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MAYOR AND CITY COUNCIL OF BALTIMORE v. MATHEWS

Nos. 76-1493, 76-1494.

562 F.2d 914 (1977)

MAYOR AND CITY COUNCIL OF BALTIMORE, a Municipal Corporation and Board of School Commissioners of Baltimore City, Appellees, v. F. David MATHEWS, Individually and as Secretary of the United States Department of Health, Education, and Welfare, Martin H. Gerry, Individually and as Acting Director, Office for Civil Rights, United States Department of Health, Education, and Welfare, United States Department of Health, Education, and Welfare, an agency of the United States of America, and Irvin N. Hackerman, Individually and as Administrative Law Judge, United States Department of Health, Education, and Welfare, Appellants, NAACP Legal Defense and Educational Fund, Inc., Amicus Curiae. Marvin MANDEL, Governor of the State of Maryland, State of Maryland, Maryland State Board for Community Colleges, an agency of the State of Maryland, Maryland Council for Higher Education, an agency of the State of Maryland, Board of Trustees of Morgan State University, an agency of the State of Maryland, Board of Trustees of St. Mary's College of Maryland, an agency of the State of Maryland, Board of Trustees of the State Colleges of Maryland, an agency of the State of Maryland, the University of Maryland, an agency of the State of Maryland, Board of Trustees of the Community College of Baltimore, an agency of the Mayor and City Council of Baltimore, on behalf of itself and all other Public Junior and Community Colleges of the various political subdivisions lying within the State of Maryland, Appellees, v. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, an agency of the United States of America, F. David Mathews, Individually and in his official capacity as Secretary of the United States Department of Health, Education, and Welfare, Martin H. Gerry, Individually and in his official capacity as Acting Director of the Office for Civil Rights of the United States Department of Health, Education, and Welfare, Dewey E. Dodds, Individually and in his official capacity as Acting Deputy Director of the Office for Civil Rights of the United States Department of Health, Education, and Welfare, Roy McKinney, Individually and in his official capacity as Acting Director of the Higher Education Division of the Office for Civil Rights of the United States Department of Health, Education, and Welfare, Burton Taylor, Individually and in his official capacity as Chief of the Program and Policy Branch of the Higher Education Division of the Office for Civil Rights of the United States Department of Health, Education, and Welfare, St. John Barrett, Individually and in his official capacity as Acting General Counsel of the United States Department of Health, Education, and Welfare, and Ronald Gilliam, Individually and in his official capacity as Acting Regional Civil Rights Director for Region III of the Office for Civil Rights of the United States Department of Health, Education, and Welfare, Appellants, NAACP Legal Defense and Educational Fund, Inc., Amicus Curiae, The American Council on Education, the Association of American Universities, the National Association of State Universities and Land Grant Colleges, the American Association of State Colleges and Universities and the American Association of Community and Junior Colleges; the National Association of Attorneys General; and The States of Alaska, Arizona, Connecticut, Delaware, Florida, Idaho, Illinois, Iowa, Kansas, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oregon, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming, and the Commonwealth of Kentucky and Virginia, Amici Curiae, The Commonwealth of Pennsylvania, Amicus Curiae, Trustees of the California State University and Colleges and Regents of the University of California, Amici Curiae.

United States Court of Appeals, Fourth Circuit.

Decided August 9, 1977.

Attorney(s) appearing for the Case

Cynthia L. Attwood and Brian K. Landsberg, Attys., Appellate Section, Dept. of Justice, Washington, D.C. (J. Stanley Pottinger, Asst. Atty. Gen., Civ. Rights Div., Dept. of Justice, Marie E. Klimesz, Atty., Dept. of Justice, Frank K. Krueger, Jr., Atty., Dept. of HEW, Washington, D.C., on brief), for appellants in 76-1493 and 76-1494.

E. Stephen Derby, Baltimore, Md. (David F. Tufaro, Benjamin L. Brown, City Sol., William Hughes, Chief Sol., Elise M. J. Mason, Asst. City Sol., William L. Marbury, Baltimore, Md., on brief), for appellees in 76-1493.

Francis B. Burch, Atty. Gen. of Md., Walter G. Lohr, Jr., Asst. Atty. Gen., Baltimore, Md. (Henry R. Lord, Deputy Atty. Gen., David H. Feldman, Asst. Atty. Gen., Benjamin L. Brown, City Sol., Ambrose T. Hartman, Deputy City Sol., William Hughes, Chief Sol., and Blanche G. Wahl, Sp. Asst. City Sol., on brief), for appellees in 76-1494.

Jack Greenberg, James M. Nabrit, III, Drew S. Days, III, Attys., New York City, for NAACP Legal Defense and Educational Fund, Inc., on brief urging reversal in 76-1493 and 76-1494.

