Section 702(b) of the Emergency School Aid Act (ESAA or Act)
states that the Act's purpose is to provide federal financial
assistance
"to meet the special needs incident to the elimination of
minority group segregation and discrimination among students and
faculty in elementary and secondary schools,"
to encourage "the voluntary elimination, reduction, or
prevention of minority group isolation" in such schools, and to aid
schoolchildren "in overcoming the educational disadvantages of
minority group isolation." Section 703 pronounces as federal policy
that guidelines and criteria established pursuant to the Act should
"be applied uniformly in all regions of the United States." And
§ 706(d)(1)(B) declares an educational agency ineligible for
assistance if, after the date of the Act, it had in effect any
practice "which results in the disproportionate demotion or
dismissal of instructional or other personnel from minority groups"
or "otherwise engage[s] in discrimination . . . in the hiring,
promotion, or assignment of employees." Petitioner Board of
Education's applications for ESAA assistance were denied by the
Department of Health, Education, and Welfare (HEW), based upon
statistical evidence flowing from a compliance investigation under
Title VI of the Civil Rights Act of 1964 and showing a pattern of
racially disproportionate assignments of minority teachers in the
school system in relation to the number of minority students
enrolled at the respective schools. No substantive rebuttal or
explanation for the statistical disparities was presented.
Petitioner Board then brought suit in District Court for
declaratory and injunctive relief, claiming that the racially
disproportionate teacher assignments resulted from provisions of
state law, provisions of collective bargaining agreements,
licensing requirements for particular teaching positions, a
bilingual instruction consent decree, and demographic changes in
student population. The District Court concluded that HEW should
have considered these proffered justifications for the statistical
disparities, and remanded the case to HEW for
Page 444 U. S. 131
further consideration. On remand, HEW determined that such
justifications did not adequately rebut the
prima facie
evidence of discrimination established by the statistics, and the
District Court upheld HEW's finding of ineligibility and denied
relief. The Court of Appeals affirmed, rejecting petitioner Board's
contention that HEW was required to establish that the statistical
disparities resulted from purposeful or intentional discrimination
in the constitutional sense.
Held:
1. Discriminatory impact is the standard by which ineligibility
under ESAA is to be measured, irrespective of whether the
discrimination relates to "demotion or dismissal of instructional
or other personnel" or to "the hiring, promotion, or assignment of
employees." The overall structure of the Act, Congress' statements
of purpose and policy in §§ 702 and 703, the legislative
history, and the text of § 706(d)(1)(B) all point in the
direction of such a disparate impact test. To treat as ineligible
only an applicant with a past or a conscious present intent to
perpetuate racial isolation would defeat the stated objective of
ending
de facto as well as
de jure segregation.
Pp.
444 U. S.
140-150.
2. A
prima facie case of discriminatory impact may be
made by a proper statistical study. The burden of rebutting such a
statistical case is on the petitioner Board. P.
444 U. S.
151.
584 F.2d 576, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, and STEVENS, JJ.,
joined. STEWART, J., filed a dissenting opinion, in which POWELL
and REHNQUIST, JJ., joined,
post, p.
444 U. S.
152.
Page 444 U. S. 132
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents a narrow, but important, issue of statutory
interpretation. It concerns a school district's eligibility for
federal financial assistance under the 1972 Emergency School Aid
Act (ESAA or Act), 86 Stat. 354, as amended, 20 U.S.C. §§
1601-1619. [
Footnote 1] Because
the federal funds available under the Act are limited, educational
agencies compete for those funds.
I
By § 702(a) of the Act, 86 Stat. 354, 20 U.S.C. §
1601(a), Congress found
"that the process of eliminating or preventing minority group
isolation and improving the quality of education for all children
often involves the expenditure of additional funds to which local
educational agencies do not have access."
Accordingly, in § 702(b), Congress stated that the purpose
of the legislation was to provide financial assistance
"to meet the special needs incident to the elimination of
minority group segregation and discrimination among students and
faculty in elementary and secondary schools,"
to encourage "the voluntary elimination, reduction, or
prevention of minority group isolation" in such schools, and to aid
schoolchildren "in overcoming the educational disadvantages of
minority group isolation." Section 703 pronounced as United States
policy that guidelines and criteria established pursuant to the Act
should "be applied uniformly in all regions of the United States."
And, by § 706(d)(1), an educational agency was expressly
declared ineligible for assistance if, after the date of the Act
(June 23, 1972), it
"(B) had in effect any practice, policy, or procedure
Page 444 U. S. 133
which results in the disproportionate demotion or dismissal of
instructional or other personnel from minority groups in
conjunction with desegregation or the implementation of any plan or
the conduct of any activity described in this section, or otherwise
engaged in discrimination based upon race, color, or national
origin in the hiring, promotion, or assignment of employees of the
agency. [
Footnote 2]"
The Act, in § 710(a), provides that an agency desiring to
receive assistance for a fiscal year shall submit an application
"at such time, in such form, and containing such information" as
the Assistant Secretary for Education of the Department of Health,
Education, and Welfare (HEW) "shall require by regulation." The
application is then reviewed by that office and is ranked according
to criteria set out in § 710(c), as implemented by regulation.
See 45 CFR § 185.14 (1978). The essential first step
is a determination [
Footnote 3]
that the applicant
Page 444 U. S. 134
is not ineligible under § 706(d)(1). This determination is
made initially by HEW's Office for Civil Rights. The burden,
presumably, is on the applicant to establish its eligibility.
II
Petitioner Board of Education of the City School District of the
City of New York filed three applications for ESAA assistance for
the fiscal year 1977-1978. Its revised Basic Grant Application, the
only one now at issue, was given a sufficiently favorable ranking
so as initially to be considered for funding in the amount of
$3,559,132. On July 1, 1977, however, HEW, by letter, informed the
Board that it did not meet the Act's eligibility requirements. App.
27. In line with the provisions of 45 CFR § 185.46(b) (1978),
an informal meeting was held on July 22. Although HEW then withdrew
some of its adverse findings, it still concluded that the Board had
not demonstrated a sufficient basis for revocation of its
determination of ineligibility. HEW reasoned that, in the language
of 45 CFR § 185.43(b)(2) (1978), the Board's
"assignment of full-time classroom teachers to [its] schools
[was] in such a manner as to identify [one or more] of such schools
as intended for students of a particular race, color, or national
origin."
The ineligibility determination rested upon statistics developed
by HEW's Office for Civil Rights during a 1976 compliance
investigation of the Board's school system under Title VI of the
Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d
et seq. From these statistics, HEW concluded that it was
possible to identify a number of schools as intended for either
minority or nonminority students solely because of the composition
of the faculties. The statistics revealed that, during the
1975-1976 school year, 62.6% of high school pupils were members of
a minority, but only 8.3% of high school teachers were minority
members. Further, 70% of the minority high school teachers were
assigned to schools at which
Page 444 U. S. 135
the minority student enrollments exceeded 76%. Conversely, in
those high schools where minority student enrollments were less
than 40%, there was a disproportionately low percentage of minority
teachers. App. 29, 42-43.
The statistical study showed like patterns at the junior high
and elementary levels. The percentage of minority junior high
teachers was 16.7, and these teachers were concentrated in
districts with the highest percentages of minority students.
Id. at 29. For the elementary schools, the city-wide
percentage of minority teachers was 14.3, and these were placed
primarily in districts with the largest minority student
enrollments.
Id. at 28-29. HEW also relied upon findings
it had made earlier that the Board was in violation of Title VI of
the 1964 Act.
At the informal meeting of July 22, HEW limited its inquiry to
the accuracy of the statistics upon which it had rested its
decision to deny funding. No substantive rebuttal or explanation
for the statistical disparities was presented. On September 16,
1977, HEW issued its formal opinion adhering to its decision of
July 1 to deny funding. Brief for Petitioners 8.
