SPOTTSWOOD W. ROBINSON, III, Circuit Judge: '
Cordelia Kelsey and other public school children, the appellants, complained in the District Court that the Secretary of Health, Education and Welfare, the principal appellee,
violated the Emergency School Aid Act
in promulgating a new regulation enabling proposed waivers of the ineligibility, under prior regulations, of five public school districts without first requiring the elimination of the effects of racially motivated teacher assignments theretofore made in those districts. The Secretary asserts that the Act permits him to grant the waivers because the districts have ceased discriminatory assignments and have adopted plans to remove the effects of past discrimination by the beginning of the 1975-76 school year. On cross-motions for summary judgment, the District Court ruled in appellees’ favor and dismissed appellants’ action.
We reverse and remand the ease to the District Court with directions to enter an appropriate judgment in appellants’ favor.
I
The salient facts of the ease are not materially in dispute. On June 23, 1972, Congress passed the Emergency School Aid Act as Title VII of the Education Amendments of 1972.
One purpose of the Act, Congress declared, is the provision of financial assistance to local educational agencies “to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools. . ”
The Act accordingly makes funds available for a variety of enumerated activities related to its stated objectives.
The Act also sets forth standards for determining eligibility for assistance
and criteria for evaluating applications therefor;
and it specifically requires a finding of ineligibility as to any school district which after June 23, 1972, indulged in one or more prohibited practices,
including the following :
No educational agency shall be eligible for assistance under [the Act] if it has, after June 23, 1972— . engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency. . . .
The Act contains, however, a proviso enabling an ineligible agency to apply to the Secretary for a waiver of ineligibility.
But the granting of a waiver is statutorily conditioned upon a
determination that any practice, policy, procedure or other activity resulting in ineligibility has ceased to exist, and that the applicant has given satisfactory assurance that the activities prohibited in [the subsection defining ineligibility] will not reoccur.
The Act similarly instructs the Secretary to promulgate waiver regulations which “insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur. . . . ”
On February 6, 1973, the Secretary first issued regulations implementing the provisions of the Act.
In their original text, the regulations clearly blocked access to the Act’s assistance by any public school system pursuing, after June 23, 1972, a practice leading to racial discrimination in the deployment of teachers in its schools. The regulations flatly stated that
No educational agency shall be eligible for assistance under the Act if, after June 23, 1972, it has had or maintained in effect any . . . practice, policy or procedure which results in discrimination on the basis of race, color, or national origin ... in the assignment of any of its employees . . . including full time classroom teachers to the schools of such agency in such a manner as to identify any such schools as intended for students of a particular race or national origin.
The regulations also insisted that oWhere ineligibility followed-a discriminatory assignment of teachers, an “application for waiver shall contain evidence that such agency has assigned its full-time classroom teachers to its schools so that no school is identified as intended for students of a particular race, color or national origin.”
A further limitation imposed by the regulations was that agencies not implementing a judicial or administrative order relating to faculty assignment reassign teachers “so that the proportion of minority group full-time classroom teachers at each school is between 75 per centum and 125 percentum of the proportion of such minority group teachers which exists on the faculty as a whole, and so that the variations in such proportions which remain on various faculties do not correspond to such variations in the student populations of such schools.”
As appellees admit, under the original regulations “a school which had in the past made discriminatory assignments was required not only to stop such assignments, but to correct the effect of past discriminatory assignments by reassigning, prior to approval of the waiver, all of its teachers in such a way that the racial identifiability of schools resulting from assignments of the preceding years would be completely corrected.”
While the original regulations were in vogue, a host of school districts qualified for financial aid under the Act. The Secretary found a small number
ineli
gible to receive funds for fiscal year 1973 because of the racial identifiability of faculties in their schools — a reflection of racially inspired assignments of teachers.
On June 29, 1973, the Secretary issued a press release announcing his intention to reexamine the regulations with a view toward softening the restrictive elements of the waiver provision in order to allow for more “realistic” funding of programs in previously ineligible communities. On July 16, the Secretary issued a notice of proposed rulemaking envisoning modification of the rule pertaining to waivers of ineligibility consequent upon discrimination in faculty assignments.
