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Civil Rights (1 of 3)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Civil Rights (1 of 3)
Box: 10
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
ID #.
199699
CU
JV
COPY
WHITE HOUSE
Huoll
CORRESPONDENCE TRACKING WORKSHEET
O . OUTGOING
H . INTERNAL
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
James C. NWRR
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: memo to Department of Education re Proposed DOJ
report on 5.139 the Public School Civil Rights Oct of 1983,
G bill to prohibit the lower Federal Courts from issuing orders
requiring mandatory assignment or transportation of Students
to public school on the basis 8 race.
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
JV
CUHOLL
ORIGINATOR
84,01,200
C 84,02,15
Referral Note:
WAT18
D
84,01,20
C84/02,15
JV
Referral Note:
C
CUFIEL
S 84,02,15 JV #F A-84,00115
Referral Note: Feb 1584 FFFMEMOTO B. Blum
/
/
/
/
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
I -. Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R - Direct Reply w/Copy
B . Non-Special Referral
S Suspended
D - Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
THE WHITE HOUSE
WASHINGTON
February 15, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Justice Report on S. 139
(Anti-Busing Bill)
Counsel's Office has reviewed the above-referenced proposed
testimony. We have no objection to sending it to the Hill.
FFF:JGR:aea 2/15/84
CC: FFFielding/JGRoberts/Bubj/Chron
THE WHITE HOUSE
WASHINGTON
February 15, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Proposed Justice Report on S. 139
(Anti-Busing Bill)
OMB has asked for our views by close of business today on
the above-referenced proposed Justice Department report.
The 26-page letter to Strom Thurmond was prepared by the
Office of Legal Counsel. It outlines the concerns of the
Department with respect to S. 139, the "Public School Civil
Rights Act of 1983," an anti-busing bill. S. 139 contains
numerous Congressional findings concerning the pernicious
effects of busing, prohibits lower federal courts from
ordering busing, and permits reopening of previously-entered
busing decrees, which are to be overturned unless the court
makes several findings concerning currently existing
intentional segregation. The bill states that it is based
on Congress's Article III authority over the inferior
federal courts and its power pursuant to § 5 of the
Fourteenth Amendment.
The Justice report concludes that courts would defer to the
legislative findings of fact, but would not defer to con-
clusions of law expressed as findings of fact in the bill.
With respect to the prohibition on federal busing orders,
the Department concludes that Congress only possesses power
to impose such a limitation if effective alternative
remedies for unconstitutional segregation exist. If a court
in a particular case determines that busing is necessary to
remedy intentional racial segregation, it will strike down
the prohibition in the bill preventing it from ordering such
relief. The report objects to the authorization to reopen
existing busing decrees on policy grounds, and concludes
that this provision is unconstitutional to the extent it
authorizes state courts to re-examine federal court orders.
The analysis in the Justice report is largely based on the
even lengthier May 6, 1982 letter sent by the Attorney
General to Representative Rodino, concerning a similar bill.
I spent several months in my previous incarnation disputing
Ted Olson's approach to these issues; the May 6 Attorney
General letter signalled Olson's victory in the extended
internal debate. Olson reads the early busing decisions as
- 2 -
holding that busing may in some circumstances be
constitutionally required, and accordingly concludes that
Congress may not flatly prohibit busing. To do so would
prevent federal courts from remedying a constitutional
violation.
I do not agree with his reading of the early cases. The
holdings of those cases stand for the proposition that
busing is permissible, and that state statutes limiting the
authority of federal courts to order busing are
unconstitutional. A far different question is presented
when Congress attempts to limit the authority of the federal
courts. Congress has authority under § 5 to enforce the
Fourteenth Amendment, and can conclude -- the evidence
supports this -- that busing promotes segregation rather
than remedying it, by precipitating white flight. Even if
Olson's reading of the 13-year old early busing cases is
correct, we have now had over a decade of experience with
busing. If that experience demonstrates that busing is not
an effective remedy, Congress can legislate on the basis of
that experience. Olson's analysis treats stray dicta in the
old cases as binding despite experience to the contrary. I
would conclude that it is within Congress's authority to
determine that busing is counterproductive and to prohibit
federal courts from ordering it. Our own litigation policy
is based on such a view, and it strikes me as more than
passing strange for us to tell Congress it cannot pass a law
preventing courts from ordering busing when our own Justice
Department invariably urges this policy on the courts.
As noted, however, Olson's view has already gone forward as
the Administration view, and it would probably not be
fruitful to reopen the issues at this point.
Attachment
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
January 18, 1934
LEGISLATIVE REFERRAL MEMORANDUM
TO:
LEGISLATIVE LIAISON OFFICER
199699
in
Department of Education
SUBJECT:
Proposed Department of Justice report on S. 139,
the Public School Civil Rights Act of 1983, a
bill to prohibit the lower Federal courts from
issuing orders requiring the mandatory
assignment or transportation of students to
public schools on the basis of race.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than Wednesday,
February 15, 1984.
Direct your questions to Branden Blum (395-38,02), the legislative
attorney in this office.
James Ucm Muri for
Assistant Director for
Legislative Reference
Enclosure
CC: John Cooney
Mike Uhlmann
Karen Wilson
Fred Fielding
Naomi Sweeney
Barry White
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
Honorable Strom Thurmond
Chairman, Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This presents the views of the Department of Justice
on the constitutional and legal issues raised by S. 139,
98th Cong., 1st Sess., entitled the "Public School Civil
Rights Act of 1983. #1 1/ We conclude, first, that the factual
findings in the bill will probably be given deference by the
courts. Second, deference will probably not be accorded to
those legislatively determined "facts" which appear actually
to be conclusions of law on matters which have been the sub-
ject of prior holdings of the Supreme Court. Third, the
restrictions imposed on the power of the inferior federal
courts to order a remedy requiring school assignments or
transportation of students on the basis of race does not
appear to be a valid exercise of Congress's power pursuant
to § 5 of the Fourteenth Amendment. Fourth, to the extent
that the restrictions deprive the court of effective remedial
1/ With minor differences in language, S. 139 is practically
identical to S. 1760, 97th Cong., 1st Sess., entitled the "Public
School Civil Rights Act of 1983." Substantive differences in-
clude the addition of the last section of S. 139, which precludes
removal of actions brought in state court, and the deletion of
§ 3(b) (4) of S. 1760, which related to available remedies.
power in a particular case, the restrictions would also
exceed Congress's power under Article III to regulate the
jurisdiction of the inferior courts. Finally, an attempt by
Congress to confer jurisdiction on state courts to reopen and
reconsider an order previously imposed by a federal court
would not be consistent with limitations imposed by Article
III and separation of powers.
I. The Provisions of the Bill
S. 139 declares that the assignment of students to public
school by inferior federal courts on the basis of, or with
regard to, race, color, or national origin has been counter-
productive in a number of ways to the educational process and
to society and good race relations in general. It declares also
that school assignments based on race are unconstitutional and
that there are alternative remedies for prior unconstitutional
segregation. The bill provides that previously entered court
orders based on race may be reopened and must be set aside
unless a high standard of proof is met for continuing the prior
order. The bill further provides that cases brought under the
Act in state court may not be removed to federal court.
More specifically, section 2 of the bill recites Congress's
findings that assignment of students by federal courts based
on race 2/:
1. "has failed to demonstrate educational
benefits commensurate with the disruption
caused by such assignment;" see § 2(1)(C);
2. "has contributed to a significant deteri-
oration of public schools
by
inducing large numbers of families to
2/ The bill repeatedly uses the phrase "on the basis of or with
regard to race, color, or national origin." For convenience,
we will shorten the reference to "on the basis of" or "based on"
race.
- 2 -
migrate away from ... districts" sub-
ject to court orders; see § 2(1) (E) 3/;
3. "has contributed to the deterioration of
public education by removing the neighbor-
hood school as the focus of such educa-
tion;" see § 2(1)(F);
4. "has disrupted the education of countless
schoolchildren who must endure lengthy
transportation
and must often forego
participation in extracurricular activi-
ties
;" see $ 2(1)(G);
5. "has eroded community commitment to pub-
lic schools and public education;' see
§ 2 (1) (H);
6. "interferes with the right of parents to
make decisions regarding the education of
their children;" see $ 2(1)(I);
7. "disrupts racial harmony by characterizing
and classifying students on the basis of
race or color and assigning them to schools
on such basis;" see § (1) (J) 4/;
3/ The bill also contains a separate finding that
"whatever the basic cause of racial imbalance
in the public schools, assignment of students
to public schools on the basis of or with
regard to race, color, or national origin
results in more segregation of the races by
inducing large numbers of families to migrate
away from school systems subject to such
assignment or by inducing large number [s]
of families to seek alternatives to public
school education."
See S 2(4). We might point out the typographical error in this
subsection of the bill.
4/ This section does not refer to national origin.
- 3 -
8. "diverts significant amounts of financial
resources away from direct improvement of
the quality of education;" see § 2(1)(K);
9. "usurps the responsibilities and tradi-
tional functions of State and local
authorities to provide an educational
system meeting the distinct needs of the
community;" see § 2(1)(L); and
10. "undermines public respect for the Govern-
ment and its system of administering law
and justice." See $ 2(1)(M).
Additional congressional findings include the declarations
that:
1. the assignment of students on the basis
of race "violates constitutional and legal
guarantees that individuals shall not be
denied equal protection of the law [and]
that individual rights shall not be abridged
on the basis of [race] ; see § 2 (1) (A)-(B):
2. "past unconstitutional segregation, such as
racial segregation enforced by law, is not
a significant cause of existing racial im-
balances in public schools;" see § 2(2); and
3. "since assignment of students to public
schools on the basis of or with regard to
race cannot be justified as a means of
preventing or undoing racial discrimination
by school authorities, such assignment is
itself an unjustifiable practice of racial
discrimination by the Government in vio-
lation of the fourteenth amendment." See
§ 2(3). 5/
5/ Section 2(3), for some reason, mentions only race, not color
or national origin.
- 4 -
Section 3 (a) of the bill recites Congress's finding that
certain remedies are available for unconstitutional segregation
"exclusive of court orders which assign students to public
schools [on the basis of race] II 6/ As described in § (b),
the acceptable remedies are limited to
"(1) legal injunctions suspending all imple-
mentation of a segregative law or other
racially discriminating Government action;
"(2) contempt of court proceedings where
such injunctions are not scrupulously obeyed;
"(3) programs without coercion or numerical
quotas or specific goals based on racial
balance that permit students to voluntarily
transfer to other schools within the school
district where they reside; and
"(4) other local initiatives and plans to
improve education for all students without
regard to [race]
Section 4 states that Congress is acting pursuant to its
authority under Article III of the Constitution and section 5
of the Fourteenth Amendment in order to protect public school
students against discrimination on the basis of race.
Section 5 would amend 28 U.S.C. $ 1343 by adding the pro-
hibition that no inferior court established by Congress shall
have jurisdiction to issue any order requiring the assignment
or transportation of any student to public elementary or secon-
dary schools, or excluding any student from public school, on
the basis of race. The section further provides that any
individual or school board or other school authority shall be
entitled to seek relief "in any court" from such orders entered
6/ The meaning of $ 3(a) is not entirely clear. We assume that
the phrase "exclusive of court orders" which assign students
based on race means "to the exclusion of" such orders. We may
wish to communicate a suggestion regarding the clarity of the
language employed.
- 5 -
prior to the enactment of the bill. Relief consistent with
S. 139 7/ shall be granted with respect to existing decrees
unless the court can make certain "conclusive findings" based
on clear and convincing evidence. First, a finding is required
that the acts which gave rise to the existing order intention-
ally and specifically caused, and in the absence of the order
will continue to cause, students to be assigned or excluded
from public school on the basis of race. For purposes of the
subsection, such acts include "school district reorganization,
school boundary line changes, school construction, and school
closings." Such acts do not include, however, "legitimate
efforts to employ public education resources to meet public
education needs without regard to race, creed, or national
origin." 8/ Second, a finding is required that the totality
of circumstances has not changed since the issuance of the
order to warrant reconsideration of the order. 9/ Third, a
finding is required that no other remedy, "including those
mentioned herein," would preclude the intentional and specific
segregation. And fourth, a finding is required that the
economic, social, and educational benefits of the order have
7/ The bill provides that "such plaintiffs shall be entitled
to relief which is consistent with the provisions of this
subsection and the Public School Civil Rights Act of 1981."
We assume that the date was erroneously not changed when this
provision was copied from S. 1760. If the correct date is
"1983," S. 139 should be amended accordingly.
8/ We are unclear just what the exception for "legitimate
efforts" is intended to encompass. The scope of the exclusion
should be clarified in the legislative history or the text of
the bill itself. We also observe that this provision is the
only reference in the bill to "race, creed, or national origin."
(emphasis added.) The remainder of the bill generally refers
to "race, color, or national origin," a phrase which probably
more closely conforms to the legislative intent. If so, pro-
posed paragraph (b) (1) (2) should be amended accordingly.
9/ There is a grammatical error in this subsection of the bill,
which, as drafted, requires the court to find that "the totality
of circumstances have not changed." (emphasis added.)
- 6 -
clearly outweighed the economic, social, and educational costs
of the order. 10/
Finally, the sixth section (erroneously numbered § 5) of
the bill would amend 28 U.S.C. § 1445 (erroneously referred
to as § 1455) by adding subsection (d) to provide that a civil
action brought in state court seeking relief under S. 139 may
not be removed to federal court.