The present action then was promptly instituted in the United
States District Court for the Eastern District of New York to
obtain declaratory relief, to enjoin HEW from enforcing its
determination of ineligibility, and to award the initially
earmarked funds to the Board. [
Footnote 4] The complaint contained no challenge to the
accuracy or sufficiency of HEW's statistics. Rather, petitioner
Board took the position that the racially disproportionate teacher
assignments resulted from provisions of state law, from provisions
of collective bargaining agreements, from licensing requirements
for
Page 444 U. S. 136
particular teaching positions, from a consent decree relating to
bilingual instruction (
Aspira of New York, Inc. v. Board of
Education, 72 Civ. 4002 (SDNY Aug. 29, 1974);
see Aspira
of New York, Inc. v. Board of Education, 65 F.R.D. 541 (SDNY
1975)), and from demographic changes in student population. The
Board expressly denied that it had engaged in intentional or
purposeful discrimination. App. 134-149.
Initially, the District Court, after its review of the
administrative record and after a hearing, denied the Board's
motion for summary judgment and granted HEW's cross-motion, thus
affirming the denial of funding. The court said:
"[T]here was a reasonable basis for a decision that it had so
discriminated. This Court's powers are extremely limited. In this
respect, considering the high school statistics, the State
statutes, the United Federation of Teachers agreements, the wishes
of individual Black principals, the desires of the individual
Parent-Teachers Associations, community school board and Black and
White communities, the Administrator could find a practice, policy
or procedure after June 23, 1972, resulting in the identification
of schools as intended for students of a particular race, color or
national origin through the assignment of teachers to those
schools."
"Accordingly, with the greatest reluctance because it is the
children of the schools who will suffer from this decision of the
Administrator, the Court grants the Government's motion for summary
judgment."
Id. at 69-70.
The Board's request for reargument, however, was granted. The
District Court then concluded that HEW should have considered the
justifications proffered for the statistical disparities. The
matter was therefore remanded to HEW for further consideration
consistent with an opinion the court issued. In that opinion, the
court stated:
"The relevant statute, regulations and cases indicate a failure
of H.E.W. Before declaring a school board
Page 444 U. S. 137
ineligible for ESAA funds, H.E.W. must find either that (1) the
school board was maintaining an illegally segregated school system
on June 23, 1972, and it took no effective steps to desegregate
after that date, or (2) it had a practice after June 23, 1972, that
was segregative in intent, design, or foreseeable effect. It may
rely on statistics alone to make this finding, but it may not
ignore evidence tending to rebut the inferences drawn from the
statistics."
"
* * * *"
"[T]he Constitution mandates that the plaintiffs must have an
opportunity to rebut a statistical
prima facie case of
discrimination."
App. to Pet. for Cert. 102-104.
After the administrative hearing on remand, HEW notified the
Board that its explanation for the racially identifiable staffing
patterns did not adequately rebut the
prima facie evidence
of discrimination established by the statistics. This determination
centered on disparities in 10 of the 110 secondary schools operated
by the Board and serving predominantly nonminority student bodies.
App. 109-110. HEW's letter of March 22, 1978, to the Chancellor
discussed the several justifications offered, and concluded that
each was insufficient.
Id. at 102-114.
The Board once again sought relief in the District Court. On
April 18, that court upheld HEW's finding of ineligibility as
supported by substantial evidence, and denied relief.
Id.
at 150-153. The Board appealed and obtained a stay preserving the
funds at issue pending appellate review.
The Court of Appeals affirmed.
Board of Education of City
School Dist. v. Califano, 584 F.2d 576 (CA2 1978). On the
appeal, the Board still did not contest the finding that certain of
its schools were racially identifiable "as a result of the
significant disparities in staff assignments."
Id. at 585.
The Board, instead, argued that HEW was required " to establish
that the disparities resulted from purposeful or intentional
Page 444 U. S. 138
discrimination in the constitutional sense."
Ibid. The
Court of Appeals rejected this contention. It held that Congress
has the authority "to establish a higher standard more protective
of minority rights, than constitutional minimums require," and
that
"Congress intended to permit grant disqualification not only for
purposeful discrimination, but also for discrimination evidenced
simply by an unjustified disparity in staff assignments."
Id. at 588. It further concluded that HEW's denial of
funding was not arbitrary or capricious.
Id. at 589. The
several proffered justifications were either inadequate to explain
the disparities or were unsupported by facts appearing on the
record.
Ibid.
Because of the importance of the issue, we granted certiorari.
Sub nom. Board of Education of City School Dist. v.
Califano, 440 U.S. 905 (1979). The stay preserving the funds
remains in effect.
See Fed.Rule App. Proc. 41(b).
III
Our primary concern is with the intent of Congress. Section 706
sets forth the eligibility criteria for ESAA funding. In subsection
(a)(1), it authorizes a grant to a local educational agency that
(i) is implementing a desegregation plan approved by a court, or by
HEW "as adequate under title VI of the Civil Rights Act of 1964,"
or (ii), "without having been required to do so," has a plan to
eliminate or reduce minority group isolation.
Critical to the resolution of the issue in this case, however,
are the
ineligibility provisions of § 706(d)(1)(B),
quoted above in
444 U. S.
Ineligibility comes about if the agency either has in effect a
practice "which results in the disproportionate demotion or
dismissal of . . . personnel from minority groups," or "otherwise
engage[s] in discrimination . . . in the hiring, promotion, or
assignment of employees." The mere reading of this language reveals
that it suffers from imprecision of expression and less than
careful draftsmanship. The first portion clearly speaks in terms of
effect
Page 444 U. S. 139
or impact. The second portion, arguably, might be said to
possess an overtone of intent. There is nothing specifically
indicating that this difference exists or, if it does, that it was
purposefully drawn by Congress. The existence and significance of
the difference are important for petitioner Board, for we are
concerned here not with "disproportionate demotion or dismissal of
. . . personnel," but with racial "discrimination" in the
"assignment of employees."
The Board, as a consequence, argues that it was not the aim of
Congress to permit HEW to find that an applicant was ineligible for
funding because of its staff assignments unless those assignments
were purposefully discriminatory, and thus violative of the Equal
Protection Clause of the Fourteenth Amendment; it follows, says the
Board, that disproportionate impact alone, without proof of
purposeful discrimination, is insufficient.
Dayton Board of
Education v. Brinkman, 433 U. S. 406
(1977);
Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252
(1977);
Washington v. Davis, 426 U.
S. 229 (1976); and
Keyes v. School Dist. No. 1,
Denver, Colo., 413 U. S. 189
(1973), are cited. The Board, in other words, would have us
interpret the assignment clause as one imposing a constitutional
standard. It contends that the test under Title VI of the 1964
Civil Rights Act also provides the measure under ESAA of
disqualifying discrimination and of ineligibility. It claims that
HEW's finding of intentional discrimination erroneously relied upon
a foreseeability test, and that, even if such a test were
applicable, the finding was based solely on statistical evidence of
disparate impact, and that such evidence is insufficient.
Respondents, in their turn, preliminarily assert that it is
unnecessary to argue about the correctness of HEW's finding on the
administrative record, and that it is also unnecessary to pursue
the dictum of the Court of Appeals to the effect that Title VI
condemns practices having a disparate racial impact, although no
purposeful discrimination is shown.
See 584 F.2d at 589;
but see Parent Assn. of Andrew Jackson High
Page 444 U. S. 140
School v. Ambach, 598 F.2d 705, 715-716 (CA2 1979).
Respondents argue that there is no place here for equivocation:
under 45 CFR § 185.43(b)(2) (1978), an agency is ineligible
for funding if it has assigned full-time teachers to schools "in
such a manner as to identify any of such schools as intended for
students of a particular race, color, or national origin." This, it
is said, is an objective criterion. Respondents note that the
Board's only argument is that, on the record, no finding properly
could be made that the assignment patterns resulted from
intentional or purposeful discrimination, and thus, unless the
constitutional standard applies, the Board effectively has conceded
that the denial of funds was permissible. For the respondents,
then, the sole issue is whether the Act authorizes the withholding
of funds when the applicant's faculty assignments, although not
shown to amount to purposeful racial discrimination violative of
the Equal Protection Clause, are not justified by educational
need.
