Appeal from a dismissal of plaintiffs' complaints after trial in the Eastern District of New York, Jack B. Weinstein, Judge . Held by the court of appeals that the Department of Health, Education and Welfare (HEW) had jurisdiction under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-6, to investigate the employment practices of the New York City Board of Education (Board); that the teacher assignment provisions of a voluntary compliance agreement between HEW and the Board are valid; and that appellants' claims concerning hiring goals set out in the agreement do not present a "case or controversy" under article III of the Constitution. Judgment affirmed.
Before Lumbard, Oakes and Meskill, Circuit Judges.
This appeal, yet another chapter in the litigation concerning hiring, assignment and promotion practices in the New York City school system,*fn1 is from a final judgment entered on July 17, 1979, in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissing a complaint raising constitutional and statutory objections to a "Memorandum of Understanding" (Memorandum) between the Board of Education of the City of New York (Board) and the Office for Civil Rights (OCR) of the Department of Health, Education and Welfare (HEW). The challenged Memorandum, executed on September 7, 1977, obligated the Board to change its teacher employment and assignment policies in order to remedy the discrimination found by an OCR investigation conducted pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-6, and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686. Shortly after the Memorandum was signed, plaintiffs-appellants, including a local school board and teachers allegedly affected by the agreement, filed suit against the Board, the State Commissioner of Education, and OCR, seeking declaratory and injunctive relief against certain provisions of the Memorandum as violative of the fifth and fourteenth amendments and Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, 2000e-2. The district court permitted the United Federation of Teachers, the Council of Supervisors and Administrators, and others to intervene as plaintiffs and permitted the Coalition of Concerned Black Educators, and Ronald Ross to intervene as defendants.
In a previous chapter in the history of this litigation, this court affirmed a denial of injunctive relief against the enforcement of a provision of the Memorandum requiring the collection of racial and ethnic data by the Board. At the same time this court reversed the district court's order remanding the case to HEW for further proceedings in which plaintiffs-appellants would be permitted to participate. Caulfield v. Board of Education (Caulfield I ), 583 F.2d 605 (2d Cir. 1978). We found in that case that the Memorandum was "voluntary" and that HEW in seeking voluntary compliance with Title VI before resorting to fund termination, was not required to allow the plaintiffs-appellants to participate in formulating the Memorandum. Id. at 612-15; see 42 U.S.C. § 2000d-1. We then remanded for a hearing on the merits of the plaintiffs' constitutional and statutory challenges to the Memorandum. The present appeal is from the district court's dismissal of plaintiffs' complaints and the court's determination that the Memorandum is valid.
As a recipient of federal funds, the Board must comply with the nondiscrimination provisions of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,*fn2 Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681,*fn3 and their implementing regulations;*fn4 it may not discriminate on the basis of race, color, national origin or sex in education programs that receive federal funds. OCR has the responsibility of ensuring compliance through reviews, investigations and complaint resolution. As we recounted in Caulfield I, see 583 F.2d & n.3, the director of OCR advised the Board by letter dated November 9, 1976, that the Board was not in compliance with Title VI, because it had (1) "denied minority teachers full access to employment opportunity" by using racially discriminatory selection and testing procedures and by using racially identifiable employment pools in a way that restricted placement, (2) assigned teachers and principals in a manner that created, confirmed and reinforced racial identifiability of the system's schools, and (3) "assigned teachers with less experience, lower average salaries and fewer advanced degrees to schools with higher percentages of minority students." OCR also found the Board in violation of Title IX because it had denied females equal access to supervisory positions, provided less financial support for female athletic programs, and deprived female teachers of seniority rights and other compensation by failing to eliminate the effects of past discriminatory leave policies.