The crux of the proposed revision was a new regulation permitting approval of an application for a waiver in favor of a previously ineligible school district even though the effects of such discrimination had not been fully rectified.
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SPOTTSWOOD W. ROBINSON, III, Circuit Judge: '
Cordelia Kelsey and other public school children, the appellants, complained in the District Court that the Secretary of Health, Education and Welfare, the principal appellee,
violated the Emergency School Aid Act
in promulgating a new regulation enabling proposed waivers of the ineligibility, under prior regulations, of five public school districts without first requiring the elimination of the effects of racially motivated teacher assignments theretofore made in those districts. The Secretary asserts that the Act permits him to grant the waivers because the districts have ceased discriminatory assignments and have adopted plans to remove the effects of past discrimination by the beginning of the 1975-76 school year. On cross-motions for summary judgment, the District Court ruled in appellees’ favor and dismissed appellants’ action.
We reverse and remand the ease to the District Court with directions to enter an appropriate judgment in appellants’ favor.
I
The salient facts of the ease are not materially in dispute. On June 23, 1972, Congress passed the Emergency School Aid Act as Title VII of the Education Amendments of 1972.
One purpose of the Act, Congress declared, is the provision of financial assistance to local educational agencies “to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools. . ”
The Act accordingly makes funds available for a variety of enumerated activities related to its stated objectives.
The Act also sets forth standards for determining eligibility for assistance
and criteria for evaluating applications therefor;
and it specifically requires a finding of ineligibility as to any school district which after June 23, 1972, indulged in one or more prohibited practices,
including the following :
No educational agency shall be eligible for assistance under [the Act] if it has, after June 23, 1972— . engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency. . . .
The Act contains, however, a proviso enabling an ineligible agency to apply to the Secretary for a waiver of ineligibility.
But the granting of a waiver is statutorily conditioned upon a
determination that any practice, policy, procedure or other activity resulting in ineligibility has ceased to exist, and that the applicant has given satisfactory assurance that the activities prohibited in [the subsection defining ineligibility] will not reoccur.
The Act similarly instructs the Secretary to promulgate waiver regulations which “insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur. . . . ”
On February 6, 1973, the Secretary first issued regulations implementing the provisions of the Act.
In their original text, the regulations clearly blocked access to the Act’s assistance by any public school system pursuing, after June 23, 1972, a practice leading to racial discrimination in the deployment of teachers in its schools. The regulations flatly stated that
No educational agency shall be eligible for assistance under the Act if, after June 23, 1972, it has had or maintained in effect any . . . practice, policy or procedure which results in discrimination on the basis of race, color, or national origin ... in the assignment of any of its employees . . . including full time classroom teachers to the schools of such agency in such a manner as to identify any such schools as intended for students of a particular race or national origin.
The regulations also insisted that oWhere ineligibility followed-a discriminatory assignment of teachers, an “application for waiver shall contain evidence that such agency has assigned its full-time classroom teachers to its schools so that no school is identified as intended for students of a particular race, color or national origin.”
A further limitation imposed by the regulations was that agencies not implementing a judicial or administrative order relating to faculty assignment reassign teachers “so that the proportion of minority group full-time classroom teachers at each school is between 75 per centum and 125 percentum of the proportion of such minority group teachers which exists on the faculty as a whole, and so that the variations in such proportions which remain on various faculties do not correspond to such variations in the student populations of such schools.”
As appellees admit, under the original regulations “a school which had in the past made discriminatory assignments was required not only to stop such assignments, but to correct the effect of past discriminatory assignments by reassigning, prior to approval of the waiver, all of its teachers in such a way that the racial identifiability of schools resulting from assignments of the preceding years would be completely corrected.”
While the original regulations were in vogue, a host of school districts qualified for financial aid under the Act. The Secretary found a small number
ineli
gible to receive funds for fiscal year 1973 because of the racial identifiability of faculties in their schools — a reflection of racially inspired assignments of teachers.