II. Legal Status of School Assignments Based on Race
In Swann V. Charlotte-Mecklenburg Board of Education, 402
U.S. 1 (1971) (Swann I), the Supreme Court discussed the legal
status of school assignments based on race. The objective,
where there has been unlawful segregation on the basis of race,
is "to eliminate from the public schools all vestiges of
state-imposed segregation." Id. at 15. As the Court. noted
in Swann I, the basis for the holding in Green V. County School
Board, 391 U.S. 430, 437-38 (1968), was that where there has
been prior state-imposed segregation, school authorities have
the "'affirmative duty to take whatever steps might be necessary
to convert to a unitary system in which racial discrimination
would be eliminated root and branch. Swann I, supra, at 15.
The Court declared, for example, that school authorities have
"broad discretionary powers" to establish an educational policy
that "each school should have a prescribed ratio of Negro to
white students reflecting the proportion for the district as a
whole." Id. at 16. A court, in evaluating the constitutional
sufficiency of actions by school authorities, will be guided
by whether the remedy is "'feasible' and, by implication,
'workable,' 'effective,' and 'realistic' in the mandate to
develop 'a plan that promises realistically to work, and
...
to work now. Id. at 31, quoting Green, supra (emphasis in
original).
10/ Given that this section of the bill seems to be intended
to require the court to determine whether the busing order is
appropriate prospectively, it might be clearer if this finding
were phrased to produce a balancing of the costs and benefits
in the present and the future, rather than the past, as the
bill as drafted seems to require.
- 7 -
Race or color may be considered in the search for remedies
for unlawful segregation. In Swann, the Court rejected the
view that, in the context of remedies, the Constitution required
teacher assignments on a "color-blind" basis or that it prohi-
bited assignment of teachers to achieve a particular degree of
faculty desegregation. 402 U.S. at 19. "Awareness of the
racial composition of the whole school system is likely to be
a useful starting point in shaping a remedy to correct past
constitutional violations." Id. at 25. Moreover, "attendance
assignments made deliberately to accomplish the transfer of
Negro students out of formerly segregated Negro schools and
transfer of white students to formerly all-Negro schools" was
within the broad remedial powers of a court as an "interim
corrective measure." Id. at 27. By contrast, [r]acially
neutral' assignment plans may be inadequate; such plans
may fail to counteract the continuing effects of past school
segregation resulting from discriminatory location of school
sites or distortion of school size in order to achieve or
maintain an artificial racial segregation." Id. at 28.
In a related case, North Carolina State Board of Education
V. Swann, 402 U.S. 43 (1971) (Swann II), the Supreme Court.
considered a state statute which provided, in pertinent part,
that "[n]o student shall be assigned or compelled to attend any
school on account of race, creed, color or national origin, or
for the purpose of creating balance or ratio of race, religion
or national origins." The statute further prohibited "[i]nvol-
untary bussing of students in contravention of [the statute].
The Court held the statute invalid on the ground that it
impeded implementation of desegregation plans required by the
Fourteenth Amendment. The Court held:
"[I]f a State-imposed limitation on a
school authority's discretion operates
to inhibit or obstruct the operation of
a unitary school system or impede the
disestablishing of a dual school system,
it must fall; state policy must give way
when it operates to hinder vindication
of federal constitutional guarantees."
*
*
*
"We likewise conclude that an absolute
prohibition against transportation of
students assigned on the basis of race,
- 8 -
'or for the purpose of creating a balance
or ratio,' will similarly hamper the
ability of local authorities to effec-
tively remedy constitutional violations.
As we noted in Swann, supra, at 29, bus
transportation has long been an integral
part of all public educational systems,
and it is unlikely that a truly effective
remedy could be devised without continued
reliance upon it."
Id. at 45.
Most recently, in Crawford V. Los Angeles Board of Educa-
tion, 102 S. Ct. 3211 (1982), the Court upheld the validity
of an amendment to the California constitution which limited
the power of the state courts to order busing to cases in
which the federal courts would have similar power. The Court
quoted a statement of general principles by the California
Supreme Court, which advised the state trial court that busing
was "not a constitutional end in itself." Id. at 3214 n.3.
It was simply one potential tool available for use to satisfy
a school district's constitutional obligation which need not
be available to satisfy any stricter standard imposed by
state law. 11/
III. Recent Attempts by Congress to Restrict Assignment
or Transportation of Students
In the last Congress, the Senate included in S. 951, the
Department of Justice appropriation authorization bill for
Fiscal Year 1982, certain restrictions on the authority of the
inferior federal courts to order mandatory transportation of
school children to schools other than those closest to their
homes ("busing"). By letter of May 6, 1982, the Attorney
11/ In Washington V. Seattle School District No. 1, 102 S. Ct.
3187 (1982), decided the same day as Crawford, the Court struck
down a limitation on a local school board's power to order
busing. The Court held that the state initiative disadvantaged
the minority in the political process. See Hunter V. Erickson,
393 U.S. 385 (1969).
- 9 -
General wrote to the Honorable Peter W. Rodino, Chairman,
Committee on the Judiciary of the House of Representatives
(hereinafter the "Attorney General's Letter"), to provide the
Department's views on the student transportation provisions
of that bill. The Attorney General concluded that the bill
did not withdraw jurisdiction from the Supreme Court or limit
the jurisdiction of the inferior federal courts to decide a
class of cases. The effect of the bill, as construed, related
only to one aspect of the remedial power of the inferior
federal courts by limiting the court's power to order busing
unless it was voluntary or "reasonable." Various conditions
were attached to a finding of reasonableness, including time
and distance restrictions.
The Attorney General noted the Supreme Court's ruling
that the judicial power to impose a transportation remedy "may
be exercised only on the basis of a constitutional violation."
See Swann I, supra, 402 U.S. at 16. He also observed that
" [t] he Supreme Court has stated that circumstances might
conceivably exist in which the imposition of a desegregation
remedy which included the transportation of students to schools
other than the ones which they had formerly attended might be
unavoidable in order to vindicate constitutional rights."
Attorney General's Letter at page 7. The Attorney General
discussed the Court's ruling in Swann II that an absolute pro-
hibition against a transportation remedy would contravene the
command that all reasonable methods be available to formulate
an effective remedy.
Because S. 951 imposed limitations on transportation
remedies, the Attorney General considered whether the bill was
a constitutional exercise of Congress's power under § 5 of the
Fourteenth Amendment and Article III of the Constitution. He
concluded that the limitation would be authorized under § 5
"to the extent that it does not prevent the inferior federal
courts from adequately vindicating constitutional rights
Congress may instruct the lower federal courts not to order
mandatory busing in excess of the
limits [of the bill],
so long as the court retains adequate legal or equitable powers
to remedy whatever constitutional violation may be found to
exist in a given case." Attorney General's Letter at page 9.
But, the Attorney General cautioned, "[u]nder § 5 Congress
cannot impose mandatory restrictions on federal courts in a
given case where the restriction would prevent them from fully
remedying the constitutional violation." Attorney General's
Letter at page 10.
- 10 -
The Attorney General also concluded that the transporta-
tion restrictions of S. 951 "appear to be firmly grounded in
Congress' Article III, § 1 power
to control the inferior
federal court jurisdiction. The bill did not attempt to
usurp the judicial function by instructing the court how to
decide issues of fact in pending cases or by withdrawing all
effective remedial power from the court. Moreover, because the
bill did not mandate an automatic reversal of any outstanding
court order, it did not pose the constitutional problem of
legislative revision of judgments. Cf. Hayburn's Case, 2 U.S.
(2 Dall.) 409 (1792) (on petition for mandamus). See Attorney
General's Letter at page 12.
IV. Legal Analysis of S. 139
A. Scope of Application
In one respect, S. 139 presents less of a problem consti-
tutionally than S. 951 because S. 139 expressly applies only
to the inferior federal courts. Although the Attorney General
concluded that S. 951 had not been intended to apply to the
jurisdiction of the Supreme Court, he acknowledged that that
construction was debatable and that the language of the bill
itself left open the possibility that it might have been
construed as having the broader application. By separate
letter, also dated May 6, 1982, to Chairman Thurmond of the
Senate Judiciary Committee, the Attorney General discussed
the constitutional limitations on Congress's power to withdraw
jurisdiction from the Supreme Court. He expressed the view
that congressional power in that regard is significantly more
constrained than is its power to regulate the jurisdiction
of the inferior federal courts.
B. Validity of Factfinding
Section 2 of the bill sets forth a number of "findings"
by Congress with regard to the effect of busing on the educa-
tional system and on society. The Attorney General observed,
in his letter to Chairman Rodino, that the courts customarily
pay great deference to congressional findings of fact and the
exercise of legislative power in response to such factual
findings. Pursuant to the broad power conferred by § 5 of the
Fourteenth Amendment, Congress may enact statutes to prevent
- 11 -
or remedy situations which it determines, on the basis of
legislative facts, to be violative of the Constitution; and
the congressional findings of fact will traditionally be up-
held if the court can "perceive a basis" for them. Katzenbach
V. Morgan, 384 U.S. 641, 653 (1966); see Attorney General's
Letter at page 10; cf. Fullilove V. Klutznick, 448 U.S. 448
(1980) (plurality opinion). Such deference would be appro-
priate for the findings of fact in $ (1) (C) (M). 12/
C. Validity of "Findings" of Conclusions of Law
Deference would probably not be equally accorded to
the "facts" set forth in S 2 which appear actually to be
conclusions of law on matters which have been the subject
of prior holdings of the Supreme Court; and the Court will
undoubtedly feel free to reach its own conclusions on
ultimate constitutional questions. These comments are
particularly applicable to $ 2(1) (A) and (B), $ 2(2), and
§ 2(3).
Section 2(2), as set forth in Part I, recites that past
unconstitutional racial segregation enforced by law is not
a significant cause of existing racial imbalances in public
schools. This finding is contrary to the finding made by
numerous courts in specific factual situations prior to the
entry of desegregation decrees. In Swann I, supra, the Supreme
Court held that the judicial power to impose a transporta-
tion remedy "may be exercised only on the basis of a consti-
tutional violation." 402 U.S. at 16. Moreover, once the
12/ The Attorney General's Letter noted that considerable
deference would likely be paid to the findings of fact made
in S. 951, "notwithstanding the somewhat limited hearings
which were held and the absence of printed reports. It does
not appear that any particularized research was presented to
the Senate which might have supported or undermined the
specific limitations on federal court decrees contained in
[S. 951]." Attorney General's Letter at page 10. Although
particularized research may not be as necessary in support
of the more general findings in S. 139, we suggest that the
proponents of the legislation will wish to provide a factual
basis for these findings in the legislative history.
- 12 -
effects of the prior constitutional violation are eliminated,
the court's remedial power is at an end. See Pasadena City
Board of Education V. Spangler, 427 U.S. 424 (1976). Thus,
the courts are likely to presume as an initial matter that an
existing decree was predicated on a previous constitutional
violation and that whether the violation has been remedied
or continues to go unremedied is a matter of factual deter-
mination in individual cases.
To the extent that § (2) is intended to affect retrospec-
tively the validity or viabililty of previously entered decrees
which ordered transportation to remedy the continuing effects
of prior unconstitutional segregation, its effect would be
limited by the rule of Hayburn's Case, 2 U.S. (2 Dall.) 409
(1792) (on petition for mandamus). Written by the Justices
sitting as Circuit Justices, the opinions in Hayburn's Case
agreed that Congress cannot require the federal courts to
provide opinions that will be subject to executive or legis-
lative revision. See also Chicago & Southern Air Lines, Inc.
V. Waterman Steamship Corp., 333 U.S. 103, 113 (1948) ("Judg-
ments within the powers vested in the courts by the Judiciary
Article of the Constitution may not lawfully be revised,
overturned or refused faith and credit by another Department
of Government. "); Pennsylvania V. Wheeling & Belmont Bridge
Co., 59 U.S (18 How.) 421, 431 (1855) ("But it is urged, that
the act of congress cannot have the effect and operation to
annul the judgment of the court already rendered, or the
rights determined thereby in favor of the plaintiff. This,
as a general proposition, is certainly not to be denied,
especially as it respects adjudication upon the private
rights of parties. When they have passed into judgment the
right becomes absolute, and it is the duty of the court to
enforce it."). 13/
13/ An illuminating discussion of the issues of executive and
legislative revision of judgments appears in a draft opinion
in Gordon V. United States, which was prepared by Chief Justice
Taney who died before the decision was announced. The draft
opinion is printed as an appendix at 117 U.S. 697. The actual
opinion in Gordon appears at 69 U.S (2 Wall.) 561 (1864).
- 13 -
Furthermore, to the extent that the finding in § 2(2)
is intended to apply in pending cases, it may contravene the
holding in United States V. Klein, 80 U.S. (13 Wall.) 128
(1872). In Klein, the Supreme Court refused to give effect
to a provision which it found to instruct the Court to decide
issues of fact a certain way in pending cases. Under the
statute, the Court found, it was "forbidden to give the effect
to evidence which, in its own judgment, such evidence should
have, and is directed to give it an effect precisely to the
contrary. [1] We must think that Congress has inadvertently
passed the limit which separates the legislative from the
judicial power." Id. at 147.
A separate problem is raised by § 2(1) (A) and (B) and
§ 2(3) which, as set forth in Part I, recite that assignments
based on race violate equal protection, abridge individual
rights on the basis of race, and constitute race discrimination
in violation of the Fourteenth Amendment. There is no doubt
that the scope of congressional power under § 5 is very broad.