IV
Intent v. Impact. The denial of funds to the Board
resulted from a violation of HEW's regulation, that is, teacher
assignments that served to identify certain schools racially. This
led to ineligibility irrespective of whether it was the product of
purposeful discrimination. The controversy thus comes down to the
question whether that interpretation by regulation is consistent
with the governing statute. While perhaps it might be possible to
theorize and to parse the language of § 706(d)(1)(B), as the
Board so strongly urges, in such a way as to conclude that impact
alone is sufficient for ineligibility with respect to "demotion or
dismissal," but intent is necessary with respect to "assignment of
employees," we conclude that the wording of the statute is
ambiguous. This requires us to look closely at the structure and
context of the statute and to review its legislative history. When
we do this, we are impelled to a conclusion
Page 444 U. S. 141
adverse to the Board's position here. We hold that impact or
effect governs both prongs of the ineligibility provision of §
706(d)(1)(B). The overall structure of the Act, Congress'
statements of purpose and policy, the legislative history, and the
text of § 706(d)(1)(B) all point in the direction of an impact
test.
A reading of the Act in its entirety indisputably demonstrates
that Congress was disturbed about minority segregation and
isolation as such,
de facto as well as
de jure,
and that, with respect to the former, it intended the limited funds
it made available to serve as an enticement device to encourage
voluntary elimination of that kind of segregation. The Board
acknowledges that the Act was conceived in part to provide "a
financial impetus to
de facto segregated systems to
voluntarily desegregate." Brief for Petitioners 22.
That it was effect, and not intent, that was dominant in the
congressional mind when ESAA was enacted is apparent from the
specific findings set forth in § 702. Congress' concern was
stated expressly to be about "minority group isolation and
improving the quality of education for all children." The stated
purpose of the legislation was the elimination of this isolation.
The focus clearly is on actual effect, not on discriminatory
intent. Furthermore, the pronouncement of federal policy, set forth
in § 703, speaks in terms of national uniformity with respect
to "conditions of segregation by race" in the schools. All
"guidelines and criteria," presumably including those governing
ineligibility, must "be applied uniformly," and "without regard to
the origin or cause of such segregation." This, too, looks to
effect, not purpose.
There can be no disagreement about the underlying philosophy of
the Act. At the time of ESAA's passage, it was generally believed
that the courts, when implementing the Constitution, could not
reach
de facto segregation.
See, e.g., 117
Cong.Rec. 11519 (1971) (remarks of Sen. Mondale). Congress,
apparently, was not then in much of a mood to mandate a change in
the
status quo. The mid-ground solution found
Page 444 U. S. 142
and adopted was the enticement approach "to encourage the
voluntary elimination, reduction, or prevention of minority group
isolation," as § 702(a)(2) of the Act recites. Thus, it would
make no sense to allow a grant to a school district that, although
not violating the Constitution, was maintaining a
de facto
segregated system. To treat as ineligible only an applicant with a
past or a conscious present intent to perpetuate racial isolation
would defeat the stated objective of ending
de facto as
well as
de jure segregation.
Other provisions of the Act indicate that an effect test is the
Act's rule, not its exception. Section 706(d)(1)(A) disqualifies an
agency that transfers property or makes services available to a
private school or system without first determining ("knew or
reasonably should have known") that the recipient does not
discriminate. Here, plainly, ineligibility results from something
other than invidious motive; the applicant is ineligible even when
it is merely negligent in failing to discover the character of the
recipient's operations. Similarly, § 706(d)(1)(C), which has
to do with the assignment of children to particular classes within
a school, provides for ineligibility whenever "any procedure . . .
results in the separation of minority group from nonminority group
children from a substantial portion of the school day." The only
exception is where there is "bona fide ability grouping." These
strike us as "effect," not "intent," provisions. [
Footnote 5]
Close analysis of § 706(d)(1)(B), the specific provision at
issue, also convinces us that its focus is on impact, not
intent.
Page 444 U. S. 143
The Board concedes, almost inescapably, that, with respect to
disproportionate demotion or dismissal of personnel, Congress
imposed only an objective or disparate impact test. Brief for
Petitioners 25; Tr. of Oral Arg. 5-6. We agree. Unless a solid
reason for a distinction exists, one would expect that, for such
closely connected statutory phrases, a similar standard was to
apply to assignment of employees. The presence of the word
"otherwise" in the second portion of § 706(d)(1)(B) ("or
otherwise engaged in discrimination . . . in the . . . assignment
of employees"), while perhaps not persuasive in itself alone, is
not without significance. It lends weight to the argument that a
disparate impact standard also controls assignment practices.
We also find support for this interpretation in the Report of
the Senate Committee on Labor and Public Welfare concerning the
Emergency School Aid and Quality Integrated Education Act of 1971,
which was one of the proposed ESAA bills:
"This clause [the one that later became § 706(d)(1)(B) of
ESAA] renders ineligible any local educational agency which
discriminates in its employment practices, and specifically
presumes one practice to be discriminatory: the disproportionate
demotion or dismissal of instructional or other personnel from
minority groups in conjunction with desegregating its schools or
establishing integrated schools."
S.Rep. No. 92-61, p. 41 (1971). The words "presumes one
practice" are emphasized by the Board, however, and are claimed to
indicate that the Senate Committee was making
"a significant and conscious distinction between the language of
the section which relates to 'demotion or dismissal' and that which
relates to 'hiring, promotion or assignment.'"
Brief for Petitioners 26.
If there is a distinction between the two phrases, however, it
is not inconsistent with the general impact orientation of §
706(d)(1)(B). For the impact approach itself embraces at least two
separate standards: a rebuttable disparate impact
Page 444 U. S. 144
test and a stricter irrebuttable disproportionate impact test.
To the extent that the "demotion or dismissal" clause sets a higher
standard for school boards to meet, it corresponds to the
irrebuttable impact test. Indeed, another passage of the Senate
Committee Report states:
"For the purposes of this bill, disproportionate demotion or
dismissal of instructional or other personnel is considered
discriminatory and constitutes
per se a violation of this
provision, when it occurs in conjunction with desegregation, the
establishment of an integrated school, or reducing, eliminating or
preventing minority group isolation."
S.Rep. No. 92-61, at 119. The reference to a
per se
violation strongly suggests that there was to be no excuse for a
significant disparity in treatment of the races with respect to
demotions or dismissals,
"
when [the disparity] occurs in conjunction with
desegregation, the establishment of an integrated school, or
reducing, eliminating or preventing minority group isolation."
(Emphasis added.) [
Footnote
6] In contrast, the rebuttable impact test governing hiring,
promotion, and assignment, permits the school board to justify
apparently disproportionate treatment.
Other aspects of the legislative history also are supportive of
our interpretation. Not without relevance is the emergence of the
so-called "Stennis Amendment," now § 703(a), that pronounced
national policy. The concept of a nationally uniform standard was
proposed by Senator Stennis of Mississippi in April, 1971, in the
debate on the proposed Emergency School Aid and Quality Integrated
Education Act of 1971, S. 1557, 92d Cong., 1st Sess. (1971).
See 117 Cong.Rec. 11508-11520 (1971). Proponents of the
Amendment argued that school districts in the South were being
forced to desegregate in order to receive federal emergency
assistance, while those elsewhere could continue to receive such
assistance despite existing segregation
Page 444 U. S. 145
conditions. [
Footnote 7]
Opponents were concerned that the proposed amendment might be read
as cutting back on desegregation efforts in States that had
segregated their schools by law. [
Footnote 8] The Stennis Amendment was adopted, and was
included in the final version of ESAA when it was enacted as Title
VII of the Education Amendments of 1972. Senator Stennis summarized
his proposal in the final debate. [
Footnote 9]
Page 444 U. S. 146
This history of § 703(a) indicates that the statute means
exactly what it says: the same standard is to govern nationwide,
and is to apply to
de facto segregation as well as to
de jure segregation. [
Footnote 10] It suggests ineligibility rules that
focus
Page 444 U. S. 147
on actualities, not on history, on consequences, not on intent.
[
Footnote 11] The Board's
reliance on a colloquy between Congressman Pucinski, ESAA's sponsor
in the House, and Congressman Esch does not persuade us otherwise.