On June 29, 1973, the Secretary issued a press release announcing his intention to reexamine the regulations with a view toward softening the restrictive elements of the waiver provision in order to allow for more “realistic” funding of programs in previously ineligible communities. On July 16, the Secretary issued a notice of proposed rulemaking envisoning modification of the rule pertaining to waivers of ineligibility consequent upon discrimination in faculty assignments.
The crux of the proposed revision was a new regulation permitting approval of an application for a waiver in favor of a previously ineligible school district even though the effects of such discrimination had not been fully rectified.
The new regulation would demand a showing that the educational agency had adopted a policy of racially nondiscriminatory faculty assignments and would make all future assignments in such manner that racial identifiability of faculties would not increase.
The regulation would, however, allow the agency to continue one-race faculties for one year and racially identifiable faculties for two years.
The regulation would also eliminate the administrative definition of a racially identifiable faculty
without provision of any substitute. Despite vigorous opposition by civil rights groups, the new regulation was promulgated without change on August 9, 1973, clearing the way for five cities to seek waivers of their prior ineligible status soon after the effective date of August 16, 1973.
The five cities promptly filed applications for waiver.
The submissions re
veal that none of the cities offers to undertake any involuntary redistribution of teachers presently assigned on a racial basis. Rather, they propose to rely on the gradual though inevitable process of teacher attrition to create vacancies, and upon nondiscriminatory appointment and assignment of new teachers as a means of reducing prohibited racial concentrations within the two-year time frame of the regulation. In short, instead of altering faculty setups' ensuing from racially induced faculty assignments in the past, the cities will continue those assignments in effect, subject to change only by the filling of vacancies on a nonracial basis.
On August 16, 1973, the effective date of the revised waiver regulation, the Secretary, as required by the Act,
transmitted to statutorily designated congressional committees
notices of intent to grant waivers of ineligibility to the five cities. This litigation challenges the validity of the new regulation in relation to the waivers contemplated. Appellants, minority group children attending public schools in three of the five affected cities, sought in the District Court a declaration that the current regulation is invalid and an injunction restraining the grant of the waivers. Hearing the case on cross-motions for summary judgment, the court entered judgment upholding appellees on the merits and dismissing appellants’ action,
and this appeal followed.
II
The Emergency School Aid Act is explicit in its stipulation that “[n]o educational agency shall be eligible for assistance” under its provisions if after June 25, 1972, the date of its enactment, the agency has “engaged in discrimination based upon race, color, or national origin in the . . . assignment of [its] employees. . . . ”
Thus the Act prohibits financial aid to any educational agency which continued to utilize a racial factor in the deployment of teachers in the schools under its jurisdiction. The record leaves no alternative to the conclusion on this appeal that each of the applicant agencies was ineligible for statutory benefits because of racially discriminatory assignments of faculty personnel in its school system after the Act went into effect.
To be sure, the Act authorizes the Secretary to waive an agency’s ineligibility, but only upon a “determination that any practice, policy, procedure, or other activity resulting in ineligibility
has ceased to exist,
[or occur] and that the applicant has given satisfactory assurance that the activities prohibited will not reoccur.”
It goes
without saying that the Secretary is powerless to waive ineligibility on terms other than those which the Act undertakes to confer. One of the statutory standards by which the validity of administrative waivers of ineligibility must be measured thus emerges from Congress’ use of the phrase “has ceased to exist” in its grant of waiver authority to the Secretary.
So it is that we are brought to the central question in this case: whether the Act permits the Secretary to waive the ineligibility of an educational agency flowing from a practice of racially inspired teacher assignments where the agency has discontinued the practice for the future but has not yet rectified discriminatory assignments made in the past. Appellants contend that the Act conditions waivers of ineligibility upon elimination of the effects of past discrimination, as well as upon nondiscrimination in the present and the future, because otherwise the forbidden “practice . . . resulting in ineligibility” has not “ceased to exist.” Appellees argue, on the other hand, that once the practice has been halted it has “ceased to exist,” and that the effects of previous discrimination may then be gradually erased over a reasonable period of time, as allowed by the Secretary’s current waiver regulation.