See Katzenbach V. Morgan, 384 U.S. 641 (1966) Oregon V. Mit-
chell, 400 U.S. 112 (1970) City of Rome V. United States, 446
U.S. 156 (1980) Fullilove V. Klutznick, 448 U.S. 448 (1980)
(plurality opinion). Congress, by virtue of the express grant
of power to enforce the Fourteenth Amendment, is assigned the
role in our constitutional structure to evaluate conflicting
entitlements and determine the balance that will be struck
between them. The Court has indicated that it will pay great
deference to the legislative judgments that are made. Cf.
Fullilove V. Klutznick, supra.
The congressional power, however, is not unlimited. As
the Attorney General's Letter noted, the cases "rather firmly
establish that Congress is without power under $ 5 to revise
the Court's constitutional judgments if the effect of such
revision is to 'restrict, abrogate, or dilute' Fourteenth
Amendment guarantees as recognized by the Supreme Court."
Attorney General's Letter at page 9, quoting Katzenbach V.
Morgan, supra, 384 U.S. at 651-52 n.10.
The Supreme Court has held that the Equal Protection
Clause guarantees all students a constitutional right to be
free from intentional racial discrimination or segregation
in schooling. Brown V. Board of Education, 347 U.S. 483
(1954) ; see also Bolling V. Sharpe, 347 U.S. 497 (1954) (equal
- 14 -
protection component of the Due Process Clause of the Fifth
Amendment). Moreover, to the extent that school assignments
are necessary "to eliminate from the public schools all
vestiges of state-imposed discrimination," Swann I, supra,
402 U.S. at 15, the assignments, and the concomitant require-
ment of student transportation, have been held to be appro-
priate as remedies, even in the face of challenges that such
remedies would themselves be violative of the Constitution.
In McDaniel V. Barresi, 402 U.S. 39 (1971), the Supreme Court
reversed the Georgia Supreme Court, which had held that a
desegregation plan adopted by the county school board violated
the Equal Protection Clause "by treating students differently
because of their race. Id. at 41. The Supreme Court held
that [i]n this remedial process, steps will almost invariably
require that students be assigned "'differently on the basis
of their race. Id.
The principle that the Court is the ultimate arbiter of
the Constitution was established in Marbury V. Madison, 5 U.S.
(1 Cranch) 137 (1803) ; and it has not been seriously questioned
since. See INS V. Chadha, 103 S. Ct. 2764, 2779-80 (1983).
Therefore, the "findings" in § 2 of S. 139 could not be given
the effect of prohibiting assignment or transportation of
students in circumstances in which a court was to find that
such a remedy was necessary fully to vindicate the constitu-
tional rights of the victims of unlawful segregation.
D. Restrictions on Remedial Authority
S. 139 restricts the remedial authority of the inferior
federal courts in two ways. Section 5 of the bill states that
no inferior court established by Congress shall have jurisdic-
tion to issue any order requiring assignment or transportation
of students, or excluding any student from school, on the
basis of race. Section 3 provides, in effect, that the reme-
dies which are available are limited to injunctions against
the segregative law or action, contempt of court proceedings,
voluntary transfers of students, and local initiatives to
improve education for all students. S. 139 thus differs
significantly from S. 951, which did not absolutely prohibit
the inferior federal courts from ordering busing but merely
prohibited court-ordered busing if it was not voluntary or
"reasonable," as defined by reference to specified time and
distance limitations.
- 15 -
S. 139 asserts that the bill is based upon two sources
of congressional power: Article III and $ 5 of the Fourteenth
Amendment. We shall examine the absolute prohibition of S. 139
in light of the Attorney General's conclusions with regard to
the scope of congressional authority as discussed in his letter
to Chairman Rodino. We shall discuss the § 5 power first.
1. Section 5 of the Fourteenth Amendment. In the two Swann
cases, as discussed above, the Supreme Court held that student
transportation might in some circumstances conceivably be a
necessary feature of a remedial desegregation decree and that
the State may not absolutely prohibit busing or assignments
based on race if it would hamper the ability of local authori-
ties effectively to remedy constitutional violations. On this
basis, the Attorney General concluded that the restrictions on
court-ordered transportation contained in S. 951 would be
authorized under § 5 to the extent that they did not prevent
the court from adequately vindicating constitutional rights,
but not "when, in the judgment of the courts," such transpor-
tation in excess of the limits in S. 951 was "necessary to
remedy a constitutional violation." Attorney General's Letter
at page 11. In circumstances in which transportation which
would have been considered "reasonable" under S. 951 was
necessary to achieve an effective remedy, the absolute prohi-
bition contained in S. 139 would present a legal obstacle to
a remedial decree which would have been permissible under
S. 951. On this basis, as a simple matter of logic, the
likelihood that there would be circumstances in which S. 139
might exceed the scope of Congress's power under § 5 is
greater than under S. 951.
Moreover, to the extent that S. 139 is intended to impose
an outright prohibition of any assignment or transportation
based on race, it far more closely resembles the North Carolina
statute struck down in North Carolina Board of Education V.
Swann (Swann II), supra, than S. 951. Unlike the state law at
issue in Swann II, however, S. 139 purports to be an exercise
of Congress's § 5 power to enforce the provisions of the
Fourteenth Amendment. The bill specifically indicates that
it is intended to protect the rights of all students not to be
assigned to schools based on race. The constitutional issue
presented, therefore, is whether Congress's power pursuant to
§ 5 to enforce the Fourteenth Amendment is greater than the
power of the States to take the same action.
- 16 -
It is clear that there are circumstances in which Congress
has the power to legislate and the States do not. These cir-
cumstances include, at a minimum, matters of national concern
under the Constitution. Moreover, with regard to legislative
authority under the Fourteenth Amendment in particular, the
history and purpose of that Amendment demonstrate the intent
to expand federal power at the expense of the States. For
example, the power of the State itself became more subject to
control by Congress pursuant to $ 5. See, e.g., Fitzpatrick V.
Bitzer, 427 U.S. 445, 456 (1976) '[W]e think that the Eleventh
Amendment, and the principle of state sovereignty which it
embodies, are necessarily limited by the enforcement
provisions of § 5 of the Fourteenth Amendment. ")
In the context of S. 139, it is not necessary to explore
the full extent of congressional power under § 5 because we
do not believe that removing the remedial authority of the
inferior federal courts to order reassignment of students and
concomitant transportation represents an appropriate exercise
of Congress's § 5 power. The authority granted under § 5 is
to enforce the provisions of the Fourteenth Amendment. 14/
For purposes relevant here, the essential language of the
Amendment is: "No State shall deny to any person
within its jurisdiction the equal protection of the laws."
These prohibitions have been consistently interpreted to apply
only against state action. See, e.g., Jackson V. Metropolitan
Edison Co., 419 U.S. 345 (1974) Moose Lodge No. 107 V. Irvis,
407 U.S. 163 (1972). Thus, we believe that if the prohibition
of student transportation based on race was intended to
enforce the right of equal protection under the Fourteenth
Amendment, the prohibition would be directed to the States
and school districts, and not to the inferior federal courts.
The power to legislate to enforce the obligation of the States
not to deprive the citizens of equal protection would simply
not seem broad enough to encompass legislation regarding the
powers of the federal courts.
14/ The discussion, supra, in text that the power to "enforce"
cannot be used to "restrict, abrogate, or dilute" Fourteenth
Amendment rights as recognized by the Supreme Court is fully
applicable here.
-17-
Moreover, because the courts have authority to order
transportation only in cases where there is a continuing
constitutional violation and only as a remedy for that viola-
tion, the prohibition contained in S. 139 would be relevant
only in cases where the court was exercising its remedial
authority to vindicate constitutional rights. The prohibi-
tion, then, as applied to the federal courts, as the enforcer
of constitutional rights, cannot be viewed as an exercise of
Congress's power to enforce the Fourteenth Amendment.
Katzenbach V. Morgan, supra, does not support the exercise
of congressional authority in these circumstances. Katzenbach
arose in the context of facts upon which the Court had held
that certain conduct by the States was not prohibited because
it did not violate the Fourteenth Amendment, see Lassiter V.
Northampton Board of Elections, 360 U.S. 45 (1959), and
Congress, in the exercise of its § 5 power, prohibited that
conduct. Cf. Voting Rights Act Amendments, Pub. L. No. 97-205,
96 Stat. 131, legislatively overturning Mobile V. Bolden, 446
U.S. 55 (1980). See S. Rep. No. 417, 97th Cong., 2d Sess. 2,
39 (1981), reprinted in 5 U.S. Code Cong. & Ad. News 177, 179,
217 (1982). This potential assertion of congressional authority
to preclude transportation arises in the context of holdings
by the Court that certain conduct is prohibited because it
does violate the Vourteenth Amendment, and Congress would be
attempting to rely on its § 5 power to "impede" (as the Supreme
Court put it in Swann II, supra, 402 U.S. at 45) the ability
of the federal courts to develop a remedy for a violation of
that prohibition. Nothing in the history or jurisprudence of
the $ 5 power supports its use in this context.
2. Article III. Article III, $ 1 of the Constitution provides
that "the judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the Con-
gress may from time to time ordain and establish." See also
U.S. Const. Art. I, § 8, cl. 9 (giving Congress power to con-
stitute Tribunals inferior to the supreme Court"). Generally
speaking, Congress has very broad control over the jurisdiction
of the inferior federal courts, e.g., Sheldon V. sill, 49 U.S.
(8 How. ) 441 (1850) Cary V. Curtis, 44 U.S. (3 How.) 236 (1845);
and substantial power to limit the remedies available in the
inferior federal courts; e.g., Yakus V. United States, 321 U.S.
414 (1944); Lockerty V. Phillips, 319 U.S. 182 (1943); Lauf V.
E.G. Shinner & Co., 303 U.S. 323 (1938). With regard to the
- 18 -
transportation-limiting provisions of S. 951, the Attorney
General concluded:
"[T] he bill [does not] usurp the judicial
function by depriving the inferior federal
courts of their power to issue any remedy
at all
Whatever implicit limitations
on Congress' power to control jurisdiction
might be contained in the principle of separa-
tion of powers, they are not exceeded by this
bill, which does not withdraw all effective
remedial power from the inferior federal
courts."
Attorney General's Letter at page 12.
As noted above, S. 139 is more restrictive than S. 951 of
the jurisdiction of the inferior federal courts. The elimination
of assignment and transportation remedies, plus the specification
of what remedies are available, combine to create a situation in
which the remedial authority retained by the inferior federal
courts is less than that which would have been retained under
S. 951. The limitation recognized by the Attorney General on
the congressional power to control the jurisdiction and remedial
authority of the inferior federal courts is fully applicable to
S. 139: Congress cannot, consistent with Article III, impose on
the courts the duty to exercise an essentially legislative func-
tion without any power to issue relief affecting individual legal
rights or obligations in specific cases. Without the power to
order effective relief, the court would not retain the juris-
dictional minimum of a "case or controversy" within the meaning
of Article III. See, e.g., Simon V. Eastern Kentucky Welfare
Rights Organization, 426 U.S. 26, 38-39 (1976) (Article III
minimum requirement for standing is "actual injury redressable
by the Court") ; cf. Correspondence of the Justices, Letter from
Chief Justice John Jay and the Associate Justices to President
George Washington (August 8, 1793), printed in 3 Johnston,
Correspondence and Public Papers of John Jay 488-89 (1891)
(advisory opinions). The limitation on remedial authority
contained in S. 139 could not, therefore, be supported under
Article III if the limitation deprived the courts of "effective
remedial power" on the facts of a particular case. See Attorney
General's Letter at page 12. Thus, this provision will be
upheld by the Court in those cases in which there are effective
- 19 -
alternative remedies, but we believe that the Court would not
sustain the restriction if, in a particular case, it found
that the lower court had substantive jurisdiction but had been
stripped of the power effectively to remedy the constitutional
violation before it.
E. Relief from Previously Entered Court Orders
The Attorney General's discussion in the letter to Chairman
Rodino regarding constitutional restrictions on congressional
attempts to reverse previously imposed court orders is generally
applicable to § 5 of the bill. We believe that there are
additional policy and legal implications of S. 139 which the
Attorney General's Letter does not embrace.
1. Policy Issues. Assistant Attorney General Reynolds of the
Civil Rights Division has previously stated the Department's
position on reopening prior decrees. In a congressional
hearing, he testified:
" '[T] he Department's present thinking is to
give this approach prospective application
only. We, thus, do not contemplate routinely
reopening decrees that have proved effective
Denen
in practice. The law generally recognizes
a special interest in the finality of
judgments, and that interest is particularly
strong in the area of school desegregation.
Nothing we have learned in the ten years
since Swann leads to the conclusion that the
public would be well served by reopening
wounds that have long since healed."
Hearing before the Subcomm. on Separation of Powers of the
Senate Comm. on the Judiciary, printed at 128 Cong. Rec. S1046
(daily ed. Feb. 24, 1982).
These sentiments seem fully applicable to § 5 of S. 139.
Unlike S. 951, however, S. 139 does not commit to the Attorney
General's discretion, in the manner assumed by Assistant
Attorney General Reynolds' testimony, whether to seek relief
from a prior order. S. 139 provides instead that an individual,
a school board, or other school authority subject to an out-
standing order, may seek relief from that order. Given the
- 20 -
persuasive arguments against the promiscuous reopening of
existing decrees, § 5 of the S. 139 is particularly trouble-
some because it does not lodge discretion in the Attorney
General to exercise judgment regarding whether seeking relief
in a particular case is truly in the best interests of all
parties concerned.
