, 414 U.S. 563, 568, 94 S. Ct. 786, 789, 39 L. Ed. 2d 1 (1974) ("(d)iscrimination is barred which has (disparate) Effect even though no purposeful design is present . . . .") (emphasis in original); Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508, 516-17 (5th Cir. 1976) ("statistical evidence alone may enable . . . plaintiffs to satisfy their initial burden of showing discrimination"); Cf. Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S. Ct. 849 (Title VII).
To effectuate the disparate impact test mandated by the ESAA, HEW regulations condition eligibility for ESAA funds upon teacher assignment patterns which do not identify schools "as intended for students of a particular race or national origin." 45 C.F.R. § 185.43(b)(2); See ante at p. 4522. The regulation appears consistent with the statutory purposes of ESAA and must be approved by the court if it is "reasonably related to the purposes of the enabling legislation." Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S. Ct. 1652, 1661, 36 L. Ed. 2d 318 (1973) (quoting Thorpe v. Housing Authority, 393 U.S. 268, 280-81, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969)).
B. Application of Disparate Impact Standard.
HEW's decision that teacher assignment disparities warranted a denial of ESAA funds was not arbitrary or capricious. 5 U.S.C. § 706(2)(A). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). Even if the appropriate standard of review were the "substantial evidence" test, the Secretary's denial must be affirmed since the data which we have reviewed above clearly support HEW's determination. It, therefore, follows a fortiori that the evidence precludes a finding of arbitrariness or caprice.
In disregarding "the origin or cause of segregation," 20 U.S.C. § 1602(a), HEW determined that the Central Board failed to present a sufficient justification for the racial disparities in teacher and staff assignments. The proffered justifications for the substantial disparities in the predominantly ten nonminority academic high schools included (1) restrictions on the transfer of teachers written into the collective bargaining agreement, (2) the desirability of teaching assignments in those schools, (3) the unwillingness of many nonminority teachers to teach in predominantly minority schools and (4) the unequal distribution of licenses in specific areas. None of these explanations is adequate to justify the racial disparities in staff assignments. The unequal distribution of licenses resulted from the very examinations which OCR previously determined had produced a racially significant disparate impact. See note 14 Supra. Leaving aside whether the remaining justifications are sufficient as a matter of law, they have not been supported by adduced facts appearing on the record.
In sum, our holding rests on both a congressionally mandated disparate impact test and non-arbitrary administrative findings of discrimination. See Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) (Powell, J.); Id. 438 U.S. 265 n.42, 98 S. Ct. 2756 (Brennan, J.). Thus, the extent of the injury has been defined and the consequent remedy, here the denial of funds, specified. See International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 347-48, 371-72, 97 S. Ct. 1843; United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 155-57, 167-68, 97 S. Ct. 996, 51 L. Ed. 2d 229 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 762-70, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976). The district court's remand to HEW was, therefore, erroneous, though immaterial here.
The judgment is affirmed, although on grounds different from those expressed by the district court.