Before Oakes and Meskill, Circuit Judges, and Stewart, District Judge.*fn*
Order ON PETITION FOR REHEARING
The government, in its brief, contends that our opinion is inconsistent with the subsequent Supreme Court decision in Board of Education of the City School District of New York v. Harris, 444 U.S. 130, 100 S. Ct. 363, 62 L. Ed. 2d 275 (1979). Not only do we think our decision is not inconsistent with the Court's decision, we think it is in fact supported by the language of that opinion.
The government contends that we had construed the statute as requiring the application of an intentional (discrimination) standard while the Court held that the Act was intended to apply to de facto as well as de jure discrimination. For the same reason the amicus brief argues that we improperly relied upon the Memorandum of Understanding's compliance with Title VI of the Civil Rights Act of 1964. Both briefs simply overlook what we decided. We explicitly stated that ESAA insists "on a single national standard for the distribution of these federal funds," citing to Section 1602(b) of 20 U.S.C. which provides:
It is the policy of the United States that guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 and section 182 of the Elementary and Secondary Education Amendments of 1966 shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race whether de jure or de facto in the schools of the local educational agencies of any State without regard to the origin or cause of such segregation.
At 611 and at n.10. We did not distinguish between intentional and nonintentional discrimination, but rather, between the maintenance of either form of discrimination and a policy of elimination of either form of discrimination:
What must cease to exist or occur in order for an applicant to qualify for a waiver of ineligibility is its current acceptance of the status quo. It would seem therefore, that if the Central Board has adopted a policy of eliminating discrimination in a manner approved by HEW, as demonstrated by its commitment to the Memorandum of Understanding, then "practices," "procedures" and "other activities," undertaken in furtherance of that policy cannot logically be described as having resulted in the ineligibility.
The government and the amicus briefs argue that we overlooked the portion of legislative history referred to in the Supreme Court's opinion, 444 U.S. at 148 and n.12; 100 S. Ct. at 373 and n.12. Although referred to by the Court as having "some significance," the Court does not indicate in what manner it would affect the construction of the waiver-of-ineligibility provisions. Indeed, the Court's statement, a few paragraphs later, that ". . . ESAA funds are available for the furtherance of a plan to combat de facto segregation," 444 U.S. at 150, 100 S. Ct. at 374 (emphasis added), indicates that, whatever the significance of this legislative history, our construction of the waiver-of-ineligibility provision comports with the Court's perception of the objectives of the statute.
For these reasons we do not think a different result is mandated by the subsequent Supreme Court opinion in Board of Education of the City School District of New York v. Harris, supra.
Petition for rehearing is denied.*fn1
A petition for rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for the Appellants, and a poll of the active judges having been taken, and a majority thereof having voted against rehearing en banc,
Upon consideration thereof, it is
Ordered that said petition be and it ...