2. Legal Issues: (a) Effect on existing court orders.
Section 5 of the bill also poses certain legal diffi-
culties. The first relates to the effect on existing court
orders. Section 5 of S. 139 does not by its terms purport to
require an automatic reversal of any outstanding court order.
Instead, the bill describes the general substantive law
standards by which the validity of the order is to be judged
by the court in response to an application by an individual
or school authority subject to the order. The bill, however,
does require the reopening and reexamination of outstanding
court orders and requires the court, unless it can make
certain specified "conclusive findings based on clear and
convincing evidence," to grant relief from the order. 15/
The evidentiary standard of "clear and convincing
evidence" is higher than the standard of preponderance of
the evidence which is customarily required in civil litiga-
tion. Moreover, the court must revise an existing decree
unless it found, as set forth in Part I, supra, that the
acts of racial discrimination undergirding the prior order
specifically caused, and, in the absence of the order,
would continue to cause, school assignments based on race.
In essence, the previous case would have to be retried and
15/ We are uncertain what "conclusive" findings are; we presume
that they are findings of fact which are supported by evidence
measured by a standard higher or more persuasive than would
otherwise apply. It is by no means clear, however, what the
authors of the bill have in mind, particularly when the term
"conclusive findings" is coupled with "clear and convincing
evidence." The text of the bill should be clarified or the
legislative history of this provision should contain explana-
tory language to clarify the intended meaning.
- 21 -
the past acts have to be found to be a cause of present
discrimination on the basis of race. 16/
This combination of factors --- the required reopening of
existing orders upon application to the court and a substantive
standard of proof which may be difficult to meet both as to
the particular facts and the burden of proof -- might give
rise to the impression of congressional intent to overturn
the outstanding court decrees sub silentio. The more difficult
Congress makes it for the courts to adhere to their prior
orders, the more it might appear that Congress is attempting
simply to require the courts to reverse their prior orders.
There are limits beyond which Congress cannot go to
effect the reversal of outstanding court orders. See Hayburn's
Case, 2 U.S. (2 Dall.) 409 (1792) cf. Chicago & Southern Air
Inc. V. Waterman Steamship Corp., 333 U.S. 103, 113 (1948).
S. 139 goes further than S. 951 in approaching these limita-
tions because of the specific findings that are required and
the higher than usual burden of proof. Nevertheless, although
we are quite concerned with the composite effect of the factors
that we have mentioned, on balance, we do not believe that this
aspect of S. 139 would fail to pass the constitutional test
under Hayburn's Case. The issue, however, is not free from
doubt; and legislative intent, as disclosed in hearings, debates,
and reports, might tip the balance. The Supreme Court might
16/ The other findings that are required raise no significant
legal issues. They are generally consistent with the constitu-
tional principles relating to the court's power to order busing
as well as other limitations on its equitable jurisdiction.
For example, one additional finding which the court must make
is that no other remedy would preclude the intentional and
specific segregation. It is within Congress's power to provide
that busing shall be a disfavored remedy to be used only as a
last resort. Similarly, familiar principles of equity would
ordinarily compel the court to review whether the totality of
circumstances has changed to warrant reconsideration of the
order and whether the economic, social, and educational costs
of the order outweigh the corresponding benefits. See also
note 10 supra.
-22-
find an impermissible intrusion on judicial functions if
the legislative history discloses a clear and intentional
assertion of congressional power to reverse court orders.
(b) Court empowered to grant relief. A second legal
issue regarding relief from existing orders relates to whether
the bill attempts to vest jurisdiction in the state courts to
revise the final and interlocutory judgments and orders of
federal courts. Section 5 of the bill provides that relief
may be sought "in any court." The sixth section (erroneously
designated § 5) provides further that an action commenced in
state court "seeking a judgment for any relief described in
this Act" may not be removed to district court. Although
S. 139 does not, by its terms, expressly create jurisdiction
in state court over a cause of action brought to obtain
relief under the bill, the combined effect of these two
provisions seems to indicate the congressional intent that
the state courts would have such jurisdiction.
State courts are required to enforce federal constitu-
tional rights and federal statutory rights at least to the
extent that the state court has "jurisdiction adequate and
appropriate under established local law" to adjudicate the
action because it is analogous to state claims that the state
courts entertain. See Testa V. Katt, 330 U.S. 386, 394
(1947). More recently, in FERC V. Mississippi, 456 U.S. 742,
760 (1982), the Supreme Court interpreted Testa to mean that
state courts are required to "heed the constitutional command
that 'the policy of the federal Act is the prevailing policy
in every state, [Testa, supra, 330 U.S.] at 393, '"and
should be respected accordingly in the courts of the State. "
Id., at 392." (citation omitted.)
The problem with the creation by Congress of a cause
of action under S. 139 in state court relates not to whether
Congress has this power in the abstract, but what Congress
can authorize the state court to do. S. 139 seems to envision
that the state court will be empowered to grant relief from a
previously imposed federal court order. To the extent that
any previously imposed order is a final judgmènt, and thus
beyond the direct reach of Congress, see, e.g., Chicago &
Southern Air Lines, supra; Wheeling & Belmont Bridge, supra;
Hayburn's Case, supra; it would seem to be similarly beyond
the power of Congress to authorize the state court to alter
the judgment.
- 23 -
To the extent that the previously imposed order is not
a final judgment and the federal court has retained juris-
diction over the case, we do not believe that Congress can
attempt to authorize a state court to reconsider, revise, or
otherwise share the ongoing exercise of jurisdiction. Such
a concept seems fundamentally inconsistent with Article III
and constitutional principles of separation of powers between
the Legislative and Judicial Branches as well as between the
federal and state courts. Article III vests the judicial
power of the United States in the federal courts. Although,
as noted, the state courts are obligated, by virtue of the
Supremacy Clause, to enforce federal constitutional rights,
in a case in which the federal court has exercised juris-
diction over the case and has entered an order to the parties
subject to the court's jurisdiction, we do not believe that
Congress has the power to shift the primary locus of the
enforcement power from the federal courts to the state courts
where the congressional purpose and possibly the effect of
the state court action would be review and revision of the
outstanding federal court order.
We are not aware of any case specifically addressing the
question whether Congress has the power to authorize a state
court to assert jurisdiction to consider an order entered by
a federal court in a case over which the federal court has
retained jurisdiction. To our knowledge, the issue has never
arisen before because Congress has not attempted such a scheme.
Cases such as United States V. Klein, supra, and Eastern
Kentucky Welfare Rights Organization, supra, however, hold
that a component of jurisdiction of an Article III court is
the power to grant relief. We believe Article III and separa-
tion of powers would preclude Congress from authorizing a
state court to modify an outstanding federal court order. 17/
17/ In a case in which the inferior federal court's order is
based upon an order of the Supreme Court or implements a judg-
ment of that Court, there is an additional obstacle to state
court jurisdiction. No other court, not even the lower federal
court itself, has the authority to modify the Supreme Court's
order or judgment. See, e.g., Utah Public Service Comm'n V.
El Paso Natural Gas Co., 395 U.S. 464 (1969).
- 24 -
(c) Comity. In addition to the constitutional infirmity,
state court jurisdiction over an outstanding federal court
order would contravene settled principles of comity between the
state and federal courts. See, e.g., Donovan V. City of Dallas,
377 U.S. 408, 412-13 (1964) ( "While Congress has seen fit to
authorize courts of the United States to restrain state-court
proceedings in some special circumstances, it has in no way
relaxed the old and well-established judicially declared rule
that state courts are completely without power to restrain
federal-court proceedings in in personam actions
")
(footnotes omitted); Kline V. Burke Construction Co., 260 U.S.
226, 229 (1922) ( [W] here a federal court has first acquired
jurisdiction of the subject-matter of a cause, it may enjoin
the parties from proceeding in a state court of concurrent
jurisdiction where the effect of the action would be to defeat
or impair the jurisdiction of the federal court. ").
Moreover, in other contexts, settled principles of law
require that a person seeking relief from a previously imposed
court order move the court that imposed the order to grant
relief. Cf. The Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801);
see also Walker V. City of Birmingham, 388 U.S. 307 (1967)
Howat V. Kansas, 258 U.S. 181, 189-90 (1922) ; Wheeling & Bel-
mont Bridge, supra. Accordingly, if Congress, through S. 139,
alters the substantive law to be applied by an inferior federal
court in school desegregation cases, then that court should be
the forum in which the order is reconsidered, if it is to be
reconsidered at all. Upon the application of an affected
party, the federal court that imposed the prior order would
itself determine whether that order was consistent with the
substantive law as declared by S. 139 and whether the change
the substantive law attempted by S. 139 was constitutional.
We recommend, therefore, that § 5 of the bill be amended to
make clear that "in any court" means any federal or, more
narrowly and appropriately, the federal district court which
imposed the order. We also recommend that the sixth section
of the bill be deleted. If an action in state court is not
authorized, the prohibition of removal becomes unnecessary.
V. Conclusion
It is the view of the Department of Justice that certain
portions of S. 139 present serious constitutional questions.
Specifically, we are concerned about the conclusions of law
- 25 -
contained in § 2 (1) (A) and (B), § 2(2), and 2(3); the restric-
tions on the remedial authority imposed by §§ 3 and 5 on the
power of federal courts to remedy constitutional violations;
the possible appearance of a congressional attempt to reverse
outstanding court orders because of the heightened burden of
proof and the particular findings required under § 5; and
the implication that §§ 5 and [6] create a cause of action
in state court to reopen and revise previously imposed orders
of a federal court. We also believe that if Congress is
determined to create a cause of action for relief from out-
standing orders, the decision whether to seek such relief
should be committed to the discretion of the Attorney General.
We have also pointed out certain provisions which are unclear
as drafted and certain technical errors in the bill.
The Office of Management and Budget has advised this
Department that there is no objection to the submission of
this report from the standpoint of the Administration's
program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
-26-
THE WHITE HOUSE
WASHINGTON
February 15, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Proposed Justice Report on S. 139
(Anti-Busing Bill)
OMB has asked for our views by close of business today on
the above-referenced proposed Justice Department report.
The 26-page letter to Strom Thurmond was prepared by the
Office of Legal Counsel. It outlines the concerns of the
Department with respect to S. 139, the "Public School Civil
Rights Act of 1983," an anti-busing bill. S. 139 contains
numerous Congressional findings concerning the pernicious
effects of busing, prohibits lower federal courts from
ordering busing, and permits reopening of previously-entered
busing decrees, which are to be overturned unless the court
makes several findings concerning currently existing
intentional segregation. The bill states that it is based
on Congress's Article III authority over the inferior
federal courts and its power pursuant to $ 5 of the
Fourteenth Amendment.
The Justice report concludes that courts would defer to the
legislative findings of fact, but would not defer to con-
clusions of law expressed as findings of fact in the bill.
With respect to the prohibition on federal busing orders,
the Department concludes that Congress only possesses power
to impose such a limitation if effective alternative
remedies for unconstitutional segregation exist. If a court
in a particular case determines that busing is necessary to
remedy intentional racial segregation, it will strike down
the prohibition in the bill preventing it from ordering such
relief. The report objects to the authorization to reopen
existing busing decrees on policy grounds, and concludes
that this provision is unconstitutional to the extent it
authorizes state courts to re-examine federal court orders.
The analysis in the Justice report is largely based on the
even lengthier May 6, 1982 letter sent by the Attorney
General to Representative Rodino, concerning a similar bill.
I spent several months in my previous incarnation disputing
Ted Olson's approach to these issues; the May 6 Attorney
General letter signalled Olson's victory in the extended
internal debate. Olson reads the early busing decisions as
- 2 -
holding that busing may in some circumstances be
constitutionally required, and accordingly concludes that
Congress may not flatly prohibit busing. To do so would
prevent federal courts from remedying a constitutional
violation.
I do not agree with his reading of the early cases. The
holdings of those cases stand for the proposition that
busing is permissible, and that state statutes limiting the
authority of federal courts to order busing are
unconstitutional. A far different question is presented
when Congress attempts to limit the authority of the federal
courts. Congress has authority under § 5 to enforce the
Fourteenth Amendment, and can conclude -- the evidence
supports this -- that busing promotes segregation rather
than remedying it, by precipitating white flight. Even if
Olson's reading of the 13-year old early busing cases is
correct, we have now had over a decade of experience with
busing. If that experience demonstrates that busing is not
an effective remedy, Congress can legislate on the basis of
that experience. Olson's analysis treats stray dicta in the
old cases as binding despite experience to the contrary. I
would conclude that it is within Congress's authority to
determine that busing is counterproductive and to prohibit
federal courts from ordering it. Our own litigation policy
is based on such a view, and it strikes me as more than
passing strange for us to tell Congress it cannot pass a law
preventing courts from ordering busing when our own Justice
Department invariably urges this policy on the courts.
As noted, however, Olson's view has already gone forward as
the Administration view, and it would probably not be
fruitful to reopen the issues at this point.
Attachment
THE WHITE HOUSE
WASHINGTON
February 15, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Justice Report on S. 139
(Anti-Busing Bill)
Counsel's Office has reviewed the above-referenced proposed
testimony. We have no objection to sending it to the Hill.