Mr. Esch inquired whether
"the Secretary [will] be authorized to apply the holding in the
Singleton case [
Singleton v. Jackson Municipal
Separate School Dist., 419 F.2d 1211 (CA5 1969),
rev'd in
part on other grounds sub nom. Carter v. West Feliciana Parish
School Bd., 396 U. S. 290 (1970)] -- which
is that you have to have a perfect racial balance in the faculty in
every single school in your district -- as a condition or
requirement for assistance under this program."
Mr. Pucinski's response was: "The answer is absolutely not." 117
Cong.Rec. 39332 (1971).
Page 444 U. S. 148
While it might be argued that this passing exchange intimates
some limit on HEW's ability to require complete elimination of
de facto segregation as a condition of ESAA eligibility,
we do not regard the regulation at issue here as at all
inconsistent with the colloquy, and we find no indication in the
legislative history that any Member of Congress voted in favor of
the amendment in reliance on an understanding that it would weaken
the eligibility conditions.
See Cannon v. University of
Chicago, 441 U. S. 677,
441 U. S.
713-716 (1979). HEW, by its regulation, does not require
faculties to be in perfect racial balance. It prohibits only
faculty assignments that make schools racially identifiable. That
is a much narrower requirement.
Finally, there is some significance in the fact that Congress
was aware of HEW's existing regulation when ESAA was reenacted in
1978.
See n 1,
supra. The House version included a "waiver of
ineligibility" provision to respond to complaints about the
application of the regulation to Los Angeles and New York City.
See H.R.Rep. No. 95-1137, pp. 95-96 (1978). [
Footnote 12] The waiver provision
was dropped in the Conference Committee Report.
See
H.R.Conf.Rep. No. 951753, p. 286 (1978). It is of interest to note
that the president of the American Federation of Teachers, as a
witness, recommended to the Senate "that the ESAA be
reformed to require a finding of discrimination, not
simply a numerical imbalance, before ESAA funds can be cut off."
Education Amendments of 1977, Hearings on S. 1753 before the
Subcommittee
Page 444 U. S. 149
on Education, Arts and Humanities of the Senate Committee on
Human Resources, 95th Cong., 1st Sess., pt. 1, p. 1275 (1977)
(emphasis added). No such change, however, was made. This strongly
suggests that Congress acquiesced in HEW's interpretation of the
statute.
See Andrus v. Allard, ante at
444 U. S. 57.
NLRB v. Bell Aerospace Co., 416 U.
S. 267,
416 U. S. 275
(1974).
There is no force in the suggestion that a decision adverse to
the Board here will serve to harm or penalize the very children who
are the objects of the beneficial provisions of the Act. A ruling
of ineligibility does not make the children who attend the New York
City schools any worse off; it does serve to deny them benefits
that, in theory, would make them better off. The funds competed
for, however, are not wasted, for they are utilized, in any event,
to benefit other similarly disadvantaged children. It is a matter
of benefit, not of deprival, and it is a matter of selectivity.
For these several reasons, we readily conclude that the
discrimination that disqualifies for funding under ESAA is not
discrimination in the Fourteenth Amendment sense. Disproportionate
impact in assignment of employees is sufficient to occasion
ineligibility. Specific intent to discriminate is not an
imperative. There thus is no need here for the Court to be
concerned with the issue whether Title VI of the Civil Rights Act
of 1964 incorporates the constitutional standard.
See
University of California Regents v. Bakke, 438 U.
S. 265 (1978). Consideration of that issue would be
necessary only if there were a positive indication either in Title
VI or in ESAA that the two Acts were intended to be coextensive.
The Board stresses the fact that a desegregation plan approved by
HEW as sufficient under Title VI is expressly said to satisfy the
eligibility requirements of § 706(a). The ineligibility
provisions of § 706(d), however, contain additional
requirements, and there is no indication that mere compliance with
Title VI satisfies them. Nor does the fact that a violation
Page 444 U. S. 150
of Title VI makes a school system ineligible for ESAA funding
mean that only a Title VI violation disqualifies.
It does make sense to us that Congress might impose a stricter
standard under ESAA than under Title VI of the Civil Rights Act of
1964. A violation of Title VI may result in a cut-off of all
federal funds, and it is likely that Congress would wish this
drastic result only when the discrimination is intentional. In
contrast, only ESAA funds are rendered unavailable when an ESAA
violation is found. And since ESAA funds are available for the
furtherance of a plan to combat
de facto segregation, a
cut-off to the system that maintains segregated faculties seems
entirely appropriate. The Board's proffered distinction between
funding and eligibility, that is, that a
de jure
segregated system was to be required to desegregate in order to
receive assistance, but a
de facto system was not,
contravenes the basic thrust of ESAA. We are not persuaded by the
suggestions o the contrary in
Board of Education, Cincinnati v.
HEW, 396 F.
Supp. 203, 255 (SD Ohio 1975),
aff'd in part and rev'd in
part on other grounds, 532 F.2d 1070 (CA6 1976), and in
Bradley v. Milliken, 432 F.
Supp. 885, 886-887 (ED Mich.1977). [
Footnote 13]
Page 444 U. S. 151
Proof of Impact. It is unnecessary to indulge in any
detailed comment about the proof of impact in this case. The Court
of Appeals did not discuss whether the statistical evidence flowing
from the 1976 compliance investigation established a
prima
facie case. This apparently was because petitioners did not
challenge the accuracy or sufficiency of respondents' data and
statistics, but relied on justifications to explain the statistical
disproportions in teacher assignments.
As we have indicated, the disparate impact test in the second
part of § 706(d)(1)(B) is rebuttable. We conclude, however,
that the burden is on the party against whom the statistical case
has been made.
See Castaneda v. Partida, 430 U.
S. 482,
430 U. S.
497-498, and n.19 (1977);
Griggs v. Duke Power
Co., 401 U. S. 424,
401 U. S. 432
(1971). That burden perhaps could be carried by proof of
"educational necessity," analogous to the "business necessity"
justification applied under Title VII of the Civil Rights Act of
1964, 78 Stat. 253, 42 U.S.C. § 2000e
et seq.; see, e.g.,
Dothard v. Rawlinson, 433 U. S. 321,
433 U. S. 329
(1977);
Furnco Construction Corp. v. Waters, 438 U.
S. 567,
438 U. S.
581-583 (1978) (dissenting opinion).
The Court of Appeals ruled that each of the justifications
asserted by petitioners, which included compliance with
requirements of state law and collective bargaining agreements,
teacher preferences, unequal distributions of licenses in certain
areas, compliance with the provisions of the bilingual instruction
consent decree, and demographic changes in student population,
either was insufficient as a matter of law or was not supported by
evidence in the record. Petitioners did not contest these
conclusions in their petition for a writ of certiorari or in their
brief in this Court. Thus, we express no opinion on whether any of
the justifications proffered by the Board would satisfy its
burden.
V
In sum, we hold that discriminatory impact is the standard by
which ineligibility under ESAA is to be measured, irrespective
Page 444 U. S. 152
of whether the discrimination relates to "demotion or dismissal
of instructional or other personnel" or to "the hiring, promotion,
or assignment of employees"; that a
prima facie case of
discriminatory impact may be made by a proper statistical study
and, in fact, was so made here; and that the burden of rebutting
that case was on the Board.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
The Act was technically repealed and simultaneously reenacted,
with amendments not material here, by Title VI of the Education
Amendments of 1978, Pub.L. 95-561, 92 Stat. 2252, 2268, effective
Sept. 30, 1979. The reenactment is recodified as 20 U.S.C.
§§ 3191-3207 (1976 ed., Supp. II). Because they govern
this case and have been used throughout the litigation, the
statutory references herein are to the 1972 Act, as amended, and to
the old Code sections.