Ten months of negotiation ensued. During this time the Board's Deputy Chancellor Bernard Gifford chaired an internal committee reviewing and evaluating OCR's allegations. What is known as "the Gifford Report" substantiated and confirmed many of OCR's findings, although it denied any discriminatory intent on the part of the Board. See Caulfield I, 583 F.2d at 609 n.5. The Board itself on April 22, 1977, suggested affirmative efforts to equalize employment opportunities. See id. at 608. OCR rejected this proposed compliance plan but further negotiations resulted in the promulgation of the September Memorandum of Understanding challenged in this lawsuit. The Memorandum establishes a three-year plan to comply with Title VI and Title IX through affirmative action. We have set out in the margin key provisions of the agreement as they are reported in Judge Weinstein's memorandum opinion, 486 F. Supp. 862 (D.C.).*fn5
In appellants' complaint they alleged that HEW lacked Title VI jurisdiction to investigate the Board's employment practices because under 42 U.S.C. § 2000d-3*fn6 HEW can take such action only with respect to programs in which providing employment is a "primary objective of the Federal financial assistance." They further alleged that the agreement's remedial measures are impermissible absent a formal administrative or judicial finding of intentional discrimination and that the evidence does not support a finding of intentional discrimination. Cf. Lora v. Board of Education, 623 F.2d 248 (2d Cir. 1980) (intentional discrimination required to make out a violation of Title VI). Appellants also contended that the Memorandum, by requiring teacher assignments on the basis of race, established a "quota system" in violation of a number of statutes, including Titles VI and VII of the Civil Rights Act of 1964, and the fifth and fourteenth amendments.
The district court held that HEW had jurisdiction to investigate and seek compliance under the authority of 45 C.F.R. § 80.3(c)(3) (1979),*fn7 a Title VI regulation authorizing oversight of the employment practices of a recipient of federal funds when such practices have a discriminatory impact upon direct beneficiaries of the federal funds, in this case, the students themselves. Here, HEW had alleged that the Board's employment practices have such an effect because discrimination in teacher hiring and assignment has deprived students of equal educational opportunity both by reinforcing the racial identifiability of schools and, in some cases, by resulting in the assignment of less qualified or experienced teachers to predominantly minority schools. The district court found that discrimination by race in the hiring and assignment of teachers or supervisors constitutes discrimination against students. In addition, the court rejected the argument that the Memorandum must be invalidated in the absence of a finding of intentional discrimination. Instead, it upheld the agreement, stating that the issue was really whether the parties entering into a Title VI or Title IX remedial plan had a reasonable belief that the practices at issue might result in liability, whether the remedial measures adopted are reasonable in view of the perceived liability, and whether the measures violate statutory or constitutional rights.
We agree with the court below that Title VI enforcement procedures apply to the Board's teacher hiring and assignment practices and that HEW therefore had jurisdiction to investigate and seek compliance. Appellants rely upon section 604 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-3, the section which authorizes administrative action under Title VI with respect to employment practices only when a primary objective of federal funding is to provide employment.*fn8 Their argument is similar to the one advanced in 1978 by appellants in Caulfield I, 583 F.2d at 610-11. There the argument was made to oppose the collecting of statistics regarding the ethnic and racial composition of the teaching staff. We found, however, that OCR's charging letter to the Board of November 9, 1976, "specifically noted that its concern with discriminatory employment practices was motivated by the unfortunate effect that these practices exercise on minority schoolchildren." Id. at 611. Accordingly, we held that OCR's investigation was within the bounds of 42 U.S.C. § 2000d, which outlaws discrimination in federally funded programs, and not 42 U.S.C. § 2000d-3, because "the objective of OCR's investigation was to alleviate discrimination against minority schoolchildren and not against minority teachers as such." 583 F.2d at 611. We see no reason to depart from our holding in that case. Indeed, we are bound by it, but even if we were not, we would agree with the Fifth Circuit decision in United States v. Jefferson County Board of Education, 372 F.2d 836, 882-86 (5th Cir. 1966) (Wisdom, J.), aff'd en banc, 380 F.2d 385 (5th Cir.) (per curiam), cert. denied, 389 U.S. 840, 88 S. Ct. 67, 19 L. Ed. 2d 103 (1967), that section 2000d-3 does not bar an action requiring desegregation of school faculty and that faculty integration is essential to student integration. See also Marable v. Alabama Mental Health Board, 297 F. Supp. 291, 297-98 (M.D.Ala.1969) (three-judge court) (Johnson, J.).
Appellants also argue that HEW lacked jurisdiction under Title IX to investigate the school system's employment practices. Again, we agree with the lower court that the government could reasonably proceed on the theory that a school system's discrimination against women in access to supervisory positions would have a discriminatory effect on students, the direct beneficiaries of the federal aid. See Islesboro School Committee v. ...