FFF:JGR:aea 2/15/84
CC: FFFielding/JGRoberts/Bubj/Chron
THE WHITE HOUSE
WASHINGTON
February 15, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING Orig. signed by FFE
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Justice Report on S. 139
(Anti-Busing Bill)
Counsel's Office has reviewed the above-referenced proposed
testimony. We have no objection to sending it to the Hill.
FFF:JGR:aea 2/15/84
CC: FFFielding/JGRoberts/Bubj/Chron
LIBERTY THROUGH LAW
CONSTITUTIONAL IMPACT
STATEMENT
Constitutional Analyses
of Legislation
Pending Before the
House and Senate
1787
Judiciary Committees.
The Civil Rights Act of 1984
S. 2568/H.R. 5490
a
The Center for Judicial Studies
632 Constitution Ave. N.E.
Washington, DC 20002
202-544-1776
Note: Constitutional Impact Statements released by the
Center for Judicial Studies are limited to the constitu-
tional aspects of legislation before Congress, take no
position on the public policy objectives contained therein,
and should not be construed as an attempt to assist or
obstruct the enactment of any bill or resolution before
Congress. The views expressed by the Visiting Scholars
do not necessarily represent those of the staff or Ad-
visory Board of the Center for Judicial Studies.
June 1, 1984
THE CIVIL RIGHTS ACT OF 1984
S. 2568/H.R. 5490
The Civil Rights Act of 1984, aptly described by Sena-
tor Robert Packwood (R.-Ore.) as "a simple bill with global
ramifications, ⑉1 has been proposed as a corrective for one
aspect of the Supreme Court decision in Grove City College
V. Bell. 2 This statement will analyze briefly some impli-
cations of the proposed act with respect to federalism and
other aspects of the constitutional system.
The Grove City Decision
Title IX of the Education Amendments of 19723 bars sex
discrimination in "any education program or activity receiv-
ing Federal financial assistance." Grove City College, a
private institution, has always refused federal and state
financial assistance. Its students receive federal Basic
1. Cong. Rec., April 12, 1984, S4589.
2. 104 S. Ct. 1211 (1984).
3. 20 U.S.C. Sec. 1681 (a).
Educational Opportunity Grants (BEOGs), which go directly to
the students to pay tuition and other educational expenses.
The Department of Education ruled that Grove City College
itself was a "recipient" of "Federal financial assistance"
and demanded that the College execute an Assurance of Com-
pliance with Title IX's nondiscrimination provisions. The
College denied that it was made a "recipient" by the fact
that some of its students received BEOGs, and refused to
sign the Assurance of Compliance.
The Supreme Court ruled, first, that the College was
a "recipient" of "Federal financial assistance," despite
the fact that "federal funds are granted to Grove City's
students rather than directly to one of the College's educa-
tional programs. 114 The Court went on to decide, however,
that the "education program or activity" of the College that
was "receiving" federal assistance and that therefore was
subject to Title IX, was not the College as a whole but only
its financial-aid program. 5
In holding that Title IX has only program-specific ap-
plication, the Supreme Court rejected the contention that
receipt of federal aid by any component of the college would
bind every aspect of the college's activity by the Title IX
prohibitions against sex discrimination. Instead, the re-
4. 104 S. Ct. at 1220.
5. 104 S. Ct. at 1222.
2
ceipt of BEOGs by its students requires the college to com-
ply with Title IX only in the operation of its financial aid
office; the rest of the college's activities are not bound
by Title IX. The correctness of this interpretation is a
matter of dispute. 6
Impact of Grove City on
Age, Handicap and Race Discrimination
The key phrase, "program or activity," used in Title
IX, is used also in the three main statutes banning discrim-
ination on account of age, handicap, or race in federally
aided programs. 7 Title IX, Section 504 and the Age Dis-
crimination Act were all modeled in this respect on Title VI
of the Civil Rights Act of 1964. The Grove City decision
therefore raises the likelihood that the same kind of "pro-
gram-specific" interpretation will be given to those other
statutes as well as to Title IX. The judicial precedents
6. Compare the testimony of William Bradford Reynolds,
Assistant Attorney General, Civil Rights Division, before
the House Committee on Education and Labor, May 22, 1984,
with the Statement of Senator Edward M. Kennedy (D.-Mass.),
Cong. Rec. April 12, 1984, S4585.
7. Those statutes are the Age Discrimination Act of
1975 (42 U.S.C. Sec. 6101, et seq.); Section 504 of the
Rehabilitation Act of 1973, as amended in 1978 (29 U.S.C.,
Sec. 794 et seq.); and Title VI of the Civil Rights Act of
1964 (42 U.S.C. Sec. 2000 di et seq.).
3
appear to confirm this prospect⁸. It is important to re-
member, moreover, "that Title IX's coverage, even in broad
form, applies only to educational entities or settings.
Title VI, Section 504 and the Age Discrimination Act cover
all federally-assisted entities and programs. "19 A program-
specific interpretation of those statutes, therefore, would
have an impact far beyond the area of education. Senator
Kennedy expressed his concern that, after the Grove City
decision, "the protection from discrimination provided by
the government to the elderly, minorities and the disabled
in all kinds of federally assisted activities is likely to
be as spotty and inadequate as that offered to women and
girls in education. 10
The Intent of the Sponsors of
the Civil Rights Act of 1984
S. 2568 and its companion, H.R. 5490, were introduced,
in Senator Kennedy's words, "to restore Title IX, Title VI,
Section 504, and the ADA to their intended force and cover-
8. See, for example, Board of Instruction of Taylor
County V. Finch, 414 F.2d 1068 (5th Cir. 1969) ; Simpson V.
Reynolds Metals Co., 629 F.2d 1226 (7th Cir. 1980); Brown
V. Sibley, 650 F.2d 760 (5th Cir. 1980); see also Consoli-
dated Rail Corp. V. Darrone, 104 S. Ct. 1248 (1984).
9. Testimony of Clarence M. Pendleton, Jr., Chairman
of U.S. Commission on Civil Rights before House Committees
on Judiciary and Education and Labor, May 16, 1984, p. 4.
10. Cong. Rec., April 12, 1984, S4586.
4
age. "11 "What difference does it make to a disabled stu-
dent," asked Senator Robert Dole (R.-Kans.) in co-sponsoring
S. 2685, "if the student financial aid office is in compli-
ance with Section 504, if none of the school's academic pro-
grams are accessible?"¹ The bill makes three changes in
all four laws:
1. The "general prohibition language in each
statute is modified to delete 'program or activ-
ity' and generally to substitute the term 're-
cipient.' Thus, each of the four laws would
prohibit discrimination 'by a recipient of' -
rather than 'under a program or activity receiv-
ing' - 'Federal financial assistance.' In Title
IX, the limitation to education is retained;
that is, the prohibition would run against an
'education recipient' in place of an 'education
program or activity. ⑉13
2. A definition of the term "recipient" is add-
ed to each of the four statutes, as will be dis-
cussed below.
3. The enforcement section of each of the laws
is modified so as to enlarge the power of the
agencies to terminate funding, as will be dis-
cussed below.
Senator Packwood summarized the changes as follows:
"That any receipt of Federal financial assistance will trig-
ger institutionwide coverage. Lest any critic question our
remedial approach, however, the bill will also clarify that
11. Cong. Rec. April 12, 1984, S4586.
12. Cong. Rec. April 12, 1984, S4590.
13. Statement by Senator Alan Cranston, Cong. Rec.
April 12, 1984, S4594.
5
only the particular assistance supporting noncompliance will
be subject to termination. "14 Senator Robert Dole (R.-
Kans.), in co-sponsoring S. 2568, stressed that the bill was
intended as a limited remedial measure: "I believe it
should be emphasized that the sole purpose of this legisla-
tion is to restore Title IX to the broad coverage which
marked its enforcement prior to Grove City, and to keep the
other three civil rights laws intact. It is not the intent
of the sponsors to break new ground. "15
There is reason to believe, however, that the limited
expectations of the sponsors of S. 2568 are unrealistic.
This analysis will examine the likely effects of the bill in
two general respects: its use of the expansive term "recip-
ient" and its increase of the enforcement power of the agen-
cies.
The Meaning and Effect of "Recipient"
The four statutes amended by S. 2568 now cover "any
program or activity receiving federal financial assistance."
[References herein will be to S. 2568 rather than to its
companion, H.R. 5490] S. 2568 would amend those statutes to
cover any "recipient" ("education recipient" in Title IX) of
14. Cong. Rec., April 12, 1984, S4589.
15. Cong. Rec., April 12, 1984, S4590.
6
such assistance. In all four statutes, incidentally, "tax
exemptions and deductions would continue to be excluded from
the definition of Federal financial assistance. "16 The
term "recipient" is defined in S. 2568 as follows:
"(A) any State or political subdivision
thereof, or any instrumentality of a State
or political subdivision thereof, or any
public or private agency, institution, or
organization, or other entity (including
any subunit of any such State, subdivision,
instrumentality, agency, institution, orga-
nization, or entity), and
(B) any successor, assignee, or trans-
feree of any such State, subdivision, in-
strumentality, agency, institution, organi-
zation, or entity or of any such subunit,
to which Federal financial assistance is extend-
ed (directly or through another entity or a per-
son), or which receives support from the exten-
sion of Federal financial assistance to any of
its subunits. -17
Assistant Attorney General Reynolds maintains, con-
trary to the claim of the sponsors of S. 2568, that the def-
inition of "recipient" in S. 2568 exceeds the definition of
that term in the existing regulations under Title VI, Title
IX and Section 504, in that "a recipient, as used in the
existing regulatory scheme, is subject to coverage only as
to its funded programs or activities; by contrast, under
16. Statement of Senator Robert Dole (R.-Kans.), Cong.
Rec., April 12, 1984, S4590.
17. Sec. (b) (2).
7
[S. 2568], a recipient is to be covered in its entirety. 18
In any event, it is clear that, under S. 2568, "when an
entity receives federal aid for one of its parts or subdivi-
sions, the entity - and not the specific subunit of the
entity - is the recipient. "19 Senator Cranston made this
plain in his explanation of S. 2568:
Where the Federal financial assistance is pro-
vided to an entity itself, either directly from
a Federal agency or through a third party, the
whole entity and all of its component parts
would be covered by the anti-discrimination ban
and suit could be brought against the entity to
enjoin discrimination in any of its components
and to recover damages for injuries suffered by
reason of discrimination in any component. 20
If federal aid is extended, not to the entity as a
whole but directly to one of its subunits, the entity as a
whole (and consequently all other subunits) will be covered
if the entity itself "receives support" from the aided sub-
unit. As Senator Cranston explained, "Where Federal finan-
cial assistance is extended to a subunit of an entity, the
question whether the entity itself and all of the other sub-
units of the entity would be covered would turn on the ques-
tion of whether the entity "receives support" from the pro-
18. Reynolds testimony, supra.
19. Statement of Senator Edward M. Kennedy, Cong. Rec.
April 12, 1984, S4586.
20. Cong. Rec., April 12, 1984, S4594.
8
vision of the assistance to the subunit - for example, by
receiving a portion of the assistance to help defray over-
head costs. If the entity receives such support, it and all
of its subunits are subject to the anti-discrimination ban,
just as they would be if the entity itself received assis-
tance directly from a Federal agency or through a third
party. "21
S. 2568 contains no definition of the terms, "receives
support," "entity" and "subunit," among other undefined
terms. As Senator Alan Cranston (D.-Cal.) explained, "the
concept of 'support' is intended to refer to a not immater-
ial support having monetary value which could include, for
example, services. "22
On the one hand, aid to a State government would bring
all the counties, cities, villages, school districts, etc.,
in that state automatically within the coverage of the age,
sex, handicap and race discrimination statutes and regula-
tions. For example, if the state receives a categorical
grant for its highway department, then, if the state itself
is the "recipient," all activities of the state government,
including
the prison system and state professional
licensing boards, would become subject to the civil rights
laws, which incidentally, are administered under regulations
21. Cong. Rec., , April 12, 1984, S4595.
22. Cong. Rec., April 12, 1984, S4595.
9
using an "effects" test, as will be discussed below. The
same conclusion would follow under block grants as well.
These results are automatic. On the other hand, if federal
aid is given to one of the "subunits" of the State, e.g., a
water district or school district, then the State as a whole
is covered in all its activities and subdivisions so long as
it "receives support from the extension of Federal financial
assistance" to that subunit. Similarly, federal aid given
to one department or campus of a university could subject
every activity of the university to federal regulations
regarding age, handicap, sex and race discrimination. If a
university engages in non-educational, commercial activi-
ties, those activities could be covered by all four acts if
aid were given to any part of the university.
As a practical matter, all states already receive fed-
eral aid given directly to themselves or through their sub-
divisions. The likely result of the enactment of S. 2568
therefore would seem to be an immediate extension of federal
regulatory power with regard to age, sex, handicap and race
discrimination, to virtually all the activities of every
state and political subdivision in the land. Similar con-
clusions would follow in the private sector with respect to
aid extended to subsidiaries and affiliates of corporations
as well as to the corporations themselves.