[
Footnote 2]
A school district found to be ineligible may apply for a waiver
of its ineligibility. §§ 706(d)(1), (2), and (3). The
statute's waiver provision authorizes the Secretary of the
Department of Health, Education, and Welfare to permit funding of
an otherwise ineligible applicant if the applicant specifies the
reason for its ineligibility and submits
"such information and assurances as the Secretary shall require
by regulation in order to insure that any practice, policy, or
procedure, or other activity resulting in the ineligibility has
ceased to exist or occur and include[s] such provisions as are
necessary to insure that such activities do not reoccur after the
submission of the application."
The waiver provision is not involved in this case. In a
subsequent proceeding provoked by the Secretary's denial of a
waiver to petitioner Board for the fiscal year 1978-1979, the Court
of Appeals for the Second Circuit upheld the decision of the
District Court to remand the case to HEW for reconsideration.
Board of Education of the City of New York v. Harris, 622
F.2d 599 (1979).
See Brief for Petitioners 21, n. *; Brief
for Respondents 2, n. 2.
[
Footnote 3]
"No application for assistance . . . shall be approved prior to
a determination by the Secretary that the applicant is not
ineligible by reason of this subsection."
§ 706(d)(4).
[
Footnote 4]
Although the litigation was instituted by petitioner Board (and
its Chancellor) and by a number of Community School Districts, only
the Board's request for funds remains contested.
See Brief
for Petitioners 8, n. **; Brief for Respondents 3, n. 3; Reply
Brief for Petitioners 3, n. *.
[
Footnote 5]
There is a definite exception to this pattern in §
706(d)(1)(D). This is conceded by HEW. Brief for Respondents 16. In
subsection (D), the statute speaks of any practice
"such as limiting curricular or extracurricular activities (or
participation therein by children) in order to avoid the
participation of minority group children in such activities."
This, clearly, is language of intent and motive. But, in this
context, a mere effect test would be out of place and mischievous,
for it would automatically condemn every administrative decision
not to offer a particular course or program, however benign or
however dictated by budgetary exigencies.
[
Footnote 6]
The authors of the Report, of course, were aware of massive
firings of black teachers in the South. S.Rep. No. 92-61, at
18.
[
Footnote 7]
"The Stennis amendment would provide that there be a national
school policy applied equally to all States, localities, regions,
and sections of the United States. The adoption of this amendment
would help to eliminate the use of the 'double standard,' which has
resulted in the requirements for the integration of the public
schools being given a very stringent application in the South and a
very lenient application elsewhere."
"
* * * *"
"I have never been able to understand how a 10-year-old colored
student in a public school in Harlem, Watts, or South Chicago, is
expected to look around and see nothing but black faces in his
classroom and say to himself:"
"This kind of racial separation does not hurt me because the
State of Illinois does not have a law requiring me to attend
all-black schools. I should not feel hurt by this racial
separation, because it is the result of housing patterns that just
accidentally developed."
117 Cong.Rec. 11511-11512 (1971) (remarks of Sen. Eastland).
See also id. at 11508-11510 (remarks of Sen.
Stennis).
[
Footnote 8]
"What worries me is this: it could be argued, if this became
law, that the Attorney General and the Secretary of Health,
Education, and Welfare could be told,"
"Do not seek a remedy against an instance where there is
official discrimination unless you can also tell me how you can
uniformly find the same kind of remedy available to eliminate
segregation which does not have an official basis."
"The way it reads, I believe that argument might be made."
"
* * * *"
"I fear this amendment could be construed as an endorsement of
weakened enforcement throughout this Nation. The reason why I
oppose it . . . is that I fear it will be read as a policy
statement calling for a national policy of nonenforcement."
Id. at 11517-11518 (remarks of Sen. Mondale) .
See also id. at 11516-11517 (remarks of Sen.
Javits).
[
Footnote 9]
"That is what the conferees have done, and that language speaks
for itself. For the first time, if this conference report is
adopted and the bill is signed into law, we will have a uniform
national policy in school desegregation matters, North, South,
East, and West applied uniformly without regard to the origin or
cause of such segregation. That is the Stennis amendment, pure and
simple."
118 Cong.Rec. 18844 (1972).
[
Footnote 10]
The dissent suggests that no support for an impact standard is
provided by the Stennis Amendment, since that Amendment also
applies to Title VI, and Title VI does not incorporate an impact
test. The Stennis Amendment, as enacted, however, was broken into
two subsections, with subsection 703(a) applying to guidelines and
criteria under ESAA, and subsection 703(b) applying to guidelines
and criteria under Title VI. The Conference Report on this section
explained the distinction:
"The House amendment stated the policy of the United States that
guidelines and criteria established pursuant to this title shall be
applied uniformly in all regions of the United States in dealing
with conditions of segregation by race in the schools of the local
educational agencies of any State without regard to the origin or
cause of such segregation. The Senate amendment stated the policy
of the United States that guidelines and criteria established
pursuant to
Title VI of the Civil Rights Act . . . and this
title shall be applied uniformly in all regions of the United
States in dealing with conditions of segregation by race, whether
de jure or
de facto, in the schools of the local
educational agencies of any State without regard to the origin or
cause of such segregation. The conference substitute retains both
the Senate and House provisions, but deletes the reference in the
Senate amendment to this title. The conference substitute's version
of the Senate provision, therefore, restates the policy contained
in section 2(a) of Pub.L. 91-230, and in no way supersedes
subsection (b) of such section."
S.Conf.Rep. No. 92-798, pp. 212-213 (1972). (Emphasis
added.)
It is clear from this explanation that the House version became
§ 703(a), and the Senate version became § 703(b). The
explanation that the conference version of the Senate provision
does not supersede § 2(b) of Pub.L. 91-230 is critical.
Section 2 of Pub.L. 91-230, 84 Stat. 121, 42 U.S.C. § 2000d-6,
provides in relevant part:
"(a) It is the policy of the United States that guidelines and
criteria established pursuant to title VI of the Civil Rights Act
of 1964 . . . dealing with conditions of segregation by race,
whether
de jure or
de facto, in the schools of
the local educational agencies of any State shall be applied
uniformly in all regions of the United States, whatever the origin
or cause of such segregation."
"(b)
Such uniformity refers to one policy applied uniformly
to de jure
segregation, wherever found, and such other
policy as may be provided pursuant to law applied uniformly to
de facto
segregation, wherever found."
(Emphasis added.)
Thus, the version of the Stennis Amendment which applies under
Title VI, as explained by § 2(b) of Pub.L. 91-230, is
significantly different from the ESAA version of the Stennis
Amendment. In view of this difference, it is not at all
"wholly incongruous to hold in this case that the Stennis
Amendment supports a mere 'disparate impact' reading of the term
'discrimination' in § 706(d)(1)(B) of ESAA, when, only two
Terms ago, five Members of the Court construed the prohibition
against 'discrimination' in federally funded programs under Title
VI, which is equally subject to the Stennis Amendment, to
incorporate a purposeful discrimination test,"
as the dissent asserts,
post at
444 U. S. 160.
Programs funded under Title VI are not "equally" subject to the
Stennis Amendment; they are subject to a different version of the
Stennis Amendment.
[
Footnote 11]
Petitioner Board acknowledges that for funding purposes, the
distinction between
de jure and
de facto
segregation was "erased" in ESAA. Brief for Petitioners 23, 32. But
it would tie this erasure only to the
eligibility
standards of § 706(a)(1) (court-ordered, HEW-approved, or
voluntary plan of desegregation) and not to the
ineligibility criteria of § 706(d).
We do not so limit or circumscribe the statute. Section 703(a)
applies to all "guidelines and criteria."
[
Footnote 12]
"In an attempt to deal with this problem, the Committee bill
adopts an amendment making clear that school districts which are
undertaking efforts to integrate their faculty but which have not
yet fully achieved that goal may nonetheless obtain a waiver of
ineligibility. Presently, the Department of Health, Education, and
Welfare is interpreting the law as requiring school districts to
complete faculty integration before they can apply for funds. The
purpose of this amendment is to assist those school districts while
they are trying to achieve that goal."
[
Footnote 13]
We find the reasoning of the District Court in
Robinson v.
Vollert, 411 F.
