On September 12, 1966, the Alabama NAACP Conference of Branches and certain individual plaintiffs instituted this action for a judgment declaring invalid Act No. 252 of the 1966 Special Session of the Alabama Legislature
This action was heard on November 30, 1966, simultaneously with Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.) The parties called 16 witnesses, submitted 40 depositions, and filed approximately 800 pages of briefs. February 3, 1967 was devoted to eight hours of oral argument. Broadly speaking, two issues are presented:
Subsequent developments in the law have reduced to a minimum the present necessity of court action on both issues.
I. The Alabama Anti-guidelines Statute.
It is too clear for extended discussion that Act No. 252 of the 1966 Special Session of the Alabama Legislature has the effect of deterring and interfering with efforts of local school boards in Alabama to give and abide by assurances that they will administer federal assistance programs in compliance with section 601 of the Civil Rights Act of 1964, is in conflict with Title VI of that Act, and hence is unconstitutional and for that reason invalid under the supremacy clause.
Our holding that Alabama Act No. 252 is invalid under the supremacy clause would be the same even in the event of a judicial holding that the 1966 Guidelines are invalid. The reason is that we think that a State may not, except through court action reviewable by the Supreme Court of the United States, undertake to declare null and void any action of a federal department or agency to implement or effectuate a federal statute. This is particularly true where such declaration is a part of the State's effort to obstruct or interfere with the operation of such statute. Such action by a State would be taking the law into its own hands and would inevitably conflict with the supremacy clause.
In Lee v. Macon County Board of Education, supra, without relying upon either the Guidelines or any action under the Alabama anti-guidelines statute, this district court has ordered the
II. The 1966 Guidelines.
After extensive briefing and full argument, the Court of Appeals for the Fifth Circuit in United States v. Jefferson County Board of Education, 372 F.2d 836, decided December 29, 1966, rehearing decided en banc March 29, 1967, 380 F.2d 385 has held that the 1966 HEW Guidelines are "within the scope of the congressional and executive policies embodied in the Civil Rights Act of 1964." (372 F.2d p. 857.) Again the Court said: "* * * we hold that HEW's standards are substantially the same as this Court's standards. They are required by the Constitution and, as we construe them, are within the scope of the Civil Rights Act of 1964." (p. 848.) On en banc rehearing, the Court reiterated: "These Guidelines and our decree are within the decisions of this Court, comply with the letter and spirit of the Civil Rights Act of 1964, and meet the requirements of the United States Constitution." (P. 390 of 380 F.2d.)
These holdings were made deliberately and advisedly in the face of contentions that the validity of the 1966 Guidelines was not in issue. The Court ruled otherwise, holding that the courts should rely heavily upon the Guidelines and should model their standards after those promulgated by the executive (372 F.2d p. 852), and that "these Guidelines establish minimum standards clearly applicable to disestablishing state-sanctioned segregation." (Opinion on en banc rehearing p. 390 of 380 F.2d.)
It is the clear duty of this district court to follow the decision of our Court of Appeals. All of the cases which have spoken on the subject so hold.
Jacobs v. Tawes, 4 Cir. 1957, 250 F.2d 611, 614.
In Willis v. Pickrick Restaurant, N.D. Ga.1964, 231 F.Supp. 396, 400, it was said that the judgments of the Court of Appeals for the Fifth Circuit are binding on the three-judge district court. See also 1B Moore's Federal Practice ¶ 0.402, p. 62.
Even if we were not bound by the decision of the Court of Appeals, the decision of that Court en banc is entitled to such great deference and respect that we would be unwilling to depart from it. For us to do so could result only in confusion. As in all cases, the parties in the Fifth Circuit case and here have their appellate remedies. Upon the basis of the Fifth Circuit decision, as it now stands, we hold that the 1966 Guidelines are constitutionally valid and conform to the intent of the Civil Rights Act of 1964.
III. Ancillary Declarations and Observations.
The extensive development of the issues in this case, including many instances of actual application of the Guidelines, does induce us to make a few ancillary declarations and observations concerning the Guidelines. We hope that
1. The Guidelines, as their title indicates, are simply a statement of policies for school desegregation plans by the Office of Education, U. S. Department of Health, Education and Welfare. They are not an exercise of rule-making power and hence do not have the "status of law." Any department or agency action terminating or refusing to grant or to continue financial assistance is subject to plenary judicial review. In the absence of judicial review, the school authorities may and should respect the Guidelines as a reliable guide to what the Department's enforcement action should be.
2. As was recognized in Brown v. Board of Education, 1954, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873, 38 A.L.R.2d 1180: "Today, education is perhaps the most important function of state and local governments." That function remains primarily the responsibility of state and local authorities and can be regulated by the Department of Health, Education and Welfare only to the extent appropriate to effectuate the provisions of section 601 of the Civil Rights Act of 1964:
The objective of the statute, as clearly and succinctly stated in that section, is not compulsory mixing of the races but freedom from discrimination. The statute does not require integration as an end in itself, nor is that required by the fourteenth amendment. Of course, some compulsory association of the races is necessary for the purpose of desegregating the schools, but that is limited to such as is appropriate for eliminating a dual structure of separate schools for students of different races and removing every vestige of legal discrimination,
3. The objective of the Civil Rights Act of 1964 is to protect persons from discrimination on account of their race, color, or national origin. The philosophy of the Act is to induce as much voluntary compliance as possible. No arbitrary power is vested in any federal department or agency. The Act evinces a clear intention to limit the power of any federal department or agency and to require its action to be pursuant to definite rules, regulations or guides of general applicability. The main purpose of that requirement is that
4. The provision in the Assurance of Compliance form HEW-441-13 beginning "The Applicant also agrees that it will comply with any amendment of the Revised Statement * * *" should be construed as referring to any valid and lawful amendment which conforms to the intent of the Civil Rights Act of 1964. Any such assurance on the part of an applicant shall not be construed as requiring more than the Civil Rights Act of 1964 requires nor so as to preclude or prejudice the applicant in any judicial review involving any such amendment or any other provision of the Guidelines.
5. A Regulation of the Department of Health, Education and Welfare approved by the President on December 3, 1964, and which therefore has the force and effect of law, 45 C.F.R. 80.4(c), requires that with respect to elementary or secondary school systems, "assurances of compliance" as prerequisites to obtaining federal financial assistance "shall be deemed to be satisfied" if such school system is subject to a final order of a court of the United States for the desegregation of such school system and gives assurance that it will comply with such order. As courts attempt to cooperate with executive and legislative policies, so too the Department must respect a court order for the desegregation of a school or school system.
The court retains jurisdiction of each of the parties and their successors in office and of this case for such further proceedings, orders and decrees as may hereafter appear appropriate.