Title IX now applies to "any education program or ac-
tivity receiving Federal assistance." Under S. 2568, Title
IX and the regulations adopted to enforce it would apply to
10
any educational program incidentally conducted by a non-
educational institution if that non-educational institution
received federal assistance for any purpose even if it re-
ceived no assistance directed toward its educational pro-
gram. Senator Kennedy illustrated this by the following
example: "A state prison receives federal funding to develop
a better inmate classification system, and no other federal
assistance. Its education activities and related benefits,
such as classes and training programs, are covered by Title
IX. The entire prison - including its educational programs
- would be covered by Title VI, Section 504, and the ADA,
because it is a recipient of federal funding and these sta-
tutes are not limited to education. "23
This result would apply as well to training and other
educational programs conducted by a corporation which re-
ceives any federal assistance, including, perhaps, as will
be discussed below, its receipt of food stamps from "a per-
son. Furthermore, since S. 2568 defines a "recipient" as a
"transferee of any
entity
to which Federal fi-
nancial assistance is extended (directly or through another
entity or a person), and since "transferee" is nowhere de-
fined in the bill, one can only speculate as to the ultimate
potential reach of S. 2568 coverage.
These conclusions become even more striking in light of
the Grove City definition of aid to the person as aid to the
23. Cong. Rec., April 12, 1984, S4586.
11
institution. If one student at a single campus of a state
university system used a BEOG, the entire university could
be covered by all four acts. The apartment building owned
elsewhere by that university and rented to the general pub-
lic could be required to install ramps for the handicapped,
etc. The Grove City decision attempted to forestall the
further extension of this principle by stating, "Grove
City's attempt to analogize BEOGs to food stamps, Social
Security benefits, welfare payments, and other forms of gen-
eral-purpose governmental assistance to low-income families
is unavailing. First, there is no evidence that Congress
intended the receipt of federal money in this manner to
trigger coverage under Title IX
"24
...
But S. 2568, if
enacted, would manifest precisely that intent. A "recip-
ient" includes any of the listed types of entities "to which
Federal financial assistance is extended (directly or
through another entity or a person) Although S. 2568 does
not include a "person" as a "recipient," an entity from
among the listed types would become a "recipient" if it
received federal assistance "through
...
a person. " So
why would S. 2568 not apply all four acts to the grocer who
took food stamps?
Senator Cranston did emphasize that nothing in S. 2568
is intended "to change the consistent interpretation" of the
four statutes "excluding from coverage as 'recipients' in-
24. 104 S. Ct. at 1217-18, n. 13.
12
dividuals and businesses which may ultimately receive feder-
ally provided dollars - such as a clothing store from whom a
retiree purchases a suit with a social security check or a
landlord whose tenant pays the rent with funds from supple-
mental security income payments, and others similarly situa-
ted - as well as the individual beneficiaries - the social
security and SSI recipients themselves - of such pro-
grams. "25 While it is true that the individual retiree is
not a "recipient" under S. 2568, the plain language of the
bill includes the grocery or clothing store to which he
negotiates his Social Security check. "Thus, the bill could
be construed SO that federal food stamp programs would sub-
ject participating supermarkets and local grocery stores to
federal civil rights compliance reviews and complaint inves-
tigations. Pharmacies and drug stores that participate in
medicare/medicaid programs could also be "recipients," as
could the "transferee" of an individual's social security
check who, upon acceptance of such payment, would have (al-
beit unwittingly) signed an open invitation to federal en-
forcers to enter and investigate. 26
S. 2568 is given a further reach by the Supreme Court's
1983 interpretation of Title VI in Guardians Assn. V. Civil
25. Cong. Rec., April 12, 1984, S4595.
26. Testimony of William Bradford Reynolds, supra; see
also Prof. Chester E. Finn, Jr., Civil Rights in Newspeak,
Wall St. Journal, May 23, 1984.
13
Service Commission of the City of New York. 27 The Court
held that although discriminatory intent is necessary to
show a violation of Title VI itself, nevertheless, proof of
"discriminatory effect" will suffice to create liability for
a violation of the regulations issued under Title VI rather
than of Title VI itself. 28 Under Grove City, regulations
outlawing conduct which has an unintended racially discrimi-
natory effect are limited in their impact to the programs or
activities that receive federal assistance. Under S. 2568,
however, a requirement of affirmative action on racial dis-
crimination could apply to all recipients as expansively
defined in that bill.
The Expanded Agency Enforcement Power
Under S. 2568
Serious implications are raised by S. 2568's expansion
of the enforcement power of administrative agencies. Under
S. 2568, in the words of Senator Cranston, "all of the exis-
ting procedural safeguards that the four laws provide for
before Federal funds may be terminated are retained without
change - the government's initial duty to attempt resolution
of the violation through conciliation, notice to the recip-
ient of any adverse finding, opportunity for hearing, 30
27. 103 S. Ct. 3221 (1983).
28. See 103 S. Ct. at 3235, n. 1 (separate opinion of
Powell, J., Burger, C. J. and Rehnquist, J.).
14
days' advance notice to the congressional committees with
responsibility for the laws under which the funds were pro-
vided, and the right to judicial review of any decision to
terminate funding. "29
According to the existing law, however, the power of
the agencies to terminate funding is program-specific,
i.e., the termination is limited to funding for the particu-
lar program or activity which is found to be in noncompli-
ance. 30 S. 2568, by contrast, would permit the enforcing
agency to terminate any "assistance which supports" 31 the
noncompliance. In this respect, S. 2568 would open the door
to termination of funding to an innocent program if that
program "supports" another program that is in noncompli-
ance. And it would seem clear that if a program is in non-
compliance, assistance to the parent entity may be cut off
on the theory that assistance to the whole provides support
to the discrimination by the part.
At this point it will be useful to compare the parame-
ters of S. 2568 with respect to basic coverage, on the one
29. Cong. Rec., April 12, 1984, S4595.
30. See North Haven Board of Education V. Bell, 456
U.S. 512 (1982); Board of Instruction of Taylor County V.
Finch, 414 F.2d 1068 (5th Cir., 1969) ; Consolidated Rail
Corp. V. Darrone, 104 S. Ct. 1248 (1984) ; see also testimony
of Clarence M. Pendleton, Jr. Chairman, U.S. Commission on
Civil Rights, before House Committees on Judiciary and
Education and Labor, May 16, 1984.
31. See Sec. (c) (2) (C).
15
hand, and fund termination on the other. Senator Cranston
explained his view of this as follows:
Thus, in place of the "program-specific" cover-
age improperly imposed by the Supreme Court,
coverage of all components of the recipient
would be restored.
"This broad construction of the entity covered
by the nondiscrimination laws would apply to
such areas as executing assurances of compli-
ance, investigation of charges, and private
rights of action and judicial actions by the
United States to obtain injunctive or declara-
tory relief to bring about compliance.
"With respect to the power to terminate funds or
refuse to grant funds, the statutory scheme
would be different. It would retain the basic
concept of "pinpointing"; that is, limiting the
termination of funds to those funds which have a
specific nexus to the discrimination that is
found. "32
Senator Cranston's distinction is precarious, however,
in light of the language of S. 2568 which would appear to
make the power of fund termination practically as broad as
the extremely broad definition of "recipient." As Senator
Cranston himself stated:
I would note that in our proposal, both the def-
inition of recipient and the pinpointing provi-
sion use similar terms with respect to receiving
"support" and assistance which "supports". In
the former case, an entire organization, insti-
tution, or other entity meets the definition of
"recipient" if Federal assistance directly to a
subunit results in the parent entity also re-
ceiving some appreciable "support." In the case
of pinpointing, only assistance that "supports"
noncompliance may be cutoff. In both situa-
32. Cong. Rec., April 12, 1984, S4595.
16
tions, the concept of "support" is intended to
refer to a not immaterial support having mone-
tary value which could include, for example,
services. 33
In light of the indefiniteness of "supports," which is
not defined in S. 2568, it would seem clear that the "speci-
fic nexus to the discrimination" which Senator Cranston says
is required for termination of funding, is a less than exac-
ting restraint on the discretion of the agencies with re-
spect to fund termination. This expanded potential for ter-
mination of funding is significant despite the fact that
termination "has been actually used in only a handful of
cases through the history of these laws. 1134 The mere pros-
pect of termination is a powerful inducement to compliance
with federal agency directives. That inducement will be
significantly increased by the grant of authority to the
agency to cut off not only the funds of the program or
activity that actually discriminates but also the funds of
any entity or part thereof that directly or indirectly "sup-
ports" the discrimination.
Other aspects of S. 2568 would merit discussion here
were it not for the limitations of space. For example, it
is not at all unrealistic to describe S. 2568 as a "back
door Equal Rights Amendment," in that the virtually univer-
33. Cong. Rec., April 12, 1984, S4595.
34. Statement of Senator Robert Dole (R.-Kans.), Cong.
Rec. April 12, 1984, S4590.
17
sal character of various types of federal aid to education,
combined with the "effects" test which could outlaw even
unintentional discrimination, could endow federal agencies
with the power to impose upon education recipients, by
administrative action, many, if not most, of the require-
ments that would have been imposed upon them by the Equal
Rights Amendment itself.
Another issue is presented by the fact that S. 2568
retains the private right of action which exists under
the four statutes and it continues the provision for attorn-
35
eys' fees in such actions.
In view of the expansion
of coverage under S. 2568 and the "effects" test which
can forbid even unintentional discrimination, the inducement
to litigiousness here is apparent. A further problem with
S. 2568 arises from the fact that each agency administering
the four statutes would have the responsibility to regulate
all the activities of entities receiving federal assistance.
This raises the prospect of added paper work, interagency
conflicts, multiplicity of complaints, duplication of effort
and involvement by agencies in areas in which they have
neither expertise nor experience. Nor does S. 2568 provide
for interagency referrals to alleviate this problem. Ano-
ther potential problem is created by the exposure of federal
administrators to an increased risk of personal liability
through their failure to enforce the four statutes affected
35. See Consolidated Rail Corporation V. Darrone,
104 S. Ct. 1248 (1984)
18
by S. 2568, especially in light of the expanded definition
of recipients and the employment of the "effects" test for
discrimination at least in the race area. 36
The overall effect of S. 2568 on the present enforce-
ment mechanism under the four statutes was generally summar-
ized by Dr. Michael Horowitz, General Counsel of the Office
of Management and Budget:
Currently, limitation of coverage to programs
and activities receiving Federal assistance
serves as a "regulatory breakpoint", restricting
burdens and liability to those programs and ac-
tivities in which the Federal government has
some financial interest; and by limiting review
and investigatory authority over Federally
assisted programs and activities to agencies
with expertise in them. And the current "pin-
point provision", by providing definite limits
to the scope of any penalties which agencies
might impose, has had a similar moderating ef-
fect. S. 2568 would remove these "breakpoints",
while at the same time retaining all current
judicial interpretations and agency practices
under the referenced acts. As a result, stan-
dards such as the "effects test" would become
applicable to all of a recipient's programs and
activities, not just those receiving Federal
funds. 37
Some Constitutional Implications of S. 2568
The foregoing analysis should make it apparent that S.
2568 may be criticized as vague and uncertain, for example,
36. See National Black Police Assn. V. Velde, 712 F.2d
569 (D.C. Cir., 1983), cert. den., 52 U.S.L.W. 3791 (April
16, 1984).
37. Michael Horowitz, Memorandum, Analysis of S. 2568:
The Civil Rights Act of 1984.
19
in its failure to define important terms such as "receives
support," "entity," "submit," "assistance which supports"
and others. While it is important that Congress avoid what
the Supreme Court has called "the shoals of unconstitutional
vagueness, '38 and while "Congress must express clearly its
intent to impose conditions on the grant of federal funds so
that the States can knowingly decide whether or not to
accept those funds, "39 it is likely that the lack of pre-
cision in S. 2568 could be remedied by the regulations is-
sued to enforce it, which regulations can impose obligations
beyond those specifically imposed by the statute itself. 40
The imprecision of S. 2568, therefore, would argue strongly
in favor of clarifying amendments before its enactment but
it would not justify a prediction that, without such amend-
ments, S. 2568 as implemented would be held unconstitutional
for vagueness.
Another constitutional question is raised by the expan-
sion of federal regulatory power that would be effected by
S. 2568. Private entities as well as state and local gov-
ernments would be subject to pervasive regulation with re-
spect to age, handicap, race and sex discrimination, on
38. Buckley V. Valeo, 424 U.S. 1, 78 (1976).
39. Pennhurst State School V. Halderman, 451 U.S. 1, 24
(1981)
40. See Guardians Assn. V. Civil Service Commission of
the City of New York, 103 S. Ct. 3221 (1983).
20
account of the expansive definition of "recipient" in S.
2568, its expansion of agency enforcement power and the vir-
tual universality of federal aid. These regulatory expo-
sures could be burdensome. However, "Congress may fix the
terms on which it shall disburse federal money to the
States "41 and, with respect to private recipients, "[i]t is
hardly lack of due process for the Government to regulate
that which it subsidizes. "42 While the regulations sanc-
tioned by S. 2568 would be more extensive and more intrusive
than those already in place, they would appear to differ
more in degree than in kind from those heretofore approved
by the courts. 43
The point of these observations is not to endorse the
increase that S. 2568 would effect in federal regulation of
the private lives of Americans, but to suggest merely that
it is unlikely that the Supreme Court will find S. 2568
unconstitutional on that account. The decision would seem
to be for the Congress rather than for the courts.
A more difficult question is posed by the impact of
41. Pennhurst State School V. Halderman, 451 U.S. 1, 17
(1981).
42. Wickard V. Filburn, 317 U.S. 11, 131 (1942).
43. See, for example, Detroit Police Assn. V. Young,
608 F.2d 671 (6th Cir., 1979); United Air Lines, Inc., V.
McMann, 434 U.S. 192 (1977); EEOC V. Wyoming, 103 S. Ct.