Supp. 461, 472-475 (SD Tex.1976),
rev'd, 602 F.2d 87
(CA5 1979), upon which the Board also relies, clearly
distinguishable. This case concerned an attempt by HEW to impose
conditions upon the receipt of ESAA funds different from those
imposed by a court overseeing court-ordered desegregation. A
court-ordered plan is deemed sufficient under Title VI. Elementary
and Secondary Education Amendments of 1967, § 112, 81 Stat.
787, 42 U.S.C. § 2000d-5. The court in
Vollert
reasoned that a court-ordered plan also should be deemed in
compliance with ESAA. While we do not pass upon the issue, it may
be that what constitutes acceptable integration is the same under
both Title VI and ESAA, and that HEW may not require a remedy
different from that imposed by a court. Even so, that would not
mean that what constitutes discrimination is the same under both
statutes. ESAA was an attempt by Congress to bring about the same
remedy without regard to the cause of the problem, while Title VI
may have been intended to remedy the problem only when its cause
was intentional discrimination.
MR. JUSTICE STEWART, with whom MR. JUSTICE POWELL and MR.
JUSTICE REHNQUIST join, dissenting.
The Court holds that the Emergency School Aid Act of 1972 (ESAA)
[
Footnote 2/1] renders ineligible
for ESAA funding any school district whose faculty assignment
policies have resulted in racial disparities, even in the total
absence of any evidence of intentional racial discrimination. I
disagree. It is my view that a school district is ineligible to
receive ESAA funds only if it has acted with a racially
discriminatory motive or intent in its faculty assignment
policies.
I
The controversy in this case turns on the proper construction of
706(d)(1)(B) of ESAA, which provides:
"No educational agency shall be eligible for assistance under
this chapter if it has, after June 23, 1972 --"
"
* * * *"
"(B) had in effect any practice, policy, or procedure which
results in the disproportionate demotion or dismissal
Page 444 U. S. 153
of instructional or other personnel from minority groups in
conjunction with desegregation or the implementation of any plan or
the conduct of any activity described in this section,
or
otherwise engaged in discrimination based upon race, color, or
national origin in the hiring, promotion, or assignment of
employees of the agency. . . ."
(Emphasis added.) Since the only discriminatory activity alleged
in this case involves the assignment of teachers, the inquiry must
focus on the second (italicized) clause of § 706(d)(1)(B). The
precise question is what Congress intended when it used the phrase
"or otherwise engaged in discrimination."
In deciding that question, the starting point is the language of
the statute itself.
See, e.g., Southeastern Community College
v. Davis, 442 U. S. 397,
442 U. S. 405.
That language, as the positions of the parties to this suit
confirm, may be read in two different ways. The first, that urged
by the respondents and endorsed by the Court, is that the
ineligibility standard under the second clause of §
706(d)(1)(B), like that under the first clause, turns solely on a
finding of disparate racial impact. This reading is supported by
the argument that the second clause, which renders ineligible for
ESAA funding any school district "engaged in discrimination . . .
in the hiring, promotion, or assignment of employees" is linked by
the word "otherwise" to the first clause, which unambiguously
contains a disparate impact standard. The argument thus is based on
the doctrine of
ejusdem generis, construing the word
"otherwise" to mean "in a similar manner" or "similarly." The
second way to read the statute, that urged by the petitioners, is
to find different ineligibility standards in the two clauses of
§ 706(d)(1)(B) -- disparate impact alone under the first
clause, and discriminatory motive or intent under the second. This
reading of the statute is supported by the fact that, although the
first clause of § 706(d)(1)(B) is explicitly written in terms
of disproportionate
Page 444 U. S. 154
impact, the second clause is framed in terms that, as the Court
today perceives, "possess an overtone of intent." [
Footnote 2/2]
Ante at
444 U. S. 139.
Since the meaning of § 706(d)(1)(B) is thus concededly
ambiguous, it is necessary to look beyond the statutory words in
order to ascertain their meaning.
II
That inquiry may appropriately focus on whether the intent of
Congress can be determined from a consideration of the legislative
history of § 706(d)(1)(B) itself, or of other provisions of
ESAA. [
Footnote 2/3]
Page 444 U. S. 155
A
The legislative history of the specific provision in issue
reveals that the language that ultimately was enacted in §
706(d)(1)(B) first appeared in S. 1557, 92d Cong., 1st Sess., a
bill reported out of the Senate Committee on Labor and Public
Welfare in 1971. In explaining the language at issue here, the
Committee noted:
"The phrase 'disproportionate demotion or dismissal of
instructional or other personnel from minority groups'
is not
modified or in any way diminished by the subsequent phrase 'or
otherwise engaged in discrimination based upon race, color or
national origin,' which renders ineligible local educational
agencies which have engaged in other discrimination, including
discrimination in hiring, against minority group employees."
S.Rep. No. 961, p. 19 (1971) (emphasis added). It is thus
apparent that the Senate Committee that drafted the language now
appearing in § 706(d)(1)(B) not only recognized a distinction
between the ineligibility standards under the first and second
clauses, but also regarded the standard of ineligibility under the
first clause as more burdensome to the applicant than the standard
under the second.
The purpose of this differentiation is also made clear in the
legislative history. Congress singled out staff demotions and
dismissals as appropriate for a disparate impact standard because
it was well documented that desegregation activities had, in some
States, resulted in the wholesale firing of Negro faculty
members:
"HEW statistics indicate that, between 1968
Page 444 U. S. 156
and 1970, in the States within the Fifth Judicial Circuit alone,
the number of black teachers was reduced by 1,072, while the number
of white teachers increased by 5,575."
S.Rep. No. 92-61,
supra at 18. These statistics so
disturbed Congress that it adopted a
per se rule of
ineligibility for disproportionate demotions or dismissals of Negro
faculty members in conjunction with desegregation activities, even
at the cost of withholding ESAA funds from school districts that
had in no way intentionally discriminated against Negro faculty
members.
The legislative history of § 706(d)(1)(B) thus strongly
suggests that the petitioners have advanced the proper
interpretation of the statute. This reading of § 706(d)(1)(B),
under which the first clause is governed by disparate impact and
the second by motive or intent, is consistent with the fact that
Congress not only recognized a distinction between the
ineligibility standards under the first and second clauses, but
also regarded the standard of ineligibility under the first clause
as more burdensome to the applicant than the standard under the
second.
Apparently recognizing that the legislative history cannot
support a reading of § 706(d)(1)(B) that gives the same
meaning to the ineligibility standards under its first and second
clauses, the Court observes:
"If there is a distinction between the two phrases, however, it
is not inconsistent with the general impact orientation of §
706(d)(1)(B). For the impact approach itself embraces at least two
separate standards: a rebuttable disparate impact test and a
stricter irrebuttable disproportionate impact test. To the extent
that the 'demotion or dismissal' clause sets a higher standard for
school boards to meet, it corresponds to the irrebuttable impact
test."
Ante at
444 U. S.
143-144.
To draw this distinction between the two clauses is, however,
totally at odds with the Court's earlier endorsement of
Page 444 U. S. 157
the respondents' reading of the language of the provision. That
reading depends wholly on the proposition that, inasmuch as the
first clause describes disparate impact, the presence of the word
"otherwise" in the second clause "lends weight to the argument that
a disparate impact standard [is] also [the standard of
ineligibility under the second clause]."
Ante at
444 U. S. 143.
It should follow that the standard contained in both clauses is the
same -- that the second clause incorporates the irrebuttable
disparate impact standard embodied in the first. The Court's
contrary suggestion that an irrebuttable standard is contained in
the first clause, but only a rebuttable standard in the second, is
nowhere in the Court's opinion squared with the Court's express
agreement with the respondents' reading of the language of §
706(d)(1)(B). [
Footnote 2/4]
Page 444 U. S. 158
The fact of the matter is that the legislative history simply
belies the respondents' reading of the statutory language. That
history strongly supports the conclusion that, while the first
clause of § 706(d)(1)(B) incorporates a disparate impact
standard, the second clause makes ineligibility depend upon
discriminatory motive or intent.
B
The other provisions of ESAA, and particularly the so-called
Stennis Amendment, do not, it seems to me, support the weight the
Court places upon them. [
Footnote
2/5]
Page 444 U. S. 159
The Stennis Amendment, enacted as § 703 of ESAA, 86 Stat.