George W. Liebmann and Frank, Bernstein, Conaway & Goldman, Baltimore, Md., of counsel; Sheldon Elliot Steinbach, Atty., Washington, D.C., for The American Council on Education and The American Assn. of Community and Junior Colleges; John Holt Myers and Williams, Myers & Quiggle, Attys., Washington, D.C., for The Association of American Universities and The American Assn. of State Colleges and Universities; Gerald Roschwalb, Atty., Washington, D.C., for Nat. Assn. of State Universities and Land Grant Colleges; Avrum Gross, Atty. Gen. of Alaska, Richard M. Burnham, Asst. Atty. Gen., Juneau, Alaska, Bruce E. Babbitt, Atty. Gen. of Ariz., Phoenix, Ariz., Carl R. Ajello, Atty. Gen. of Conn., Bernard F. McGovern, Jr., Asst. Atty. Gen., Hartford, Conn., Richard R. Wier, Jr., Atty. Gen. of Del., Dover, Del., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., Wayne L. Kidwell, Atty. Gen. of Idaho, Boise, Idaho, William J. Scott, Atty. Gen. of Ill., Springfield, Ill., Richard C. Turner, Atty. Gen. of Iowa, Des Moines, Iowa, Curt T. Schneider, Atty. Gen. of Kan., Donald R. Hoffman, Asst. Atty. Gen., Topeka, Kan., William J. Guste, Jr., Atty. Gen. of La., New Orleans, La., Vanue B. Lacour, Sp. Asst. Atty. Gen., Frank J. Kelley, Atty. Gen. of Mich., Lansing, Mich., A. F. Summer, Atty. Gen. of Miss., Jackson, Miss., John C. Danforth, Atty. Gen. of Mo., Jefferson City, Mo., Robert L. Woodahl, Atty. Gen. of Mont., Charles E. Erdmann, Asst. Atty. Gen., Helena, Mont., Paul L. Douglas, Atty. Gen. of Neb., Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., Robert List, Atty. Gen. of Nev., James H. Thompson, Chief Deputy Atty. Gen., Carson City, Nev., David H. Souter, Atty. Gen. of N.H., Concord, N.H., Toney Anaya, Atty. Gen. of N.M., Albuquerque, N.M., Louis J. Lefkowitz, Atty. Gen. of N.Y., New York City, Rufus L. Edmisten, Atty. Gen. of N.C., Raleigh N.C., William J. Brown, Atty. Gen. of Ohio, Richard J. Dickinson, Sp. Asst. Atty. Gen., Columbus, Ohio, Lee Johnson, Atty. Gen. of Or., James W. Durham, Deputy Atty. Gen., Michael W. Gillette, Sol. Gen., Salem, Or., William Janklow, Atty. Gen. of S.D., Pierre, S.D., R. A. Ashley, Jr., Atty. Gen. of Tenn., Richard Lodge, Asst. Atty. Gen., Nashville, Tenn., John L. Hill, Atty. Gen. of Tex., David M. Kendall, First Asst. Atty. Gen., Elizabeth Levatino, Asst. Atty. Gen., M. Lynn Taylor, Asst. Atty. Gen., Austin Tex., Vernon B. Romney, Atty. Gen. of Utah, Salt Lake City, Utah, Slade Gorton, Atty. Gen. of Wash., James B. Wilson, Senior Asst. Atty. Gen. for the Univ. of Wash., Olympia, Wash., Chauncey H. Browning, Jr., Atty. Gen. of W.Va., Charleston, W.Va., Bronson C. La Follette, Atty. Gen. of Wis., David J. Hanson, Deputy Atty. Gen., Madison, Wis., E. Frank Mendicino, Atty. Gen. of Wyo., Cheyenne, Wyo., for their respective States; Robert F. Stephens, Atty. Gen. of Ky., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, Ky., Andrew P. Miller, Atty. Gen. of Va., Walter H. Ryland, Asst. Atty. Gen., Richmond, Va., for their respective Commonwealths, on brief urging affirmance in 76-1494.

Robert P. Kane, Atty. Gen. of Pa., J. Justin Blewitt, Jr., Deputy Atty. Gen., Chief, Civil Litigation, Allen C. Warshaw, Deputy Atty. Gen., Harrisburg, Pa., for Cmwlth. of Pa., on brief urging affirmance in 76-1494.

Evelle J. Younger, Atty. Gen. of Cal., N. Eugene Hill, Asst. Atty. Gen., James D. Clayton, Deputy Atty. Gen., Sacramento, Cal., Attys. for Trustees of Cal. State Univ. and Colleges and Regents of Univ. of Cal.; Donald L. Reidhaar, Gen. Counsel, Berkeley, Cal., for Regents of Univ. of Cal., James H. Holst, Asst. Gen. Counsel, Berkeley, Cal., on brief urging affirmance in 76-1494.

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, WIDENER and HALL, Circuit Judges, sitting

WINTER, Circuit Judge:

These consolidated appeals began, respectively, as two separate actions by the Mayor and City Council of Baltimore (No. 76-1493) and the Governor of Maryland and several Maryland state educational agencies (No. 76-1494) against the United States Department of Health, Education, and Welfare and several of that agency's officials (HEW). Their complaints sought declaratory and injunctive relief against HEW's alleged arbitrary and illegal methods...

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