1054 (1983) Assn. for Retarded Citizens V. Olson, 561 F.
Supp. 473 (D, N.D., 1982) ; La Strange V. Consolidated Rail
Corp., 687 F.2d 767 (3rd Cir., 1982).
21
S. 2568 on state governments themselves. If S. 2568 were
enacted in its present form, it would instantly subject vir-
tually every operation of every state and local government
in the land to the potential supervision of federal agencies
with respect to age, handicap, race and sex discrimination,
including unintentionally discriminatory conduct that has
discriminatory effects, with the attendant potential for
affirmative action requirements. Such a massive preemption
of state authority would seem to be contrary to the spirit,
if not the letter, of the Tenth Amendment, which provides,
"The powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.' The Tenth
Amendment was long regarded as a mere "truism," reciting the
obvious fact that all powers not delegated are reserved. 44
In 1976, surprisingly, the Supreme Court declared an Act of
Congress unconstitutional on the basis of Tenth Amendment
principles.
45
Usery held unconstitutional the 1974 amend-
ments to the Fair Labor Standards Act, which extended the
wage and hour provisions of the Act to virtually all public
employees. The Supreme Court declared that to the extent
that the act overrode "the State's freedom to structure
integral operations in areas of traditional governmental
44. See U.S. V. Darby, 312 U.S. 100, 124 (1941).
45. National League of Cities V. Usery, 426 U.S. 833
(1976).
22
functions," such as fire, police, sanitation, public health
and parks and recreation, the Act was "not within the
authority granted Congress by the commerce clause. 146 The
Usery decision, however, has been severely limited by later
Supreme Court rulings. 47 In any event, the Court in Usery
specifically noted that it was not deciding whether the
Tenth Amendment was a limit on Congress' spending power,
its power to enforce the Fourteenth Amendment or its war
power. 48 And in Bell V. New Jersey, 49 the Court held that
the states are bound by regulations attached to a federal
grant voluntarily accepted by the states. The Court rejec-
ted the claim that the restrictions violated the Tenth
Amendment:
Requiring States to honor the obligations volun-
tarily assumed as a condition of federal funding
before recognizing their ownership of funds sim-
ply does not intrude on their sovereignty. The
46. 426 U.S. at 852.
47. See Hodel V. Virginia Surface Mining and Reclama-
tion Assn., 452 U.S. 264 (1981) ; United Transportation Union
V. Long Island Railroad Co., 455 U.S. 678 (1982); Federal
Energy Regulatory Commission V. Mississippi, 456 U.S. 742
(1982).
48. 426 U.S. at 852, n. 17; 426 U.S. at 854, n. 18; see
North Carolina ex rel. Morrow V. Califano, 445 F. Supp. 532,
536, n. 10 (E.D., N.C., 1977), aff'd mem., 435 U.S. 962
(1978); see generally, Rotunda, Usery in the Wake of Federal
Energy Regulatory Commission V. Mississippi, 1 Constitution-
al Commentary 43 (1984).
49. 103 S. Ct. 2187 (1983).
23
State chose to participate in the Title I pro-
gram and, as a condition of receiving the grant,
freely gave its assurances that it would abide
by the conditions of Title I. 50
The potential displacement of State authority and pri-
vate autonomy by S. 2568 is so extensive as to justify Dr.
Michael Horowitz's conclusion that, "buttressed by the leg-
islative history created to date, the bill if passed would
largely eliminate the remaining distinctions between Federal
and State, and Federal and private, concerns. "51 Neverthe-
less, there is no sufficient basis to expect that S. 2568,
if enacted and implemented by appropriate regulations, would
fail to survive a constitutional challenge in court. The
decision of the Congress on S. 2568, therefore, is likely to
be conclusive.
It should be mentioned here that alternatives are
available which would achieve the limited objective of over-
turning the challenged aspect of the Grove City case without
inviting the difficulties involved in S. 2568 52
50. 103 S. Ct. at 2197.
51. Horowitz, Memorandum, supra.
52. See, for example, Senator Packwood's simple propo-
sal (S. 2363) to amend Title IX "by striking out 'education
program or activity, and inserting in lieu thereof "educa-
tion program, activity or institution. More extensive
coverage would be provided by Dr. Horowitz' proposal "to
amend Title IX to prohibit discrimination based on race,
color, national origin, age or handicap as well as sex and
to provide that any assistance to an educational institution
would result in coverage of all of its education programs."
(Horowitz, Memorandum, supra).
24
If a limited alternative is not substituted for S.
2568, and if that measure is enacted in its present form, it
will effect a radical and massive expansion of federal power
in the subject areas.
Charles E. Rice
Visiting Scholar
Center for Judicial Studies
June 1, 1984
25
THE WHITE HOUSE
WASHINGTON
June 18, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTSQS
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Commerce, Agriculture and Labor Draft
Reports on S. 2568, the Civil Rights
Act of 1984
Counsel's Office has reviewed the above-referenced
draft reports, and finds no objection to them from a legal
perspective.
CC: Peter J. Rusthoven
ID
#. 236721 CU
COPY
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
:
L. Hays
Take necessary action
TO
Approval or signature
Comment
Prepare reply
Discuss with me
For your information
See remarks below
FROM
Branden Blum
DATE
6/18/84
REMARKS
Proposed changes to Agency reports
(Labor, Agriculture, Commerce) on S. 2568
me birtin by
telephone, but
Per your request, attached is a copy
delete "antfully"
of the suggested changes. Please advise
= 3nd line of
me of any comments by 4:30 TODAY.
A2 insert
CC: J Cicconi
F. Fielding
L. Verstandig
M. Uhlmann
SPECIAL
OMB FORM 4
Rev Aug 70
June 18, 1984
MEMORANDUM TO: Branden Blum
FROM:
Mike Horowitz
SUBJECT:
Proposed Changes to Agency Statements Regarding
S. 2568
DEPARTMENT OF LABOR:
The second and third paragraphs should be changed to read:
With regard to our responsibilities in administering the
various federal grant programs, we are concerned that
clarification of the bill's requirements is necessary if we
are to avoid adversely affecting the willingness of private
sector employers to get involved in programs under the Job
Training Partnership Act (JTPA) as well as the Emergency
Veterans' Job Training Act.
In that regard, we are concerned that the broad language of
S. 2568, together with the statements in the reports of the
House Judiciary and Education and Labor Committees that, as
a result of this legislation, "a recipient of federal
financial assistance will understand that receipt of federal
funds means it is covered throughout its operations" -- see
page 26 of the Judiciary Committee's report), would be
perceived by many employers as expanding the substantive
scope Department of Labor regulations under these statutes
to employer activities totally unrelated to the operation of
the federally assisted training programs; resulting in
increased reporting, exposure to compliance reviews, and
other regulatory burdens. Faulty or not, such a perception,
if prevalent among employers, could have significant adverse
consequences for training and employment programs.
The following paragaph should be inserted between the final
paragraph on page 1 and the first paragraph on page 2:
S. 2568's broad language extending coverage not only to
direct recipients, but to any "successor, assignee, or
transferee of any [entity] to which Federal financial
assistance is extended ... ", would, absent clarification,
create further uncertainty among employers and the entities
with which they do business.
COMMERCE
The following paragraph should be inserted following the third
paragraph on page 1:
While the following discussion deals with the impact of
covering all of the programs and activities of recipients,
we should at this time note that the bill's current language
might, absent clarification, expand the definition of who is
a "recipient" for purposes of coverage of these statute in
unforeseen ways. S. 2568 would extend coverage not only to
all operations of a recipient, but to "any successor,
assignee, or transferee of any
...
entity
to which
Federal financial assistance is extended (directly or
through another entity or a person)" It is not clear
exactly what kind of relationship with a Department of
Commerce-funded entity would subject another entity to
coverage as a "recipient" as well. Our concern in this
regard is heightened by the extremely broad language in the
reports of the House Education and Labor and Judiciary
Committees on this legislation (they specify, e.g., specify
that Guaranteed Student Loans and payments under Medicaid
and Medicare would trigger coverage of the institutions at
which those benefits are exercised and leave the clear
implication that they intend that grocery stores which
redeem food stamps would be considered as "recipients" as
well).
The following language should be added at the conclusion of the
final paragraph on page 1:
(The reports of the House Judiciary and Education and Labor
Committees on this legislation, however, by repeatedly
referring to Guaranteed Student Loans as bases for coverage
of colleges and universities even though the courts have
held that they are excluded from coverage on the same basis
as the loan guarantees administered by the Department of
Justice, might in the absence of further clarification cast
some doubt on their continued exclusion should S. 2568 be
enacted in its present form.)
AGRICULTURE
The following language should be inserted before the final
paragraph on page 2:
Finally, we would note that the reports of the House
Education and Labor and Judiciary Committees on this
legislation appear to have artfully left the door open for
coverage of grocery stores which accept food stamps. (The
reports state that the respective committees "[believe] the
Supreme Court adequately addressed this issue in the Grove
city College ruling", and then quote a footnote in which the
Supreme Court simply noted that food stamps by students does
not trigger coverage of the colleges and universities they
attend. The House report concludes that "H.R. 5490 would not
alter this section of the opinion. The legislation reflects
the reasoning of the Court in finding student assistance to
be aid to the school. Under the bill, as has always been
true, neither the landlord whose rent is paid with the
proceeds of an AFDC or SSI check, nor the grocer who is paid
for food from an SSI check, is covered as a result of that
transaction". [Emphasis added]. The Committees thus clearly
imply that grocery stores would be covered -- particularly
since they explicitly state that reimbursements under
medicare and medicaid, which operate in a similar manner,
would suffice to trigger coverage. For the sake of the food
stamp program, we would hope that your Committee would act to
clarify this issue.
THE WHITE HOUSE
WASHINGTON
June 29, 1984
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS 830
SUBJECT:
Op-Ed Draft Concerning Supreme Court's
Decision in Memphis Firefighters V. Stotts
Carol Dinkins has sent Craig Fuller a draft op-ed piece
prepared by Brad Reynolds on Memphis Firefighters V. Stotts.
The draft spells out the Department's interpretation of
Stotts, noting that the opinion sanctions "make whole"
relief under Title VII only for individual victims of
discrimination, not classes of people. The draft stresses
that outreach types of affirmative action are not affected
by the opinion, nor are voluntary or unilateral affirmative
action programs not involving court orders or participation.
The op-ed piece notes that whether quotas in these areas can
survive constitutional challenge was a question expressly
reserved in Stotts. In this draft Reynolds announces that
the Department will review pre-1981 consent decrees (there
are of course no quotas in post-1981 decrees) to determine
if they need to be changed in light of Stotts. He stresses
that any changes would be prospective only.
I agree with Dinkins that the op-ed draft is a positive
statement. There is considerable confusion over the Depart-
ment's view of Stotts, and the appearance of this piece
would help clear the air. Attached is a memorandum for
Fuller noting no legal objection to the draft.
Attachment
THE WHITE HOUSE
WASHINGTON
June 29, 1984
MEMORANDUM FOR CRAIG L. FULLER
ASSISTANT TO THE PRESIDENT
FOR CABINET AFFAIRS
FROM:
RICHARD A. HAUSER
Original signed by RAH
DEPUTY COUNSEL TO THE PRESIDENT
SUBJECT:
Op-Ed Draft Concerning Supreme Court's
Decision in Memphis Firefighters V. Stotts
Counsel's Office has reviewed the above-referenced op-ed
draft, and finds no objection to it from a legal perspective.
RAH:JGR:aea 6/29/84
CC: FFFielding/RAHauser/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
June 29, 1984
MEMORANDUM FOR CRAIG L. FULLER
ASSISTANT TO THE PRESIDENT
FOR CABINET AFFAIRS
FROM:
RICHARD A. HAUSER
DEPUTY COUNSEL TO THE PRESIDENT
SUBJECT:
Op-Ed Draft Concerning Supreme Court's
Decision in Memphis Firefighters V. Stotts
Counsel's Office has reviewed the above-referenced op-ed
draft, and finds no objection to it from a legal perspective.
RAH:JGR:aea 6/29/84
CC: FFFielding/RAHauser/JGRoberts/Subj/Chron
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5/81
U.S. Department of Justice
Office of the Deputy Attorney General
must
The Deputy Attorney General
Washington, D.C. 20530
June 28, 1984
MEMORANDUM TO: Craig Fuller
Assistant to the President for Cabinet Affairs
Carol t. Dentin
FROM: Carol E. Dinkins
Deputy Attorney General
Attached is what I consider a positive draft Op-ed piece
done by Brad Reynolds to clear the air concerning the
Supreme Court's recent decision in Memphis Firefighters V.
Stotts. If you think that some limited circulation for
comments is needed, I would appreciate receiving comments
through you as soon as possible. We would, however, like to
place the piece next Monday or Tuesday at the latest.
CC: Fred F. Fielding
Counsel to the President
Twenty years ago this summer Congress passed the momentous
Civil Rights Act of 1964, outlawing discrimination based on race,
color or ethnic origin. In this anniversary year, the Supreme
Court has reaffirmed the vitality of the principles underlying
that legislation in Memphis Firefighters V. Stotts. The Stotts
decision merits thoughtful attention.
In Stotts the Supreme Court reviewed a district court
order, affirmed by the Sixth Circuit Court of Appeals, which
direct the financially strapped City of Memphis to release
senior white firefighters and retain black firefighters with
less seniority in order to preserve the racial balance achieved
through use of hiring quotas required under an earlier consent
decree. The Supreme Court reversed, holding that seniority
rights in such circumstances control the order of layoff.