354, provides:
"(a) It is the policy of the United States that guidelines and
criteria established pursuant to [ESAA] shall be applied uniformly
in all regions of the United States in dealing with conditions of
segregation by race in the schools of the local educational
agencies of any State without regard to the origin or cause of such
segregation."
"(b) It is the policy of the United States that guidelines and
criteria established pursuant to title VI of the Civil Rights Act
of 1964 . . . shall be applied uniformly in all regions of the
United States in dealing with conditions of segregation by race
whether
de jure or
de facto in the schools of the
local educational agencies of any State without regard to the
origin or cause of such segregation."
The Court concludes that the Stennis Amendment and its
legislative history
"indicat[e] that the statute means exactly what it says: the
same standard is to govern nationwide, and is to apply to
de
facto segregation as well as to
de jure segregation.
It suggests ineligibility rules that focus on actualities, not on
history, on consequences, not on intent."
Ante at
444 U. S.
146-147 (footnotes omitted).
My difficulty with this reasoning stems from the fact that the
Stennis Amendment is applicable not only to ESAA, but also to Title
VI of the Civil Rights Act of 1964, and the latter has been
construed to contain not a mere disparate impact
Page 444 U. S. 160
standard, but a standard of intentional discrimination. In
University of California Regents v. Bakke, 438 U.
S. 265, five Members of the Court concluded that Title
VI, which prohibits discrimination in federally funded programs,
prohibits only discrimination violative of the Fifth Amendment and
the Equal Protection Clause of the Fourteenth.
Id. at
438 U. S.
281-287 (POWELL, J.);
id. at
438 U. S.
328-355 (BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.).
Those constitutional provisions, in turn, have been construed to
reach only purposeful discrimination.
Dayton Board of Education
v. Brinkman, 433 U. S. 406;
Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U. S. 252;
Washington v. Davis, 426 U. S. 229;
Keyes v. School Dist. No. 1, Denver, Colo., 413 U.
S. 189. It thus follows from
Bakke that Title
VI prohibits only purposeful discrimination.
It is wholly incongruous to hold in this case that the Stennis
Amendment supports a mere "disparate impact" reading of the term
"discrimination" in § 706(d)(1)(B) of ESAA when, only two
Terms ago, five Members of the Court construed the prohibition
against "discrimination" in federally funded programs under Title
VI, which is equally subject to the Stennis Amendment, to
incorporate a purposeful discrimination test. If Congress in fact
intended the Stennis Amendment to establish a uniform national
standard prohibiting action leading to disparate racial impact,
then it is difficult to understand why this standard should not
govern Title VI as well as § 706(d)(1)(B). [
Footnote 2/6]
Page 444 U. S. 161
III
The conclusion that ineligibility under the second clause of
§ 706(d)(1)(B) depends upon a showing of a school district's
purposeful discrimination is persuasively supported by the
interpretations that have been given to analogous provisions of
Title VI and Title VII of the Civil Rights Act of 1964. When
Congress enacted ESAA in 1972, it was not writing on a clean slate.
To the contrary, when Congress left undefined the term
"discrimination" in the second clause of § 706(d)(1)(B), it
had already enacted both Title VI of the 1964 Act, which provides
that "[n]o person . . . shall . . . be subjected to
discrimination under any program or activity receiving
Federal financial assistance," [
Footnote 2/7] and § 703(a)(1) of Title VII of that
Act, which provides that it is unlawful for an employer
"to fail or refuse to hire or to discharge any individual, or
otherwise to
discriminate against any individual . . .
because of such individual's race, color, religion, sex, or
national origin. [
Footnote
2/8]"
These provisions are, in the absence of any explicit definition
of "discrimination" in ESAA or its legislative history, a useful
guide in determining what Congress intended when it concluded that
school districts "engaged in discrimination" should be ineligible
to receive ESAA funds.
Page 444 U. S. 162
Title VI an § 703(a)(1) of Title VII point clearly toward
the necessity of finding discriminatory motive or intent in order
to hold a school district ineligible under the second clause of
§ 706(d)(1)(B). [
Footnote 2/9]
Title VI, as already pointed out, has been construed to prohibit
only discrimination violative of the Fifth Amendment or the Equal
Protection Clause of the Fourteenth,
University of California
Regents v. Bakke, 438 U.S. at
438 U. S.
281-287 (POWELL, J.);
id. at
438 U. S.
328-355 (BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.);
and, in turn, those constitutional provisions have been construed
to prohibit only purposeful discrimination,
Dayton Board of
Education v. Brinkman, supra; Arlington Heights v. Metropolitan
Housing Dev. Corp., supra; Washington v. Davis, supra; Keyes v.
School Dist. No. 1, Denver Colo., supra. And, in construing
§ 703(a)(1) of Title VII, which, at its core, prohibits an
employer from "treat[ing] some people less favorably than others
because of their race, color, religion, sex, or national origin,"
Teamsters v. United States, 431 U.
S. 324,
431 U. S. 335,
n. 15, we have held that "[p]roof of discriminatory motive is
critical,"
ibid. Accord, Furnco Construction Corp. v.
Waters, 438 U. S. 567,
438 U. S.
579-580;
McDonnell Douglas Corp. v. Green,
411 U. S. 792,
411 U. S. 805,
n. 18. [
Footnote 2/10]
Page 444 U. S. 163
If the term "discrimination" in § 706(d)(1)(B) was in fact
intended to mean something other than what it means under Title VI
and § 703(a)(1) of Title VII, Congress could have been
expected to state the difference in explicit terms. Since there is
no such expression of congressional intent, it follows that the
meaning of the term "discrimination" under § 706(d)(1)(B)
should be no different from its established meaning under Title VI
and § 703(a)(1) of Title VII. [
Footnote 2/11]
For all these reasons, I respectfully dissent.
[
Footnote 2/1]
20 U.S.C. §§ 1601-1619. In 1978, Congress reenacted
ESAA with amendments not material here, and recodified the statute
at 20 U.S.C. §§ 3191-3207 (1976 ed., Supp. II).
See Education Amendments of 197, Title VI, 92 Stat. 2252,
2268. The provision at issue here, former § 706(d)(1)(B), is
now codified at 20 U.S.C. § 3196(c)(1)(B) (1976 ed., Supp.
II). In the interest of consistency with the Court's opinion, all
statutory references herein are to the original statutory and Code
provisions.
[
Footnote 2/2]
The petitioners also argue that the doctrine of
ejusdem
generis is not appropriately applied in this context, inasmuch
as the word "otherwise" is not preceded by an enumeration of a
number of types of conduct, but rather by a single type of highly
particularized conduct.
See 2A C. Sands, Statutes and
Statutory Construction § 47.17 (4th ed.1973). In this context,
the petitioners argue that the word "otherwise" conveys a sense not
of similarity, but of contrast: the section first describes,
without regard to motive or intent, disproportionate demotions or
dismissals; then, in apparent contrast to the first type of
conduct, it describes "discrimination" in the hiring, promotion, or
assignment of staff.
[
Footnote 2/3]
The respondents also rely on the "general scheme" of ESAA for
its reading of the second clause of § 706(d)(1)(B) as
incorporating no more than a disparate impact ineligibility
standard. This reliance is misplaced. Although one of the concerns
of Congress in enacting ESAA was to eliminate minority isolation
regardless of its cause, Congress also had in mind other important
objectives in enacting the legislation. One such objective was to
meet the special educational needs of minority group children from
environments in which the dominant language is other than English.