The District Court was of the opinion, and we agree, that the language of the Act conferring the waiver authority is susceptible to either construction.
And like the District Court,
we are unable to find any source extrinsic to the Act from which we might derive a significant clue as to the meaning properly to be ascribed to the waiver provision. The parties have cited no case interpreting that provision, nor have we found any, and our examination of its legislative history has uncovered nothing really helpful.
But the interpretation which appellees urge treads dangerously close to constitutional condemnation of a part of the Act and, unlike the District Court, we feel obliged to resort to rele
vant canons of statutory construction for the solution of the perplexing problem confronting us.
It is firmly settled that, whenever possible, statutes are to be construed in a manner that not only upholds their constitutionality
but also steers clear of uncertainty on that score.
The Supreme Court has admonished that a statute “must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity,”
and has “favored that interpretation of legislation which gives it the greater chance of surviving the test of constitutionality.”
So, “when one interpretation of a statute would create a substantial doubt as to the statute’s constitutional validity, the courts will avoid that interpretation absent a ‘clear statement’ of a contrary legislative intent.”
Appellees’ reading of the Act’s waiver provision as a license to fund school districts in which the evils of discriminatory teacher assignments remain uneradicated generates concern of constitutional proportions. As the District Court put it mildly, appellants’ constitutional arguments precipitated by appellees’ construction are “undoubtedly of great force.”
We think that construction unwarrantedly exposes the Act to a severe risk of “danger of unconstitutionality,”
and for that reason must be shunned.
Ill
In its
Brown
1
and
Bolling
decisions in 1954, the Supreme Court held that racial segregation governmentally required or authorized in public education is at war with the Federal Constitution. In
Brown
II
decided the following year, the Court gave unmistakable notice that every educational agency operating racially separate public schools must “effectuate a transition to a racially nondiscriminatory school system.”
Indubitably, “[t]he transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about.”
Public school authorities operating segregated facilities thus were “clearly charged with 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.”
And
“[t]he objective today remains to eliminate from the public schools all vestiges of state-imposed segregation.”
It cannot be doubted that both the duty and the objective embrace faculty setups resulting from assignments based on considerations of color;
Brown II
so indicated,
and subsequent decisions have made that the plainer. Duality of schools may appear “simply by reference to the racial composition of teachers and staff,”
and “[w]hen a system has been dual in [this] respect [,] the first remedial responsibility of school authorities is to eliminate invidious racial distinctions.”
Nor can it be doubted that when, in 1973, the Secretary fashioned his revised waiver regulation, time for any reconstitution of faculty demanded by the
Brown I-Bolling
holding had long since expired. In
Brown II
in 1955, the Court directed that the steps necessary to implement that holding be taken “with all deliberate speed.”
While
Brown II
“contemplated the possible need of some limited delay in effecting total desegregation of public schools,”
it “never contemplated that the concept of ‘deliberate speed’ would countenance indefinite delay in elimination of racial barriers in schools. . . .”
So in 1964 the Court emphasized that “[t]he time for mere ‘deliberate speed’ has run out,”
and in 1965 that “[d]elays in desegregating school systems are no longer tolerable.”
And in 1969, almost four years before the Secretary’s revised regulation was promulgated, the Court declared that “the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.”
Yet as we approach the twentieth anniversary of
Brown I
and
Bolling,
the Secretary’s new regulation would indulge noncomplying school districts even more time for faculty desegregation.
Additionally, and very plainly, the Secretary’s revised regulation opens the door to federal financial contributions in situations wherein local educational agencies have defaulted in the discharge of their faculty desegregation responsibilities. It cannot be gainsaid that “[a] State’s constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination.”
Nor can it be dis
puted that “[s]tate support of segregated schools through any arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws.”
Certainly the Fifth Amendment does not tolerate the Federal Government in an involvement with racially segregated education which the Fourteenth prohibits to the states.