The fact that the Court should favor seniority in this
case can hardly come as a surprise. On prior occasions, the
Court has consistently recognized that in passing the 1964
civil rights laws Congress did not intend to interfere with
bona fide seniority systems. The importance of Stotts thus
lies not so much in the Court's adherence to its earlier
position as in why the Court felt compelled to reach such a
result.
The answer lies in Title VII of the Civil Rights Act of
1964 (as amended in 1972), which prohibits discrimination in
employment. That statute, as interpreted by the Court, expressly
- 2 -
limits courts in the exercise of their remedial powers to grant
relief to individuals only -- not to members of particular groups
-- and only to the extent necessary to "make whole" actual victims
of the employer's discriminatory conduct. The less senior black
firefighters retained on the force were concededly not themselves
victims of discrimination. Protecting them from layoff thus went
well beyond the Title VII limits on a court's authority to provide
"make whole" relief.
It overstates the case, however, to suggest that Stotts
spells the death knell either of affirmative action or affirmative
action quotas. Plainly, affirmative outreach and recruitment
programs aimed at bringing increasing numbers of minorities
into the workforce (i.e., "affirmative action" in its most
traditional sense) remain unaffected by the decision. And
since Stotts speaks only to court-ordered relief, it leaves
undisturbed a variety of voluntary affirmative action programs
entered into without court approval or participation, such as
the one upheld by the Supreme Court in Steelworkers V. Weber,
which did involve quotas. Also not addressed in Stotts is the
separate question of the lawfulness of race-preferential "affirm-
ative action" programs adopted unilaterally by municipalities or
other political subdivisions of state or local governments --
again without court approval or participation. Whether such
arrangements can survive a constitutional challenge under the
Fourteenth Amendment is a question explicitly reserved in Stotts.
- 3 -
Courts are no longer free after Stotts, however, to
order relief in an employment case under Title VII (either by
consent decree or following trial) that goes beyond "making
whole" identifiable victims of discrimination and confers
benefits (whether seniority or otherwise) on nonvictims by
reason of their membership in some preferred racial group. As
Senator Hubert Humphrey stated expounded over and over again at the
time of the law's enactment, Title VII does not permit courts
to order quotas or similar remedies designed to achieve or
maintain racial balance in the workforce. The Supreme Court
has now removed whatever doubts lingered on that score.
Obviously, Stotts is relevant to the work of the Civil
Rights Division of the Department of Justice. In terms of consent
decrees in which the Department, since 1981, has been a party,
Stotts changes nothing because the decision is entirely consistent
with the enforcement policy followed for the past three years.
That policy, in general terms, is to seek relief for individual
victims of discrimination and to oppose racial quotas.
As for consent decrees in place prior to 1981, the
Division will review these on a case-by-case basis to determine
whether in light of Stotts they need to be altered. The law is
prospective in application, so any changes in the decrees would
affect only the future.
to be free racial
Stotts is a triumph for civil rights They L Individual rights
la claim of
won out over group entitlements. Quotas fell to "make whole"
- 4 -
relief. Victims were recognized over those unable to claim
victim status. Equal opportunity prevailed over equal results.
Such is, of course, the genius of the nondiscrimination
statutes of 1964. They were enacted not to benefit any discrete
class or to prefer a particular group, but, rather, to ensure
that every American will be treated the same as every other,
without regard to race, color or ethnic origin. Stotts commands
the federal courts to make that promise a reality in the employment
sector. No more fitting interpretation of Title VII could come
in its twentieth anniversary year.
THE WHITE HOUSE
WASHINGTON
July 2, 1984
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS 22d
SUBJECT:
Op-Ed Draft Concerning Supreme Court's
Decision in Memphis Firefighters V. Stotts
by Brad Reynolds
Richard Darman has now asked for comments by 5:00 p.m. today
on the draft op-ed piece by Brad Reynolds on Memphis Fire-
fighters V. Stotts. You will recall that we received a copy
of the draft when the Deputy Attorney General sent it to
Fuller. I reviewed the draft at that time, and you signed a
memorandum for Fuller advising him that we had no legal
objection to the piece.
Steve Galebach, the acting Mike Uhlmann, discussed the piece
with me this afternoon. He thinks it would be better, in
the paragraph beginning on page 2, to clarify our position
on the issues unresolved by Stotts. The paragraph in
question notes that Stotts does not affect affirmative
action outreach programs or certain types of affirmative
action quotas. As written, the draft does not make clear
that we support the former and oppose the latter. The last
sentence on the page is particularly confusing, since "such
arrangements" could refer to outreach programs, quotas, or
both. (I assume it is intended to refer only to quotas.)
The attached draft for Darman notes, as the memorandum for
Fuller did, that we have no legal objection. It goes on,
however, to suggest adding a discussion of the sort outlined
above.
Attachment
THE WRITE HOUSE
WABHINGTON
July 2, 1984
==
MEMORANDUM FOR RICHARD G. DARMAN,
ASSISTANT TO THE PRESIDENT
PROM:
RICHARD A. HAUSER
Original signed by RAH
DEPUTY COUNSEL TO THE PRESIDENT
SUBJECT:
Op-Ed Draft Concerning Supreme Court's
Decision in Memphis Firefighters V. Stotts
by Brad Reynolds
Counsel's Office has reviewed the above-referenced op-ed
draft, and finds no objection to it from a legal perspective.
WE do, however, recommend revising the full paragraph or
page 2. As written, the paragraph makes the valid point
that affirmative action outreach and recruitment programs
and certain types of quotas are unaffected by Stotts. The
point should also be made that we fully support affirmative
action outreach and recruitment programs, and oppose quotas.
Without such E statement at this point in the piece, the
reader could be left with the impression that the Adminis-
tration is ambivalent about affirmative action outreach and
recruitment programs or with the equally erroneous im-
pression that WE support certain types of racial quotas.
The Administration opposes quotas, even those unaffected by
Stotts.
The last sentence or page 2 should be changed SO it is clear
that "such arrangements' refers to quotas only and not
outreach or recruitment programs. The sentence could be
read to suggest the latter are subject to constitutional
challenge, which is not the case.
RAH: JGR:aea 7/2/84
CC: FFFielding/RAHauser/JGRoberts/Subj/Chror
THE WHITE HOUSE
WASHINGTON
July 2, 1984
MEMORANDUM FOR RICHARD G. DARMAN.
ASSISTANT TO THE PRESIDENT
FROM:
RICHARD A. HAUSER
DEPUTY COUNSEL TO THE PRESIDENT
SUBJECT:
Op-Ed Draft Concerning Supreme Court's
Decision in Memphis Firefighters V. Stotts
by Brad Reynolds
Counsel's Office has reviewed the above-referenced op-ed
draft, and finds no objection to it from a legal perspective.
We do, however, recommend revising the full paragraph on
page 2. As written, the paragraph makes the valid point
that affirmative action outreach and recruitment programs
and certain types of quotas are unaffected by Stotts. The
point should also be made that we fully support affirmative
action outreach and recruitment programs, and oppose quotas.
Without such a statement at this point in the piece, the
reader could be left with the impression that the Adminis-
tration is ambivalent about affirmative action outreach and
recruitment programs or with the equally erroneous im-
pression that we support certain types of racial quotas.
The Administration opposes quotas, even those unaffected by
Stotts.
The last sentence on page 2 should be changed so it is clear
that "such arrangements" refers to quotas only and not
outreach or recruitment programs. The sentence could be
read to suggest the latter are subject to constitutional
challenge, which is not the case.
RAH:JGR:aea 7/2/84
CC: FFFielding/RAHauser/JGRoberts/Subj/Chron
ID # 186903 CU
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Subject: Op-Ed Draft concerning Supreme course
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by Brad Reanolds
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5/81
Document No. 186903cs
WHITE HOUSE STAFFING MEMORANDUM
DATE: 7/2/84
ACTION/CONCURRENCE/COMMENT DUE BY: 5:00 p.m. TODAY
SUBJECT: OP-ED DRAFT RE SUPREME COURT'S DECISION IN MEMPHIS FIREFIGHTERS
VS. STOTTS BY BRAD REYNOLDS (Prepared by Justice)
ACTION FYI
ACTION FYI
VICE PRESIDENT
McMANUS
MEESE
MURPHY
BAKER
OGLESBY
DEAVER
ROGERS
STOCKMAN
SPEAKES
DARMAN
P
55
SVAHN
FELDSTEIN
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
HERRINGTON
HICKEY
McFARLANE
REMARKS:
Please provide any edits by 5:00 p.m. today, July 2nd.
Thank you.
RESPONSE:
01 :|| F EE NAC ASI
Richard G. Darman
Assistant to the President
Ext. 2702
U.S. Department of Justice
Office of the Deputy Attorney General
The Deputy Attorney General
Washington, D.C. 20530
June 28, 1984
MEMORANDUM TO: Craig Fuller
Assistant to the President for Cabinet Affairs
FROM: Carol E. Dinkins
Deputy Attorney General
Attached is what I consider a positive draft Op-ed piece
done by Brad Reynolds to clear the air concerning the
Supreme Court's recent decision in Memphis Firefighters V.
Stotts. If you think that some limited circulation for
comments is needed, I would appreciate receiving comments
through you as soon as possible. We would, however, like to
place the piece next Monday or Tuesday at the latest.
CC: Fred F. Fielding
Counsel to the President
Twenty years ago this summer Congress passed the momentous
Civil Rights Act of 1964, outlawing discrimination based on race,
color or ethnic origin. In this anniversary year, the Supreme
Court has reaffirmed the vitality of the principles underlying
that legislation in Memphis Firefighters V. Stotts. The Stotts
decision merits thoughtful attention.
In Stotts the Supreme Court reviewed a district court
order, affirmed by the Sixth Circuit Court of Appeals, which
direct the financially strapped City of Memphis to release
senior white firefighters and retain black firefighters with
less seniority in order to preserve the racial balance achieved
through use of hiring quotas required under an earlier consent
decree. The Supreme Court reversed, holding that seniority
rights in such circumstances control the order of layoff.
The fact that the Court should favor seniority in this
case can hardly come as a surprise. On prior occasions, the
Court has consistently recognized that in passing the 1964
civil rights laws Congress did not intend to interfere with
bona fide seniority systems. The importance of Stotts thus
lies not so much in the Court's adherence to its earlier
position as in why the Court felt compelled to reach such a
result.
The answer lies in Title VII of the Civil Rights Act of
1964 (as amended in 1972), which prohibits discrimination in
employment. That statute, as interpreted by the Court, expressly
- 2 -
limits courts in the exercise of their remedial powers to grant
relief to individuals only -- not to members of particular groups
- and only to the extent necessary to "make whole" actual victims
of the employer's discriminatory conduct The less senior black
firefighters retained on the force were concededly not themselves
victims of discrimination. Protecting them from layoff thus went
well beyond the Title VII limits on a court's authority to provide
"make whole" relief.
It overstates the case, however, to suggest that Stotts
spells the death knell either of affirmative action or affirmative
action quotas. Plainly, affirmative outreach and recruitment
programs aimed at bringing increasing numbers of minorities
into the workforce (i.e., "affirmative action" in its most
traditional sense) remain unaffected by the decision. And
since Stotts speaks only to court-ordered relief, it leaves
undisturbed a variety of voluntary affirmative action programs
entered into without court approval or participation, such as
the one upheld by the Supreme Court in Steelworkers V. Weber,
which did involve quotas. Also not addressed in Stotts is the
separate question of the lawfulness of race-preferential "affirm-
ative action" programs adopted unilaterally by municipalities or
other political subdivisions of state or local governments --
again without court approval or participation. Whether such
arrangements can survive a constitutional challenge under the
Fourteenth Amendment is a question explicitly reserved in Stotts.
- 3 -
Courts are no longer free after Stotts, however, to
order relief in an employment case under Title VII (either by
consent decree or following trial) that goes beyond "making
whole" identifiable victims of discrimination and confers
benefits (whether seniority or otherwise) on nonvictims by
reason of their membership in some preferred racial group. As
Senator Hubert Humphrey stated expounded over and over again at the
time of the law's enactment, Title VII does not permit courts
to order quotas or similar remedies designed to achieve or
maintain racial balance in the workforce. The Supreme Court
has now removed whatever doubts lingered on that score.
Obviously, Stotts is relevant to the work of the Civil
Rights Division of the Department of Justice. In terms of consent
decrees in which the Department, since 1981, has been a party,
Stotts changes nothing because the decision is entirely consistent
with the enforcement policy followed for the past three years.
That policy, in general terms, is to seek relief for individual
victims of discrimination and to oppose racial quotas.
As for consent decrees in place prior to 1981, the
Division will review these on a case-by-case basis to determine
whether in light of Stotts they need to be altered. The law is
prospective in application, so any changes in the decrees would
affect only the future.
to be free racial
Stotts is a triumph for civil rights They Individual rights
14 claim of
won out over group entitlements. Quotas fell to "make whole"
- 4 -
relief. Victims were recognized over those unable to claim
victim status. Equal opportunity prevailed over equal results.
Such is, of course, the genius of the nondiscrimination
statutes of 1964. They were enacted not to benefit any discrete
class or to prefer a particular group, but, rather, to ensure
that every American will be treated the same as every other,
without regard to race, color or ethnic origin. Stotts commands
the federal courts to make that promise a reality in the employment
sector. No more fitting interpretation of Title VII could come
in its twentieth anniversary year.