See S.Rep. No. 92-61, pp. 22-24 (1971). To attain this
objective, Congress earmarked certain ESAA funds for programs to
assist these children in developing linguistic skills in both
English and the language they speak at home. § 708(c) of ESAA,
20 U.S.C. § 1607(c).
The respondents' construction of § 706(d)(1)(B), if
literally applied, could wholly frustrate this congressional
purpose by making ineligible for ESAA funds those school districts
whose faculty assignment policies have caused racial disparaties
resulting from bona fide efforts to meet the special educational
needs of non-English-speaking children. In a situation where, for
example, a school district is making special efforts to provide
bilingual instruction to Spanish-speaking children, it would be
hardly surprising to find a disproportionate number of Hispanic
teachers assigned to schools serving Hispanic students. Yet, if the
disparate impact test were literally applied, this bona fide
attempt to advance the goals of ESAA would render the school
district ineligible for further ESAA funding. It can hardly be
said, therefore, that the overall purposes of ESAA unerringly point
to the respondents' reading of the second clause of §
706(d)(1)(B).
[
Footnote 2/4]
Yet another problem with the Court's conclusion that the second
clause of § 706(d)(1)(B) creates a rebuttable disparate impact
standard is the fact that the Court never explains its later
suggestion that an applicant may rebut a
prima facie
showing of discrimination only by proof of error in the statistics
or by an "
educational necessity' [showing], analogous to the
`business necessity' justification applied under Title VII of the
Civil Rights Act of 1964." Ante at 444 U. S.
151.
By referring to the "business necessity" justification under
Title VII, the Court apparently is construing the term
"discrimination" in § 706(d)(1)(B) by reference to those cases
under Title VII which have not required a showing of discriminatory
intent on the part of the employer,
e.g., Griggs v. Duke Power
Co., 401 U. S. 424.
Under the doctrine of those cases, a Title VII violation may be
found if the plaintiff demonstrates that an employment practice has
a disparate racial impact and the employer is then unable to
justify the practice on the grounds of "business necessity."
Id. at
401 U. S.
431-432. By analogy to this type of employment
discrimination, the Court apparently concludes that the second
clause of § 706(d)(1)(B) renders ineligible any school
district whose faculty assignment policies have a disparate racial
impact not justified by educational needs.
It is my view, however, that this category of Title VII cases
has no bearing on the meaning of the term "discrimination" in the
second clause of § 706(d)(1)(B). Our cases make clear that the
theory of "disparate impact" under Title VII is a gloss on the
specific statutory language of §§ 703(a)(2) and 703(h) of
Title VII,
see General Electric Co. v. Gilbert,
429 U. S. 125,
429 U. S. 137;
Albemarle Paper Co. v. Moody, 422 U.
S. 405,
422 U. S. 425,
n. 21;
Griggs v. Duke Power Co., supra at
401 U. S. 426,
n. 1. Under § 703(a)(2), it is an unlawful employment practice
for an employer
"to limit, segregate, or classify his employees or applicants
for employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individual's
race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(2).
Section 703(h) provides that it is not unlawful for an
employer
"to give and to act upon the results of any professionally
developed ability test provided that such test, its administration
or action upon the results is not designed, intended or used to
discriminate because of race, color, religion, sex or national
origin,"
42 U.S.C. § 2000e-2(h).
The language of these provisions quite plainly does not track
that in § 706(d)(1)(B), for § 703(a)(2) fails even to
include the term "discrimination," and while the term does appear
in § 703(h), it is expressly modified -- "used to
discriminate" -- in such a manner as to incorporate a disparate
impact test. Since the language of §§ 703(a)(2) and
703(h) of Title VII in no way resembles that at issue here, those
provisions are obviously not an appropriate guide to the definition
of "discrimination" under § 706(d)(1)(B).
If there is an appropriate analogy to Title VII, it is a quite
different one.
See 444 U. S.
[
Footnote 2/5]
The Court also finds support for its reading of §
706(d)(1)(B) in the fact that at least two of the three other
ineligibility provisions in § 706(d)(1) do not require a
showing of intent. Accordingly, the Court notes that "an effect
test is the Act's rule, not its exception."
Ante at
444 U. S.
142.
Even putting aside doubts as to the validity of the premise of
this argument (namely, that a statutory provision should be
construed in accordance with the majority of arguably related
provisions), the Court's tally of these other provisions is
extremely questionable. In short, it seems clear that the
ineligibility standard of § 706(d)(1)(A) does not, as the
Court suggests, amount to an "effect" test. That provision by, its
own terms, rather plainly requires at least a showing of negligence
before a school district is rendered ineligible for ESAA
funding.
[
Footnote 2/6]
In response, the Court argues that Congress enacted two
different versions of the Stennis Amendment.
Ante at
444 U. S.
146-147, n. 10. This argument is premised on the fact
that the Conference Report indicated that § 703(b), the
section of the Stennis Amendment applicable to Title VI, was
intended to restate, and not to supersede, a provision in Title VI,
42 U.S.C. § 2000d-6, which provides
"(a) It is the policy of the United States that guidelines and
criteria established pursuant to Title VI of the Civil Rights Act
of 1964 . . . dealing with conditions of segregation by race,
whether
de jure or
de facto, in the schools of
the local educational agencies of any State shall be applied
uniformly in all regions of the United States whatever the
origin or cause of such segregation."
"(b)
Such uniformity refers to one policy applied uniformly
to de jure segregation wherever found and such other policy as may
be provided pursuant to law applied uniformly to de facto
segregation wherever found."
(Emphasis added.) The flaw in this argument is that the
Conference Committee in no way indicated, as the Court seems to
suggest, that § 703(a), the section of the Stennis Amendment
applicable to ESAA, was to be construed any differently than §
703(b).
[
Footnote 2/7]
42 U.S.C. § 2000d (emphasis added).
[
Footnote 2/8]
42 U.S.C. § 2000e-2(a)(1) (emphasis added) .
[
Footnote 2/9]
There may be a difference between the standard of Title VI and
that of § 703(a)(1) of Title VII. But it is clear that a
finding of discrimination under either provision ultimately depends
upon a finding of either discriminatory motive or discriminatory
intent.
[
Footnote 2/10]
Because direct proof of an illicit motive is often unavailable,
the cases under § 703(a)(1) have established a procedural
mechanism under which an employer, once an employee has adduced
sufficient evidence to give rise to an inference of a
discriminatory motive, must bear the burden of establishing that he
acted for "a legitimate, nondiscriminatory reason." If the employer
meets that burden, then the employee must show that the proffered
explanation is, in fact, a pretext.
Furnco Construction Corp.
v. Waters, 438 U.S. at
438 U. S.
575-577;
Teamsters v. United States, 431 U.S.
at
431 U. S.
357-360;
McDonnell Douglas Corp. v. Green, 411
U.S. at
411 U. S.
800-805. This procedural mechanism is simply designed to
provide a means of inferring an employer's motive in the absence of
direct evidence.
See Furnco Construction Corp. v. Waters,
supra.
[
Footnote 2/11]
The Court finds support for its interpretation of §
706(d)(1)(B) in the fact that Congress, though aware that HEW had
construed the section to incorporate a disparate impact test,
reenacted it without change in 1978.
Ante at
444 U. S.
148-149. This inaction by Congress, in the Court's view,
"strongly suggests that Congress acquiesced in HEW's interpretation
of the statute."
Ante at
444 U. S.
149.
This argument might have force if the Court today construed
§ 706(d)(1)(B) the way HEW interpreted it in 1978. But the
Court has not done so. The HEW.regulation implementing §
706(d)(1)(B) provides, as it did in 1978, 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 other practice, policy, or procedure which results in
discrimination on the basis of race, color, or national origin in
the recruiting, hiring, promotion, payment, demotion, dismissal, or
assignment of any of its employees . . . including the assignment
of full-time classroom teachers to the schools of such agency in
such a manner as to identify any of such schools as intended for
students of a particular race, color, or national origin."
45 CFR § 185.43(b)(2).
By lumping together "demotions and dismissals," on the one hand,
with employee "assignments," on the other, the HEW regulation
rather clearly equates the ineligibility standard of the second
clause of § 706(d)(1)(B) with the irrebuttable disparate
impact standard of the first clause. By contrast, the Court says
that the ineligibility standards under the two clauses
substantially differ.
Ante at
444 U. S.
143-144. Since the Court departs from HEW's 1978
interpretation of § 706(d)(1)(B), it is hard to see how the
failure of Congress to overturn that interpretation lends support
to the Court's different construction of the section in its opinion
today.