On the contrary, this court
en banc
has already recognized and enforced the Secretary’s “general obligation not to allow federal funds to be supportive of illegal discrimination.”
We point to this array of constitutional principles, not as a predicate for actually passing on the validity of the Act’s waiver section, but as an identification of grave difficulties which inexorably it would encounter if given the interpretation for which the Secretary contends. And it is clear enough that unless the Act is to be exposed to the perils which these principles make evident, the Secretary’s revised waiver regulation cannot stand. While the regulation in original form called for hard evidence of completely desegregated faculties as a precondition to funding under the Act,
the new regulation envisions funding although illegal faculty segregation may continue. Moreover, the new regulation could be met notwithstanding postponement of the date of completion for as long as two years
— and, concomitantly, perpetuation of the impact of racially identifiable schools over that period.
Furthermore, since neither the new regulation nor the agencies’ applications in this ease propose affirmative action in the form of involuntary teacher transfers, school systems conceivably could maintain a segregated faculty status through the 1974-75 academic year and still, by prompt faculty desegregation, qualify for uninterrupted assistance under the Act.
By placing a two-year limit on faculty segregation, the Secretary acknowledges his obligation to require faculty desegregation, but he fails to recognize that the time for performance of desegregation responsibilities is now.
In the District Court, appellants attacked the validity of the revised waiver regulation on grounds not only that it was inconsistent with the statutory provision on waiver but also that it could not pass muster under the Fifth Amendment. The District Court felt that the constitutional argument was “undoubtedly of great force,”
but nonetheless construed the Act as a source of administrative authority to fund projects in school districts wherein faculty desegregation is a promised but unrealized goal. The court reasoned that since “the clear intent of the statute is that federal funds be available to meet the needs incident to the process of desegregation [,] [t]hat language implies that funds will be expended to carry out an ongoing implementation of a desegregation program.”
The court concluded that “[t]o require that the result as well as the practice be eliminated before a waiver could be granted would be anomalous indeed in the face of the congressional finding that local school dis
tricts lack the funds to implement plans of desegregation.”
We find ourselves in disagreement with the District Court on both counts. While surely the pervading purpose of the Act is to financially assist a worthy desegregation plan, the Act makes monies available, not for the basic desegregation activities themselves, but for auxiliary programs designed to enhance the success of the desegregation effort and to ameliorate the inroads of past educational segregation.
We find no provision in the Act licensing expenditures simply for the purpose of reassigning teachers;
indeed, on oral argument appellees’ counsel conceded that teacher-reassignment is an administrative task
devoid of any incidental financial output. Judges before us have perceived no impediment to immediate faculty desegregation,
and nothing coming to our attention reflects congressional concern in that regard. Even should one surmise that Congress intended to contribute from the public fisc to school districts still indulging segregated faculties, at least a substantial doubt as to whether it could validly do so remains.
IV
We conclude that racially identifiable public school faculties as well as policies and practices of racially discriminatory teacher assignments must have “ceased to exist” prior to any administrative waiver of ineligibility for benefits under the Act. We are persuaded to that construction of the Act’s authorizing provision for three major reasons. First, that interpretation of the language of a statute designed to assist desegregation appeals to us as logically sounder than an alternative which would foster continuance of the debilitating effects of past segregatory policy. Second, the Supreme Court’s constitutional decisions virtually mandate adherence to a construction which insists upon immediate removal of the effects of educational discrimination based on race, particularly where federal funding is involved. And, third, we avoid the doubts which inevitably accompany an undue strain on the fiber of constitutional precedent by an interpretation calling both for present and future cessation of segregatory practices and prior elimination of the results of such practices before a waiver of ineligibility for federal aid is forthcoming.
The Secretary’s revised waiver regulation does not harmonize with this construction of the governing statutory provision. It follows that neither the regulation, the proposed waivers nor the District Court’s approving decision can be sustained. The judgment of the District
Court is accordingly reversed, and the case is remanded with instruction to award appellants the declaratory and injunctive relief sought by their complaint.
So ordered.